THE HIGH COURT
		1985 810p
JAMES McGUINNESS
		PLAINTIFF
AND
MOTOR DISTRIBUTORS LIMITED AND TONY KELLY CAR SALES LIMITED
		DEFENDANTS

Judgment of Barron J. delivered on the 22nd day of October 1996.

	The present proceedings are brought by the Plaintiff to recover damages for breach of contract in the supply of an unroadworthy motor bus.  The said bus was involved in a road traffic accident on the 18th April, 1982 at Stramackilmartin, Derrybeg, Co. Donegal.  Arising out of that road traffic accident a passenger in the bus brought proceedings against the Plaintiff and his driver seeking damages for personal injuries sustained in the accident.  In those proceedings the Plaintiff, as defendant in such proceedings, availed of third party procedure against the Defendants in the present proceedings and sought to establish that the cause of the accident arose from defects in the bus for which such Defendants were solely responsible.  
	Those proceedings came on for hearing on the 29th September, 1988.  The learned Circuit Court judge found in favour of the passenger as against the Plaintiff and awarded the passenger damages.  The issue as between the Plaintiff and the Defendants was dismissed.  An appeal was taken against this decision but withdrawn.  On the 24th October, 1989 an Order was made by the High Court on Circuit confirming the Circuit Court Order and again ordering that the third party issue be dismissed.  
	Meanwhile, the Plaintiff had issued these proceedings on the 28th January, 1985.  Pleadings were completed in September 1988.  Subsequently a notice of intention to proceed was served on the 3rd February, 1992 but nothing further appears to have been done on foot of such notice.  On the 7th April, 1994 there appears to have been a motion to dismiss for want of prosecution.  That does not appear to have been successful because on the 
21st March, 1995 the Defendants brought a motion seeking to amend the defence to plead estoppel arising from the Order of the High Court on Circuit to which I have referred.  They were given liberty to so amend their defence and the defence as amended was delivered on the 24th April, 1995.  The matter now comes before this Court as a preliminary issue to determine whether or not the Plaintiff is estopped from proceeding with the action.
	The parties accept that the appropriate principle of law is set out in a passage from the judgment of Gibson J. in Shaw -v- Sloan 1982 NI 393 as follows:-

	"It would seem that before estoppel of an issue can arise there must have been a final determination of the same issue in previous proceedings by a Court of competent jurisdiction and the parties bound by this earlier decision must have been either the same parties as are sought in the latter proceedings to be estopped or their privies."
	
	It is accepted that the issues arising in the present case are the same as those which arose in the earlier action.  As the parties are also the same, prima facie it would seem that the conditions for estoppel have been met.  Nevertheless, it is submitted that the Plaintiff was not a real party to the Circuit Court proceedings in that it was his insurance company and not he who had control of those proceedings.
	The Plaintiff refers to a passage in the judgment of O'Flaherty J., which was the judgment of the Court, in Lawless -v- Bus Eireann 1994 1 IR 474 at page 478.
	The passage was as follows:-

	"Accepting that negligence is the sole issue, nonetheless, that leaves unresolved the problem that neither Mrs. Lawless, her children nor the other dependants were in any sense represented at the hearing either in the Circuit Court or the High Court in the Brownell case.  I have no doubt that those who represent the insurance companies' interests at both hearings did their best.  But that was not the point.  The point is the entitlement of a person to have an opportunity to present his or her case in Court; to decide the tempo of the case; decide what witnesses should be called or not called, and so forth.  It is impossible to conclude that there was any privity of interest in this case between Mr. Brady, as nominee of the insurance company, and the plaintiff and the dependants of the deceased."

	That case arose out of a collision between a bus and a van.  The driver of the van was killed in the accident.  In proceedings brought by a passenger in the bus against the owners of the two vehicles, the interest of the deceased was represented by a nominee of his insurance company.  It was held that the deceased was solely responsible for the accident.  
	When his widow subsequently commenced proceedings against the owners of the bus, they pleaded that the widow was estopped from pursuing her claim by reason of the finding of negligence against her husband.  It was held, however, that there was no privity of interest between that of the deceased and that of the claimants in the fatal injury proceedings.

	That case was decided upon the absence of any privity of interest as between the relevant party in the first action and the relevant party in the second action.  Other cases to which I was referred depend also upon the absence of privity.  In Shaw -v- Sloan 1982 NI 393; Reamsbottom -v- Rafferty 1991 1 IR 531; and McShane -v- McGinn an unreported judgment of Keane J. delivered on the 18th May, 1995 the refusal of the Courts to allow pleas of estoppel turned upon the difference in interest as between the owner and the driver of the relevant motor vehicles.  That is not the position here.  While the Circuit Court proceedings were controlled by the insurance company nevertheless the Plaintiff was the party to the proceedings not his insurance company. 
	I will allow the plea of estoppel.