Byrne v National Asset Management Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 23 March 2018
• Neutral Citation: [2018] IEHC 526
• Court: High Court
• Docket Number: [2016 No. 11419 P]
• Date: 23 March 2018

BETWEEN

VINCENT BYRNE

AND

VINCENT BYRNE JUNIOR

PLAINTIFFS/RESPONDENTS

AND

NATIONAL ASSET MANAGEMENT AGENCY

DEFENDANT/APPLICANT

[2018] IEHC 526

[2016 No. 11419 P]

THE HIGH COURT

Striking out proceedings – Cause of action – Abuse of process – Applicant seeking an order dismissing or striking out the respondents' proceedings – Whether the proceedings disclosed a cause of action against the applicant

Facts: The respondents, Messrs Byrne, brought proceedings against the applicant, National Asset Management Agency, in respect of the applicant's dealings with certain bank assets, the subject of various charges and loans, seeking damages for alleged breach of constitutional right to fair procedures, alleged violation of their rights under the provisions of Protocol 1, Article 1 of the European Convention on Human Rights and Article 17 of the Charter of Fundamental Rights of the European Union, and alleged infringement of their rights under the Treaties of the European Union. The applicant applied to the High Court, pursuant to O. 19, r. 28 of the Rules of the Superior Courts, the inherent jurisdiction of the Court, the provisions of the National Asset Management Agency Act 2009, or the provisions of the Statute of Limitations Act 1957, seeking an order dismissing or striking out the respondents' proceedings (or alternatively such part of the summons and statement of claim) on the grounds that: (a) the proceedings were frivolous and vexatious; (b) the proceedings disclosed no cause of action against the applicant; (c) the proceedings had been instituted without satisfaction of the requirements contained in s. 182 of the 2009 Act; (d) the claim had no reasonable prospect of success; (e) the maintenance of the proceedings was an abuse of process in light of the previous proceedings instituted by the respondents; (f) the proceedings were statute barred or otherwise out of time, having regard to the Statute of Limitations Act 1957, s. 193 of the 2009 Act and/or Order 84 of the Rules of the Superior Courts 1986.

Held by MacGrath J that any argument based on a breach of the provisions of the Charter was bound to fail.

MacGrath J held that he would make an order striking out the respondents' claims seeking the reliefs claimed at paras. 3, 4 and 5 of the plenary summons. MacGrath J held that the claims for damages at paras. 1 and 2 would remain standing.

Application granted in part.

JUDGMENT of Mr. Justice MacGrath delivered on the 23rd day of March, 2018.

1 This is the defendant/applicant's (' the applicant') motion seeking an order to dismiss or strike out the plaintiffs/respondents' (' the respondents') proceedings (or alternatively such part of the summons and statement of claim). The application is made pursuant to O. 19, r. 28 of the Rules of the Superior Courts, the inherent jurisdiction of the Court, the provisions of the National Asset Management Agency Act 2009 (' the Act of 2009'), or the provisions of the Statute of Limitations Act 1957, as amended. It seeks to do so on the grounds that:-

(a) the proceedings are frivolous and vexatious;

(b) the proceedings disclose no cause of action against the applicant;

(c) the proceedings have been instituted without satisfaction by the plaintiff of the requirements contained in s. 182 of the Act of 2009;

(d) the claim has no reasonable prospect of success;

(e) the maintenance of the proceeding is an abuse of process in light of the previous proceedings instituted by the respondents;

(f) the proceedings are statute barred or otherwise out of time, having regard to the Statute of Limitations Act 1957, as amended, s. 193 of the Act of 2009 and/or Order 84 of the Rules of the Superior Courts 1986.

2 The applicant seeks an order that the respondents or either of them be restrained from instituting proceedings against the applicant, any National Asset Management Agency (' NAMA') group entity within the meaning of the Act of 2009, Mr. Con Cronin or Mr. Roger Keogh in their capacity as statutory receivers appointed by NAMA, without leave of the court being first obtained.

3 The applicant also seeks an order dismissing the proceedings bearing record number 2015/4645P or, in the alternative, an order that the respondents in the said proceedings not be entitled to take any further step in relation to the said proceedings without leave of the court.

Jurisdiction of the Court on this application

4 Precedent dictates that the inherent jurisdiction of the court on an application such as this should be exercised sparingly, consistent with the constitutional right of access to the courts. The onus on the applicant in an application of this nature is heavy. The consequences for the respondent of a successful application are severe. That the court might not exercise its jurisdiction to strike out a claim on such preliminary basis should not be interpreted as a reflection on the strength, or weakness, of the claim or defence.

5 In Wilkinson & Ors. v. Ardbrook Homes & Ors. [2016] IEHC 434, emphasising that the jurisdiction should be exercised sparingly, Baker J. highlighted the different and distinct nature of the jurisdiction under O. 19, r. 28, from that being exercised under its inherent jurisdiction:-

'15. Order 19, rule 28 of the Rules of the Superior Courts permits the court to stay or dismiss proceedings which are shown to be frivolous or vexatious. The jurisdiction exercised under that rule is separate and distinct from the inherent jurisdiction of the court to strike out proceedings on the grounds that the action is not sustainable or is bound to fail. In any application under the rule, the court is constrained by being confined to an analysis of the claim as pleaded and will exercise its jurisdiction on the assumption that the facts pleaded will be established at trial. If, as a result of that analysis, the court takes the view that the claim does not give rise to a cause of action, the claim will be dismissed or stayed.

16. In his recent judgment in Burke & Anor v. Beatty [2016] IEHC 353, Noonan J. exercised the jurisdiction under O. 19, r. 28 to strike out part of the claim by the plaintiffs against a defendant in which damages for an alleged conspiracy were claimed. Noonan J. made the point ... that "pleadings exist to define the issues which the court has to determine" (para.14).

17. On the other hand, where the court is exercising its inherent jurisdiction to dismiss proceedings, it may take a broader approach and may look outside the pleadings in order to assess whether the claim is bound to fail and if it can be shown to be such, the continued maintenance of those proceedings is an abuse of process. As explained in a series of decisions of Clarke J., including Salthill Properties Limited & Anor. v. Royal Bank of Scotland plc & Ors. [2009] IEHC 207 and Keohane v. Hynes & Anor. [2014] IESC 66, that jurisdiction is one that will be "sparingly exercised". In that context, the court will examine the evidence on affidavit presented by a plaintiff, and will determine whether the plaintiff could possibly establish the facts presented. As Clarke J. said in Lopes v. Minister for Justice, Equality and Law Reform [2014] IESC 21:

"...cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance."

18. The sparing exercise of the jurisdiction involves the court hearing a motion to strike out as being scandalous or vexatious and bound to fail, in not merely taking a plaintiff's pleaded case at its height, but will have to assess whether arguably those matters pleaded or deposed to on affidavit could possibly be established at trial, and if there is a possibility that the case could possibly succeed it ought not be dismissed. Were the test to be more stringent, and were a plaintiff obliged to establish that he or she will arguably succeed, or were the court to require a credible basis for establishing facts, the court hearing the motion could fall into the error of assessing the credibility of the evidence, and failing to recognise that at trial, or even in the course of pre-trial procedures such as discovery, the facts may take a particular course and the court hearing a motion would be depriving a plaintiff of an action that could possibly succeed.'

Background

6 The applicant was established under the National Asset Management Agency Act 2009 (' the Act of 2009'), the preamble of which describes a reason for its establishment being ' to address a serious threat to the economy and to the systemic stability of credit institutions in the State generally'. The acquisition from participating institutions of eligible bank assets, the expeditious dealing with the assets so acquired and the protection or otherwise enhancement of their value are important functions of NAMA under the Act.

7 The respondents are father and son. They bring the underlying proceedings against the applicant in respect of the applicant's dealings with certain bank assets, the subject of various charges and loans, seeking damages for alleged breach of constitutional right to fair procedures, alleged violation of their rights under the provisions of Protocol 1, Article 1 of the European Convention on Human Rights, Article 17 of the Charter of Fundamental Rights of the European Union (' the Charter') and alleged infringement of their rights under the Treaties of the European Union (' the Treaties'). These bank assets were transferred to the applicant in accordance with Part 6 of the Act of 2009 on 17th December, 2010, and were held by the applicant, or one of its entities (National Asset Loan Management Agency), until February, 2016 when they were sold by receivers appointed by the applicant.

8 The notice of motion is grounded on an affidavit of Ms. Mary Lawlor, an employee of the applicant, sworn on 24th March, 2017. The facts outlined in that affidavit are not substantially disputed.

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