Allied Irish Banks Mortgage Bank v Lannon

JurisdictionIreland
JudgeMs. Justice Irvine
Judgment Date05 July 2018
Neutral Citation[2018] IECA 224
Date05 July 2018
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2018] IECA 224 Record Number 2016 558
BETWEEN/
ALLIED IRISH BANKS MORTGAGE BANK
DEFENDANT/RESPONDENT
- AND -
DANIEL LANNON
PLAINTIFF/APPELLANT

[2018] IECA 224

Neutral Citation Number: [2018] IECA 224

Record Number 2016 558

THE COURT OF APPEAL

Reasonable cause of action – Vexatious pleadings – Res judicata – Appellant seeking damages for alleged breach of confidence, breach of trust and breach of his rights to privacy – Whether the appellant’s claim was bound to fail

Facts: The appellant, Mr Lannon, commenced proceedings against the respondent, AIB Mortgage Bank, on the 9th June 2016 seeking a declaration concerning the employment status of Mr McCutcheon, other declaratory relief in respect of the conduct of AIB Mortgage Bank, damages for alleged breach of confidence, breach of trust and breach of his rights to privacy, an order declaring as void the home loan contract pursuant to which AIB Mortgage Bank obtained the order for possession, an order declaring that any contract he ever had with AIB Mortgage Bank is void and that any contracts he had with any entity within the AIB plc group of companies are void and unenforceable, and an order of the court directing the removal of any judgment registered against him or his home. On the 28th November 2016, the High Court (Reynolds J) struck out Mr Lannon’s proceedings pursuant to Ord. 19, r. 28 of the Rules of the Superior Courts on the basis that his statement of claim disclosed no reasonable cause of action and also on the grounds that his pleadings were vexatious. In the alternative she dismissed the proceedings under the court’s inherent jurisdiction on the basis that his claim was bound to fail and was res judicata by reason of the outcome of Circuit Court proceedings bearing record number 2013/9629. Mr Lannon appealed to the Court of Appeal against that order, arguing that the High Court judge: (i) erred in law in refusing to let him rely upon the conduct of Mr McCutcheon or any evidence in relation to Mr McCutcheon when seeking to resist the banks application to dismiss his proceedings; (ii) erred in law in striking out his proceedings under Ord. 19, r. 18 as the pleadings, on their face, did disclose a reasonable cause of action as per the decision of Costello J in Barry v Buckley [1981] IR 306; (iii) erred in law in concluding that his claim against AIB Mortgage Bank concerning the wrongdoing of Mr Ryan was bound to fail; and (iv) erred in her conclusion that his claim for negligence against the bank was bound to fail.

Held by Irvine J that the High Court judge did not err in law and fact when she dismissed Mr Lannon’s claim on the basis that was bound to fail.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Irvine delivered on the 5th day of July 2018
1

This is Mr Lannon's appeal against the order of the High Court, Reynolds J., made on the 28th November 2016. That order was perfected on the 2nd December 2016.

2

By her order the High Court judge struck out Mr Lannon's proceedings pursuant to Ord. 19, r. 28 of the Rules of the Superior Courts on the basis that his statement of claim disclosed no reasonable cause of action and also on the grounds that his pleadings were vexatious. In the alternative she dismissed the proceedings under the court's inherent jurisdiction on the basis that his claim was bound to fail and was res judicata by reason of the outcome of Circuit Court proceedings bearing record number 2013/9629.

Background
3

In December 2005 Mr. Lannon entered into a home loan agreement with AIB Mortgage Bank in the sum of €250,000. That loan was secured by way of mortgage on his premises at 99, Burnell Square, Malahide Road, Dublin. Mr Lannon defaulted in his payment obligations with the result that the bank issued proceedings (‘the possession proceedings’) seeking possession of the said premises. It is not disputed that for the purposes of pursuing those proceedings AIB Mortgage Bank retained the services of Joynt and Crawford solicitors. Joynt and Crawford, according to AIB Mortgage Bank, then retained a company called Park Management Ltd. to serve the civil bill for possession on Mr Lannon at the address of the mortgaged property.

4

One of Mr Lannon's grounds of defence to the possession proceedings was based upon his assertion that a Mr Ken McCutcheon, who had sworn the grounding affidavit on behalf of AIB Mortgage Bank, was not an employee of that bank and, accordingly, had no entitlement to swear it. It followed that the bank had no lawful entitlement to possession. Further, according to Mr Lannon, Mr McCutcheon, at a time when he maintained he was employed by AIB Mortgage Bank, was also swearing affidavits for other financial institutions such as EBS Limited, EBS Mortgage Finance and Haven Mortgages Limited. It followed, according to Mr. Lannon, that Mr. McCutcheon was engaged with Allied Irish Mortgage Bank and other lending institutions in a conspiracy to defraud him and other customers of the bank. Mr Lannon also sought to defend the possession proceedings in reliance upon a breach of the Data Protection Act 1988 (‘the 1988 Act’) by a Mr. Michael Ryan who he maintained had been employed by AIB Mortgage Bank in circumstances to which I will later refer.

5

By reason of the nature of the defence advanced by Mr. Lannon, AIB Mortgage Bank's claim for possession was adjourned so that he might serve a notice to cross-examine Mr McCutcheon on his affidavit. Accordingly, on the 25th October 2016 Mr McCutcheon was duly cross-examined by Mr Lannon as to his employment status. In the course of his evidence Mr McCutcheon produced for Mr Lannon's benefit and that of the Court, documentation to corroborate his employment status over the relevant period.

6

At the conclusion of the evidence, the Circuit judge granted the bank an order for possession of the premises. In his judgment he found as a fact that Mr. McCutcheon was an employee of AIB Mortgage Bank at the time he swore the grounding affidavit and made clear that, notwithstanding his initial reservations, he accepted Mr McCutcheon's status as an employee and his entitlement to swear the affidavit on behalf of AIB Mortgage Bank. It followed, therefore, that he could not have been engaged in the perjury or conspiracy of the type contended for by Mr Lannon.

7

For whatever reason, Mr Lannon did not appeal the judgment and order of the Circuit Court judge. He did however make an application to the High Court seeking leave to apply for judicial review of his decision. That application proved unsuccessful and the order of the High Court refusing leave is currently the subject matter of a separate appeal to this court.

8

Long in advance of the making of the order for possession, on the 5th February 2015 AIB plc, as opposed to AIB Mortgage Bank, commenced proceedings against Mr Lannon seeking recovery of the sum of €21,992.33 on foot of a loan account (‘the branch loan proceedings’) held with that bank. AIB plc, according to the affidavit of their employee, Mr. Neal McKeever, sworn on the 18th July 2016, retained the services of Croskerrys solicitors for the purposes of pursuing those proceedings. They in turn retained an Inquiry Agent, Glenn Collection Investments Limited (‘Glenn Collections’), to establish Mr Lannon's address, which was unknown to the bank at the time. Those proceedings were later served on Mr Lannon at 22, Colpe View, Deepford, Drogheda. Following service, Mr Lannon queried with Croskerrys how they had obtained details of an address which, as far as he was concerned, was known only to the Department of Social Protection.

9

It is convenient at this juncture to record that it is accepted by the parties that Mr. Ryan unlawfully obtained Mr. Lannon's address in breach of the provisions of the 1988 Act as a result of his engagement with an employee within the Department of Social Protection. Mr. Lannon subsequently made a complaint concerning Mr. Ryan's conduct to the Data Protection Commissioner which was resolved in his favour. Mr. Ryan was later charged with and pleaded guilty to ten breaches of the 1988 Act. Relevant also is the fact that the Data Protection Commissioner made no finding of wrongdoing against either AIB plc or Croskerrys solicitors.

10

For reasons that are not entirely clear, AIB plc discontinued the branch loan proceedings and have not pursued Mr Lannon further in respect of the liability the subject matter thereof.

11

Mr. Lannon commenced the within proceedings against AIB Mortgage Bank on the 9th June 2016. It has to be said that the relief claimed in the plenary summons and that claimed in the statement of claim is not consistent as would be expected if Mr Lannon had legal representation. That being so and given that Mr Lannon is a lay litigant it is probably best to consider his appeal against the order dismissing the within proceedings based upon his statement of claim and in particular the relief therein sought. Such an approach would appear to be appropriate in that, when considering an application to dismiss a claim under Ord. 19, r. 28, the court is required to consider whether the pleadings disclose a reasonable cause of action or might be shown to be frivolous or vexatious. In other words, the court carries out a pleadings based assessment. The court is, of course, not so confined when it comes to an assessment as to whether or not the claim should be dismissed pursuant to the court's inherent jurisdiction on the basis that it is bound to fail.

12

As to the cause of action which Mr Lannon seeks to pursue against AIB Mortgage Bank, it is noteworthy that in his written submissions on the appeal, he states that he commenced the proceedings ‘to seek proof as to the employment status of Mr. Ken McCutcheon who claims to be employed by AIB Mortgage Bank and several other separate financial entities simultaneously’. It is nonetheless clear that apart from a declaration...

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1 cases
  • Farrington v Tennant
    • Ireland
    • High Court
    • 30 January 2023
    ...particularise complaints of fraud. I was also referred to the decision of Irvine J. in Allied Irish Banks Mortgage Bank v. Lannon [2018] IECA 224 with regard to the principles guiding the exercise by a court of an inherent jurisdiction to strike out or stay proceedings which it is satisfied......

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