Von Geitz v Kelly & Ors - Court of Appeal Decision

| | [Home ]
[Databases ]
[World Law ]
[Multidatabase Search ]
[Help ]
[Feedback ]
[DONATE ] | |
| # Irish Court of Appeal | | |
| You are here: BAILII >> Databases >> Irish Court of Appeal >>

  Von Geitz v Kelly & Ors and Von Geitz v Robertson & Ors (Approved) [2026] IECA 29 (16 March 2026)

URL: https://www.bailii.org/ie/cases/IECA/2026/2026IECA29.html
Cite as:
[2026] IECA 29 | | |
[New search ]

[Printable PDF version ]

[Help ]

APPROVED

NO REDACTION NEEDED????????????????????????????????????

---

---

harp graphic.

---

THE COURT OF APPEAL

CIVIL

Court of Appeal Number: 2025 140

2025 178

Neutral Citation number: [2026] IECA 29

Faherty J.

Allen J.

McDonald J.

---

BETWEEN/

JUERG VON GEITZ??

PLAINITFF/APPELLANT

? AND ?

KIERAN KELLY, PATRICK FLYNN, JAMES DUGGAN, ALAN O'DRISCOLL, DAVID CURRAN, EOIN CUNNEEN, GAVIN LAWLOR, JULIAN CUNNINGHAM, DAVID RYAN, FLYNN O'DRISCOLL LLP AND WHITNEY MOORE LLP

DEFENDANTS/RESPONDENTS

---

JUERG VON GEITZ??

PLAINITFF/APPELLANT

? AND ?

MARK JAMES ROBERTSON, P?DRAIC ? GIOLL?IN, HOTTINGER PRIVATE OFFICE (U.K.) LIMITED, HOTTINGER INVESTMENT MANAGEMENT LIMITED AND DAVID GEARY

DEFENDANTS/RESPONDENTS

JUDGMENT of Mr. Justice Allen delivered on the 16 th day of March, 2026

Introduction

1. This judgment addresses two appeals by the plaintiff against the judgment of the High Court (Heslin J.) delivered on 4 th April, 2025 ([2025] IEHC 203) and consequent orders made on 1 st May, 2025 pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out two actions; and restraining the plaintiff from instituting any further proceedings against any of the defendants unless with the leave of the President of the High Court or a judge of the High Court nominated by the President.

2. The orders - reflecting the defendants' notices of motion - refer to O. 19, r. 28 of the Rules of the Superior Courts (as amended) and the inherent jurisdiction of the court, and give the reason that the claims disclose no reasonable cause of action, amount to an abuse of process of the court, and are frivolous and vexatious.?

3. The Rules of the Superior Courts were amended by the Rules of the Superior Courts (Order 19) S.I. No. 456/2023 with effect from 22 nd September, 2023 by the substitution of a new O. 19, rr. 27 and 28.? The substituted rule 28 - it can no longer be said to be a new rule ?codified the jurisdiction conferred by the previous O. 19, r. 28 to strike out pleadings on the grounds that they disclosed no reasonable cause of action or defence or to stay or dismiss actions which were shown by the pleadings to be frivolous or vexatious, and the inherent jurisdiction of the court to summarily dismiss actions which could be shown to be bound to fail.? The substituted rule pointedly moved away from the words frivolous and vexatious and the motions should have been framed in the terms of the substituted rule.? That said, the irregularity in the drafting of the motions does not go to the substance of the applications.

Factual background

4. The plaintiff is self-represented.? To understand the claims he made against the two sets of defendants - and those defendants' argument that the claims against them disclosed no reasonable cause of action and were bound to fail - it is necessary to look at the background to the claims.? The High Court judge did this in exquisite detail but for present purposes it is sufficient to set out the highlights.

5. In late 2009 or early 2010 the plaintiff and Mr. Mark James Robertson identified a business opportunity.? Mr. Robertson was a banker.? It is not clear what the plaintiff's background was.? He describes himself as a gentleman who had connections to a number of wealthy individuals in Ireland: who he rather discourteously describes as marks.? ?The plaintiff and Mr. Robertson devised a scheme to - as the judge put it - monetise the plaintiff's connections by introducing them to Banque Priv?e Edmund de Rothschild in Switzerland ("Rothschild").

6.??On 9 th December, 2010 the plaintiff incorporated a British Virgin Islands company called Balthazar Holdings Limited ("Balthazar").? On 26 th January, 2011 the plaintiff incorporated a Gibraltar company called Waldeck Limited ("Waldeck").? Balthazar was the owner of 65% of the shares in Waldeck.? The remaining 35% was owned by another Gibraltar registered company called Charms Limited ("Charms") which was owned by a Mr. Ralph Charles.? According to himself, the plaintiff had been told by Mr. Robertson that the conduct of the business would require the involvement of someone with financial services authority approval, and Mr. Charles had been introduced to the plaintiff by Mr. Robertson as such a person.? The registered directors of Waldeck were Balthazar and Charms.

7. By a contract in writing dated 21 st March, 2011 made between Rothschild and Waldeck, Rothschild agreed to pay commission to Waldeck in respect of the commission or charges which Rothschild earned from clients introduced to it by Waldeck.? I will refer to it as the Waldeck agreement.? That contract provided that the courts of Switzerland were to have exclusive jurisdiction.? If, loosely, the object of the arrangement was to facilitate the monetisation of the plaintiff's connections, the legal structure was that Waldeck would make the introductions, and Rothschild would pay to Waldeck whatever commission was payable in respect of the business generated from the introductions.? How the plaintiff personally would ultimately benefit - whether by salary, fees, commissions, dividends, or otherwise - was a matter between the plaintiff and Waldeck.

8. On 13 th June, 2011 Mr. Robertson established an English company called Archimedes Private Office Limited ("Archimedes").? The directors of Archimedes were Mr. Robertson and a Mr. P?draic ? Gioll?in .? On 2 nd November, 2011 Balthazar entered a written contract with Archimedes by which Balthazar would provide client introductions to Archimedes in return for a monthly commission.? Again, the contracting parties were Archimedes and Balthazar and the manner and extent to which the plaintiff personally might gain was a matter between the plaintiff and Balthazar.? I will refer to this agreement as the Balthazar agreement.

9. On 21 st August, 2012 Archimedes terminated its contract with Balthazar; and on 21 st September, 2012 Rothschild terminated its contract with Waldeck.

10. On a date in 2013 which is not apparent from the papers Balthazar was struck off the BVI register for non-payment of fees.? It was restored to the register on 23 rd September, 2013.

11. By plenary summons issued on 21 st December, 2012 Balthazar and Waldeck commenced proceedings against Archimedes, Rothschild and Mr. Robertson claiming damages for breach of contract, misrepresentation, negligence and breach of duty arising from the (allegedly) wrongful termination of the Waldeck and Balthazar agreements ("the 2012 proceedings").? The gravamen of the claim was that commission that ought to have been paid by Rothschild to Waldeck had been diverted to Archimedes and/or Mr. Robertson.? Those proceedings were issued by Whitney Moore, solicitors, on the instructions of Waldeck, conveyed by the plaintiff.

12. It will be recalled that the contract between Rothchild and Waldeck provided for the exclusive jurisdiction of the Swiss courts.? On 29 th July, 2013 Rothschild applied to the High Court for an order dismissing the 2012 proceedings against it for want of jurisdiction and eventually, on 3 rd November, 2015, an order in those terms was made by consent.

13. In the meantime, by plenary summons issued on 20 th March, 2014 Mr. Robertson and Mr. ? Gioll?in had commenced proceedings against the plaintiff and Balthazar claiming damages for defamation arising out of an email sent by the plaintiff on 5 th March, 2014 and an injunction restraining further defamation; and on 26 th March, 2014 the plaintiff had consented to an order pursuant to s. 33 of the Defamation Act, 2009 restraining him from further publishing the defamatory material contained in the e-mail.? On 14 th May, 2015 a further order was made in the defamation proceedings finding that the plaintiff was in contempt of the order of 26 th March, 2014 and accepting his sworn undertaking to abide the earlier order.

14. The solicitor for Mr. Robertson and Mr. P?draic ? Gioll?in in the defamation proceedings was Mr. Kieran Kelly, who at that time was practising under the style and title of Fanning & Kelly.? As I will eventually come to, in October, 2019 Fanning & Kelly merged with Flynn O'Driscoll, solicitors and Mr. Kelly became a partner in Flynn O'Driscoll.

15. On 1 st May, 2015 Balthazar was again struck off the register of companies in the BVI for non-payment of fees.? Balthazar, it will be recalled, was one of the registered directors of Waldeck: the other being Charms.?

16. In August, 2016 Mr. Kelly was instructed by Charms to discontinue the 2012 proceedings by Waldeck against Archimedes.? On 3 rd August, 2016 Fanning & Kelly filed and served a notice of change of solicitors and on 10 th August, 2016 filed and served notice of discontinuance of the action against Archimedes.?

17. In the meantime, the plaintiff had instructed a firm of Swiss lawyers to correspond with Rothschild and by letter dated 10 th February, 2016 the Swiss lawyers, purportedly on behalf of Waldeck, had made a demand in Switzerland for payment by Rothschild. ?Following that demand - according to the plaintiff - an instrument or order was put in place in Switzerland in favour of Waldeck which the plaintiff describes as a five million Swiss franc payment order. ?On 19 th August, 2016 Mr. Kelly, on behalf of Waldeck, on the instruction of Charms, wrote to the Swiss lawyers protesting that Fanning & Kelly acted on behalf of Waldeck - having been instructed by its sole director, Charms.? Mr. Kelly must have well known the answer, but he asked the Swiss lawyers to identify precisely who had given them instructions on behalf of Waldeck.? The answer - or at least the response - was that the Swiss lawyer was forbidden by rules of professional secrecy from disclosing whether he did or did not represent a given person or company; and that Mr. Kelly had not provided any evidence that Fanning & Kelly represented Waldeck.

18. At the hearing of the appeal, the plaintiff acknowledged that it was he who had instructed the Swiss lawyers to pursue Rothschild in Switzerland on behalf of Waldeck.? But of course the plaintiff - although a shareholder in Balthazar - was not a director of Waldeck.? And Balthazar had been struck off.

19. Balthazar was restored to the register on 30 th August, 2016 but struck off again - for the third and final time - on 1 st May, 2018.

20. In September, 2016 Archimedes changed its name to Hottinger Family Office Limited ("Hottinger").

The disciplinary complaints against Mr. Kelly

21. On 21 st November, 2018 the plaintiff made a complaint to the Solicitors Disciplinary Tribunal against Mr. Kelly in which he asserted that the notice of discontinuance of the 2012 proceedings had been filed "without valid authority".? According to the complaint form, Mr. Kelly and his firm had been retained by Charms; Charms had "allegedly and falsely" represented Waldeck; the notice of discontinuance had been filed "without valid authority"; and accordingly that Mr. Kelly "represents himself falsely as the solicitor to the company".? The plaintiff also asserted that:-

"For the record, Balthazar Holdings was never dissolved or indeed 'struck off' and Balthazar's legal authority has never been punctured."

22. The assertion that Balthazar had never been struck off the register was patently false.

23. The complaint against Mr. Kelly to the Solicitors Disciplinary Tribunal was withdrawn in writing on 29 th March, 2019.

24. On 20 th November, 2019 the plaintiff made a further disciplinary complaint against Mr. Kelly - this time to the Legal Services Regulatory Authority - to the effect that Mr. Kelly had acted without authority in discontinuing the 2012 proceedings.? On 28 th September, 2021 the plaintiff made a second complaint against Mr. Kelly to the LSRA - this time purportedly on behalf of Balthazar, which, it will be recalled, had been struck off the BVI register on 1 st May, 2018 and remained struck off.? These complaints were rejected by the LSRA.

25. I pause here to say that the judge, at para. 121, under the heading "Vindication" said that "in objective terms" the outcome of the LSRA complaints comprised a complete vindication on the allegations which continued to feature in both sets of proceedings before him.? As I will come to, I believe that the professional disciplinary complaints are relevant to the issue whether the plaintiff could be shown to be a serial and vexatious litigant such as would justify the making of an Isaac Wunder order against him, but I do not believe that the rejection of the complaints by the LSRA is relevant to the assessment by the court as to whether the plaintiff's claims advanced on the basis of the same allegations was bound to fail.? There is no question that the High Court, in assessing the claims advanced in the later action, might somehow have been bound by the finding and conclusion of the LRSA.

The 2019 Rothschild action

26. On 2 nd July, 2019 Waldeck was struck off the register of companies in Gibraltar.

27. By plenary summons issued on 12 th July, 2019 the plaintiff - in his own name - commenced proceedings against Edmund de Rothschild [Suisse] S.A., Martin Pearmund and Ariane de Rothschild.? Mr. Pearmund was a director of Rothschild who had been involved in the negotiation of the 2011 Rothschild agreement.? Ms. Ariane de Rothschild was the chief executive officer of Rothschild.? The precise connection between Edmund de Rothschild [Suisse] S.A. and to Banque Priv?e Edmund de Rothschild is not clear but nothing turns on that.? All three defendants were based in Switzerland and moved to have the action against them dismissed for want of jurisdiction.? I will refer to these proceedings as the 2019 Rothschild proceedings.

28. As demonstrated by Cregan J. in his judgment delivered on 24 th April, 2023 on those defendants' motion to dismiss the 2019 Rothschild proceedings ([2023] IEHC 224) the central issue about which the plaintiff, personally, complained in the 2019 Rothschild proceedings was the same as the issue about which Waldeck and Balthazar had complained in the 2012 proceedings: namely, the termination of the Waldeck agreement by the Rothschild Bank.? Cregan J. dismissed the 2019 proceedings for want of jurisdiction.? I will come back to the nature of the plaintiff's complaints in the 2019 Rothschild proceedings.

The disciplinary complains against Mr. Lynch

29. In the meantime, on 28 th September, 2021 the plaintiff had made a complaint to the LSRA against the managing partner of Whitney Moore, Mr. Lynch, which was rejected in a determination of 21 st June, 2022 on the grounds that it was frivolous and vexatious.

The 2019 Robertson action

30. By plenary summons issued on 4 th October, 2019 the plaintiff issued proceedings against Mr. Robertson, Mr. ? Gioll?in, Hottinger, Hottinger Investment Management Limited, and a Mr. David Geary.? Hottinger Investment Management Limited was a company associated with Hottinger.? Mr. Geary was described as a seed capital provider and a founding director of Archco Limited/Hottinger.? That was the first in time of the actions the subject of this judgment.? I will refer to these proceedings as the 2019 Robertson action.

31. On 4 th November, 2019 an appearance was entered on behalf of Mr. ? Gioll?in and Mr. Geary by Flynn O'Driscoll, solicitors.? For whatever reason, the appearance on behalf of the other defendants was not entered until 31 st October, 2023.

32. It was not until 31 st July, 2023 - after the plaintiff's 2019 action against Rothschild et al. had been disposed of - that the plaintiff delivered his statement of claim.? It is not absolutely clear how this was delivered but it was addressed to Messrs. Geary and ? Gioll?in at their home addresses, rather than to Flynn O'Driscoll who were on record for them.

33. In his statement of claim in the 2019 Robertson action, the plaintiff pleaded - by way of background - that "In 2011, the Plaintiff accepted Hottinger's proposal to become its 'Business Development Partner'" and that "Following concluded agreements with Hottinger and Rothschild, the Plaintiff introduced most of the Hottinger and Rothschild clients and marks who include..." a long list of named individuals.? This summary either sought to gloss over or to disregard the business and legal structure which had been put in place in 2011 and which - as far as the Waldeck agreement was concerned - predated the incorporation of Archimedes.

34. In short, the claim pleaded by the plaintiff was that as a "worker" in Hottinger he had suffered detriment following the making of protected disclosures to Messrs. Robertson, ? Gioll?in and O'Leary; and that Messrs. Robertson, ? Gioll?in and O'Leary " neglected and refused " to recognise his detriment? and "committed a succession of unlawful acts of 'retaliation' including 'harmful events'".

35. The plaintiff's claim to have been a "worker" at Hottinger was based on the Balthazar agreement of 2 nd November, 2011 by which - it was said - Hottinger "appointed Balthazar, as represented by the Plaintiff, as the 'Hottinger Business Development Partner'.? Hottinger presented the Plaintiff with gaudy business cards depicting this title."

36. The plaintiff's claim to have made protected disclosures was based on four e-mails said to have been sent by him in 2012, 2018 and 2019, each of which was asserted to have been a protected disclosure under the Protected Disclosures Act 2014.? It is common case that these e-mails were sent and received.

37. The case pleaded was that on 11 th September, 2012 the plaintiff emailed Mr. Robertson and highlighted concerns about Hottinger operating as a hidden and concealed branch of the Rothschild bank and Mr. Robertson's dual employment at Rothschild and Hottinger.? That was soon after Archimedes (as it then was) had terminated its contract with Balthazar on 21 st August, 2012.

38. What the plaintiff's e-mail of 11 th September, 2012 said was:-

"Archimedes and Rothschild

Dear Mark,

In order to assess properly my continued involvement in whatever capacity in Archimedes Private Office (APO), kindly answer the following questions:

• Do you have BPER [Banque Priv?e Edmund de Rothschild] sign off for your direct financial interest in APO as founder and de facto partner?

• My lawyers have advised that I have good grounds for an action against you personally for misrepresentation in respect of the warranties that you gave to me in return for my introductions as the agent to Irish Ultra High Net Worth families to first of all Coutts and then Rothschild. As such, in the event of an unsatisfactory outcome in my action against APO, I'll be seeking recourse against you in a personal capacity. In the event of this happening, what is BPER's view?

• A conflict of interest clearly exists such that your personal financial interest in APO has interfered with your ability to fairly represent Rothschild in its relationship with Waldeck. In short, you stand to gain personally from APO and have no incentive to use or promote another agency within Rothschild. As the Rothschild signatory on the Waldeck contract, do I contact Martin Pearmund to change Waldeck's relationship officer?

Kind regards.

Juerg von Geitz"

39. The judge addressed this first "protected disclosure" at paras. 100 to 102.? He noted the plaintiff's plea that this was a protected disclosure under the Protected Disclosures Act 2014 but found that it was nothing of the sort.? Rather, he said, it was a demand, coupled with a threat of litigation in the context of commercial agreements between corporate entities covered by two private contracts, the first of which had already been terminated.

40. It is useful at this point to recall that s. 5(1) of the Protected Disclosures Act 2014 provides that:-

"(1)? For the purposes of this Act 'protected disclosure' means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the passing of this Act) made by a worker in a manner specified in section 6, 7, 8, 9 or 10."

41. Leaving aside the context, and any issue as to whether the plaintiff was a "worker" or whether Mr. Robertson or Archimedes were his "employer", ?the e-mail did not disclose any information.? It was in form three questions.? If it was implicit that the plaintiff believed that Mr. Robertson needed and did not have Rothschild approval for his interest in Archimedes, Mr. Robertson obviously knew the answer.? The plaintiff had not previously articulated any scruples as to the relationship between Mr. Robertson and Rothschild but whatever that relationship was, the plaintiff could not have disclosed to Mr. Robertson anything that he did not already know.

42. The statement of claim went on to plead that on 16 th November, 2018 the plaintiff emailed Mr. Robertson further outlining his genuine belief and concerns of past wrongdoing and other matters; ** that on 27 th November, 2018 the plaintiff emailed Mr. ? Gioll?in further outlining his genuine belief and concerns of past wrongdoing and other matters; and that on 18 th January, 2019 the plaintiff emailed Mr. Geary outlining his genuine belief and concerns of past wrongdoing and other matters, to which Mr. Geary had replied that he did not accept the email communication and did not wish to communicate with a bankrupt.

43. There was a lot of argument back and forth in the protracted exchange of affidavits as to whether the 2018 and 2019 e-mails were protected disclosures within the meaning of the Act, but it seems to me that it is unnecessary to look beyond the chronology.? The case made by the plaintiff was that he suffered detriment because he made what he claimed were protected disclosures.? If he was to have any prospect of establishing that, he would need to show that the alleged detriment post-dated the alleged disclosures.? On his own case, all of the alleged detriment was caused prior to 2018.? It follows that even if, for the sake of argument, the 2018 and 2019 e-mails were protected disclosures, there was no connection between them and the alleged "retaliation, including 'harmful events'".

44. The plaintiff? claimed that each of the defendants in the 2019 Robertson proceedings had caused him personal, reputational, and financial detriment and damage in ten ways.? The list in the statement of claim does not include any dates, but the timing of the matters complained of is clear elsewhere.? The detriment and damage alleged is set out at para. 21, sub-paras. a to i, and para. 22.? It is by:-

a. What he described as the so-called super injunction obtained by Mr. Robertson and Mr. ? Gioll?in in the 2014 defamation proceedings.? The injunction in the defamation proceedings was granted on 26 th March, 2014.

b. The defendants' solicitor forwarding a private investigator's report outlining the plaintiff's investments to the Central Bank, encouraging an investigation of the plaintiff.? The plaintiff never put a date on this - and Mr. Kelly denied it - but it is a matter of public record that the Central Bank investigation commenced in 2017.? In an affidavit sworn on 5 th November, 2024 the plaintiff acknowledged that he did not cooperate with the Central Bank investigation and received a "career ending Prohibition Notice."

c. Attempted frustration of the plaintiff's bankruptcy in correspondence to the Northern Ireland Insolvency Service.? This is alleged to have been done at some time in 2013 and is said to have been evidenced in an Insolvency Service file note of 8 th November, 2013.

d. The illegal hijacking of the plaintiff's company Waldeck by solicitors acting on the defendants' instructions, including the filing of notice of change of solicitors and notice of discontinuance.? The notice of change of solicitors was filed and served on 3 rd August, 2016 and the notice of discontinuance on 10 th August, 2016.

e. Forging of Waldeck company formation documents by digitally superimposing the plaintiff's purported signature appointing a director.? What is behind this is the appointment of Charms as a director of Waldeck.? The form appointing Charms was filed in Gibraltar on 28 th January, 2011, which was the day after the filing of the form appointing Balthazar as a director.

f. False representation by the same solicitors demanding the return of a five million Swiss franc payment order granted to the plaintiff's company Waldeck against Rothschild.? This clearly relates to Fanning & Kelly's correspondence with the plaintiff's Swiss lawyers: which was in August, 2016.

g. Conflicts of interest violations by the same solicitors, including purportedly acting for both the plaintiff and the defendant in the 2012 proceedings.? This is a repetition of the complaint at sub-para. d.

h. Their solicitor falsely asserted that the plaintiff's company Balthazar was struck off or dissolved to manufacture a mandate without lawful authority to act on behalf of the plaintiff's company Waldeck.? This arises - at least in the first instance - from the correspondence with the plaintiff's Swiss lawyers on 19 th August, 2016.

i. The above referred unlawful acts of "retaliation" in this jurisdiction are documented, witnessed, verified and bizarrely admitted by their solicitor who committed these acts.? The plaintiff recorded the admissions in digital audio recordings.

45. At para. 22 of the statement of claim it was pleaded that "the plaintiff has not received the shareholding due and owing under the Archco/Hottinger Balthazar agreement." The contract between Archimedes and Balthazar - described in the statement of claim as the Archco/Hottinger Balthazar agreement - was terminated by Archimedes on 21 st August, 2012.

46. Demonstrably, the appointment of Charms as a director of Waldeck and the termination of the Waldeck agreement pre-dated the first of the alleged protected disclosures so that any irregularity - if any - can have had nothing to do with any of them.? The communication with the Northern Ireland Insolvency Service, the defamation injunction, the filing of the notice of discontinuance, the correspondence with the Swiss lawyers and the alleged forwarding of the private investigator's report to the Central Bank all pre-dated the alleged protected disclosures in 2018 and 2019 and could have had nothing to do with any of them.?

47. Thus, the height of the plaintiff's claim could only be that all of the alleged detriment was caused because of the e-mail of 11 th September, 2012.? This could not have included the appointment of Charms as a director of Waldeck, which pre-dated the e-mail.? And if the e-mail of 11 th September, 2012 was demonstrably not a protected disclosure, the claim for damages for detriment could not possibly succeed.

The 2022 Kelly action

48. By plenary summons issued on 8 th August, 2022 the plaintiff commenced proceedings against Mr. Kelly, all of his partners in Flynn O'Driscoll, Flynn O'Driscoll LLP, and Whitney Moore LLP.?? That is the second of the actions addressed by this judgment and I will refer to it as the 2022 Kelly action.?

49. The claim indorsed on the summons was for damages for unlawful means conspiracy, negligence, breach of fiduciary duty, breach of contract, negligent misstatement, conflict of interest, and duty of care.? A statement of claim was delivered on 19 th July, 2023.

50. It will be recalled that in his statement of claim delivered on 31 st July, 2023 in the 2019 Robertson action the plaintiff pleaded by way of background that in 2011 he accepted Hottinger's proposal to become its business development partner.? In the statement of claim - and later in the amended statement of claim - in the 2022 action, the pleaded background was that in 2010 the plaintiff accepted the Rothschild proposal to become its business development manager.? This was at best calculated to confuse.

51. The case now pleaded was that the plaintiff constituted Waldeck in Gibraltar on 26 th January, 2011 and that its shareholders were Balthazar - which held 65 shares - and Charms - which held 35.? Charms - it was said - was not a director but was purportedly appointed by the digital superimposition of the plaintiff's purported signature on company formation documents.? Regardless - it was said - Charms automatically vacated "its purported non-directorship" by 26 th July, 2011 per article 20(c) of Waldeck's articles of association.? Later in the statement of claim reference was made to the Waldeck commissions but there was no reference to the Waldeck agreement.

52. I pause here to say that it is a demonstrable objective fact that the register of companies in Gibraltar shows that Charms was registered as a director of Waldeck on 28 th January, 2011.? The plaintiff, while content to fling about allegations of forgery, was never able to say who it was had allegedly forged his signature, or why anyone might have done so.? The plea in the 2019 Robertson proceedings that it was done in retaliation for an alleged protected disclosure made coming up to two years later makes no sense.? At the time of the filing of the notice of change of solicitor and the notice of discontinuance in August, 2016 Balthazar had been struck off the BVI register but it was restored on 30 th August, 2016 and remained on the register until 1 st May, 2018.? Yet nothing was done in Gibraltar to rectify the register there.? At para. 4 of his amended statement of claim in the 2022 Kelly action the plaintiff suggests that the alleged forgery of his signature was a fact "confirmed to Mr. Kelly in an e-mail on 9 October 2021" [emphasis added] but it is not suggested that Mr. Kelly was on notice of any alleged irregularity in the appointment of Charms when he was instructed by Charms to discontinue Waldeck's action against Archimedes.

53. The amended statement of claim in the 2022 Kelly action rehearses the litany of the plaintiff's complaints in relation to Mr. Kelly: that Mr. Kelly accepted instructions from Charms; that Mr. Kelly told Mr. Billy Parker of Whitney Moore that Balthazar had been struck off the register; that Mr. Kelly told Mr. Parker that Charms was a director of Waldeck; that Mr. Kelly filed the notice of change of solicitor and notice of discontinuance; and that Mr. Kelly, by his correspondence with the Swiss lawyers, had precipitated the release of the five million Swiss franc payment order.

54. The plea, at para. 7, that Mr. Kelly acted for Archimedes Private Office and Waldeck in clearly wrong.? The plea that the 2014 defamation proceedings were retaliatory ignored the demonstrable objective fact that they arose out of an e-mail which had been sent by the plaintiff and which - by consenting to the injunction sought - he acknowledged was defamatory.

55. Starting at para. 20, the amended statement of claim set out a list of alleged acknowledgements by Mr. Kelly, Fanning & Kelly, and Flynn O'Driscoll that Mr. Kelly did not have a mandate to act for Waldeck.

56. First it is said that Mr. Kelly acknowledged in an e-mail of 14 th October, 2016 that Balthazar "was not, in fact, struck off the register".? It is correct that Mr. Kelly then acknowledged that Balthazar was not then struck off: it had been restored to the register on 30 th August, 2016.? At the time of the events complained of, it was struck off.

57. The core complaint in the 2022 Kelly action - as it was in the actions which preceded it - was that the Waldeck commissions had been transferred to Archimedes.? The amended statement of claim recognised - without explaining why - that any loss suffered by reason of the discontinuance of the Waldeck proceedings was a loss to Waldeck.

58. The case pleaded against Whitney Moore LLP, at para. 13, was that following the service of the notice of change of solicitor, Mr. Parker "was shocked and informed the plaintiff that he had "never witnessed such an (il)legal manoeuvre 'in over thirty years of practising law.'"? The plaintiff - it was said - requested Mr. Parker to challenge Mr. Kelly; Mr. Parker indicated that he would; but Whitney Moore did not.? It is not said what Mr. Parker or Whitney Moore might or ought to have done.? The premise of Mr. Kelly's instruction to discontinue the Waldeck proceedings was that Balthazar had been struck off and Charms was the sole director of Waldeck.? That Balthazar had been struck off the register at the time of service of the notice of discontinuance was a matter of demonstrable objective fact.? That Charms was a director of Waldeck was also a matter of demonstrative objective fact and - as witness the statement of claim in the Waldeck proceedings - that was the instruction given by the plaintiff to Whitney Moore.

59. All that apart, any loss that might have been suffered by the discontinuance of the Waldeck proceedings against Archimedes could only have been Waldeck's loss.? If the plaintiff, personally, was aggrieved by what had been done, it was only Waldeck that could have done anything about it.

60. At para. 29 of the amended statement of claim, under the heading "Whitney Moore's zombie legal representation" the plaintiff complains that Whitney Moore's managing partner at all times declined to hold Mr. Kelly or Flynn O'Driscoll to account.? "Presently", it is said, "Whitney Moore is allegedly sentient, though senseless and declines to act on record for Balthazar." It is said that the managing partner has rejected, among many requests and pleas for action, to seek judgment in default of appearance against Mr. Robertson; or to report asserted but unspecified illegal acts by Mr. Kelly or Flynn O'Driscoll to the LRSA; and did not honour a no foal-no fee agreement said to have been made by Mr. Parker with Waldeck and Balthazar.? It is said that the actions of Whitney Moore "are de facto to aid and abet Mr. Kelly and Flynn O'Driscoll LLP in its purported representation of Waldeck, and Balthazar are incomprehensible, GUBU and likely unlawful."

61. The statement of claim singularly fails to identify what it is alleged Whitney Moore could have done, which they did not do.? In the first place, the plaintiff was not their client.? The core - or as the plaintiff would have it, the crux - of the plaintiff's complaint against the solicitors is the filing of the notice of discontinuance of Waldeck's action against Archimedes.? That was done by Fanning & Kelly on the instructions of Charms.? At the time of filing of the notice of discontinuance, Charms was the only registered director of Waldeck.? The case that the plaintiff would now make against Whitney Moore (and the Flynn O'Driscoll defendants) is that Charms was never a director of Waldeck and that its registration as such was procured by fraud.? That is utterly inconsistent with Whitney Moore's instructions - which are evident from para. 9 of the statement of claim delivered in the 2012 proceedings - that the directors and shareholders of Waldeck were Balthazar and Charms.?

62. Following the filing and service of the notice of change of solicitors on behalf of Waldeck on 3 rd August, 2016 - or perhaps more correctly following the restoration of Balthazar to the register on 30 th August, 2016 - Whitney Moore remained on record for Balthazar until it was finally struck off on 1 st May, 2018.? It is by no means clear what it is the plaintiff claims Whitney Moore ought to have done in that time which they did not do, or what the alleged consequences of that were: but the fundamental point is that their client was Balthazar.? As a matter of first principles, the plaintiff, personally, had no standing to pursue an action for damages allegedly sustained by Balthazar.

63. It is common case that the plaintiff collected the file from Whitney Moore in October 2018, having made arrangements to recoup unbilled outlays. ?There is no indication as to what, if anything, was done between then and 2 nd July, 2019 when Waldeck was struck off the register of companies in Gibraltar, or since.

The High Court judgment

64. The defendants' motions to strike out the 2019 Robertson action and the 2022 Kelly action were heard together by the High Court (Heslin J.) over three days in February, 2025 and on 4 th April, 2025 Heslin J. delivered a comprehensive written judgment running to 92 pages.

65. After a short introduction, the judge set out the applicable legal principles.? It is useful to note at this point that there is no suggestion of error by the judge in the identification of the applicable principles.?

66. The High Court judge found that the plaintiff's e-mail of 11 th September, 2012 was not - as the plaintiff had asserted - a protected disclosure but a demand, coupled with a threat of litigation.

67. Separately, he found that the plaintiff's assertion that the 2014 defamation proceedings amounted to detriment ignored the fact that he had consented to the injunction sought by Messrs. Robertson and ? Gioll?in.? He found that there was no credible basis for the assertion that Charms did not have the authority to instruct Mr. Kelly to serve the notice of change of solicitors and notice of discontinuance of the Waldeck action against Archimedes.??? He found that the plaintiff's plea in the 2019 Robertson action of alleged forgery of Waldeck company formation documentation was utterly undermined by the instructions which had been given to Whitney Moore in the 2012 Waldeck proceedings; by the objective evidence of the BVI companies register; and by his sworn statements that the involvement of Charms and Mr. Charles was necessary to secure what he described as the Rothschild agency.? ?In these circumstances, the judge found that there was no credible basis for the contrary assertion in both the 2019 Robertson action and the 2022 Kelly action that Charms was not a director of Waldeck. ?

68. The judge found that the plaintiff had proffered no credible basis for his claim that a private investigator's report had been furnished to the Central Bank.? That apart, he said, any such reporting could not credibly support a claim of detriment given the independent role of the Central Bank.

69. As to the plea at para. 22 of the statement of claim in the 2019 Robertson action that the plaintiff had not received the shareholding claimed to be due and owing under the Archco/Hottinger Balthazar agreement, the judge found that the plaintiff was never party to either the Waldeck agreement or the Balthazar agreement.? He found that the alleged losses were those of Waldeck and/or Balthazar and not the plaintiff personally.? Following the judgment of the High Court in Flanagan v. Kelly [1999] IEHC 116, he found that the plaintiff, as a shareholder, was not entitled to sue in respect of alleged damage to his shareholding resulting from damage to the company.

70. Commencing at para. 148, the judge examined the claims pleaded in the 2022 Kelly action.? He noted that the plaintiff had exhibited no documentation of any kind purporting to evidence the alleged no foal-no fee agreement or his alleged instructions, but emphasised that the plaintiff was neither Mr. Kelly's not Whitney Moore's client.? Citing Moffitt v. Bank of Ireland (Unreported, Supreme Court, 19 th February,1999), Crowley v. Ireland [2022] IEHC 596 and [2023] IECA 247 and Smith v. McCarthy [2017] IECA 167, the judge found that the solicitor defendants were all acting qua solicitors, on the instructions of their clients and owed no duty of care to the plaintiff.?? Noting that the plaintiff did not have an expert report, the judge found that it was an abuse of process for the plaintiff to have brought professional negligence proceedings against the solicitors without reasonable grounds.

71. Commencing at para. 190, the judge examined the rule in Foss v. Harbottle (1843) 2 Hare 461 and the plaintiff's assertion that he was entitled to - or more correctly, perhaps, that he had an arguable case that he was entitled to - an "interest of justice" exception.? He found that the exceptions to the rule in Foss v. Harbottle concerned wrongdoing by a majority in control of a company where a derivative action would be for the benefit of the Company.? He found that in circumstances in which both Waldeck and Balthazar had been dissolved, the action could not conceivably be for either of their benefit.

2025 178 The appeal in the Robertson case

72. By notice of appeal filed on 1 st July, 2025 the plaintiff appealed against the judgment of the High Court in relation to the 2019 Robertson action and the consequent order striking out the claim, as well as the Isaac Wunder order in respect of future litigation against the Robertson defendants.

73. Four of the seven grounds of appeal are directed to the O. 19, r. 28 order; two to the Isaac Wunder order; and one to an alleged procedural error in failing to enforce an Unless order.

The Unless order

74. The issue in relation to the Unless order was first raised by the plaintiff in the affidavit which he filed on 5 th November, 2024, in response to the defendants' motion to dismiss.? It arose in the following circumstances.?

75. The plaintiff issued his summons on 4 th October, 2019 and he appears to have served it shortly thereafter.? On 4 th November, 2019 an appearance was entered on behalf of Mr. ? Gioll?in and Mr. Geary by Flynn O'Driscoll.? The statement of claim was delivered on 31 st July, 2023.? As I have said, it is not absolutely clear how it was delivered but it was addressed to Messrs. ? Gioll?in and Geary at their home addresses.? On 31 st October, 2023 an appearance was entered on behalf of Mr. Robertson, Hottinger, and Hottinger Investment Management Limited.

76. On 27 th March, 2024 Flynn O'Driscoll raised a notice for particulars on behalf of all five defendants, to which the plaintiff replied on 6 th May, 2024.

77. In the meantime, on 15 th February, 2024 the plaintiff filed a motion for judgment in default of? defence against Mr. Robertson, Hottinger, and Hottinger Investment Management Limited.? That motion came before Egan J. on 29 th April, 2024 when an order was made extending the time for the delivery and filing of the first, third and fourth defendants' defence by four weeks, with the proviso that unless those defendants' defence was delivered and filed within that time, the plaintiff would have judgment against them.? The plaintiff had previously issued a motion on 20 th November, 2023 for judgment in default of defence against the second and third defendants which must have been adjourned because it was not disposed on until 17 th June, 2024, when it was simply struck out.

78. The defence was delivered on 24 th May, 2024 - within the time limited by the order of Egan J. - on behalf of all five defendants but it was not filed.

79. On 30 th May, 2024 the plaintiff gave notice of trial of the action to Flynn O'Driscoll as solicitors for the defendants - without making any distinction between the defendants.? And on 5 th July, 2024 the plaintiff served a general notice to produce documents on Flynn O'Driscoll, solicitors for the defendants.

80. The defendants' motion to strike out the proceedings was issued on 15 th October, 2024.? It was grounded on an affidavit of Mr. Kelly sworn on 15 th October, 2024 in which he had deposed that a full defence had been delivered on behalf of the first to fifth defendants.? That was so.? The plaintiff, in his replying affidavit filed on 5 th November, 2024, deposed that he had not received a defence, nor had a defence been lodged in the Central Office as required by the order of Egan J.? He went on to challenge the substance of what Mr. Kelly had said, including as to his case against the first to fifth defendants.

81. The plaintiff's averment that he had not received a defence was false.? It was sent to him by post and e-mail.? In what he described as a second supplemental affidavit filed on 9 th December, 2024, he acknowledged that a defence had been delivered and made the point that because it had not been filed, the only valid defence which had been served was on behalf of the second and fifth defendants.? The fact is that the order of Egan J. required that the defence be filed as well as delivered and this had not been done.? A third affidavit of Mr. Kelly was filed on 23 rd January, 2025 but he did not in that affidavit or otherwise address the failure to file - as well as deliver - the defence of the first, third and fourth defendants.

82. It is unclear to what extent, if any, this issue featured at the hearing in the High Court on ** 19 th, 20 th and 21 st February, 2025.? It was not referred to in the plaintiff's written submissions which had been filed on 28 th January, 2025.? It appears that at the time he filed his written submissions in the High Court he also filed a chronology noting that the defence of the first, third and fourth defendants had not been filed in the Central Office as required by the Unless order but the same chronology showed that he had later replied to the defendants' solicitors' notice for particulars and served notice of trial. ??While the plaintiff's chronology noted that the defence had not been filed, there was no indication of what - if any - consequence he contended this had had, or should have.? What is clear is that at the hearing of the defendants' motion the plaintiff did not stand on any argument that he already had judgment against the first, third and fourth defendants. ?Instead, he engaged with the defendants' motion as to the case he would make against all of them. ???

83. On 24 th April, 2025 - after judgment had been delivered on 4 th April, 2025 - the plaintiff issued a motion in which he sought to correct the written judgment by reason of what he suggested was an accidental omission to address the alleged non-compliance with the order of Egan J. by reason of the fact that the defence had not been filed in the Central Office, and sought judgment against the first, third and fourth defendants in default of defence.? The first, third and fourth defendants countered with a motion for an order pursuant to O. 27, r. 15 setting aside such judgment as the plaintiff may have obtained against them pursuant to the order of Egan J.? On 1 st May, 2025 Heslin J. dismissed the plaintiff's motion and made an order in the terms of the first, third and fourth defendants' motion.

84. The plaintiff's ground of appeal against so much of the High Court order as dealt with the alleged failure to enforce the Unless order is that Heslin J. proceeded to hear the defendants' motion to dismiss while they remained in clear breach of binding Unless orders requiring the filing of defences.? The notice of appeal suggests that the plaintiff raised this matter in affidavit and submissions, which - certainly in the case of his affidavits - he did.? With the benefit of hindsight, the oversight as to the filing of the defence ought to have been addressed as soon as it was identified by the plaintiff but it was obviously an oversight and as far as the plaintiff - who had it - was concerned it was a technicality.? If anyone had wanted to be pedantic, it might have been said that the statement of claim had not been addressed or delivered to the first, third and fourth defendants as it ought to have been.

85. It can confidently be inferred from the careful and extremely comprehensive judgment of the High Court that the plaintiff did not stand on his argument that he already had judgment against the first, third and fourth defendants.? It is clear from his notice of motion filed on 24 th April, 2024, by which he sought an order pursuant to O. 27 entering judgment against those defendants in default of defence that he did not consider that he already had judgment against them.? In any event, to the extent - if any - to which there may have been an oversight by the judge it was dealt with on 16 th May, 2025 when the judge made the orders which he made on the plaintiff's motion filed on 24 th April, 2025 and the defendants' motion filed on 8 th May, 2025.

86. The plaintiff's written submissions on the appeal acknowledge that the failure to file the defence was a procedural default.? He does not engage with the judge's reasoning for making the orders which he made.? The defendants' solicitors' failure to file the defence did not, as the plaintiff would suggest, open the path to a miscarriage of justice.? I accept the defendants' submission that the failure to file the defence which had been delivered in time amounted to special circumstances to justify the making of an order under O. 27, rule 15(2).

87. This ground of appeal fails.

The O. 19, r. 28 grounds

88. As to the order pursuant to O. 19, r. 28, the grounds are that the judge erred in the misapplication of the rule in Foss v. Harbottle; failed to consider retaliation by Mr. Robertson following protected disclosure; misapplied the reasonable belief standard of belief under s. 5(2) of the Protected Disclosures Act; mischaracterised the subject matter and timing; and failed to consider fraud on the court, retaliatory abuse of process and suborning perjury by the first to fourth defendants facilitated by Mr. Kelly under their direction.

89. The first of these grounds is that the judge erred in law by applying the rule in Foss v Harbottle to dismiss a personal claim brought under s. 13 of the Act of 2014.? Specifically, the plaintiff argues that in Von Geitz v. Edmond de Rothschild (Suisse) S.A. [2023] IEHC 224 Cregan J. expressly recognised that his protected disclosure proceedings were brought in a personal capacity and concerned retaliation following protected disclosures.

90. The fundamental flaw in this argument is that it focusses on the form rather than the substance.? It is quite true that the claim has been dressed up as a claim by the plaintiff personally for detriment under the Protected Disclosures Act, but in substance the object of the claim to recover money claimed to be payable on foot of a contract between Waldeck and Hottinger, or damages for the alleged breach of a contract between Waldeck and Hottinger.? The core complaint in the statement of claim arises out of the correspondence and notices issued in August, 2016 by Fanning & Kelly.? The alleged consequence of that was to upset a claim by Waldeck against Rothschild in Switzerland and to put an end to Waldeck's 2012 Irish proceedings against Archimedes.? Any such losses were sustained directly by Waldeck.? ?Although the plaintiff does not attempt to articulate what they might have been, I am quite prepared to accept that there may have been indirect consequences for the plaintiff personally by the diminution of whatever remuneration or distributions he might have hoped to collect from Waldeck or Balthazar but the plaintiff does not take issue with the judge's finding (para. 89) that the central issue in the 2019 Robertson proceedings was the termination by Rothschild of the 2011 contract with Waldeck and the termination by Archimedes of the 2011 contract with Balthazar; and the action concerned a variety of alleged losses for which the plaintiff - as opposed to the corporate entities who were parties to those agreements - sought to recover damages.? By the time the 2019 Robertson action was commenced, both Balthazar and Waldeck had been struck off and there was no suggestion they might be restored to the register.? In those circumstances - as the judge found - the action could not conceivably have been for either of their benefit.

91. It was nowhere - whether in the notice of appeal or in the plaintiff's oral or written submissions on the appeal - suggested that the judge erred in his identification of the relevant authorities or in his application to the plaintiff's case of the principles set out in Flanagan v. Kelly.

92. The alleged "Failure to consider Retaliation and Penalisation by Mark Robertson Following Protected Disclosure" at ground C of the grounds of appeal is exclusively focussed on the e-mail of 11 th September, 2012.? This implicitly recognises that each of the alleged instances of alleged detriment pre-dated the 2018 and 2019 e-mails and consequently could not possibly have amounted to retaliation or penalisation for those e-mails.? The ground of appeal baldly asserts a pattern of penalisation by Mr. Robertson, repeating some of the complaints made in the statement of claim.? The plaintiff does not engage with the conclusions of the judge that the acts relied on other than the alleged financial losses could not have amounted to actionable detriment, and that the plaintiff lacked standing to pursue alleged financial losses suffered by the companies.?

93. Under the heading "Legal and Evidential Errors Regarding the Protected Disclosure" the notice of appeal suggests first, that the judge misapplied the reasonable belief standard under s. 5(2) and secondly, wrongly held that the disclosure could not be protected because it related to private commercial agreements and predated the 2014 Act.

94. As to this, it must first be said that while the judge identified the Waldeck and Balthazar agreements by date - 2011 - it was no part of his analysis that the making or termination of those agreements predated the 2014 Act.? It is correct to say that the definition of? "protected disclosure" in s. 5(1) of the 2014 Act encompasses disclosures before as well as after the passing of that Act. ?The judge did not decide - nor did the defendants argue - that the tort action created by s. 13 could not apply to detriment caused before the commencement of the Act.?

95. Having carefully considered the plaintiff's submissions, it seems to me that this ground can be disposed of by simply looking at the e-mail of 11 th September, 2012.? The judge did not, as the plaintiff contends, substitute his own interpretation of it for the statutory test of reasonable belief.? If - as the plaintiff contends - it "concerned" commission diversion, fraud and regulatory conflict, it did not disclose any relevant information and on that ground alone could not have qualified as a protected disclosure.? In my view, the judge was entirely correct in finding that this e-mail was a demand, coupled with a threat of litigation, and not a protected disclosure.

96. The plaintiff's sixth ground of appeal - ground G - alleges that the judge erred in law in failing to consider fraud on the court, retaliatory abuse of process and suborning perjury.? The suggestion that the judge failed to consider these allegations is frankly preposterous.?

97. The judge considered seriatim the plaintiff's assertions and he condemned them as entirely baseless.? Chief among these assertions was a complaint that Mr. Kelly had said that Balthazar had been struck off, when it had not been; and that Charms was a director of Waldeck, when it was not.? Without getting into the weeds, it appears from the expert evidence of BVI law filed in the High Court - and it was the plaintiff's case - ?that under BVI law a company which has been struck off the register is not automatically dissolved.? Thus Mr. Kelly may not have been technically correct as a matter of BVI law when he suggested in an e-mail of 16 th October, 2016 that Balthazar had been dissolved, rather than merely struck off.? ?However, it was - altogether unsurprisingly - uncontested that Balthazar, while it was off the register, could not act as a director of Waldeck.? Any failure on the part of Mr. Kelly to appreciate that nuance of BVI law could not have provided any conceivable justification for an allegation of perjury.? Mr. Kelly's evidence that Charms was a director of Waldeck was confirmed not only by the Gibraltar register but by the plaintiff's instructions to Whitney Moore and the plaintiff's own evidence.

98. It is convenient at this point to deal with the plaintiff's reliance on a decision of the Supreme Court of Queensland in a case of Kingston Futures v. Waterhouse [2012] QSC 212.? The issue in that case was whether a BVI company, after it had been restored to the register, was entitled to pursue proceedings which had been issued in Queensland while it was struck off.? Strictly speaking, the judgment of the Supreme Court of Queensland on a question of BVI law was not a pronouncement of law but a finding of fact on the evidence which the court had heard on a question of foreign law, which was, in Queensland, a question of fact.? That apart, as the judge found, the question in Kingston Futures was entirely different to the issue - or, I should say the issue which the plaintiff sought to canvas - in this case. Applegarth J. emphasised that there was no suggestion that at the time the proceedings in Queensland had been instituted, the solicitor, the managing director, or anyone else, knew that the company had been struck off before finding - as a matter of fact - that under BVI law, the company, upon its restoration to the register, was deemed never to have been struck off.? In the instant case, the proposition advanced by the plaintiff was, variously, that Balthazar had not been struck of and that while it was struck off it nevertheless remained a director of Waldeck.? Unsurprisingly, the judge found no support in Kingston Futures for the plaintiff's argument: and there is no appeal against that finding.

99. The plaintiff's suggestion that the judge did not make findings and did not offer any engagement with evidence is also preposterous. ?It is important to emphasise that in accordance with the well-established principles, the judge did not engage with the evidence in the sense of seeking to resolve any contested issues of fact.? Instead, he first examined whether on the facts as pleaded, the statement of claim disclosed a reasonable cause of action.? Separately - in accordance with well-established legal principle - he examined the objective and incontrovertible evidence and compared it with the assertions on which the plaintiff's claims were founded, enquiring whether there was any credible basis for the plaintiff's assertions before concluding that there was not.

100. I mention for completeness that the plaintiff threw into his grounds of appeal allegations of champerty and maintenance which were no part of the case pleaded or argued in the High Court and for which there was not even an asserted factual basis.

101. The premise of the plaintiff's complaint in respect of the actions of Mr. Kelly in August, 2016 is that Charms was not then the only director of Waldeck.? That, in turn, is based on the dual proposition that the registration of Charms had been procured by the forgery of his signature and the plaintiff's insistence that Balthazar was not struck off the BVI register.? The demonstrable objective fact, proved in the High Court by unchallenged reports of searches of the BVI register, was that Balthazar was struck off the register sometime before 23 rd September, 2013 - perhaps 1 st May, which appears to be strike off day in the BVI - and then restored; struck off for a second time on 1 st May, 2015; restored on 30 th August, 2016; and struck off for the third and final time on 1 st May, 2018.?

102. The authorities are clear that O. 19, r. 28 does not permit ?the summary adjudication of contested questions of fact.? However, they are also clear that it is an abuse of the process of the court to mount claims based on assertions which are demonstrably at variance with the facts.? The plaintiff's assertion that Balthazar was not struck off is demonstrably at variance with the incontestable objective facts.? Similarly, the plaintiff's dogged insistence that Charms was not a director of Waldeck is at variance with the incontestable fact shown by the unchallenged results of the searches of the Gibraltar register, which show that it was.?

103. On the appeal to this Court - as he had in the High Court - the plaintiff laid particular emphasis on a BVI Business Companies Act "Certificate of Good Standing" dated 13 th September, 2026 which - he insisted - verified that Balthazar had not, in fact, been struck off the register.? As the judge put it, the certificate does no such thing.? It certifies that "at the date of this certificate" the company was in good standing.? It is perfectly consistent with the result of the searches: which showed that it had been struck off on 1 st May, 2015 and restored on 30 th August, 2016.

Isaac Wunder order

104. The plaintiff's second and perhaps fourth grounds are directed to the making of the Isaac Wunder orders.? He first suggests that that order was made without evidence of previous frivolous litigation and without reference to the public interest or the standards set out in Sheehan v. Talos Capital Ltd. - cited as published at ** [2023] IEHC 454 - and then suggests that the judge wrongly labelled the 2019 Robertson action as a repetition of previous litigation.? The citation in the notice of appeal is obviously wrong - it may be another hallucination - but I take the ground as referring to the judgment of this Court in Sheehan v. Talos Capital Ltd. [2021] IECA 316.

105. At para. 18 of his judgment, the judge set out for the benefit of the plaintiff what is meant by an Isaac Wunder order and the principles applicable to applications for such orders.? He quoted extensively from the judgment of this Court in Kearney v. Bank of Scotland [2020] IECA 92.? Having dealt with the substance of the defendants' motions, the judge returned to the question of the Isaac Wunder orders at para. 327 and at para. 330 cited the summary set out in the judgment of Cahill J. in Hogan v. Tanager DAC [2024] IEHC 739.

106. At para. 331 the judge noted that such orders should only be made where the necessity has been clearly made out.? He found that the plaintiff had used both the 2019 Robertson action and the 2022 Kelly action as a platform to say anything he wished about anyone he felt to have wronged him, regardless of the seriousness of the allegations, the absence of any basis for same, the evidence to the contrary, the damage likely to be caused, and whether the subject of the allegations was a defendant in the action or not.

107. At para. 332 the judge found that the history of complaints, the multiple sets of proceedings relating to the same events, and the scurrilous and baseless nature of the allegations allowed for a finding that a dismissal of both actions was unlikely to deter the plaintiff from maintaining what the judge described as his campaign.? The judge added - at para. 333 - that he was fortified in the view which he took by the fact that the plaintiff had interrupted counsel on Day 2 of the hearing to volunteer his consent to the making of an Isaac Wunder order in the 2022 Kelly action, but on Day 3 vigorously objected to the making of such an order in the 2019 Robertson action.

108. In my view, the High Court judge was entitled to come to the conclusion which he did, that the defendants in the 2019 Robertson action had made out reasonable grounds for their apprehension of further proceedings against them arising out of the agreements and arrangements made and put in place in 2011 in the hope of monetising the plaintiffs' "marks".

109. Among the hallmarks of vexatious litigation first identified by the Ontario High Court in Re Lang Michener and Fabian (1987) 37 D.L.R. (4 th) 685, and approved by the High Court in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463 and by the Supreme Court in Ewing v. Ireland [2013] IESC 44 are:-

"c.? where an action is brought for an improper purpose, such as harassment and/or oppression of other parties by various proceedings brought for purposes other than the realisation of legitimate rights;

d.? where issues tend to be 'rolled forward' into subsequent actions and repeated or supplemented (often with actions brought against legal professionals who acted in previous iterations of proceedings);"

110. The object of the 2012 Rothschild proceedings was to recover commission or damages in respect of the introduction to Rothschild and Archimedes of the plaintiff's contacts.? It should be recalled that Mr. Robertson was named as a defendant to those proceedings.? When those proceedings failed for want of jurisdiction, the plaintiff - purportedly on behalf of Waldeck - attempted to sue Rothschild in Switzerland.? When that attempt failed, the plaintiff issued two actions in Ireland: the 2019 Rothschild proceedings against Edmund de Rothschild [Suisse] S.A., Mr. Pearmund and Ms. De Rothschild, and the 2019 Robertson action against Mr. Robertson, Mr. ? Gioll?in, Hottinger, Hottinger Investment Management Company and Mr. Geary.? The 2019 Rotschild proceedings were ultimately struck out for want of jurisdiction but it is evident from the judgment of Cregan J. ([2023] IEHC 224) that the case pleaded was that the plaintiff had suffered detriment because he had made protected disclosures and that the alleged detriment was loss and damage by reference to the termination of the Waldeck agreement.? Those alleged protected disclosures had been by way of e-mails sent to employees of Rothschild - including Mr. Robertson - ?including by his e-mail of 11 th September, 2012, on which the 2019 Robertson action was based.? As Cregan J. found, there was clearly overlap between the 2012 Rothschild proceedings and the 2019 Rothschild proceedings.? The ultimate object of both was to recover money by reason of the termination of the Waldeck agreement.

111. Although issued in 2019, the 2019 Robertson action was not progressed until after the 2019 Rothschild proceedings had been disposed of and the statement of claim was delivered on 31 st July, 2023.? The claim of detriment which had failed against Rothschild et al. was rolled over into a claim for detriment against the Robertson defendants.? The alleged protected disclosure to Mr. Robertson as an employee of Rothschild was rolled over into an alleged protected disclosure to Hottinger.? The underlying claim for the loss of the Waldeck commissions was rolled over into a claim that Waldeck's action against Rothschild in Switzerland and Balthazar's action against Archimedes in Ireland had been sabotaged by those defendants having instructed Mr. Kelly to do what he was alleged to have done. ? The core or crux of the 2022 Kelly action was the same, save that the plaintiff then turned his guns on the solicitors.

112. The plaintiff's argument that his action against the Robertson defendants was a distinct statutory cause of action, brought in his personal capacity and based on post-2012 conduct is entirely dependent on form and ignores the substance.? There may have been twists and turns in the direction but the goal was the same.?? The proposition that the 2019 Robertson action was based on new factual and evidential material, including evidence of perjury, procedural abuse and concealment is transparently false.

113. As has repeatedly been stressed by the authorities, the Isaac Wunder order is not a bar to future proceedings but puts in place a filter.? It restricts the plaintiff's right of access to the court for the good and sufficient reason that there are reasonable grounds to apprehend that he would otherwise abuse that right and put the defendants to further vexation and expense.? ?

114. I reject that the plaintiff's submission that the High Court failed to assess the application in a constitutionally proportionate manner.

115. I have carefully considered the significance - if any - to be attached to the fact that the plaintiff, on Day 2, interrupted counsel to say that he would consent to the making of an Isaac Wunder order in the 2022 Kelly action, but on Day 3 vigorously objected to the making of such an order in the 2019 Robertson action.? The judge appears to have taken the view that this apparent inconsistency betrayed an intention to issue further proceedings, if not against any of the Kelly defendants, then against some or all of the Robertson defendants, but not against the Kelly defendants.? I am not at all sure that the inconsistency in the plaintiff's answer to the Isaac Wunder applications is a factor to which any great weight should be attached but neither, I think, did the judge attach any great weight to it.? The height of what the judge said is that he was fortified in the conclusion to which he had otherwise come.? For the reasons given, I am satisfied that the judge was entitled to have concluded that it was necessary to make the Isaac Wunder order in respect of any future proceedings against the Robertson defendants.

2025 140 The appeal in the Kelly case

116. By notice of appeal filed on 29 th May, 2025 the plaintiff appealed against the judgment and order of the High Court (Heslin J.) striking out the 2022 Kelly action, as well as the Isaac Wunder orders made in that action.

117. The twenty-three grounds of appeal are grouped under eight headings.? Some are based on a reimagining of the plaintiff's case.? Others advance propositions which were not raised in the High Court.? Others are bald suggestions of error which are not tied back to the judgment.? Most are not addressed at all in the written submissions which were filed by the plaintiff on the appeal.? Many, mercifully, can be quickly disposed of.? Strikingly absent from the notice of appeal is any complaint that the judge erred in striking out the action against Whitney Moore.

Improper self-representation

118. In grounds 13, 14 and 15, the plaintiff alleged that Flynn O'Driscoll LLP improperly represented itself while defending the action; that this violated the principle of nemo judex in cause sua; and that the firm's conduct raised serious - unspecified - concerns under the Solicitors Acts and the Perjury and Related Offences Act 2021.

119. This is not an issue which was raised in the High Court and in any event is a thoroughly bad point.? ?Flynn O'Driscoll LLP was perfectly entitled to defend itself.? The premise of the suggestion is that there was substance on the claims made against the firm.? The defence - in the old language - was that the claims were frivolous and vexatious.? The suggestion that the fact that the firm represented itself infringed the principle of nemo judex in cause sua or the plaintiff's right to a fair hearing under Article 40.3 of the Constitution or Article 6 of the ECHR appears to be a hallucination which may have been generated by AI.

Prior findings by Cregan J.

120. Ground No. 12 suggests that Heslin J. erred in disregarding what are asserted to have been the findings of Cregan J. in Von Geitz v. Edmond de Rothschild (Suisse) SA [2023] IEHC 224 in which - it is asserted - Cregan J. upheld the plaintiff's ownership and control of Balthazar and Waldeck; the lawfulness and substance of the protected disclosures; and the financial detriment caused by retaliatory agency terminations.

121. The issue before Cregan J. in Von Geitz v. Edmond de Rothschild (Suisse) SA was whether the High Court had jurisdiction to entertain the action.? The court did not address the factual basis of the claim but only whether the claim as formulated was one which it had jurisdiction to hear and determine under Articles 5(1) and 5(3) of the Lugano Convention.

Errors of law in the application of O. 19 RSC

122. At grounds Nos. 10 and 11 it is asserted the judge improperly resolved disputed material facts and wrongly substituted summary judgment for trial on matters concerning fraud, conspiracy, corporate authority, and protected disclosures, issues - it was said - which require discovery, expert testimony and cross-examination.?

123. There was no attempt in the grounds of appeal or the submissions to identify what disputed material facts had allegedly been resolved.? That would have been an entirely futile exercise for the good and sufficient reason that the judge did not do so.? Rather, he first assessed whether, on the facts as pleaded, the statement of claim disclosed a reasonable cause of action, and separately, whether there was any credible basis for the plaintiff's assertions.? The seriousness of the allegations was immaterial to the exercise.

Abuse of process and litigation funding

124. At grounds 16 and 17, the plaintiff reprised his complaint about the notice discontinuance of Waldeck's action against Hottinger.? ?This - he said - raised serious issues under AML [anti-money laundering] legislation and rules against improper litigation funding which had not been tested or acknowledged.

125. I will return to the notice of discontinuance.? The suggestion that the case somehow gave rise to money laundering or litigation funding issues was no part of the case pleaded or argued in the High Court.? On the authority of Lough Swilly Shellfish Growers Co-Operative Society Ltd. v. Bradley [2013] IESC 16, the plaintiff is not entitled to make a different case on appeal to that which he made in the High Court.? These issues have been plucked out of the air and the plaintiff is not entitled to agitate them.

Misapplication of Foss v. Harbottle and failure to consider exceptions

126. The plaintiff's first ground of appeal is that the judge erred in law by applying the rule in Foss v. Harbottle without - it is said - addressing the well-established exceptions pleaded and supported by affidavit and audio evidence.? The premise of this is a reimagining of the case pleaded which ignores the business and legal structure of Waldeck.

127. At ground No. 2, the plaintiff asserts that he demonstrated in the High Court that:-

"(i)??? He was the majority shareholder and director of Waldeck, but was excluded from control by parties acting in fraud;

(ii)???? Wrongdoers including Robertson, Archimedes, Hottinger and Kieran Kelly had taken control of the company;

(iii)??? Flynn O'Driscoll LLP purported to act for Waldeck under a fabricated mandate issued via Charms Ltd, with no shareholder or board authority;

(iv)??? Kieran Kelly admitted in a recorded conversation to taking instructions from a conflicted co-defendant (? Gioll?in), accepting funding from adverse parties, suppressing exculpatory evidence, and unlawfully discontinuing proceedings without authority;

(v)???? Flynn O'Driscoll LLP accepted instructions to act for Waldeck while knowingly funded by Mark Robertson, a co-defendant and adverse party.? This litigation financing arrangement, undisclosed and unauthorised, supports the Foss v. Harbottle exceptions by confirming that the company was under the control of wrongdoers, its interests subverted, and its mandate fraudulently usurped."

128. Before analysing all of this, it is worth repeating that on the defendants' motion to dismiss the 2022 Kelly action pursuant to O. 19, r. 28, the test was not whether the plaintiff had demonstrated anything but whether his pleadings disclosed a legally sustainable cause of action and whether there was any credible basis to believe that the facts were as they had been asserted.

129. It was never the plaintiff's case that he was either a shareholder or a director of Waldeck.? On his own case, the shareholders were Balthazar and Charms.?

130. Similarly, it was never the plaintiff's case that he was a director of Waldeck.? It was common case that the registered directors of Waldeck were Balthazar and Charms.? The case pleaded in the 2022 Kelly action was that Charms was never a director of Waldeck and that its registration as such had been procured by fraud.? The High Court judge found that there was no credible basis for that assertion and there is no appeal against that finding.

131. The suggestion that wrongdoers including Mr. Robertson, Archimedes, Hottinger and Mr. Kelly had taken control of the company is new.? The case pleaded was that the notice of discontinuance was served by Mr. Kelly on the instructions of Charms as a purported director of Waldeck.? It is true that the plaintiff's case was that Messrs. Robertson and ? Gioll?in were behind the move, but the restatement seeks to airbrush Charms out of the narrative.? Archimedes and Hottinger are one and the same.? The case pleaded against Mr. Kelly was not that he had taken control of Charms or Waldeck but had acted on their instructions.

132. In the reimagination of the plaintiff's case in the notice of appeal, the claim in respect of the discontinuance of the Waldeck action has morphed.? What the plaintiff complains was done - and what it is common case was done - was done in August, 2016.? It was done by Mr. Kelly - then? practising under the style and title of Fanning & Kelly - upwards of three years before the merger with Flynn O'Driscoll LLP.? The case pleaded was that Charms was not a director of Waldeck.? The notice of appeal tacitly accepts that it was but would impugn the validity of the instruction rather than the capacity of Charms to have given it.?

133. The question of recorded conversations between the plaintiff and Mr. Kelly loomed large in the appeal, but it is a red herring.? The statement of claim pleaded that in a number of recorded conversations Mr. Kelly had made a number of admissions.? In the exchange of affidavits on the defendants' motion to strike out, the plaintiff referred to these recordings but did not exhibit them.? Having applied to this Court for permission to adduce the recordings as additional evidence and failed, the plaintiff insisted that the High Court ought to have considered them because they were referred to in the pleadings.

134. The reason why this is a red herring is because the court in dealing with an application under O. 19, r. 28 is not concerned with establishing facts but only whether there is a credible basis for believing that the facts are as has been asserted.? Moreover, the fact that someone says something does not by itself make it so.

135. The admissions or concessions pleaded in the amended statement of claim were that Mr. Kelly discussed with the plaintiff "your (JvG) ownership and control of Waldeck"; admitted that he had taken instructions from "the company's legal adversaries" and said that "The (Waldeck) file is Robertson's"; discussed commercial court proceedings in the BVI which had been issued by "his clients Archimedes/Robertson/O Giollain" concerning "the plaintiff's ownership and control of Waldeck"; and confirmed that he had taken instructions about Waldeck from "his defamation and injunction client against the Plaintiff Padraic O Giollain, a director of Rothschild subsidiary Archimedes."? In the defence, all of these pleas were traversed.

136. As far as the recordings are concerned, the issue before the High Court on the defendants' case was not whether Mr. Kelly had said what he was said to have said but whether - if there was a credible basis for believing that Mr. Kelly had said what he was said to have said - that could provide a foundation for the action.? Provided only that there was a credible basis for believing that if the action were permitted to go to trial the plaintiff would be able to produce recordings to prove that Mr. Kelly had said what he was said to have said, there was no need to exhibit them.

137. I am quite prepared to contemplate for present purposes that Mr. Kelly said what the plaintiff claims that he said - and that if it were to come to it, the plaintiff could produce recordings to prove it - but the question is whether any of it could provide a foundation for the action.? There may have been a certain amount of looseness of language but the demonstrable objective fact is that the plaintiff did not directly own or control Waldeck and it was not his case that he directly owned or controlled Waldeck.? If - as may very well have been the case ?Mr. Robertson had somehow acquired control of Charms from Mr. Charles, and he and/or Mr. ? Gioll?in on behalf of Charms - as the sole director of Waldeck - instructed Mr. Kelly to discontinue the Waldeck action against Archimedes, the Waldeck file was never the property of Mr. Robertson.? And by the way, it was no part of the case pleaded that the Waldeck file was the property of Mr. Robertson.? ?Archimedes was not - and was never alleged to have been - a subsidiary of Rothschild.? And Archimedes was never Mr. Kelly's client.? The question of the recordings which so excited both the plaintiff and the Flynn O'Driscoll defendants goes nowhere.

138. Going back to the notice of appeal, at para. 2(iv) - leaving aside that it is not credible that Mr. Kelly might have admitted to having unlawfully discontinued the Waldeck action without lawful authority - it was no part of the case pleaded that he had made any such admission.? And even if, for the sake of argument, he had, any issue in relation to Mr. Kelly's instructions was a matter between Waldeck and Mr. Kelly and, bluntly, was none of the plaintiff's business.

139. The notice of appeal asserts that the judge failed to consider whether - in the light of the reimagined case which the plaintiff claimed to have demonstrated - derivative standing or curative relief was warranted.? The fact is that the judge carefully explained a well-established rule of law the fundamental basis of which is that derivative actions may in certain circumstances be brought by a shareholder for the benefit of a company.? The plaintiff was not a shareholder in Waldeck.? Thus, if the action had been purportedly brought on behalf of Waldeck, the plaintiff could not have mounted a derivative action on its behalf.? But, in fact, it was no part of the plaintiff's case that the action - which he repeatedly insisted was a personal action founded on protected disclosures - was brought for the benefit of Waldeck.

Failure to consider evidence and address contradictory affidavits and alleged perjury

140. Starting at ground No. 4, the notice of appeal goes back to the audio recordings which I have dealt with.? The suggestion that the judge erred in failing to admit the recordings is plainly misconceived: they were never tendered.? While the judge did not analyse in the detail which I have done the pleaded case in relation to the audio recording, it appears that the recordings did not loom as large in the High Court as they did on the appeal.? For the reasons which I have given, the question of the audio recordings was a red herring and the alleged admissions added nothing to substance of the case

141. Starting at ground No. 8, it is asserted that the judge failed to engage with material and irreconcilable contradictions in the affidavits of Mr. Kelly and Mr. Robin Hayes which - it is said - went directly to the legal status and governance of Waldeck; the existence, validity and authority of the purported mandate used to discontinue proceedings; and the plaintiff's lawful ownership, control, and authority to act on behalf of Waldeck.? Mr. Hayes, I should explain, is the solicitor in Whitney Moore LLP who swore the affidavit on which the motion to strike out the 2022 Kelly action against Whitney Moore LLP was grounded.

142. There is neither in the notice of appeal nor in the written and oral submissions which followed any attempt to identify the alleged contradictions in the affidavits.? If what is behind this is the technical error made by Mr. Kelly when, in his e-mail of 16 th October, 2016, he suggested that Balthazar had been dissolved - rather than struck off - there was and is nothing in it.? The point was that for as long as Balthazar was struck off, Charms was the only director of Waldeck and during that time was entitled under BVI law to act alone.? I should say for completeness that in his affidavit grounding the Flynn O'Driscoll defendants' motion, Mr. Kelly was careful to say that Balthazar had been struck off.? If what is behind this is the averment by Mr. Hayes in his grounding affidavit on behalf of Whitney Moore LLP that the plaintiff had not replied to a notice for particulars, as soon as the plaintiff pointed out the mistake Mr. Hayes acknowledged it and apologised for it.? Again, there was and is nothing in it.

143. The fundamental premise of this ground is that the plaintiff, personally, owned, controlled and was entitled to act on behalf of Waldeck. Not only is this demonstrably false but it is inconsistent with the pleaded case.?

144. Without going back into the weeds, the fundamental point made by each of Messrs. Kelly and Hayes was that the plaintiff was not at any time a client of either Fanning & Kelly or Whitney Moore; that none of the defendants owed the plaintiff a duty of care; that the proceedings concerned exclusively harms and losses allegedly caused to Waldeck and/or Balthazar; that the plaintiff had no standing; and that the action against their respective firms were an abuse of process.?

145. The notice of appeal simply fails to address the judgment under appeal.? It was never contended that the plaintiff was a client of any of the defendants.? There is no appeal against the judge's conclusion - by reference to Moffitt v. Bank of Ireland (Unreported, Supreme Court, 19 th February, 1999, Keane J.) - that a party to litigation has no cause of action against the solicitor for the opposing party by reason of the solicitor's having acted on incorrect or false instructions.? There is no appeal against the judge's conclusion - by reference to Crowley v. Ireland [2022] IEHC 596, [2023] IECA 247, Smith v. McCarthy [2017] IECA 167, and the cases referred to in those judgments - that the defendants did not owe the plaintiff a duty of care.? There is no appeal against the finding by the High Court that the plaintiff's assertion that Charms was not a director of Waldeck was demonstrably false.

146. The plaintiff's written and oral submissions - like the notice of appeal - go around the houses without engaging with the findings of the High Court or the reasoning on which those fundings were based.

147. As many litigants in person routinely do, the plaintiff appeals to Aberdeen Railway v. Blaikie Brothers (1854) 1 Macq 461 and Lazarus Estates Ltd. v. Beasley [1956] 1 QB 702 in support of the proposition that fraud unravels all.? However the plea of fraud in this case is a bald assertion that more or less everything that Mr. Kelly did was fraudulent. There is no suggestion that the plaintiff, or anyone else, was misled by anything that Mr. Kelly did.? The plaintiff's allegation in the 2022 Kelly action that the registration of Charms as a director of Waldeck had been procured by fraud was rejected by the High Court as inconsistent with the case pleaded in the 2012 Rotschild action, his instructions to Whitney Moore, and even his evidence on the motion to strike out.? The focus - or perhaps premise is a better word - of the written submissions is on the absence of evidence of a resolution of the board of Waldeck appointing Mr. Kelly to act as its solicitor.? That, of course, is inconsistent with the central thesis of the case made in the High Court that Charms simply was not a director.

148. The plaintiff's written submissions are littered with propositions of law in quotation marks which are unsupported by authority; reference to authorities which have nothing to do with the asserted propositions of law; wrong citations; and a few non-existent cases.? If, as was suggested at the hearing of the appeal, the non-existent cases were hallucinations generated by AI, it was nevertheless the responsibility of the plaintiff - as it is of every litigant - to check whatever may have been thrown up by whatever tool he used to ensure in the short term that his opponents were not sent on a wild goose chase and ultimately that the Court was not presented with rubbish.?

149. I have addressed the grounds of appeal seriatim and it is not necessary or useful that I should untangle the plaintiff's written submissions.? There is, however, one point that I should address.? The plaintiff's written submissions, at section F, suggest "Complicity of Whitney Moore LLP in Perpetuating False Authority".? What was said there was comprehensively refuted in the written submissions filed on behalf of Whitney Moore LLP but I am bound to say that the focus was very much on the plaintiff's written submissions rather than the grounds of appeal.? The point was made by Whitney Moore LLP that "In the notice of appeal, the appellant complains about almost every finding made by the learned judge without apparent distinction."? That is true but it seems to me that it overlooks the fact that among the few findings of which there was no complaint was the finding that - quite apart from the fact that the plaintiff was not entitled to claim damages for losses allegedly suffered by Waldeck - the plaintiff was not Whitney Moore's client and Whitney Moore did not owe him a duty of care.? It is true that ground No. 8 suggested that the judge had failed to engage with unidentified contradictions in the affidavits of Messrs. Kelly and Hayes but it seems to me that even if there had been anything in that - which there was not - it could not have gone to the finding that Whitney Moore LLP could have had no legal liability to the plaintiff.

150. The written submissions filed on behalf of the respondents to the appeals address each of the grounds but the overarching submission is that the plaintiff is not in law entitled to claim damages for losses allegedly suffered by Waldeck.? For the reasons already given, I accept that submission.? Although the respondents do not particularly emphasise the point, I would add that there is no appeal against the finding by the High Court that the only e-mail that might have been a protected disclosure was demonstrably not a protected disclosure. ? I would add for completeness that the respondents' reliance on Hay v. O'Grady [1992] 1 I.R. 210 is misplaced.? The High Court judgment was not based on findings of fact supported by credible evidence but with assertions of fact for which there was no credible basis.? In similar vein, I would not attach any significance to the fact that in other proceedings - Von Geitz v. O'Brien [2025] IEHC 399 - the plaintiff admitted to fraudulently altering a document in the hope of enhancing his position.? On the defendants' motions to strike out, the reliability of the plaintiff as a witness was not relevant.? Rather the issue was whether, the statement of claim on its face disclosed a reasonable cause of action and whether there was any credible basis to believe that the facts were as the plaintiff asserted them to be.?

Improper and disproportionate grant of Isaac Wunder order

151. The plaintiff's appeal against the Isaac Wunder order made in respect of the defendants in the 2022 Kelly action is on six grounds set out at section H of the notice of appeal under the heading "Improper and Disproportionate Grant of Isaac Wunder Order."

152. The first of these grounds is that the plaintiff, as a lay litigant, did not fully appreciate the significance of the Isaac Wunder order when it was initially proposed.? It is said that his limited consent was not informed by an understanding of its severe and lasting consequences, including the restriction of his constitutional right of access to the courts.? This effectively acknowledges - as the judgment of the High Court records - that on Day 2 of the hearing the plaintiff interrupted counsel for the Flynn O'Driscoll defendants to volunteer his consent to the making of that order as far as the Flynn O'Driscoll defendants were concerned; and later on the same day said, with reference to Whitney Moore's motion, "I've no problem with an Isaac Wunder order."? The High Court order in the 2022 Kelly action - by contrast with the order made in the 2019 Robertson action - shows that the Isaac Wunder order was made by consent in respect of Whitney Moore LLP as well as of the Fylnn O'Driscoll defendants.? That, it seems to me, is the end of the matter.?

153. The principles to be applied by the High Court in considering whether to make an Isaac Wunder order have been the subject of a number of judgments of this Court, including Kearney v. Bank of Scotland plc [2020] IECA 92 - which was referred to in argument in the High Court and on the appeal - and Houston v. Doyle [2020] IECA 289 - which was not.? I can understand that a litigant in person might not easily or fully understand the principles to be applied by the High Court in determining whether such an order ought to be granted, but I can see no scope for confusion or misunderstanding as to the nature and effect of the order.? It prevents a plaintiff from issuing further proceedings against the defendant or defendants without the permission of a High Court judge.? It is established that litigants in person can expect to be afforded a certain amount of latitude in the conduct of proceedings but equally that the same rules apply whether the litigant is represented or not.? No more than a represented litigant, an unrepresented litigant is not entitled to appeal against an order to which he has consented on the grounds that, on reflection, he considers that he might have had good grounds to oppose it.

154. The second of the grounds of appeal in relation to the Isaac Wunder order is that it was made without a finding that the plaintiff's claims were frivolous, vexatious, or abusive.? This is preposterous. ?At the start of this judgment I was mildly critical of the form of the notices of motion on the ground that they used the old language of frivolous and vexatious which the Superior Courts Rules Committee had decided to move away from.? However, if this was a shortcoming in drafting it had the consequence that the High Court order shows that the action was found to be both frivolous and vexatious.? If in articulating his conclusions the judge did not use those precise words, he found that the plaintiff had been engaged in a campaign of harassment against Mr. Kelly and others and had used legal proceedings to make allegations which were scurrilous, outrageous, and entirely lacking in substance.?

155. The remaining grounds of appeal under this heading - that the proceedings raised serious and substantial issues of fraud, conspiracy, conflict of interest, perjury and retaliation; that the plaintiff was not vexatious litigant but a majority shareholder and former director, and a whistleblower - all fly in the face of the clear findings of the High Court judge, which were not appealed.

156. It is clear from the judgment of the High Court - not least from the fact that an Isaac Wunder order was made in respect of the defendants in the 2019 Robertson action - that the judge would in any event have made a similar order in respect of the defendants in the 2022 Kelly action.? Apart from the fact that he consented to it, the plaintiff has not identified any infirmity in it, or in the analysis and reasoning which would have led to it.

The oral hearing of the appeal

157. At the oral hearing of the appeal the plaintiff in the main repeated what he had already written.? He spent some time expounding what can only be described as a conspiracy theory based on what was admittedly a puzzling entry on the electronic High Court Search that read "Cancel Discontinuance".? This had been flagged in his written submissions and the Court was in a position to explain to him that the entry had been made as a workaround for a shortcoming in a legacy computer programme, which had since been replaced by the current UCMS.

158. He also persisted - repeatedly - in his insistence that a Certificate of Good Standing dated 13 th September, 2016 issued by the Registrar of Corporate Affairs under the BVI Business Companies Act certifying that "at the date of this certificate" Balthazar was on the register showed that it had been on the register as of the dates of the events complained of in August, 2016; and in his insistence that Mr. Kelly's acknowledgement of that certificate on the following day showed that Mr. Kelly was aware when he filed the notice of discontinuance that Balthazar had not been struck off.? I find it very hard to believe that the plaintiff believed that the certificate showed what he contended it showed.? Perhaps he thought that the Court would think so.?

159. The plaintiff sought to make much of the distinction - perhaps I ought to say asserted distinction, because there was no evidence of it - in BVI law between administrative strike off and dissolution.? Because, he suggested, Balthazar was not deemed to have been dissolved "it was not permanently dead."? I can see that there may be a difference between a company which is capable of being restored to the register and one which is not, but it was a leap from that to the proposition that Balthazar, which was admittedly - if not permanently - dead could have been a director of Waldeck.? I have already dealt with the plaintiff's reliance on Kingston Futures.

160. One of the new arguments which the plaintiff sought to advance on the appeal was that Charms had vacated its office.? He did not spell it out, but inferentially the argument appears to have been based on the usual provision in articles of association that a director who fails to attend a number of successive board meetings is deemed to have vacated office.? Not the least problem with this argument - as the plaintiff acknowledged - was that the ground had not been laid for it by showing that there had been board meetings which Charms had failed to attend.? More fundamentally, the proposition that Charms had failed to attend meetings of which it had been notified was utterly inconsistent with the assertion that its registration as a director had been procured by fraud.

Summary and conclusions

161. The 2019 Robertson action was an action for damages for detriment said to have been caused to the plaintiff by reason of his having made protected disclosures.? Of the four e-mails claimed to have been protected disclosures, three post-dated the claimed detriment so that there can have been no connection between them and the claimed detriment.? The first of the four e-mails was a claim against the person to whom it was sent, coupled with a threat of proceedings.? It asked three loaded questions without disclosing any information.? It could not have been a protected disclosure.

162. Separately, the plaintiff's claim that he has suffered detriment was clearly unsustainable.? The alleged personal and reputational detriment could not have amounted to actionable detriment.? The alleged financial detriment was alleged loss arising originally out of the termination of contracts to which the plaintiff was not party and later by reason of the termination of an action to which the plaintiff was not party.? The action was for the recovery by the plaintiff personally of damages allegedly sustained by a company or companies.? That action could not possibly have been for the benefit either of those companies which by the time the action was commenced, had been struck off.

163. The 2019 Robertson action was shown by the defendants to have had no reasonable prospect of succeeding, to have been bound to fail, and, accordingly, to have been an abuse of process.? In old money, it was frivolous.

164. The 2022 Kelly action was an action against two firms of solicitors for damages for unlawful means conspiracy, negligence, breach of fiduciary duty, breach of contract, negligent misstatement, conflict of interests, and duty of care.? The plaintiff was not a client of either firm.? As a matter of law, neither firm owed him a duty of care nor could not have been liable to him in respect of their actions in accordance with their instructions from their clients.

165. Separately, the losses claimed to have been suffered by the plaintiff had not been suffered by him but by limited liability companies with which had been promoted by him.? That action could not possibly have been for the benefit either of those companies which by the time the action was commenced, had been struck off.

166. The 2022 Kelly action was shown by the defendants to have had no reasonable prospect of succeeding, to have been bound to fail, and, accordingly, to have been an abuse of process.? In old money, it was frivolous.

167. The 2019 Robertson action was the penultimate and the 2022 Kelly action the last in a series of actions dating back to 2012 arising out of the termination of contracts entered by companies which had been promoted by the plaintiff in the hope of exploiting what he saw as a business opportunity.? They were part of a campaign of harassment and oppression in which the same essential complaint had been rolled forward into the later actions and repeated and supplemented, including - besides professional disciplinary complaints - actions against the legal professionals who had acted in previous iterations of proceedings.? In old money, they were vexatious.

168. In the case of the 2022 Kelly action, the plaintiff consented to the making of the Isaac Wunder orders.? In both cases there was abundant justification for the defendants' apprehension that they would be subject to further litigation.?

169. There is no suggestion that the judge erred in the identification of the correct legal principles.? The plaintiff has failed to identify any error in the judge's analysis, reasoning or conclusions.

170. I would dismiss both appeals and affirm the orders of the High Court.

171. The respondents having been entirely successful in resisting the appeals are presumptively entitled to an order for their costs.? However, if - at the risk of increasing the burden of costs - the appellant wishes to contend for any other costs order he may within 14 days of the electronic delivery of this judgment file and serve short written submissions not exceeding 1,500 and directed solely to the question of costs; in which case the respondents will each have 14 days to respond, similarly so limited and directed.

172. As this judgment is being delivered electronically Faherty and McDonald JJ. have authorised me to say that they agree with it and with the orders proposed. ?

Result:     Appeals dismissed.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ie/cases/IECA/2026/2026IECA29.html