Angela Farrell v The Governor and Company of Bank of Ireland and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 10 July 2012
• Neutral Citation: [2012] IESC 42
• Court: Supreme Court
• Date: 10 July 2012

Farrell v Bank of Ireland

Between/

Angela Farrell

Plaintiff/Appellant

and

The Governor and Company of the Bank of Ireland

Defendant/Respondent

Brian Feeley Dermot Freehill and Mark Woodcock

Applicants/Respondents

The Judge of the District Court No.9 District Court Judge Bridget Reilly

Respondent

Angela Farrell

Notice Party/Appellant

[2012] IESC 42

Denham C.J.

O'Donnell J.

Clarke J.

Record Nos 439/2010, 432/2010, 437/2010, 438/2010, 440/2010, 047/2011 and 121/2011

Record Nos 381/2011, 382/2011 and 383/2011

THE SUPREME COURT

Banking – Banking relationship – Breakdown in relationship – Multiple appeals before court –Respondent seeking security of costs in relation to each of the appeals

Facts: The first respondent was a well-known banking institution which held a number of charges over properties owned by the appellant. In 2009, the first respondent had sought an order for possession of the properties. Shortly after, the appellant had begun an action against the first respondent. This led over time to multiple hearings, as well as the appellant applying for criminal summons against a number of the first respondent”s staff.

After a number of orders had been made in the course of the High Court hearings, the appellant sought to appeal each of those orders. The first respondent now applied for security of costs for each of the appeals.

Held by Clarke J, that special circumstances would be required before an order for security of costs would be granted. The first respondent submitted that the appellant had conducted the litigation thus far in a vexatious and oppressive manner, which would equate to special circumstances. Further the first respondent sought full security rather than the normal practice of one third of the likely costs.

The Court reviewed the relevant jurisprudence on security for costs before applying the principles therein to the instant case.Midland Bank Ltd v Crossley-Cooke [1969] IR 56 considered.

The appeals all concerned procedural orders of the High Court, which the Court should be slow to interfere with. The evidence suggested the appellant had completely failed to engage fully with or understand the process of the litigation or her duties to the court, in circumstances where she was a solicitor herself. This pattern was likely to continue.

The Court therefore believed special circumstances existed which justified ordering security of costs in all but one of the appeals, and ordered that one half of the likely costs was the appropriate ratio.

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS CHAP 12

MACAULEY v MIN FOR POSTS & TELEGRAPHS 1966 IR 345

CONSTITUTION ART 34.3.1

SLATTERY v AN TAOISEACH 1993 1 IR 286

BARRY v BUCKLEY 1981 IR 306

COMPANIES ACT 1963 S390

LISMORE HOMES LTD v BANK OF IRELAND FINANCE LTD 1999 1 IR 501

PROETTA v NIEL 1996 1 IR 102

PITT v BOLGER 1996 1 IR 108

SALTHILL PROPERTIES LTD v ROYAL BANK OF SCOTLAND PLC 2011 2 IR 441

MIDLAND BANK LTD v CROSSLEY-COOKE 1969 IR 56

MALONE v BROWN THOMAS & CO LTD & FEDERAL SECURITY SERVICES LTD 1995 1 ILRM 369 1994/11/3491

HIDDEN HERITAGE IRELAND HOLIDAYS v INDIGO SERVICES LTD 2005 2 IR 115

BULA LTD v TARA MINES LTD UNREP SUPREME 26.3.1998 2000/19/7479

DOWLING & ORS v MIN FOR FINANCE & IRISH LIFE & PERMANENT PLC UNREP SUPREME 24.5.2012 2012 IESC 32

CONSTITUTION ART 34.3.1

HOGAN & WHYTE KELLY: THE IRISH CONSTITUTION 3ED 408-420

RSC O.38 r9

DIN v BANCO AMBROSIANO SPA 1991 1 IR 569

DOMICAN v AXA INSURANCE LTD 2007 2 IR 682

THALLE v SOARES & ORS 1957 IR 182

FALLON v BORD PLEANÁLA 1992 2 IR 380

HARLEQUIN PROPERTY & ORS v HALLORAN UNREP CLARKE 19.1.2012 2012 IEHC 13

1. Introduction

2 1.1 These cases arise, in one way or another, out of a dispute between the plaintiff/appellant ("Ms. Farrell") and the defendant/respondent ("Bank of Ireland") which derives from a banking relationship between those parties. In circumstances which it will be necessary to address in some more detail, the dispute has become complex.

3 1.2 A number of orders of the High Court have been made which have been appealed to this court. In each of the appeals to this court Ms. Farrell is the appellant and Bank of Ireland or persons associated with Bank of Ireland are the respondents. In those circumstances Bank of Ireland (and those persons) have applied to the court for an order for security for the costs of each of the appeals. Ms. Farrell has opposed that application. It should be noted that Ms. Farrell is a solicitor and represented herself. In that context it is first necessary to set out a brief history of the proceedings in the High Court so as to identify the orders under appeal in context.

2. The Orders under Appeal and the High Court Proceedings

2 2.1 On the 13 ^th February, 2009 Bank of Ireland commenced special summons proceedings (record no. 2009/139 SP) which sought an order for possession of a number of properties owned by Ms. Farrell over which the bank claimed security. It also needs to be noted that Ms. Farrell later commenced separate plenary proceedings (record no. 2010/3039 P) against Bank of Ireland on the 26 ^th March, 2010. There appears to be a close connection between the two proceedings. The allegations which appear to form the basis of Ms. Farrell's claim in her plenary proceedings are also set out in the affidavits filed in reply in the special summons proceedings. In reality, the defence to the special summons proceedings seems to be based largely on the same allegations as underlie her claim in the plenary summons proceedings.

3 2.2 As noted the special summons proceedings commenced by Bank of Ireland were first in time and, in circumstances to which it will be necessary to refer briefly later in this judgment, those special summons proceedings took quite some time before being transferred into the judges' list. Eventually the special summons proceedings appeared before the High Court on the 26 ^th March, 2010 which is, of course, the same day as Ms. Farrell's own plenary summons proceedings were commenced. Case management directions were given on that day. Ultimately a hearing date of the 13 ^th July, 2010 was fixed for the special summons proceedings.

4 2.3 In the context of the matters which are now before this court on appeal it is also important to note that Ms. Farrell issued a motion seeking a mandatory order requiring Bank of Ireland to furnish documentation arising out of a request under the Data Protection Acts ("the data protection motion"). In addition Ms. Farrell issued a motion seeking to consolidate the plenary and special summons proceedings. On that application a consolidation order was made, on the 8 ^th July, 2010, with the consent of Bank of Ireland. Given that a hearing date of the 13 ^th July, 2010 had already been fixed for the special summons proceedings, that hearing date had to be vacated by reason of the consolidation of the two proceedings.

5 2.4 The now consolidated proceedings appeared in the list to fix dates on the 27 ^th July, 2010. The position that pertained as of that date was that the plenary proceedings commenced by Ms. Farrell had not, it would appear, been formally set down for trial. However, Laffoy J. fixed a hearing date for the 23 ^rd November, 2010 for the consolidated action and gave directions that Ms. Farrell formally set down her plenary proceedings for hearing not later than the 14 ^th October. There were a number of other applications prior to the 23 ^rd November which it is not necessary to detail at this stage.

6 2.5 However, on the 23 ^rd November the proceedings were assigned to Gilligan J. Questions arose on that occasion concerning whether Bank of Ireland's special summons proceedings could go ahead in the absence of Ms. Farrell's plenary proceedings being in a position to go ahead (the plenary proceedings had not, even by that time, been set down for hearing). There were other issues raised at that stage which do not require detailed consideration for the purposes of this outline narrative. Gilligan J. initially decided that Bank of Ireland's case could go ahead but on the following day, in the light of developments, including an appeal lodged with this court to which further reference will be made, Gilligan J. decided to adjourn the special summons proceedings with various procedural directions being given in relation to the plenary proceedings and on Ms. Farrell giving an undertaking to serve a notice of trial in those plenary proceedings.

7 2.6 In those circumstances Bank of Ireland brought an application to seek to vary the order of consolidation made by Murphy J. on consent on the 8 ^th July, 2010. That motion came before Gilligan J. on the 20 ^th December, 2010 and the order sought on behalf of Bank of Ireland was made despite opposition from Ms. Farrell.

8 2.7 The special summons came on for hearing on that basis and was ultimately determined by McGovern J. on the 22 ^nd February, 2011 with an order for possession being made.

9 2.8 In the context of that brief outline of the course of events up to that time it is appropriate to turn to the first set of appeals which have been brought to this court being the appeals which arise out of the special summons proceedings. The first appeal (record no. 439/2010) is against an order of Murphy J. of the 22 ^nd November, 2010 in which that judge refused to place a stay on the special summons proceedings pending determination of the data protection motion.

10 2.9 The second appeal (record no. 432/2010) is in respect of an order made by Murphy J. on the 23 ^rd November, 2010 refusing relief in the data protection motion, it being asserted inter alia that the relevant relief had already been refused at an earlier hearing on the 27 ^th April, 2010, on the basis...