Carthy v Ireland and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Liam Kennedy
• Judgment Date: 19 February 2024
• Neutral Citation: [2024] IEHC 63
• Docket Number: [Record No. 2022/1653P]

Between

Eamon Carthy

Plaintiff

and

Ireland and The Attorney General, and Bank of Ireland Mortgage Bank and Bank of Ireland Mortgages Bank Unlimited Company and Fieldfisher Ireland Solicitors and Whitney Moore Solicitors and Brendan Robbins

Defendants

[2024] IEHC 63

[Record No. 2022/1653P]

THE HIGH COURT

JUDGMENT of Mr Justice Liam Kennedy delivered on the 19th day of February, 2024

1 . The fifth defendant (“the Applicant”) seeks orders dismissing this claim as, inter alia, unsustainable, an abuse of process and a collateral attack on previous orders. The Applicant (including its predecessor firm) represented the third and/or fourth defendants (“the Bank”) in Circuit and High Court Proceedings (“the Original Proceedings”) against the Plaintiff and his wife, Bridget Carthy (“the Borrowers”). The Original Proceedings arose from the Borrowers' default on repayments under a loan secured by a mortgage over a property (“the Property”). In these proceedings, the Plaintiff challenges Circuit and High Court orders in the Original Proceedings, including orders for the possession and sale of the Property. On 15 August 2023, Roberts J. dismissed the claim against the first, second and seventh defendants in these proceedings. Judgment is pending on a corresponding application by the sixth defendant. This judgment will reference and rely on the judgment of Roberts J. and on another judgment in these proceedings by O'Moore J. on 24 March 2023 (directing the Plaintiff to furnish further and better particulars). Accordingly, references to those judges below are to those judgments.

The Original Proceedings

2 . The third defendant (“the Bank”) commenced the Original Proceedings (Circuit Court Record No. 75/2015) on 25 February 2015. On 23 November 2016, the Circuit Court dismissed the Borrowers' application to strike out the proceedings for want of jurisdiction, adjourning the proceedings to enable the Borrowers to file replying affidavits. On 30 March 2017, the Circuit Court granted the Bank an order for possession, with a twelve month stay (“the Possession Order”). The Borrowers did not appeal either order. Unusually, the Possession Order directed the Bank to provide further details of the interest rates, giving the Borrowers leave to apply to vacate the order if the rates were incorrect. On 18 April 2018, Bridget Carthy applied to re-enter the Circuit Court Proceedings and vacate the Possession Order on various grounds, including that: (a) the Bank had not complied with the direction to furnish details of rates and that the rates applied were incorrect; and (b) the “flawed” rateable valuation certificate was “ intended to mislead and deceive the court into granting the possession order”.

3 . On 24 July 2018, the Circuit Court directed that the Original Proceedings be re-entered but, on 19 February 2019, it re-affirmed the Possession Order. Bridget Carthy unsuccessfully appealed the 19 February 2019 order. More than two years after the High Court had dismissed the appeal from the (second) Circuit Court possession order, the Plaintiff applied to the Circuit Court by motion dated 7 July 2022 to stay the Possession Order pending the hearing of an intended plenary action against Bank of Ireland Mortgage Bank (i.e. this action). The Circuit Court struck out that motion with no order on 14 September 2022.

The Plaintiff's Claim against the Applicant in these proceedings

4 . The Plaintiff challenges the validity of five Circuit Court and High Court orders in the Original Proceedings (“the Court Orders”) which were made between 23 November 2016 and 2 March 2020. He seeks to do so by advancing broad, unparticularised allegations, including breach of duty and statutory duty, deceit, conspiracy, misrepresentation and/or nondisclosure of material facts and evidence. He claims that the orders and reliefs in the Original Proceedings were granted through fraud or deceit “ with the intention to violate the constitutional rights of the plaintiff and his spouse and children” and alleges “ violations of the Constitutionally Protected Family Dwelling and Property Rights” and “ Human rights entitlements”. His fundamental claim is that the Bank, for whom the Applicant acted, misled the Court. Para. 17 of the Statement of Claim sought damages against all defendants for breach of:

“[ the Plaintiff's] constitutional rights under Article 1 protocol 1 of the European convention on human rights as a result of the manufactured evidence, deceit and misrepresentation to the court carried out by the banks and solicitors and all agents, violation of the consumer credit act, and violation of directive 93/13/EEC.” [ sic]

5 . Paragraph 18 of the Statement of Claim also sought:

“ damages for breach of contract against the bank and Solicitors”.

6 . Two affidavits delivered by the Plaintiff (in response to the Applicant's motion for particulars) expanded on the claim against the Applicant. The first affidavit acknowledged that the case arose from the Original Proceedings and justified the proceedings as a necessary response to “ the fraudulent evidence and falsified affidavit” of a particular bank employee. It claimed that the bank's valuation certificate was “ obtained by deception, for the purpose of persuading the Circuit Court that it had jurisdiction”. This appears to be the Plaintiff's primary complaint. It should be noted that the “ falsified affidavit” appears to be the affidavit sworn in the Circuit Court proceedings grounding the application for an order for possession. That affidavit was sworn on 11 November 2016. However, the Plaintiff seems to have never availed of the opportunity to swear any replying affidavit in the Original Proceedings to deal with the substance of the claim and to refute the 11 November 2016 affidavit. Nor has he explained his delay in launching proceedings to challenge the evidence in the Original Proceedings. Nor is it suggested that any new evidence has emerged which would not have been available to the Borrowers at the time of the Original Proceedings.

7 . Other grounds apparently asserted in support of the challenge to the Original Proceedings were that: (a) the mortgages were invalid because the loan documents were for a commercial loan whereas the Borrowers were private individuals; (b) the Plaintiff denies signing the mortgage deed in the presence of the solicitor who was supposed to have witnessed it; and (c) the figure claimed in the affidavit sworn by the Bank employee in the Original Proceedings was inconsistent with a figure of which the Plaintiff claims to have been advised by the Central Bank at a later date. The affidavit stated that the Plaintiff contacted the Bank by registered post on five occasions between 24 March 2021 and 11 May 2021 requiring proof of their claim, receiving no reply, and it appeared from his oral submissions that a primary objective of the proceedings was to negotiate with the Bank concerning the amount due under the original facility. The Plaintiff's supplemental affidavit also challenged the Circuit Court's jurisdiction on the basis that the proceedings raised constitutional issues:

“ any Order for Possession is absent consideration for Constitutional Law and the Rights of Sovereign Men and Women and therefore … has no standing in law.”

The Applicant's Oral and Written Submissions

8 . The Applicant argues that the proceedings should be struck out because: (a) the pleadings disclose no material facts on which stateable claims can be advanced against the Applicant; and (b) they are an impermissible attempt to mount a collateral attack on or appeal from the Circuit Court Proceedings. The claim is bound to fail and is an abuse of process.

The Plaintiff's Oral Submissions

9 . The Plaintiff failed to deliver an affidavit on this motion despite being afforded ample opportunity to do so. His oral submissions focussed on the allegedly fraudulent testimony in the Circuit Court proceedings. He acknowledged that his claim was primarily against the Bank not the Applicant, but maintained that the Applicant was also liable for evidence furnished to the Circuit Court. He said that law cannot be a “ cloak” for fraud, and that he would stand on his constitutional rights, as a “ living man”. It was clear that the Plaintiff's core complaint about the evidence in the Circuit Court was his objection to the valuation certificate (which he saw as essential to establishing the jurisdiction of the Circuit Court) and he also queried the accuracy of the Bank's figures in the affidavit grounding the order for possession in the Original Proceedings, asserting that this led to the judge erroneously concluding that the Borrowers were in arrears without adequately explaining the basis for that contention. He also asserted that neither he nor his wife ever signed any documents relating to the mortgage. He characterised the alleged fraud as a “ deliberate attempt” to “ do [ his] family out of their dwelling”, which, he stated, was “ constitutionally protected”.

10 . The Plaintiff said that he had no desire to sue anyone and that if the bank were to prove the existence of a debt on his part, he would willingly settle it. However, he said, having made numerous efforts to resolve the issue with the Bank, he had been left with no option but to issue these proceedings against all the various parties. He acknowledged that the thrust of his claim was against the Bank, but maintained that the Applicant was on record, and was thus responsible for information furnished to the Circuit Court. He also justified the allegations against a multitude of parties on the basis that the “ buck” had constantly been passed amongst the defendants, and, hence, the alleged fraud had never been addressed. He emphasised that “ fraud vacates all” and deemed it “ ludicrous” that a possession order was procured on foot of fraudulent documents furnished to the court.

...