James McGuinness (plaintiff) v Motor Distributors Limited and Tony Kelly Car Sales Limited (defendants).

Breach of Contract - Whether motor bus unroadworthy - Previous personal injury action with plaintiff in present proceedings as defendant and defendants as third parties - Plea of estoppel - Privity of interest - Whether plaintiff had control of earlier proceedings.

The High Court (before Mr Justice Barron); judgment delivered 22 October 1996.

IF a plaintiff has been a party to earlier proceedings involving the same issues and the same parties and there is privity of interest between the relevant party in the first action and the relevant party in the second action, notwithstanding the fact that his insurance company and not he had control of those proceedings, he is estopped from proceeding with the action.

The High Court so held in allowing the defendants' plea of estoppel.

Con or Maguire SC and Peter McMorrow BL for the plaintiff Paul Buller SC and David McGrath SC for the defendants.

MR JUSTICE BARRON said that the present proceedings were brought by the plaintiff to recover damages for breach of contract in the supply of an unroadworthy bus.

The bus was involved in a road traffic accident on 18 April 1982 at Derrybeg, Co Donegal. Arising out of the accident a passenger in the bus brought proceedings against the plaintiff and his driver seeking damages for personal injuries sustained in the accident.

In those proceedings the present plaintiff as defendant availed of third party procedure against the defendants in the present proceedings and sought to establish that the cause of the accident arose from defects in the bus for which the present defendants were solely responsible.

At the hearing in 1988 the learned Circuit Court judge found in favour of the passenger as against the present plaintiff and awarded the passenger damages. The third party claim as between the present plaintiff and the defendants was dismissed. A subsequent appeal was withdrawn and the High Court on Circuit confirmed the Circuit Court Order dismissing the third party proceedings.

The proceedings in the present action were issued in January 1985. The defendants brought a motion to amend their defence to include a plea of estoppel and were granted liberty to do so. The matter came before the court as a preliminary issue to determine whether the plaintiff was estopped from proceeding with the action.

The case of Shaw v Sloan [1982] NI 393 states the principle of law that estoppel arises where there was a prior final determination of the same issue in previous proceedings by a court of competent jurisdiction and those bound by the decision are the same parties or their privies which are sought to be estopped.

Mr Justice Barron said that it was accepted that the issues arising in the present case were the same as those which arose in the earlier action. As the parties were also the same, prima facie it would seem that the conditions for estoppel had been met.

It was submitted on behalf of the plaintiff that the plaintiff was not a real party to the Circuit Court proceedings in that it was his insurance company and not the plaintiff himself who had control of those proceedings.

Counsel for the plaintiff referred to Lawless v Bus Eireann [1994] 1 IR 474 where Mr Justice O'Flaherty held that estoppel did not arise as there was no privity of interest between the relevant party in the first action and the relevant party in the second action.

In McShane v McGinn (unreported, 18 May 1995) Mr Justice Keane refused a plea of estoppel on the basis that the owner and driver of the relevant vehicles had different interests.

Mr Justice Barron stated that that was pot the position in the present case. While the Circuit Court proceedings were controlled by the insurance company nevertheless the plaintiff was the party to the proceedings, not his insurance company.

Accordingly, Mr Justice Barron held that the plaintiff was estopped from proceeding with the action.

Solicitors: D. P. Barry & Co (Donegal) for the plaintiff; Good Murray Smith & Co (Dublin) for the defendants.