THE HIGH COURT
		                                                 1999 1405P
PHONSIE WARD 
			PLAINTIFF
AND
AIDAN CALDWELL  AND 
THE MOTOR INSURERS’ BUREAU OF IRELAND
			        DEFENDANTS
Judgment delivered by Mr. Justice Barr on the 5th day of June, 2002.

	A preliminary issue has been raised by the defendants as to whether the plaintiff is entitled to pursue this action having regard to the final determination of an earlier action tried in the Circuit Court and in the High Court on appeal (the first action) between Billy Brown as plaintiff and Alphonsus Ward, Aidan Caldwell and the Motor Insurers’ Bureau of Ireland as defendants.  It is submitted that the liability issue raised in the proceedings presently before the Court  (the second action) is res judicata having regard to the findings and Order of Carney J. on appeal in the first action which is a final judgment on which there is no right of further appeal.  It is submitted that the liability issue raised in the second action (i.e. that brought in this court by Mr. Ward against Mr. Caldwell and the Bureau) is identical to that determined by Carney J. in the first action.  It is also submitted by way of supplementary argument that it would be an abuse of the process of the court to permit the Plaintiff to re-litigate an issue which has been expressly determined against him on appeal in the first action.
	Briefly stated, the background facts are as follows:-
	On a date (not clearly defined in the pleadings in either action) in May, 1996 in Donegal town a collision occurred between a car owned and driven by Mr. Brown and Mr. Ward’s motor cycle which he was riding at the time in consequence of which Mr. Brown suffered personal injuries, loss and damage.  He sued Mr. Ward, Mr. Aidan Caldwell and the Motor Insurers’ Bureau in the Circuit Court.  Mr. Caldwell and the Bureau were joined as defendants because Mr. Brown’s case on liability was that the collision with his car was caused by the negligence of Mr. Ward and of an unidentified white car which Mr. Brown believed was being negligently driven by Mr. Caldwell or, alternatively, it was being driven by an unknown person for whom the Bureau would have liability under its agreement with the State.
	Mr. Caldwell’s defence in both courts was that he had no involvement in the incident and was in fact elsewhere at the time of the accident.  In the Circuit Court that contention was not accepted by the trial judge and it was held that Mr. Caldwell had been involved in the incident and that he only was liable to Mr. Brown in negligence.  On appeal in the High Court that finding was reversed and Carney J. found that only Mr. Ward was liable to the Plaintiff.  All parties were represented and (other than the Bureau) called evidence on the hearing of the appeal and in the court below.  The relevant part of the Order of Mr. Justice Carney made on 16th March, 1999 is in the following terms:-
	“The Court Doth Order that the said Appeal be allowed and the Order of the Circuit Court varied.
	AND IT IS ACCORDINGLY ORDERED AND ADJUDGED:-
  1.	That the Plaintiff do recover from the first named defendant the sum of £17,300 ... together with the costs and expenses of this Court and in the Court below ...
2.	That the Plaintiff’s claim against the Second and Third Named Defendants be dismissed with costs in this Court and the Court below... such costs as awarded against the Plaintiff in favour of the Second and Third Named Defendants to be indemnified by the First Named Defendant ...”
	
	By Notice dated 7th July, 1998 in the first action Mr.Caldwell claimed an indemnity or contribution from Mr. Ward and the M.I.B. in the event of a finding of negligence against him.  After judgment on appeal, Mr. Clarke, counsel for Mr. Caldwell, applied for an Order on foot of the Notice which was refused by Carney J.  The latter made no Order as to contribution or indemnity, nor did he make any Order regarding the liability of Mr. Caldwell and Mr. Ward inter se.  The only liability issue addressed by the learned trial Judge on appeal was that as between Mr. Brown and the defendants sued by him.
	It is not disputed by Mr. Carson, counsel for Mr. Ward, that if Carney J. on appeal in the first action had determined specifically that Mr. Caldwell had not been present at the relevant time and place and had not been involved in any way in the incident relating to the collision between Mr. Brown’s car and Mr. Ward’s motor cycle, and if he had also determined that no other vehicle had played any part in the event, then issue estoppel as defined by the Supreme Court in McCauley (a minor) v. McDermott and McCauley (third party) [1997] 2 I.L.R.M. 486 would be established; Mr. Ward would have no right to raise the issue again in the second action and the defendants would be entitled to the relief which they now seek. However, he submits that, no such findings having been made by Carney J., the first requirement laid down in McCauley (i.e. that the same question has been decided in earlier proceedings) has not been established by the defendants in the second action and, therefore, the question of issue estoppel does not arise.  It was submitted that in the absence of a specific finding by Carney J. that no white car or other vehicle, apart from Mr. Brown’s car and Mr. Ward’s motor cycle, had played any part in the accident directly or indirectly, it would be open to Mr. Ward in the second action to seek to establish that an unidentified vehicle had in fact played a part in the event amounting to negligence against him.  It was further argued that such a situation would not necessarily imply that the unidentified car was also negligent as against Mr. Brown.  It was urged that if such a finding was made in the second action that it would not impinge upon the findings of Carney J. which related exclusively to the issue of liability as between Mr. Brown and the defendants sued by him.  It was conceded by Mr. Carson that his client would have a major struggle to establish in the second action not only the existence of the white car but its negligence vis-à-vis Mr. Ward only.  There is no doubt that the latter would be spancelled by the finding of negligence against him by Carney J. in the first action and by exoneration of the other two defendants sued by Mr. Brown on appeal in the High Court.  However it was submitted that, no finding having been made by Carney J. regarding the presence or possible liability of an unidentified car, the first requirement laid down in McCauley, that the same question has been decided in earlier proceedings, has not been established by the defendants in the second action on the hearing of the motion before the Court and, therefore, the question of issue estoppel does not arise.  That is an ingenious argument but it seems to me that it fails for the following reason.
	The essence of this case is the proper interpretation of the Order made by Carney J. on appeal in the first action.  He was concerned only with liability of the defendants to Mr. Brown, but that included the possibility of an indemnity or contribution as between the defendants inter se.  The Order made by Carney J. establishes beyond doubt by coercive, unavoidable inference that he accepted Mr. Caldwell’s defence that he had no involvement in the incident and was elsewhere at the time of the accident and that no unidentified vehicle had been concerned in the event.  The dismissal of Mr. Brown’s action against the Bureau amounted to a finding that there had been no unidentified motor car on the scene as alleged by Mr. Ward or, if there had been such a vehicle present, there was no evidence of negligence as to the driving thereof.  In short, the unavoidable inference to be drawn from the Order of Carney J. in dismissing the action against Mr. Caldwell and the Bureau is that he was satisfied, inter alia, that Mr. Caldwell’s defence was well-founded and that he had not been present at the material time and place, and also that there was no other unidentified vehicle which played any part in the event.  It had been contended by Mr. Ward in the Circuit Court and on appeal in the first action that the alleged unidentified motor car had contributed to the happening of the accident involving Mr. Brown’s car and Mr. Ward’s motor cycle i.e. it was alleged or implied that the driving of the unidentified vehicle amounted also to negligence against Mr. Brown.  In my view it is impossible for Mr. Ward to establish in the second action not only that there was an unidentified vehicle but that the driving of it amounted to negligence against him and not against Mr. Brown also.  I am satisfied that the dismissal  of Mr. Brown’s action against the Bureau establishes the same finding as to the liability of the driver of the alleged unidentified motor car which is raised in the second action and that Mr. Ward is bound  by issue estoppel in that regard.  In face of the coercive inferences to which I have referred, it does not seem to me that it was necessary for Carney J. to specify in terms that Mr. Caldwell had not been present at the scene of the accident and that no other motor vehicle had any involvement in the matter.  I am satisfied that his Order does not give rise to any ambiguity and is open only to the interpretation which I have given it. 
	I am satisfied that the criteria laid down by the Supreme Court in McCauley has been established by the defendants and that Mr.Ward as plaintiff in the second action is bound by issue estoppel and is precluded from re-litigating the liability issue now raised by him.