Von Geitz v Kelly & Ors and Von Geitz v Robertson & Ors

APPROVED NO REDACTION NEEDED THE COURT OF APPEAL CIVIL Appeal Number: 2025 140 2025 178 Faherty J. Neutral Citation Number [2026] IECA 73 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, PÁDRAIC Ó GIOLLÁIN, HOTTINGER PRIVATE OFFICE (U.K.) LIMITED, HOTTINGER INVESTMENT MANAGEMENT LIMITED AND DAVID GEARY DEFENDANTS/RESPONDENTS JUDGMENT of Mr. Justice Allen delivered on the 1st day of May, 2026 1. On 16th March, 2026 judgment was delivered on the substance of the plaintiffs’ two appeals against the judgment and orders of the High Court striking out the plaintiffs’ actions as disclosing no reasonable cause of action and being bound to fail and an abuse of process; and restricting the appellant’s right to institute further proceedings against any of the respondents. ([2026] IECA 29). This judgment deals with the allocation of the costs of the appeals. 2. At para. 171 of the substantive judgment the Court gave its provisional view that the respondents, having been entirely successful in resisting the appeals, were presumptively entitled to an order for their costs but ordained a timetable for an exchange of short written submissions if the appellant wished to contend for any other costs order. 3. The appellant’s written submissions on costs suggests that para. 171 of the substantive judgment expressly invited submissions on costs. It did not. The appellant was given liberty to file submissions in relation to the question of coats if he wished to contend for any order other than an order in favour of the respondents. It was spelled out that if the appellant contested the respondents’ presumptive entitlement, he would run the risk of increasing the burden of costs. 4. The appellant submits that this is an appropriate case for either no order as to costs or a reduced or apportioned order. He does so on six, or possibly seven, grounds all of which are opposed by the respondents. He also asks for a stay on the enforcement of any order for costs pending a portended application to the Supreme Court for leave to appeal. 5. The appellant first points to the fact that the proceedings were disposed of summarily. He contends that because the respondents were not required to meet his cases at trial, the costs are of a fundamentally different character than those which would have arisen on a plenary hearing. This is misconceived. The costs of an application to have a case dismissed as an abuse of process will hopefully be less than the costs that would have been incurred if the action had gone to trial, but they are no different in character. In any event, the manner in which the actions were disposed of in the High Court does not go to the costs of the appeals. 6. Secondly, the appellant recalls that “certain respondents” failed to comply with an order of Egan J. which required that their defence be filed in the Central Office of the High Court. This is a point that was dealt with in detail in the substantive judgment. It does not concern any of the defendants in the action in which Mr. Kelly is the first defendant – referred to in the substantive judgment for convenience as the 2022 Kelly action. 7. On 29th April, 2024, in the action in which Mr. Robertson was the first defendant – referred to in the substantive judgment for convenience as the 2019 Robertson action – Egan J. made an order extending the time for the delivery 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 defence was delivered on 24th May, 2024 – within the time limited by the order of Egan J. – on behalf of all five defendants but it was not filed. Thereafter, the appellant first gave notice of trial against all of the defendants and later engaged with the substance of the strike out motion brought on behalf of all of the defendants to that action. While he complained along the way that the defence of the first, third and fourth defendants had not been filed, he did not press the point until after the High Court had given judgment on the substance of the motions. The oversight in failing to file as well as deliver those defendants’ defence ought to have been addressed sooner than it was but that did not go to the costs incurred by the respondents collectively in opposing the appeal (2025 178). 8. The third ground on which the Court is urged to depart from the normal rule is that “certain respondents” elected to move to have the action struck out rather than defend it on the merits. It is first of all wrong to say that “certain respondents” elected to apply to have the action struck out under Order 19. They all did. The course adopted by the respondents – it is said – reduced the scope and burden of the litigation and the level of costs reasonably incurred. That is so. In those circumstances – it is said – it would be disproportionate to award costs on a full trial basis. That is also so: but this application is concerned with the costs of the failed appeals and not the costs in the High Court. Moreover, there is no warrant for any apprehension on the part of the appellant that the High Court costs order goes beyond the costs reasonably incurred by the respondents in disposing of the litigation against them in the manner in which they did. 9. The appellant’s fourth point is that because what he describes as the protected disclosure issue was not determined after evidential testing, the failure of the actions cannot be characterised as “a conventional failure on the merits.” It is difficult to be sure what this means but I accept the respondents’ (other than the eleventh respondent in the 2012 Kelly action) submission that if this is a challenge to the findings of the Court it is impermissible, and if it goes to the quantum of costs, it is a matter for adjudication. Following the breakdown of the relationship between the appellant and the defendants in the 2019 Robertson action, and the other litigation detailed in the substantive judgment, the appellant commenced proceedings first against the defendants in the 2019 Robertson action and later the defendants in the 2022 Kelly action. Both actions were founded to a greater or lesser extent on e-mails sent by the appellant which – long after the event – were claimed to have been protected disclosures. For the reasons given in the substantive judgment, this Court upheld the finding of the High Court that the first of these e-mails could not possibly have been a protected disclosure and that the others were written and sent after the alleged detriment had been suffered. There was no need for “evidential testing” because the appellant’s case, taken at its height, had been shown to be bound to fail. 10. The fifth ground on which this Court is urged to depart from the normal rule is that “[e]ven where ultimately unsuccessful, proceedings engaging statutory whistleblower protections and allegations of professional or regulatory misconduct carry an inherent public interest dimension.” It is suggested that a full costs order would risk creating a chilling effect on individuals seeking to invoke statutory protections under the Protected Disclosures Act 2014. 11. It is difficult to believe that the appellant has read the substantive judgment. By the 2019 Robertson action the appellant sought to circumvent the corporate structure which he had put in place in the hope of exploiting his “marks”. There was no legal basis for that action which, in the old language, was frivolous. If that action invoked, it most certainly did not engage, any statutory whistleblower protections. By the 2022 Kelly action the appellant sought to embroil the solicitors who had acted in the underlying commercial dealings and the previous protracted litigation in his vendetta against the Robertson defendants. It was, in the old language, vexatious. There is no public interest in encouraging or tolerating baseless allegations of professional misconduct or frivolous and vexatious litigation. If anything, the public interest requires that abusive litigation should be discouraged. 12. The appellant’s sixth ground is that the Court should exercise its discretion to ensure that the costs order “reflects the actual nature of the proceedings” and does not operate disproportionately against an individual litigant in person. The appellant now contends that the litigation involved complex corporate structures, multi-jurisdictional elements, and detailed legal doctrines, including Foss v. Harbottle: but this, of course, ignores the fact that the actions sought to circumvent all of these rules by dressing the claims up as alleged detriment attributable to alleged protected disclosures. As the respondents have pointed out, the law is that litigants in person are bound by the same fundamental rules as litigants who are represented. See Munnelly v. Hassett [2023] IESC 29, para. 41. 13. The respondents also point to the fact that the appellant is a serial and experienced litigant in person and emphasise the finding of this Court that the 2019 Robertson action and the 2022 Kelly action 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. However, in my view it is not necessary to take those matters into account. The appellant appealed against a detailed judgment of the High Court which explained why his actions were bound to fail and an abuse of process. It is not disproportionate that he should be fixed with the consequences. 14. The appellant’s seventh ground suggests that the substantive judgment raises issues of general public importance and indicates that he intends to apply for leave to appeal to the Supreme Court. He identifies the issues on which he intends to apply for leave as including the scope of summary dismissal in cases involving allegations against officers of the court; “the interaction between procedural default and entitlement to dispositive relief and costs”; and the treatment of claims framed under statutory whistleblower protections at the strike-out stage. 15. It is not absolutely clear whether the appellant relies on the issues in respect of which he intends to apply for leave to appeal as grounds which this Court should take into account in deciding the question of the costs of the appeal, or only as grounds on which the adjudication and enforcement of any costs order should be stayed. If and when the appellant files an application for leave, the Supreme Court will decide in due course whether the judgment of this Court involves any matter of general public importance. For the moment, however, any suggestion that this Court should deal with the costs of the appeals on the premise that the substantive judgment was or may have been wrong is misconceived. 16. As to the appellant’s application for a stay, the bar for any litigant invoking the jurisdiction now to be found in O. 19, r. 28 is a high one and I fail to see how it could be affected by the status of the opposing party or the manner in which the claim is framed. In any event – as the respondents point out – the practicalities are that the adjudication of the costs will take some time. I do not accept the appellant’s submission that his intended leave application would be rendered nugatory in the absence of a stay. The appellant has failed to discharge the onus of showing that it would be in the interests of justice that a stay be granted. 17. The appellant has failed to identify any reason why the respondents’ presumptive entitlement to costs should be displaced. 18. I would dismiss both appeals; affirm the orders of the High Court; and make an order for the adjudication of the respondents’ costs of the appeals and for payment of those costs by the appellant when adjudicated and ascertained. The order will show, also, that the Court has refused the appellant’s application for a stay on the adjudication and enforcement of the order for costs pending his application to the Supreme Court for leave to appeal. 19. 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.