O'Connor v Kelly O'Connor v Property Registration Authority of Ireland
| Jurisdiction | Ireland |
| Judge | Ms Justice Baker |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] IECA 235 |
| Judgment citation (vLex) | [2019] 7 JIC 3111 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2019] IECA 235 Appeal No. 2018/78 |
| Date | 31 July 2019 |
[2019] IECA 235
THE COURT OF APPEAL
Baker J.
Peart J.
Whelan J.
Baker J.
Neutral Citation Number: [2019] IECA 235
Appeal No. 2018/77
Appeal No. 2018/78
AND
AND
Abuse of process – Frivolous and vexatious proceedings – Isaac Wunder order – Appellant seeking to appeal against the ex tempore ruling and order of the High Court striking out the proceedings as being an abuse of process – Whether the proceedings fell to be considered as an abuse of process
Facts: The appellant, Mr O’Connor, was previously party to four separate actions, each commenced and prosecuted in the Commercial List of the High Court between 2012 and 2016. Thereafter, he commenced these proceedings and this Court of Appeal judgment was given in the appeal against the ex tempore ruling and order of McGovern J made on 9 October 2017, by which he struck out the proceedings as being an abuse of process, as he found them to be an attempt to litigate matters which had already been definitively and conclusively decided by a court of competent jurisdiction in the four earlier proceedings. McGovern J also made ancillary orders in the form of injunctions, and an Isaac Wunder order against Mr O’Connor restraining him from instituting any further proceedings directly or indirectly concerning any of the properties or borrowings the subject of the earlier proceedings and these two proceedings. Both appeals concerned secured borrowings dating from 2002 and mortgages and charges to Bank of Scotland (Ireland) Ltd (BOSI) over residential properties and building sites in Cork City and County. The grounds of appeal and the factual background were complex, but the core of the proceedings concerned the registration of charges over registered lands and mortgages over unregistered lands in favour of BOSI, and the subsequent sale of those folio lands by a receiver appointed by the successor in title of BOSI. The prior, and definitively concluded, proceedings challenged the securities granted by Mr O’Connor between 2002 and 2010 and actions taken by the owner of the securities including the appointment of Mr Cotter and Mr Charleton as joint receivers. The broad thrust of the response by the respondents, Adrian MacNamara and Company Solicitors and Property Registration Authority of Ireland (PRAI), to these two proceedings and to the appeals was that the issues regarding the validity of the securities and the appointment thereunder of receivers, and those regarding other actions of the owner of the security interests may not be maintained.
Held by the Court of Appeal (Baker J) that, concerning the first proceedings (the Amberley proceedings), the trial judge was correct that Mr O’Connor was required to bring forward all complaints in regard to the title of Feniton Property Finance DAC by, at the latest, the 2016 Sherry Fitzgerald proceedings if not before, and accordingly the proceedings fell to be considered as an abuse of process and were frivolous and vexatious. Concerning the second proceedings (the PRAI proceedings), Baker J held that the rule in Henderson v Henderson (1843) 3 Hare 100 acts to prevent Mr O’Connor from litigating the matters sought to be litigated in the PRAI proceedings as they could have been litigated to a conclusion at the latest in the 2016 Sherry Fitzgerald proceedings. Concerning Mr O’Connor’s point from the judgment of Cregan J in the debt recovery proceedings that his debt had merged into the order and money judgment, Baker J held that the point was one without merit or substance and was to be struck out as being an abuse of process and bound to fail. Baker J held that, in light of the long history of litigation concerning the Cork properties, loans and securities and the history of the prior proceedings and the amount of litigation that had already conclusively and finally determined the issues sought to be litigated, the trial judge had an ample basis for exercising his discretion to make the Isaac Wunder order and she saw no basis on which the Court should interfere with his order.
Baker J held that the appeals would be dismissed.
Appeals dismissed.
Mr Patrick O'Connor, the appellant, was previously party to four separate actions, each commenced and prosecuted in the Commercial List of the High Court between 2012 and 2016. Thereafter, he commenced these proceedings and this judgment is given in the appeal against the ex tempore ruling and order of McGovern J. made on 9 October 2017, by which he struck out the proceedings as being an abuse of process, as he found them to be an attempt to litigate matters which had already been definitively and conclusively decided by a court of competent jurisdiction in the four earlier proceedings. McGovern J. also made ancillary orders in the form of injunctions, and an Isaac Wunder order against Mr O'Connor restraining him from instituting any further proceedings directly or indirectly concerning any of the properties or borrowings the subject of the earlier proceedings and these two proceedings.
The appellant is a litigant in person and also represented himself at the hearing of the applications before McGovern J. For convenience, I will refer to him by his name and not as ‘the appellant’.
Both appeals concern secured borrowings dating from 2002 and mortgages and charges to Bank of Scotland (Ireland) Ltd (‘BOSI’) over residential properties and building sites in Cork City and County, full particulars whereof will appear in the course of this judgment.
The grounds of appeal and the factual background are complex, but the core of the proceedings concerns the registration of charges over registered lands and mortgages over unregistered lands in favour of BOSI, and the subsequent sale of those folio lands by a receiver appointed by the successor in title of BOSI. As will appear, the prior, and now definitively concluded, proceedings challenged the securities granted by Mr O'Connor between 2002 and 2010 and actions taken by the owner of the securities including the appointment of Michael Cotter and Luke Charleton as joint receivers (‘the Joint Receivers’). The broad thrust of the response by the respondents to these two new proceedings and, now, to the appeals, is that the issues regarding the validity of the securities and the appointment thereunder of receivers, and those regarding other actions of the owner of the security interests may not now be maintained.
By the first proceedings (‘the Amberley proceedings’) commenced by plenary summons on 30 May 2017, Mr O'Connor seeks a number of reliefs. The primary relief sought is ‘the return of the plaintiff's property and land’ being the dwelling house at 16 Amberley Heights Grange, Douglas, County Cork, comprised in Folio CK 78315F of the Register of Freeholders County Cork, (‘Amberley’) sold for valuable consideration to Mr James Kelly and Ms Amy McCarthy (‘the Amberley Purchasers’) by Feniton Property Finance DAC (‘Feniton’), the successor in title of the original charge owner. Mr Adrian Mac Namara acted as their solicitor in the purchase and is the third defendant. At the time of the hearing, registration of the dealing of the Amberley Purchasers was pending in the PRAI and was lodged following the closing of the sale to the Amberley Purchasers.
An appearance was entered on behalf of all three defendants and they thereafter issued a motion on 19 July 2017 seeking the admission of the proceedings into the Commercial List of the High Court, and an order that the proceedings be dismissed as an abuse of process on the grounds that the plaintiff was seeking thereby to relitigate matters that had already been decided in a court of competent jurisdiction in the four earlier proceedings set out in the body of the motion, and which I set out below. In the alternative, an order was sought dismissing the proceedings on the grounds that Mr O'Connor was precluded by reason of the rule in Henderson v. Henderson (1843) 3 Hare 100 from litigating matters which, insofar as they had not already been determined, could have been brought forward in those previous proceedings. That motion also sought ancillary injunctive relief and an Isaac Wunder order in the form referred to above.
That motion came on for hearing in conjunction with the motion of the defendant in the second set of proceedings where similar relief was sought on substantially the same grounds.
By the second proceedings (‘the PRAI Proceedings’) commenced against the Property Registration Authority (‘PRAI’) by plenary summons on 20 May 2016, Mr O'Connor seeks damages for the allegedly invalid registration of invalid and defective charges and mortgages in respect of Amberley, of three dwelling houses and lands being unregistered land at Lindville, Ballintemple, Cork, of a premises known as Ashleigh, Rochestown Road, Cork, of land known as Five Firs, Rochestown Road, Cork, also unregistered lands, and of premises known as 43 Aldown Grove, Douglas, County Cork (Folio CK 75412F).
Again, an appearance was entered and the solicitors who act for the defendants in the Amberley Proceedings later came on record for the defendant and issued a motion in similar terms dated 1 October 2017.
The two sets of proceedings and the two appeals raise broadly similar but not identical facts but do raise identical issues of law.
In neither case was a statement of claim delivered by Mr O'Connor and the motions were brought after the filing of an appearance.
McGovern J. heard the two motions on 9 October 2017. It is...
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