Highfield Distribution Ltd v Pat The Baker UnLtd Company [2020] IEHC 137 (21 February 2020)

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JUDGMENT of Mr. Justice Meenan delivered on the 21st day of February, 2020

1. This is the defendant’s motion to dismiss the plaintiff’s action on the grounds that the

pleadings disclose no reasonable cause of action and/or that any cause of action disclosed

is frivolous or vexatious or, in the alternative, an order pursuant to the inherent

jurisdiction of the court striking out the proceedings on the basis that they are bound to

fail. It should be stated at the outset that on their face, the pleadings do disclose a cause

of action, but what this Court is concerned with is whether the cause of action is frivolous

2. Central to the defendant’s application is its contention that it neither has, nor had, any

involvement or legal relationship with the plaintiff which is related to the plaintiff’s cause

3. The defendant’s application is grounded on an affidavit of Mr. Declan Fitzgerald, Director

of the defendant company. In his affidavit, he states that on 11 November 2015 Irish

Pride Fine Foods Unlimited Company (the Company) was incorporated. The company is

engaged in the business of wholesale and retail bakery and confectionery. Subsequent to

its incorporation, the company purchased certain assets of Irish Pride Bakeries Unlimited

Company (“IPB”), which had previously traded as Irish Pride Bakeries. IPB went into

receivership on 16 June 2015, and the plaintiff purchased certain assets from the

4. On the takeover of the assets by the plaintiff, each supplier was issued with a letter in

“Please note that the company did not, as part of the acquisition of the business

(IPB), assent to an assignment or transfer of any rights and/or obligations of Irish

Pride or the receivers pursuant to any contract or agreement in place between you

and Irish Pride or the receivers. In addition, any monies/debts due to you up to

12th December, 2015 are not for the account of the company as these liabilities

5. It should be noted, in this context, that the plaintiff had been providing certain services to

the previous owners of IPB. On the takeover by the company, transport services were put

out to tender and the plaintiff tendered for these transport services. The plaintiff was

6. Mr. Declan Fitzgerald states in his affidavit, the following: -

“41. I say that for the purposes of clarity, I say that the defendant company is the

owner of Irish Pride Fine Foods Unlimited Company and I hold the role of managing

director in both companies. While both companies are engaged in the business of

wholesale and retail bakers and confectioners they operate as two separate and

7. In his replying affidavit, Mr. Dennis O’Callaghan, Director of the plaintiff, states: -

“3. I say that on the 19th day of January, 2015, the plaintiff company entered into a

written contract with the defendants who at that material time were trading under

8. This contract clearly states that it is between the plaintiff and “Irish Pride Bakeries”, the

defendant is neither named in the contract nor referred to. No evidence has been

produced to support the contention that the defendant is, or was, trading under the style

and title of Irish Pride Bakeries Unlimited. Further, there is no evidence produced by the

plaintiff to support the following statement in the affidavit of Mr. O’Callaghan: -

“I say and believe that the plaintiff company had supplied similar services on an

exclusive basis to the defendant company for more than 20 years on an ongoing

and continuous basis without interruption until the contract averred to above was

9. The only conclusion that can be drawn from what is deposed to in the affidavit of the

plaintiff is that the wrong company has been named as defendant. Such was clearly

stated in a letter, dated 13 February 2019, from the Solicitors instructed by the

“the current defendant named in the proceedings, namely Pat the Baker Unlimited

Company had no involvement whatsoever in the business and asset purchase

agreement which your client refers to and therefore, the proceedings are manifestly

unstateable. Whilst it is alleged that KPMG (the receivers of IPB) agreed to the

continuation of the agreement dated 19th January, 2015 with Pat the Baker

Unlimited Company that proposition is simply factually untrue and we refer you to

the correspondence from Arthur Cox dated 13th January, 2017 and furthermore,

correspondence dated 15th December, 2015 from Irish Pride Fine Foods to your

10. The legal principles, which a court should apply on an application such as this, were set

out recently, and comprehensively, in the judgment of Costello J. of the Court of Appeal

in Trafalgar Developments Limited & Ors. v. Dmitry Mazepin and Ors. [2019] IECA 218: -

“The Legal Principles Applicable to Applications to Strike Out Proceedings Pursuant to

50. Since Barry v. Buckley [1981] IR 306, it has been recognised that the court has an

inherent jurisdiction to strike out, or stay proceedings, if they are frivolous or

vexatious or are bound to fail. The jurisdiction exists to ensure that an abuse of the

process of the courts does not take place. All the authorities emphasise that it is an

exceptional jurisdiction to be exercised sparingly and only adopted when it is clear

that the proceedings are bound to fail and not where the plaintiff’s case is very

weak (Keohane v. Hynes [2014] IESC 66 and Sun Fat Chan v. Osseous Ltd

[1992] 1 IR 425). In Jodifern Ltd. v. Fitzgerald [2000] 3 IR 321, Barron J. said at p. 333:-

‘In my view, a defendant cannot succeed in an application to strike out

proceedings upon the basis that they disclose no reasonable cause of action

or are an abuse of the process if the Court, on the hearing of such

application, has to determine an issue for the purpose of deciding whether

the plaintiff will succeed in the action. It is not the function of the court to

The function of the Court is to consider one question only, was it proper to

institute the proceedings? This question must be answered in the light of the

statement of claim and such incontrovertible evidence as the defendant may

adduce. If the claim could never have succeeded, then the proceedings

should be struck out. There is no room for considering what evidence should

be accepted or how it should be interpreted. To do the latter is to enter on to

51. As Murray J. pointed out in Jodifern, there is no such thing as a summary trial in

our rules of procedure (save as provided for in the Rules of the Superior Courts

which do not apply in this case). In Moylist Construction Ltd. v. Doheny

‘Depriving the parties of a full trial in whatever form is appropriate to the

proceedings concerned is a departure from the norm, and one which should

only be engaged in when it is clear that there is no real risk of injustice in

At para. 5.9, he cautioned that the court must avoid slipping into the error of giving

the defendant ‘the type of summary disposal which our procedural law does not

provide for and which Murray J. cautioned against in Jodifern. Such issues, by

analogy with McGrath, cannot safely be dealt with in the confines of a motion on

52. In Lopes v. Minster for Justice, Equality & Law Reform [2014] IESC 21, Clarke J.

‘2.5 It is also important to remember that a plaintiff does not necessarily have to

prove by evidence all of the facts asserted in resisting an application to

dismiss as being bound to fail … all that a plaintiff needs to do is to put

forward a credible basis for suggesting that it may, at trial, be possible to

establish the facts which are asserted and which are necessary for success in

the proceedings. Any assessment of the credibility of such an assertion has to

be made in the context of the undoubted fact, as pointed out by McCarthy J.

in Sun Fat Chan (at p. 428), that experience has shown that cases which go

to trial often take unusual turns on the facts which might not have been

‘6.9 … it is important to emphasise the significant limitations on the extent to

which a court can engage with the facts in an application to dismiss on the

grounds of being bound to fail. In cases where the legal rights and obligations

of the parties are governed by documents, then the court can examine those

documents to consider whether the plaintiff’s claim is bound to fail and may,

in that regard, have to ask the question as to whether there is any evidence

outside of that documentary record which could realistically have a bearing

on the rights and obligations concerned. Second, where the only evidence

which could be put forward concerning essential factual allegations made on

behalf of the plaintiff is documentary evidence, then the court can examine

that evidence to see if there is any basis on which it could provide support for

a plaintiff’s allegations. Third, and finally, a court may examine an allegation

to determine whether it is a mere assertion and, if so, to consider whether

any credible basis has been put forward for suggesting that evidence might

be available at trial to substantiate it. While there may be other unusual

circumstances in which it would be appropriate for the court to engage with

the facts, it does not seem to me that the proper determination of an

application to dismiss as being bound to fail can, ordinarily, go beyond the

54. The question for the Court on an application to strike out proceedings in reliance on

the court's inherent jurisdiction was described by Clarke J. in Lopes as:-

‘…can be established that there is no credible basis for suggesting that the

facts are as asserted and that, thus, the proceedings are bound to fail on the

11. The closest which the plaintiff comes to making a case against the defendant is the

statement in the affidavit of Mr. O’Callaghan, on the part of the plaintiff, stating that the

defendant “at the material time were trading under the style and title of Irish Pride

Bakeries Unlimited …”. No documentary evidence has been produced to support this

contention. It is merely an assertion without more. It is clear to me that the plaintiff has,

in fact, named the wrong defendant in these proceedings. Having done so, the

12. By reason of the foregoing, I will accede to the application of the defendant and dismiss

the proceedings.

Result: The defendant's application to dismiss the plainitff's action - granted: proceedings dismissed.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Highfield Distribution Ltd v Pat The Baker UnLtd Company [2020] IEHC 137 (21 February 2020) URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC137.html Cite as: [2020] IEHC 137

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