Byrne v National Asset Management Agency

• Jurisdiction: Ireland
• Judge: Ms. Justice Eileen Roberts
• Judgment Date: 24 March 2023
• Neutral Citation: [2023] IEHC 151
• Court: High Court
• Docket Number: 2022 No. 161 IA

Application Pursuant to Section 182 of the National Asset Management Agency Act 2009

Between

Vincent Byrne

Applicant

and

National Asset Management Agency

Respondent

[2023] IEHC 151

2022 No. 161 IA

THE HIGH COURT

Abuse of process – Statute barred – National Asset Management Agency Act 2009 s. 182 – Applicant seeking leave in accordance with s. 182 of the National Asset Management Agency Act 2009 to issue proceedings against the respondent – Whether the applicant’s application was frivolous or vexatious and wholly misconceived, had no reasonable prospect of success, was an abuse of process, and/or was statute barred or otherwise out of time

Facts: The High Court heard two separate motions on 14 March 2023. The first motion was an application brought by the applicant, Mr Byrne, in which he sought leave in accordance with s. 182 of the National Asset Management Agency Act 2009 to issue proceedings against the respondent, National Asset Management Agency (NAMA). The second motion was NAMA’s motion seeking the following reliefs: (1) an order pursuant to Order 19, rule 28 or the court’s inherent jurisdiction dismissing or striking out the applicant’s s. 182 application on the grounds that the application was frivolous or vexatious and wholly misconceived, had no reasonable prospect of success, was an abuse of process, and/or was statute barred or otherwise out of time; (2) an order that the applicant be restrained from instituting any proceedings or application against NAMA or any NAMA entity without the leave of the court being first obtained and an order that if any such proceedings be instituted without such leave or where an application for leave is issued, the defendant or defendants in such proceedings shall not be required to enter an appearance to the same, which shall stand dismissed without being heard; (3) an order dismissing the applicant’s motion for leave to issue proceedings seeking relief in judicial review against NAMA under record number 2020/125JR or, in the alternative an order that the applicant be not entitled to take any further step in relation to those proceedings without the leave of the court being first obtained; and (4) an order dismissing the proceedings between Mr Byrne and NAMA under record number 2015/4645P, or in the alternative an order that the plaintiff in those proceedings be not entitled to take any further step in relation to same without the leave of the court being first obtained.

Held by Roberts J that she would refuse the applicant’s request for leave to issue proceedings against NAMA which he advanced by way of motion dated 10 November 2022. Roberts J found that the application pursuant to s. 182 of the 2009 Act was out of time and that there were no substantial reasons to otherwise justify granting leave as the intended proceedings were statute barred and bound to fail and would, if advanced, be vexatious and an abuse of process. Roberts J held that she would make an order in favour of NAMA in the terms of paragraphs 1 and 2 of their notice of motion dated 12 December 2022. Roberts J held that she would make an order in the terms of paragraphs 3 and 4 of NAMA’s notice of motion in the following terms, namely: (3) “An order that the applicant be not entitled to take any further step in relation to proceedings seeking relief in judicial review as against the respondent bearing record number 2020/125JR, without the leave of this Honourable Court being first obtained”; and (4) “An order that the plaintiff in proceedings between [Mr] Byrne and National Asset Management Agency under record number 2015/4645P be not entitled to take any further step in relation to the same without leave of this Honourable Court being first obtained”.

Roberts J’s provisional view was that the defendant, having succeeded in full in its motion against the plaintiff, was entitled to recover its costs of that motion as against the plaintiff as well as any additional costs that were incurred by the defendant as a consequence of it being put on notice of the plaintiff’s motion.

Applicant’s application refused. Respondent’s application granted.

JUDGMENT of Ms. Justice Eileen Roberts delivered on 24 March 2023

Introduction

1 . This judgment relates to two separate motions heard by this Court on 14 March 2023.

2 . The first motion is an application brought by the applicant in which he seeks leave in accordance with section 182 of the National Asset Management Agency Act 2009 (the “ 2009 Act”) to issue these proceedings against the respondent (“ NAMA”).

3 . The second motion is NAMA's motion which seeks the following reliefs: –

• (1) an order pursuant to Order 19, rule 28 or this court's inherent jurisdiction dismissing or striking out the applicant's section 182 application on the grounds that the application is frivolous or vexatious and wholly misconceived; has no reasonable prospect of success; is an abuse of process and/or is statute barred or otherwise out of time.

• (2) An order that the applicant be restrained from instituting any proceedings or application against NAMA or any NAMA entity without the leave of this court being first obtained and an order that if any such proceedings be instituted without such leave or where an application for leave is issued, the defendant or defendants in such proceedings shall not be required to enter an appearance to the same, which shall stand dismissed without being heard.

• (3) An order dismissing the applicant's motion for leave to issue proceedings seeking relief in judicial review against NAMA under record number 2020/125JR or, in the alternative an order that the applicant be not entitled to take any further step in relation to those proceedings without the leave of this court being first obtained.

• (4) An order dismissing the proceedings between Vincent Byrne and NAMA under record number 2015/4645P, or in the alternative an order that the plaintiff in those proceedings be not entitled to take any further step in relation to same without the leave of this court being first obtained.

4 . Essentially therefore there are two issues to be determined by this court being:

• (a) Whether the applicant should be given leave to prosecute these proceedings. NAMA's application to strike out the leave application is related (essentially being the converse position) and both aspects can be addressed together.

• (b) Whether, if the court strikes out the application for leave to issue these proceedings, the court should in addition impose a restriction on the institution or progress of both extant and any further proceedings by the applicant without leave of the court.

Background

5 . There is a lengthy history of litigation between the applicant, the applicant's father and NAMA which is set out in some detail in the affidavits filed on behalf of NAMA in this matter. A summary of the background is also set out in some detail in the judgment of Noonan J on behalf of the Court of Appeal in proceedings Vincent Byrne and Vincent Byrne Junior v National Asset Management Agency [2020] IECA 305 at paras 2 – 12. I do not intend to repeat the detail of that history in those circumstances. I will instead highlight the most important aspects of that history insofar as relevant to the matters now before this court.

6 . In July 2006 the applicant and another party secured loans from AIB for ca. €6 million for the stated purpose of property development. Security was provided by the applicant and his father, Vincent Byrne senior, over various properties and a letter of guarantee was also provided by Vincent Byrne senior. Relevant mortgages were put in place by AIB to secure the borrowings on those properties. Unfortunately, the project encountered difficulties and the development was not proceeded with. The loans fell into arrears. Ultimately on 17 December 2010 the loans were transferred to NAMA. There is evidence that the applicant was advised by a representative of AIB in a phone call some four months prior to the actual transfer to NAMA that his loans would be transferred to NAMA. In any event, the applicant and his father were formally notified in writing on 28 April 2011 that NAMA had acquired their loans.

7 . Following demand, NAMA appointed receivers over the various secured properties in January and February 2014. On 20 February 2014 the applicant issued proceedings against the receivers (2014/2599P) which were served in June 2014. In November 2014 the applicant issued a motion for interim injunctive relief against the receivers. White J gave judgment on 19 December 2014 holding that the receivers had been lawfully appointed and that they were entitled to sell the secured properties. The proceedings against the receivers were struck out by order of White J on 27 February 2015.

8 . On 5 June 2015 proceedings were issued by Vincent Byrne against NAMA under record number 2015/4645P (“ First NAMA Proceedings”). Those proceedings have never been served. It is unclear whether the plaintiff is the applicant or his father. Those proceedings are referred to in NAMA's motion before this court.

9 . On 5 August 2015 Vincent Byrne senior issued proceedings against NAMA under record number 2015/6365P (“ Second NAMA Proceedings”) claiming damages for breach of duty, breach of statutory duty and breach of constitutional rights and his rights under the “European Charter of Human Rights”, which claims were later expanded to include declarations that the loans and the guarantee provided was void and requiring return to him of possession of the secured properties. An injunction was sought restraining the sale of the secured properties and NAMA issued its own motion to have the Second NAMA Proceedings struck out as being frivolous or vexatious. On 4 December 2015 O'Connor J refused the motion for injunctive relief. The secured properties were then sold and on 14 December 2015 O'Connor J struck out the Second NAMA...