Beades v Ulster Bank Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 28 May 2019
• Neutral Citation: [2019] IEHC 389
• Docket Number: [2018 No. 9532 P.]
• Court: High Court
• Date: 28 May 2019

[2019] IEHC 389

THE HIGH COURT

O'Connor Tony J.

[2018 No. 9532 P.]

BETWEEN

JERRY BEADES

PLAINTIFF

AND

ULSTER BANK IRELAND LIMITED, DECLAN TAITE

AND

PATRICK BRENNAN

DEFENDANTS

Abuse of process – Cause of action – Striking out – Defendants seeking an order striking out the claim of the plaintiff – Whether the plaintiff’s claim was an abuse of process, disclosed no cause of action against the defendants, was frivolous, vexatious and/or was bound to fail

Facts: Before the High Court were two applications made and confined by counsel for only the second and third defendants, Mr Taite and Mr Brennan (the receivers), seeking: (i) an order striking out the claim of the plaintiff, Mr Beades, pursuant to O. 19 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court on the ground that the plaintiff’s claim is an abuse of process, discloses no cause of action against the second and third defendants, is frivolous, vexatious and/or is bound to fail; (ii) an order pursuant to s. 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009, or pursuant to the inherent jurisdiction of the court vacating the lis pendens registered on 1st November, 2018, in respect of 106 McKee Road, Finglas, Dublin (the house).

Held by O’Connor J that O. 19, r. 28 of the Rules of the Superior Courts could be successfully invoked on behalf of the receivers; the statement of claim as against the receivers was struck out on the grounds that it disclosed no reasonable cause of action against those defendants and the statement of claim was frivolous and vexatious insofar as it related to the receivers, having regard to the meanings given to those words (frivolous and vexatious) in various judgments. Moreover, and even if he could detect a stateable cause of action in the statement of claim which could be made by an amendment (no amendment having been sought by Mr Beades), O’Connor J determined on the facts pleaded and described in the affidavit of Mr Beades that the plaintiff was bound to fail in the action as against the receivers. Regarding the order to vacate the lis pendens on the application of the receivers registered in respect of the house because, “the action is not being prosecuted bona fide”, it followed from the reasons given in O’Connor J’s determination about the failure to disclose a reasonable cause of action against the receivers, that those proceedings, in the words of s. 123, were not being prosecuted bona fide as against Mr Taite.

After delivery of judgment, Mr Beades applied for a stay on the order which had been made by the Court vacating the lis pendens on the house. In that regard, O’Connor J considered that the least risk of injustice which could be caused, particularly given the innocent third party involvement, required him to refuse the application for a stay. O’Connor J held that damages would be an adequate remedy for Mr Beades if he ever succeeded in a claim against Mr Taite and no question was posed about the ability of Mr Taite to pay an award of damages. O’Connor J found that the ability of Mr Beades to discharge monies due by him was in doubt when considering his indebtedness. Therefore, O’Connor J refused that application of Mr Beades for a stay on the order to vacate the lis pendens. In relation to the application for a stay on the order directing Mr Beades to pay costs, O’Connor J noted that Mr Beades had failed to identify any grounds for not following the rule that costs follow the event or any special reason to disapply that rule; furthermore, his significant debt did not justify further indulging Mr Beades. Therefore, O’Connor J refused the application for a stay on the order directing Mr Beades to pay the costs of this application.

Judgment approved.

EX TEMPORE JUDGMENT of Mr. Justice Tony O'Connor delivered on the 28th day of May, 2019

Introduction

1 I have already ruled upon the application of Mr. Beades to recuse myself from hearing this application which is the subject of a typed note on the Court file.

2 Before the Court are two applications made and now confined by counsel for only the second and third named defendants (‘ the receivers’), to:-

(i) An order striking out the claim of the plaintiff (‘ Mr. Beades’) pursuant to O. 19 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court on the ground that the plaintiff's claim is an abuse of process, discloses no cause of action against the second and third named defendants, is frivolous, vexatious and/or is bound to fail.

(ii) An order pursuant to s. 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009, or pursuant to the inherent jurisdiction of the court vacating the lis pendens registered on 1st November, 2018, in respect of 106 McKee Road, Finglas, Dublin (‘ the house’).

3 The following is an undisputed chronological background to this application:-

07/04/2006 The plaintiff executed a mortgage (‘ the mortgage’) in favour of the first named defendant (‘ Ulster Bank’) over the house.

19/03/2013 The receivers were appointed by Ulster Bank pursuant to the mortgage.

30/09/2013 McDermott J. granted an interlocutory injunction to receivers appointed by Ulster Bank over different residential properties pursuant to separate deeds of mortgage dated 7th April, 2006.

10/10/2013 McGovern J. granted summary judgment in favour of Ulster Bank against Mr. Beades for a sum greater than €3.5m, which is the subject of an appeal by Mr. Beades that has yet to be determined.

19/05/2015 The third named defendant resigned as a receiver and the second named defendant (‘ Mr. Taite’) is now the sole receiver in respect of the house.

15/10/2018 Mr. Taite executed a contract for the sale of the house to a Mr. and Mrs. Feeney who remain in rented accommodation due to the inability of Mr. Taite to close the sale on account of the lis pendens registered, unknown to Mr. Taite, on 1st November, by the plaintiff.

01/11/2018 The plenary summons issued. The solicitors for the receivers obtained knowledge of the summons upon learning of the lis pendens. They entered an appearance on 7th December, 2018, requesting the delivery of a statement of claim.

19/02/2019 The notice of motion (grounded upon an affidavit sworn by Mr Taite on the 14th February 2019), now before this Court, was issued.

11/03/2019 Mr. Beades, who now indicates on affidavit that his place of business is PO Box 80851, Doha, Qatar with an address for service at a particular premises on Richmond Avenue, Fairview, Dublin, delivered a statement of claim along with his affidavit in reply to Mr Taite's grounding affidavit.

27/03/2019 Is the date of the defence which Mr. Beades told the Court that he only saw for the first time today despite an affidavit of service of same and information given previously to Reynolds J. who made rulings to enable the hearing of this motion today.

4 Counsel for Ulster Bank attended today pursuant to a direction of Reynolds J., although Ulster Bank is not seeking any relief against Mr. Beades in this motion. Counsel for the receivers, Mr. Powell, conceded that the relief arising from the delay on the part of Mr. Beades in delivering a statement of claim was not of major concern save as to the issue of the costs in relation to this motion.

5 Paragraph 5 of Mr. Taite's supplemental affidavit filed on 27th March, 2019, summarises the grounds for Mr. Beades” claim, as it now stands as against the receivers, as follows:-

(a) Mr. Beades ‘ felt coerced’ to sign a facility letter with Ulster Bank to address his then liabilities after the date for repayment of loans;

(b) no proper demand was made for the debt due by Mr. Beades to Ulster Bank;

(c) the receivers were appointed on foot of a facility letter of 20th May, 2010, that does not exist;

(d) Mr. Beades has made a complaint to Royal Bank of Scotland (‘ RBS’) in relation to the treatment afforded to him by Ulster Bank and its successor following the global restructuring group (‘ GRG’), which Mr. Beades has referred to as having been the subject of investigations by parliamentary committees or such like in the United Kingdom and in Ireland concerning the...