Mulgrew v O'Brien
| Jurisdiction | Northern Ireland |
| Judgment Date | 01 January 1953 |
| Date | 01 January 1953 |
| Court | Queen's Bench Division (Northern Ireland) |
Motion to strike out statement of claim as raising matters previously decided - Grounds for relief not an issue in previous proceedings - Previous statement of claim struck out as unintelligible - Practice -Costs - Costs of previous actions not paid -Jurisdiction of court to order stay - Jurisdiction of court to order security for costs - Pleading -Conveyance - Averment that one party was mentally incapable - Necessity for averment that incapacity was known or should have been known by other party.
The plaintiff commenced an action to set aside a conveyance of certain lands by his father to the defendant in 1947 on the grounds of the father's mental incapacity. The defendant sought to have the statement of claim struck out on the ground that it sought to raise anew questions already decided between the parties by a court of competent jurisdiction and was an abuse of the process of the court; alternatively that it disclosed no reasonable cause of action and was frivolous and vexatious; alternatively that the plaintiff should give security for the defendant's costs. In support of his application the defendant deposed that the conveyance of 1947 had been in issue before the courts on four occasions, viz., (i) proceedings by equity civil bill in 1948 by the father against the defendant which were settled on the footing that if the father paid £500 between November 1, 1948, and December 31, 1948 (a condition which was not fulfilled) the defendant would convey the lands to the plaintiff or his nominee; (ii) proceedings for trespass on the lands in question begun by the defendant in April, 1949, against the father and the plaintiff in which the defendant was awarded damages and granted an injunction against the father and the plaintiff; (iii) proceedings in ejectment begun by the defendant in October, 1949, after the death of the father in which the defendant obtained an order for possession against the plaintiff; (iv) proceedings begun by the plaintiff in the High Court in 1950 for possession of deeds and damages on the footing that the conveyance of 1947 was intended to be a mortgage, in which the statement of claim was struck out on the grounds (a) that it sought to raise anew matters already decided by a court of competent jurisdiction; (b) that it was unintelligible, frivolous and vexatious; (c) that it disclosed no cause of action. The defendant further deposed that he had never succeeded in recovering any of...
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