Ireland: Strict Test For Dismissing Plaintiff's Claim

Last Updated: 10 December 2015
Article by Gearóid Carey

A recent decision has reaffirmed that a strict test will be applied where a defendant seeks to strike out a claim against it on the basis that no case against the defendant can be demonstrated.1 The Irish courts have been slow to strike out a plaintiff's case based on the pleadings and this decision shows that it is only in exceptional cases that such an application will prevail.


The plaintiff claimed that it had entered into an agreement with the defendant that it would advance a sum of up to €3.8 million to the defendant on terms set out in the statement of claim. As part of the alleged agreement, the plaintiff claimed that it had advanced €2.2 million to the defendant, "which for expediency was paid from the bank account of Mr Derek O'Leary and Ms Linda O'Leary to the account of the defendant". The plaintiff claimed that the moneys had not been repaid and sought judgment against the defendant for damages and other reliefs. The defendant contended that it never received moneys from the plaintiff and instead claimed that any moneys lent to the defendant were loaned by Mr O'Leary pursuant to an agreement entered into personally between him and the defendant.


The defendant brought an application to dismiss the plaintiff's claim under Order 19, Rule 28 of the Rules the Superior Courts, on the grounds that the plaintiff's statement of claim disclosed no reasonable cause of action or the plaintiff's claim was frivolous or vexatious, and the inherent jurisdiction of the court applied on the grounds that the plaintiff's claim was frivolous, vexatious or bound to fail.


Order 19, Rule 28

Judge McGovern cited Order 19, Rule 28 to the effect that the court's jurisdiction was limited to striking out pleadings where they disclosed no reasonable cause of action or answer or where the claim is shown by the pleadings to be frivolous or vexatious. He also cited McCabe v Harding,2 where Judge O'Higgins observed that for Rule 28 to apply "vexation or frivolity must appear from the pleadings alone". McGovern went on to note that the court had to consider the pleadings only and was to assume that any statements of fact contained in the pleadings were true and could be proved. Applying those principles in this case, it was not possible to conclude that the pleadings were frivolous or vexatious. There was nothing by way of prior litigation between the parties that suggested that these matters had already been canvassed or decided by the courts, or that the defendant was 'vexed' by the proceedings being brought against it as it is understood in the normal way. He also felt that the pleadings did not disclose a frivolous action. Accordingly, the test under Order 19, Rule 28 had not been met.

Inherent jurisdiction

McGovern noted that the test for striking out under the inherent jurisdiction of the court had been developed in a series of cases since Barry v Buckley,3 which established a concurrent and parallel inherent jurisdiction in the High Court to dismiss or strike out proceedings where they amount to abuse of process or are bound to fail. He noted that the starting point of the exercise of such jurisdiction is that it must be exercised sparingly4 and that the test is not whether the plaintiff's case is likely to fail, but whether it is bound to fail – what must be apparent is that no matter what may arise on discovery or at the trial, the plaintiff cannot succeed.5 McGovern cited Salthill Properties Ltd v Royal Bank of Scotland6 to the effect that a plaintiff is not required to establish a prima facie case, but rather it is for the defendant to prove that the plaintiff's claim is bound to fail:

"It is clear from all of the authorities that the onus lies on the defendant concerned to establish that the plaintiff's claim is bound to fail. It seems to me to follow that the defendant must demonstrate that any factual assertion on the part of the plaintiff could not be established. That is a different thing from a defendant saying that the plaintiff has not put forward, at that time, a prima facie case to the contrary effect."7

Further, McGovern also acknowledged that where there are disputed issues, they must be resolved in favour of the plaintiff and the plaintiff's case must be taken at its high watermark.8

Based on the facts, McGovern noted that there were conflicting positions with regard to the alleged agreement between the parties. However, he opined that it was unnecessary for the court to resolve such questions for the purpose of this application. He also referred to two specific arguments:

  • the extent of compliance with the obligation for there to be a note or memorandum of the agreement under the Statute of Frauds; and
  • the extent of part performance – which, McGovern said, "should be permitted to go to trial and be tested in light of the evidence produced in court".

Ultimately, although the defendant had raised many issues, it had not established that the plaintiff's claim was bound to fail, which was the test that applied.


The case confirms that the test for striking out a claim for disclosing no cause of action or being frivolous or vexatious involves a high standard that applicants must meet. For the purpose of the jurisdiction under Order 19, Rule 28, the court can have regard only to the pleadings alone to determine whether the case was frivolous and, pursuant to the inherent jurisdiction, the applicant must demonstrate that the plaintiff's case is bound to fail. Accordingly, a party seeking to bring such an application should be mindful of the high threshold required to succeed on such an application and consider carefully whether to bring one.


1 D&L Properties Ltd v Yoldana Ltd, [2015] IEHC 674.

2 [1994] ILRM 105, Page 108.

3 [1981] IR 306.

4 Citing Sun Fat Chan v Osseous Ltd, [1992] 1 IR 425.

5 Citing Lac Minerals v Chevron Corp unreported, High Court, August 6 1993, Judge Keane.

6 [2009] IEHC 207.

7 Ibid, Paragraph 3.14 per Judge Clarke.

8 Citing Kennedy v Minister for Agriculture [2011] IEHC 187; Keaney v Sullivan [2015] IESC 75.

This article first appeared in the International Law Office Litigation newsletter, 08 December 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.