The appropriate test for determining whether to dismiss and / or strike out a third party claim was examined recently by the High Court in IBRC and INBS v John S. Purcell, David Brophy, Terence Cooney, Cornelius P. Power and Michael P. Walsh and Central Bank of Ireland and KPMG [2012] No. 3279P. 

Proceedings were initially instituted by the Plaintiffs against the former directors of Irish Nationwide Building Society (“INBS”) on foot of an allegation that those directors had unlawfully and improperly delegated their powers to the Chief Executive of INBS, Michael Fingleton. The Central Bank had been joined to the proceedings by the first Named Defendant on the basis that the delegation was carried out with the full knowledge and approval of the Central Bank and, furthermore, that the Defendants relied on the Central Bank’s guidance and approval.  The application before the High Court was the Central Bank’s motion to strike out the third party statement of claim. 

Cregan J. considered the decision of Keane J in Lac Minerals v Chevron Corporation  which determined that the relevant test is whether the Court is confident that the plaintiff’s claim cannot succeed no matter what might arise on discovery or at the trial of action. Justice Cregan also considered Salthill Properties Limited v Royal Bank of Scotland in which Clarke J. held that the Court should not require a plaintiff to be in a position to show a prima facie case, merely a stateable case. 

Cregan J. noted that while the legal principles to be considered in an application to strike out a third party statement of claim were broadly similar to the principles the Court has to consider in an application to strike out a plaintiff’s statement of claim, there was an important point of distinction.  A plaintiff maintains that it has suffered a wrong by virtue of the actions of the defendant. By contrast, in a third party claim for indemnity and / or contribution the defendant is not claiming that he has suffered a wrong but rather that the third party owes a duty to the plaintiff and that the defendant and the third party are concurrent wrongdoers in respect of the plaintiff. 

Cregan J. also reflected on the issue of statutory interpretation in a strike out application and held that if a statute admits more than one interpretation, it should be interpreted in a manner which assists the plaintiff’s case.

Cregan J. found that the Central Bank has extensive powers over all building societies, supervising them from “the cradle to the grave”. Justice Cregan held that the Central Bank’s duty to “control” and “supervise” as set out in the Building Societies Act, 1989, must mean, as a matter of statutory interpretation, that the Central Bank has a statutory duty to building societies in general and to INBS in particular.  

The Court concluded that the first named Defendant was entitled to join the Central Bank to the proceedings on the basis that he had shown a stateable case in respect of each of the following claims: that the Central Bank owed a statutory duty to INBS, that the Central Bank was liable to INBS for negligent breach of statutory duties, that the Central Bank owed a common law duty of care to INBS and for misfeasance of public office on the part of INBS against the Central Bank. 

The Central Bank had argued that the third party Statement of Claim against it was bound to fail on the basis that the Central Bank enjoys statutory immunity in damages. Whilst acknowledging that such immunity does in fact exist, Cregan J. held that this immunity could not prevent the Central Bank being joined as a concurrent wrongdoer in these proceedings.  

Interestingly, whilst Justice Cregan held that the first named Defendant, as director, had a cause of action against the Central Bank for negligent breach of both statutory and common law duties, he ruled that such claims could not form part of a third party claim for an indemnity or contribution, rather, they could only form part of separate proceedings.