Brendan Kelly v Irish Bank Resolution Corporation Ltd (in Special Liquidation)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 06 October 2021 |
| Neutral Citation | [2021] IECA 251 |
| Docket Number | Record Number: 2020/57 Record Number: 2020/58 High Court Record Number: 2012/5470P |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
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[2021] IECA 251
Donnelly J.
Noonan J.
Binchy J.
Record Number: 2020/57
High Court Record Number: 2012/5471P
Record Number: 2020/58
High Court Record Number: 2012/5470P
THE COURT OF APPEAL
JUDGMENT of Mr. Justice Noonan delivered on the 6th day of October, 2021
. These appeals were heard together in the High Court and were the subject of a single judgment of the 14 th November, 2019. The appellant (“the Bank”) appeals the refusal of the High Court to dismiss the claims of the respondents (“the plaintiffs”) for want of prosecution.
. The plaintiffs were at the relevant time the owners of a dwelling house at 4 St. Matthias Wood, Church Road, Killiney where they resided. The property was the subject of a mortgage entered into by the plaintiffs originally with Irish Nationwide Building Society, whose assets were ultimately transferred to the Bank. The plaintiffs fell into arrears and this resulted in Irish Nationwide bringing possession proceedings in the Circuit Court in 2009 on foot of an ejectment civil bill on the title. Those proceedings culminated in an order for possession being made on the 30 th June, 2010. This order was made by consent of the plaintiffs who were not at that time legally represented.
. An execution order on foot of the order for possession was issued on the 28 th September, 2011 to the Sheriff for County Dublin, the second defendant herein (“the Sheriff”). The execution order, in standard format, “authorised and required” the Sheriff to take possession of the premises. On the 18 th April, 2012, the Sheriff and his staff attended at the premises for the purposes of executing the order and taking possession of the premises. The plaintiffs were present at the time and alleged that they were forcefully and wrongfully removed from their home and that this constituted an assault.
. On the 1 st May, 2012, plenary summonses in the within proceedings were issued by each plaintiff claiming damages for assault and trespass to the person on the part of the defendants, their servants or agents. A statement of claim was subsequently served on the 9 th November, 2012 to which I will refer further, but before that, a third set of proceedings was instituted by the plaintiff against the same defendants on the 20 th July, 2012.
. Details of the latter proceedings are to be found in the judgment of the High Court (Ryan J. as he then was) in Kelly & Anor. v IBRC [2012] IEHC 401. As appears from that judgment, those proceedings claimed damages for (a) slander of title to goods and property, and trespass to the mortgaged property. Claim (b), which is set out on page 2 of the judgment, was for:-
“A declaration that the order obtained by the defendant for possession of the asset which is set out in the Schedule hereto of the plaintiffs or any of them is in breach of contract and/or void and/or otherwise invalid.”
. The asset in question was the Church Road property. I will refer to those proceedings as the slander of title proceedings and the instant proceedings as the assault proceedings, as did the High Court herein.
. On the same day as the plaintiffs issued the slander of title proceedings, they registered a lis pendens against the property but did not serve the summons on the Bank or give it notice of the registration of the lis pendens. Following obtaining possession of the property, the Bank moved quickly to sell it and concluded an agreement with a purchaser on the 27 th August, 2012. Shortly prior to that, presumably in the course of pre-contract enquiries, the Bank discovered the existence of the lis pendens. As a result, it brought an immediate motion seeking to have it vacated on the basis that the slander of title proceedings and associated lis pendens were instituted solely for the purpose of frustrating the sale and were an abuse of process.
. The matter came on for hearing as an urgent matter during the long vacation with Ryan J. delivering his judgment on the 26 th September, 2012. As recorded at p. 4 of the judgment, Ryan J. noted that junior counsel for the plaintiffs said he was not seeking to impugn the order for possession of the Circuit Court but was relying on the unconscionable, unlawful and inequitable conduct of the Bank. Ryan J.'s conclusion on the application (at p. 5) was as follows:-
“In this case, it seems to me that everything goes back to the consent order for possession of the property that was made by the Circuit Court. I think the Bank is correct in suggesting that the plaintiffs are endeavouring to revisit and appeal, in effect, that order. The proceedings, insofar as they assert an interest in land such that would justify the registration of a lis pendens, constitute an abuse of process. The fact that the plaintiffs are unable, even when faced with this motion, to suggest any detail or even any basis for advancing a claim as to an interest in land, is very telling and in my view is quite fatal to their claim and confirms the absence of bona fides in doing so. It seems to me to be quite obvious that the claim at paragraph (b) of the indorsement on the summons was introduced for the sole purpose of providing a colourable justification for registering a lis pendens in the hope of frustrating a sale of the property. The circumstances of the case point irresistibly to that conclusion and there is nothing in the materials put before the court or in any submission made by counsel Mr. Dixon to suggest any legitimate basis for registering the lis pendens.
It would be a clear injustice to permit the processes of the court to be employed for the purpose and only for the purpose of frustrating the exercise of legitimate rights. That would be the case here if the lis pendens were to be permitted to remain. I propose accordingly to order that it be vacated and that paragraph (b) be struck out.”
. Accordingly, the effect of the judgment was not only to vacate the lis pendens but also to strike out the plaintiffs' claim that the Circuit Court order for possession was invalid. The judgment was appealed to the Supreme Court and the appeal subsequently dismissed.
. Following the judgment of Ryan J. in the slander of title proceedings, the plaintiffs delivered a statement of claim in the assault proceedings herein on the 9 th November, 2012. It would appear that the only aspect of those proceedings which relates to the Bank is the plea contained at para. 7 in the following terms:-
“At a time when the plaintiff herein was not legally represented, the plaintiff was asked to consent to the order of possession. As an inducement to the plaintiff the agents or servants of the first defendant stated that they would consent to a six month stay, during which time further efforts to resolve the issues between the parties could be attempted. It was not explained to the plaintiff that a six month stay would be given in the vast majority of cases where a family home was being repossessed. Agents and servants of the first defendant drafted a note which they had signed by the plaintiff and his wife stating that they were consenting to the order being sought with a six month stay. It was explained to the plaintiff herein that the presence of himself and his wife in court would not be necessary. Consequently, the order for possession was made in the absence of the plaintiff and the implications of agreeing to such an order were not explained to him or his wife and their consent was ill informed and of no effect in law.”
. It must be said that the meaning of this paragraph is far from clear. On the one hand, it appears to impugn the validity of the order for possession made by the Circuit Court, despite the fact that a few weeks earlier, the High Court had struck out precisely such a claim as, in effect, constituting a collateral attack on the Circuit Court order. Furthermore, counsel for the plaintiffs informed Ryan J. that they were not seeking to impugn the order of the Circuit Court, a submission somewhat difficult to reconcile with para. (b) of the prayer for relief in the slander of title proceedings and para. 7 of the within proceedings. This submission was repeated by counsel for the plaintiffs in this court who said that the plaintiffs were not challenging the validity of the Circuit Court order.
. It is not easy to see how that concession is compatible with the plea in para. 7, constituting as it does the only claim against the Bank, and apparently there for the purpose of underpinning the subsequent claim in para. 10 of the statement of claim for assault against the Sheriff, premised on the plea that he entered the plaintiffs' dwelling without permission:-
“10. On the 18 th day of April 2012 the second defendant, his agents and servants, attended at the property and unlawfully, forcibly entered the dwelling without the permission of the plaintiff and by use of unlawful force removed the plaintiff from the property. The plaintiff was subject to the unlawful use of force by the servants and agents of the second defendant which involved being manhandled and pushed from the property.”
. How it is said therefore that the Sheriff unlawfully entered the property can only be explained by the order for possession being invalid, an assertion repeatedly disavowed before the High Court and this court. It is also of significance to note that the statement of claim does not allege that the Sheriff, in entering the plaintiffs' property and removing them from it, did so in his...
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