Allied Irish Banks Plc v McQuaid

JurisdictionIreland
JudgeMr. Justice Robert Haughton
Judgment Date10 September 2018
Neutral Citation[2018] IEHC 516
Docket Number[2016 No. 1920 S.][2016 No. 133 COM.],[2016 No. 1920 S & 2016 No. 133 COM]
CourtHigh Court
Date10 September 2018
BETWEEN
ALLIED IRISH BANKS, PLC.
PLAINTIFF
AND
SEAMUS MCQUAID AND BY ORDER DATED 30TH MAY, 2017 BEN GILROY

AND

CHARLES MCGUINNESS AND BY ORDER DATED 1ST JUNE, 2018 SUSAN MCQUAID, PAUL MCQUAID

AND

GRAINNE MCQUAID AND BY ORDER DATED BLANK JULY, 2018 SONIA MCQUAID, CONOR MCQUAID
DEFENDANT

[2018] IEHC 516

[2016 No. 1920 S.][2016 No. 133 COM.]

THE HIGH COURT

COMMERCIAL

Isaac Wunder orders – McKenzie Friend – Injunction – Plaintiff seeking "Isaac Wunder" orders against the defendant and an order restraining him from acting as a "McKenzie Friend" – Whether the defendant abused his access to the courts

Facts: The plaintiff, Allied Irish Banks plc, applied to the High Court seeking various reliefs against the second defendant, Mr Gilroy. The reliefs sought in the Notice of Motion dated 4 July, 2018, were as follows: "1. An order pursuant to the inherent jurisdiction of this Honourable Court restraining the second named defendant from issuing further proceedings against the plaintiff or any director or employee of the plaintiff, save with the prior permission of the President of the High Court; 2. An order pursuant to Order 63A Rule 5 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of this Honourable Court restraining the second named defendant from issuing any further motions in the within proceedings against the plaintiff, its officers, employees, legal representative, servants or agents, save with the prior permission of the judge in charge of the Commercial List; 3. An order restraining the second named defendant from participating in, assisting or otherwise engaging in litigation in a representative capacity on behalf of others, whether in the capacity of "McKenzie Friend" or otherwise; 4. In the alternative, an order restraining the second named defendant from participating in, assisting or otherwise engaging in these proceedings in a representative capacity on behalf of the first named defendant or any other person, whether in the capacity of "McKenzie Friend" or otherwise; 5. An order restraining the second named defendant from attending at or near the plaintiff's office at Bankcentre, Ballsbridge, Dublin 4."

Held by Haughton J that Mr Gilroy had abused his access to the courts in these proceedings, and had done so repeatedly. Haughton J held that the court should make an order restraining Mr Gilroy from issuing further proceedings against the plaintiff. Haughton J held that it was appropriate that the court should make further orders to prevent any further intimidation of the plaintiff's personnel and legal advisors. Haughton J was satisfied that by his conduct in and out of court Mr Gilroy had shown that he was an entirely unsuitable person to act as a McKenzie Friend.

Haughton J held that the Court would make the following orders: a) an order restraining Mr Gilroy from issuing further proceedings against the plaintiff or any director or employee of the plaintiff, or any legal representative of the plaintiff, save with the prior permission of the President of the High Court; b) an order restraining Mr Gilroy from issuing any further motions in these proceedings against the plaintiff, its directors, employees, legal representatives, servants or agents save with the prior permission of the judge in charge of the Commercial Court list; c) an order restraining Mr Gilroy from attending at or near the plaintiff's office at Bankcentre, Ballsbridge, Dublin 4; d) an order restraining Mr Gilroy from attending at or near the homes/properties of Ms Callanan, Mr Butler, Ms McLoughlin, Mr Bergin and Mr Byrne or any other officer, employee or agent of the Bank whether for the purposes of the service or delivering of documents or otherwise, and whether personally or by his servants or agents; e) an order that any further documents that Mr Gilroy, his servants or agents, may be permitted or required to serve or deliver on the plaintiff or it's legal advisors in these proceedings be served or delivered by registered prepaid post addressed to Beauchamps solicitors for the plaintiff, Riverside Two, Sir John Rogerson's Quay, Dublin 4 (save and to the extent that the same may be delivered electronically to Beauchamps solicitors); f) a permanent injunction restraining Mr Gilroy, whether alone or in concert with any other person, from advising, participating in, assisting or otherwise engaging in litigation in any court in the State in a representative capacity on behalf of others, whether in the capacity of "McKenzie Friend" or otherwise; g) an injunction restraining Mr Gilroy, alone or in concert with any other person, from advising, participating in, assisting or otherwise engaging in the proceedings or any related litigation in a representative capacity on behalf of the first defendant, Mr McQuaid, or any other defendant or notice party whether in the capacity of "McKenzie Friend" or otherwise; h) an order directing that notice of the making of this order be given to the Principal Registrar of the High Court and to the Chief Executive Officer of the Courts Service.

Application granted.

Judgment Concerning Ben Gilroy
Judgment of Mr. Justice Robert Haughton delivered on the 10th day of September, 2018.
Paragraph Title
3

Background and Factual Basis for the Applications

6

Summary judgment against Mr. McQuaid

8

Injunctions following property transfers into 'Morrigan Trust'

10

Hearing on 19 June, 2017 and Mr. Gilroy's undertakings

13

First criminal contempt, guilty plea and judgment

20

Subsequent events and basis for second criminal contempt

43

Second criminal contempt hearing and judgment

45

Appeals in respect of the Joinder Order

48

Mr. Gilroy's second motion

58

Mr. Gilroy as Litigation Agent from Mr. Seamus McQuaid

63

Criminal Contempt Determination of 3 May, 2018 by O'Connor J.

68

Other Proceedings Involving Mr. Gilroy

70

The Morrigan Private Settlement Trust

71

The Gilroy proceedings

75

Affidavit of Claire Callanan

78

Mr. Gilroy's Defence

88

Final Replying Affidavit of Philip Butler

92

Principles Applicable to Isaac Wunder Orders

100

Application to the Facts

132

Injunction from attending at Bank Centre

135

Injunction Restraining Involvement as a McKenzie Friend – Legal Principles

147

Application to the Facts

158

Summary of Orders

1. This judgment concerns an application seeking various reliefs against the second named defendant, Ben Gilroy ('Mr. Gilroy'). The reliefs sought in the Notice of Motion dated 4 July, 2018, are as follows:-

'1. An order pursuant to the inherent jurisdiction of this Honourable Court restraining the second named defendant from issuing further proceedings against the plaintiff or any director or employee of the plaintiff, save with the prior permission of the President of the High Court;

2. An order pursuant to Order 63A Rule 5 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of this Honourable Court restraining the second named defendant from issuing any further motions in the within proceedings against the plaintiff, its officers, employees, legal representative, servants or agents, save with the prior permission of the judge in charge of the Commercial List;

3. An order restraining the second named defendant from participating in, assisting or otherwise engaging in litigation in a representative capacity on behalf of others, whether in the capacity of 'McKenzie Friend' or otherwise;

4. In the alternative, an order restraining the second named defendant from participating in, assisting or otherwise engaging in these proceedings in a representative capacity on behalf of the first named defendant or any other person, whether in the capacity of 'McKenzie Friend' or otherwise;

5. An order restraining the second named defendant from attending at or near the plaintiff's office at Bankcentre, Ballsbridge, Dublin 4.'

2

As can be seen, the essence of the plaintiff's claim is for 'Isaac Wunder' orders against Mr. Gilroy, and further an order restraining him from acting as a 'McKenzie Friend' generally, or specifically, in relation to these proceedings.

Background and Factual Basis for the Applications
3

This application is based on a detailed grounding affidavit of 4 July, 2018, sworn by Philip Butler ('Mr. Butler'), a Senior Manager of the plaintiff, and a supporting affidavit sworn on 4 July, 2018, by Claire Callanan ('Ms. Callanan'), a solicitor in Beauchamps Solicitors who are on record for the plaintiff. Mr. Gilroy swore a replying affidavit dated 20 July, 2018, in response to which a further affidavit was sworn by Mr. Butler on 25 July, 2018. The court also had the benefit of written Legal Submissions on behalf of the plaintiff, and heard oral submissions on 30 and 31 July, 2018, by Mr. Lyndon McCann S.C. on behalf of the plaintiff, and by Mr. Gilroy in person.

4

Having regard to the extent of the papers, on the application of Mr. Gilroy at the outset the court permitted the third named defendant, Mr. Charles McGuinness, to sit with him and assist with papers during the course of the hearing.

5

Most of the factual background relates to steps taken in these and other proceedings, affidavits and correspondence of Mr. Gilroy, the transcripts of proceedings, and resulting court orders. Accordingly, the facts are largely uncontested. Where the court has drawn inferences or reached conclusions on the facts this will be stated in this judgment.

Summary judgment against Mr. McQuaid
6

These proceedings were initiated by the plaintiff against the first named defendant Mr. Seamus McQuaid ('Mr. McQuaid') alone, in 2013. The plaintiff sought to recover a sum in excess of €3 million in respect of monies lent by the plaintiff to Mr. McQuaid. The matter came before me on 2 February, 2017, on foot of an application by the plaintiff for summary judgment. Mr. McQuaid was unrepresented, but was accompanied in court by Mr. Gilroy, who acted as 'McKenzie Friend' for Mr McQuaid....

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