Allen and Another v Bank of Ireland Group Plc and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Eileen Roberts
• Judgment Date: 14 July 2023
• Neutral Citation: [2023] IEHC 428
• Court: High Court
• Docket Number: 2022 No. 5951P

Between

Charles William Allen and Margaret Fahy

Plaintiffs

and

Bank of Ireland Group Public Liability Company, Bank of Ireland Mortgage Bank Unlimited Company, Link ASI Asset Services, Myles O'Grady, Harry Lorton and Antoinette Dunne.

Defendants

[2023] IEHC 428

2022 No. 5951P

THE HIGH COURT

Abuse of process – Frivolous and vexatious proceedings – Res judicata – Defendants seeking to strike out the plaintiffs’ proceedings – Whether the plaintiffs’ proceedings constituted an abuse of process

Facts: The second plaintiff, Ms Fahy, was the registered owner of a property comprised in Folio 3804L, Co Galway (the Property). The Property was subject to a mortgage entered into between Ms Fahy and the predecessor in title of the second defendant, Bank of Ireland Mortgage Bank Unlimited Company. In 2017, the second defendant issued proceedings against Ms Fahy in Galway Circuit Court (Record No. 2017/343) seeking possession of the Property due to Ms Fahy’s alleged default under that mortgage. An order for possession, with a stay for a period of six months, was made by the Circuit Court (Fergus J) on 28 November 2017 on foot of those proceedings (the Order for Possession). Ms Fahy sought to extend the time for service and lodgement of an appeal against the Order for Possession by motion dated 9 February 2018. Ms Fahy was granted an extension of time within which to appeal the Order for Possession to the High Court. The High Court refused the appeal (Record No. 2018/44 CA) and Noonan J delivered his judgment on 15 May 2019: [2019] IEHC 341. In these proceedings, the first plaintiff, Mr Allen, said that in order to establish precisely what legal entity held absolute title to the charge(s) on the Property, the plaintiffs were seeking all of the documentation set out in the statement of claim, much of which was a repeat of the documents set out in Ms Fahy’s earlier affidavit seeking to extend the time to appeal the Order for Possession. In relation to his claim for damages regarding “their malicious claim”, he confirmed to the court that what was referred to there was the behaviour of the BOI defendants in not providing the requested Formal Letter of Redemption. The first, second, fourth and fifth defendants (the BOI defendants), applied to the High Court to strike out the plaintiffs’ proceedings either pursuant to the inherent jurisdiction of the court on the basis that they constituted an abuse of process or, alternatively, pursuant to Order 19, rule 28 of the Rules of the Superior Courts on the grounds that they disclosed no reasonable cause of action against the BOI defendants, were frivolous or vexatious or unsustainable and/or were bound to fail. Relief was also sought on the basis that the matters the subject of these proceedings should be dismissed pursuant to the doctrine of res judicata. The matter was heard on 12 July 2023.

Held by Roberts J that she would grant the BOI defendants the relief sought in their notice of motion to strike out the plaintiffs’ claim under Order 19, rule 28 and under the court’s inherent jurisdiction on the grounds that the plaintiffs’ claim as pleaded disclosed no reasonable cause of action against the BOI defendants and that the proceedings were frivolous and vexatious and bound to fail. Roberts J held that they were also clearly res judicata and an abuse of process. The continuation of these proceedings against the BOI defendants would in Roberts J’s view cause unnecessary hardship and expense to the BOI defendants who would have to take steps to defend a claim which could not succeed against them. It was of concern to the court that what appeared to be a template of misconceived “irrevocable private trusts” offered by Mr Allen to unrepresented litigants, apparently for reward, was a most unsatisfactory position and one that the court disapproved of in the strongest terms.

Roberts J’s provisional view was that the BOI defendants, having succeeded in their motion against the plaintiffs, were entitled to recover their costs of the motion and the proceedings to date as against the plaintiffs.

Application granted.

Judgment of Ms. Justice Eileen Roberts delivered on 14 July 2023

Introduction

1 . This is an application on behalf of the first, second, fourth and fifth named defendants (who I will collectively refer to as the “ BOI defendants”), to strike out the plaintiffs' proceedings either (1) pursuant to the inherent jurisdiction of this court on the basis that they constitute an abuse of process or, alternatively, (2) pursuant to Order 19, rule 28 of the Rules of the Superior Courts on the grounds that they disclose no reasonable cause of action against the BOI defendants, are frivolous or vexatious or unsustainable and/or are bound to fail. Relief is also sought on the basis that the matters the subject of these proceedings should be dismissed pursuant to the doctrine of res judicata. The matter was heard on 12 July 2023.

The parties and the background to this dispute

2 . The second named plaintiff (“ Ms Fahy”) is the registered owner of a property comprised in Folio 3804L, Co Galway (the “ Property”). The Property was subject to a mortgage entered into between Ms Fahy and the second named defendant's predecessor in title (the Governor and Company of the Bank of Ireland). In 2017, the second named defendant issued proceedings against Ms Fahy in Galway Circuit Court (under record number 2017/343) seeking possession of the Property due to Ms Fahy's alleged default under that mortgage.

3 . An order for possession, with a stay for a period of six months was made by the Circuit Court (Fergus J) on 28 November 2017 on foot of those proceedings (the “ Order for Possession”).

4 . Ms Fahy sought to extend the time for service and lodgement of an appeal against the Order for Possession by motion dated 9 February 2018. In her grounding affidavit sworn on 9 February 2018 in support of that motion Ms Fahy alleged that the second named defendant had failed to substantiate their right of claim against her “ private Trust property” the subject of the proceedings (para 9). She alleged that the Property and her “ equitable interests thereof are placed in a private irrevocable contract Trust” (para 17). She complained that she had not had sight of “ the entire suite of the original executed Financial and Security Documents” including a detailed list of documents set out at paragraph 22 of that affidavit. She also confirmed in para 71 that she was seeking sight of the full suite of original executed security documents. She raised issues regarding the applicable interest rates charged. She complained that her constitutional rights had been breached and that the appropriate proofs had not been provided to support the Order for Possession. She averred at para 38 of her affidavit that

“ I say that [the second named defendant] has made no admission as to being the lawful owner of the legal charge/security instrument, so therefore, the Appellant seeks to know as to who is the lawful owner of same, in the subject of the within entitled proceedings”.

5 . Ms Fahy also averred at paragraph 64 of her affidavit that

“…no one is entitled to interfere in the Appellant's private affairs and private Trust dwelling and lands without the Appellants' and that of the Trusts' implied or express consent. That makes the [second named defendant,] its servants, agents and assigns thereof, all trespassers and liable absolute (sic) in the within entitled proceedings”.

6 . Ms Fahy was granted an extension of...