Columb Brazil v Ireland, The Attorney General, Property Registration Authority, Bank of Scotland Plc, Ennis Property Finance DAC, Tom Kavanagh, Wilsons Auctions and Pepper Finance Corporation (Ireland) DAC
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 21 December 2021 |
| Neutral Citation | [2021] IEHC 843 |
| Court | High Court |
| Docket Number | [2018 No. 4663 P] |
[2021] IEHC 843
[2018 No. 4663 P]
THE HIGH COURT
Vexatious claim – Bound to fail – Abuse of process – Defendants seeking to dismiss the plaintiff’s claim – Whether the plaintiff’s claim was bound to fail
Facts: The plaintiff, Mr Brazil, alleged that: (a) the European Communities (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008), in particular 19 (1) (g) and (h), went beyond the scope of Directive 2005/56/EC of the European Parliament and of the Council of 26th October, 2005 on Cross-Border Mergers of Limited Liability Companies and are ultra vires as regards the consequences attributed to cross-border mergers; (b) the application of Regulation 19 to the plaintiff’s loan in the context of the fourth defendant, Bank of Scotland Plc (BOS), and, thereafter, the fifth defendant, Ennis Property Finance DAC, becoming registered as owner of the charge over his property was impermissible, rendering the entries by the third defendant, the Property Registration Authority, at part 3 of folio 2710 of the Land Registry County Kildare a “fraud” and void; (c) not being in existence when the plaintiff took a loan from Bank of Scotland (Ireland) Ltd (BOSI) in 2002 and granted a charge in favour of BOSI in 2003, the 2008 Regulations could not be “retrospectively” relied upon in order to carry out what the plaintiff described as a “fraud” upon him and which he claimed to be a breach of the contract (between BOSI and the plaintiff) which BOS had inherited by reason of a cross-border merger. The defendants applied to the High Court to dismiss the plaintiff’s claim pursuant to O. 19, r. 28 of the Rules of the Superior Courts (as amended) or pursuant to the court’s inherent jurisdiction.
Held by Heslin J that the proceedings disclosed no cause of action and the plaintiff made no assertions of fact in support of his claim which, if true, would give rise to a cause of action; thus, the plaintiff’s case was vexatious and should be dismissed under O. 19, r. 28. Heslin J held that there was no credible basis for the assertions which the plaintiff made in his claim, which was bound to fail on its merits. Heslin J had no hesitation in saying that the inherent jurisdiction of the court also required the dismissal of the plaintiff’s claim to prevent an abuse of the processes of the court.
Heslin J held that the defendants were entitled to the relief sought and the plaintiff’s claim must be dismissed. As to the question of costs, Heslin J’s preliminary view was that there were no facts or circumstances which would justify a departure from the ‘default position’ i.e. that costs should ‘follow the event’.
Relief granted.
JUDGMENT of Mr. Justice Mark Heslin delivered on the 21st day of December, 2021
On 25 November, 2021, the court heard applications to dismiss the Plaintiff's claim. Mr. Buttanshaw BL appeared for Ireland, the Attorney General and the Property Registration Authority (“PRA”) (which I shall refer to, collectively, as the “State Defendants”). Mr. Hutchinson BL appeared for the Fourth Defendant, Bank of Scotland Plc (which I shall refer to as “BOS”). The Fourth Defendant bank is a company incorporated in the United Kingdom and having its registered office in Edinburgh, Scotland which, at all material times, has been regulated in the United Kingdom. Mr. Byrne BL appeared for the Fifth to Eighth Defendants. The Plaintiff is a litigant in person who participated fully during the course of the remote hearing which took place over two days.
Before looking in some detail at the Plaintiff's claim, as pleaded, the following comprises relevant facts which provide the backdrop to the present proceedings.
Bank of Scotland (Ireland) Ltd (“BOSI”) agreed to advance €750,000 to the Plaintiff. The said loan offer was accepted, and the relevant loan was drawn down by the Plaintiff.
The Plaintiff entered into a deed of mortgage and charge with BOSI by which he granted BOSI a first legal charge (“the charge”) over property comprising and described in folio 2710 of the Land Registry County Kildare which property was described in the mortgage as
“ALL THAT AND THOSE part of the lands of Kinnafad with dwelling house and out offices thereon containing 56.672 hectares or thereabouts metric measure being part of the property described in Folio 2710 of the register County Kildare and which said property is delineated on a map annexed to a Transfer dated 8 January 2003 and made between John Hill and Columb Brazil and thereon bounded by a red line and letters “B 1” and “B 2” (hereinafter “the property”).
The Plaintiff pledged the property as security for “ present and future advances” and the definition of “ the Bank” in the aforesaid deed of mortgage and charge referred to BOSI and “ its successors and assigns”. It is appropriate to refer to certain clauses in the said deed of mortgage and charge as follows:-
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• Clause 19 provided that:- “[t]his Deed shall remain enforceable, valid and binding for all purposes notwithstanding any change in the name of the Bank or its absorption of, or by, amalgamation or consolidation with, any other company or any change in the constitution of the Bank, it successors or assigns or the company by which the business of the Bank may from time to time be carried on and shall be available to such successors, assigns or company carrying on that business for the time being”;
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• Clause 26 contains “ Assignment provisions” including that “The Bank may assign or transfer all or any of its rights or obligations hereunder. Any assignee, transferee or successor of the Bank shall be entitled to enforce and proceed with this security in the same manner as if named herein”;
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• Clause 28 provides, inter alia, that “ the mortgagor hereby assents to the registration as burden on the Folio of any registered land referred to in Clause 3 of which the mortgagor is the registered owner …”.
The Plaintiff accepted a loan offer dated 25 March 2003, pursuant to which the December 2002 Facility was amended, subject to the terms and conditions set out therein and subject to the 2002 loan conditions which were incorporated by reference.
The Plaintiff accepted a loan offer dated 10 May 2004, pursuant to which BOSI made a loan facility of up to €750,000 available to the Plaintiff. The foregoing was in replacement and substitution of the earlier loan offer letters dated 12 December 2002 and 25 March 2003 from BOSI to the Plaintiff. The June 2004 Facility was granted by BOSI to the Plaintiff, subject to the loan conditions set out in the June 2004 Facility, and subject also to BOSI's general loan conditions which were incorporated by reference.
BOSI was registered as the owner of the aforesaid charge over the Plaintiff's property. This is clear from the entry in Part 3 of folio 2710 (dealing with “Burdens”) which records the registration of BOSI's ownership of the relevant charge as follows:-
“The title to this charge was transferred by virtue of a cross-border merger made in accordance with Directive 2005/56/EC of the European Parliament and of the Council that was approved by order of The Court of Session of Scotland to take effect at 23:59 hours GMT on 31st December 2010. See entry no. 7 below.”
A pattern began to emerge of the Plaintiff defaulting in his repayment obligations (see uncontested averments at para. 11 of affidavit sworn on 5 November 2021 by Mr Chis O'Neil on behalf of the Fourth Defendant).
BOSI merged with BOS and the former ceased to exist, pursuant to a cross-border merger to which Directive 2005/56/EC of the European Parliament and of the Council of 26th October, 2005 on Cross-Border Mergers of Limited Liability Companies (“the Directive”) applied. By virtue of the aforesaid merger, the entitlement to recover monies on foot of the loan, as well as the charge over the property granted by the Plaintiff to BOSI, became vested in BOS. This is in circumstances where Article 14(1) of the Directive which sets out the consequences of a cross-border merger of the type which occurred, provides at subs. (a) that “ all the assets and liabilities of the company being acquired shall be transferred to the acquiring company”.
For the purpose of giving effect to the Directive, the Minister for Enterprise Trade and Employment made the European Communities (Cross-Border Mergers) Regulations, 2008 ( S.I. No. 157 of 2008) (“the Regulations”), Regulation 19 of which is entitled “ Consequences of a cross-border merger”, para. (1) of which begins as follows:-
“(1) Subject to paragraph (2), the consequences of a cross-border merger are that, on the effective date—
(a) all the assets and liabilities of the transferor companies are transferred to the successor company,”;
BOS entered into a purchase deed regarding the sale of a portfolio of loan facilities and associated security to ELQ Investors II Ltd. which included the loan facilities granted to the Plaintiff and the charge granted by the Plaintiff over his property.
BOS, ELQ Investors II Ltd. and Ennis entered into a deed of novation whereby ELQ Investors II Ltd. novated the entirety of its rights, title, interest, obligations and liability under the aforesaid purchase deed in favour of Ennis;
BOS was registered as owner of the relevant charge and this is clear from “entry no. 7” at part 3 of folio 2710. That entry also records that ownership of the charge has been transferred and it refers to “ entry no. 8”.
BOS, as assignor, and Ennis, as...
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