O'Connor v Property Registration Authority of Ireland and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Barry O'Donnell
• Judgment Date: 28 February 2024
• Neutral Citation: [2024] IEHC 128
• Docket Number: [2016 No. 4510 P]

Between

Patrick O'Connor

Plaintiff

and

Property Registration Authority of Ireland, Micheal Cotter and Luke Charleton and Feniton Property Finance DAC

Defendants

[2024] IEHC 128

[2016 No. 4510 P]

THE HIGH COURT

JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 28 ^th day of February, 2024 .

INTRODUCTION

1 . This judgment concerns an application made by the plaintiff in this matter, Mr. O'Connor, for liberty to issue fresh proceedings against the third defendant, Mr. Charleton.

2 . By motion dated 28 September 2023, the plaintiff sought several orders. The first relief sought was an order “ pursuant to the inherent jurisdiction of this Honourable Court, granting the Plaintiff herein, permission to initiate proceedings against Luke Charleton.” The remainder of the reliefs comprise a series of orders relating to the actions of Mr. Charleton, in his capacity as a receiver, that concern several properties with which Mr. O'Connor is (or was) connected, and which are framed as injunctive-type relief restraining Mr. Charleton from taking any steps qua receiver in respect of the identified properties.

3 . Mr. O'Connor needs permission to commence new proceedings arises because he is the subject of an ‘ Isaac Wunder’ type order made on the 9 October 2017 in these proceedings by the High Court (McGovern J.). That order has the effect of restraining Mr. O'Connor from instituting any proceedings against any persons that directly or indirectly concern certain properties or certain borrowings that are identified in the schedule to the order without the permission of the President of the High Court or a judge nominated by him. I was nominated by the President to take the application for leave to institute the proceedings.

4 . For the reasons set out in this judgment, I have concluded that the permission sought should be refused. In summary, I am satisfied (a) that the intended proceedings are proceedings of a type captured by the terms of the existing Isaac Wunder type order; (b) that the intended proceedings depend on an erroneous contention regarding the legal effect of certain clauses in mortgage and charge documents executed by Mr. O'Connor and that gave rise to the appointment of Mr. Charleton as a receiver; and, (c) that in all the circumstances the intended proceedings are vexatious in the sense that, fundamentally, they seek to re-agitate matters that arise from and are closely connected to disputes that already have been the subject of final determinations at first instance and on appeal in a number of sets of proceedings.

APPLICABLE LEGAL PRINCIPLES

5 . Before addressing the history of the case and the orders being sought by Mr. O'Connor it may be helpful to set out the legal principles that govern an application such as this. I will address other legal issues relating to premise for the substantive relief sought by Mr. O'Connor later in this judgment. The legal principles relating to the manner in which the court should approach applications to relieve a party from the effects of an Isaac Wunder type order have been helpfully summarised by Phelan J. in the case of Morgan v. The Labour Court [2023] IEHC 122, and I gratefully adopt her analysis.

6 . In Morgan, Phelan J. considered the range of matters that must be considered by the court in determining an application for leave to bring proceedings where there is an Isaac Wunder order in place. In the first instance, there are weighty reasons why a litigant should not be prevented from exercising right of access to the court:-

“33. A Court in making an Isaac Wunder Order and in determining an application for leave to bring further proceedings notwithstanding the existence of an Isaac Wunder Order must be mindful of the fundamental importance of the constitutional right of access to the Courts. The purpose and effect of the Isaac Wunder Order is not to prevent a party from bringing an otherwise stateable claim. The Isaac Wunder Order is not intended and should not operate to prevent such claims. The purpose of the Isaac Wunder Order is to protect the court process and persons required to defend wholly unmeritorious proceedings from abuse. Leave should be granted where a basis for a sustainable claim is demonstrated but, where I am satisfied that intended proceedings are merely a further step in a chain of frivolous and vexatious litigation, it is appropriate to refuse leave.”

7 . In addressing the applicable legal principles in a situation such as this, the court also considered a number of judgments, including Kenny v. Trinity College Dublin [2008] IEHC 320, S.P. v. U.G. [2016] IEHC 693 and Riordan v. Ireland (No. 5) [2001] 4 IR 463.

8 . In Kenny v. Trinity College Dublin, Clarke J. (as he then was) made the following observations at para. 2.4:-

“ It is clear, of course, that the whole purpose of the jurisdiction of the court to make an Isaac Wunder order is to protect persons from being the subject of frivolous or vexatious litigation. Obviously any proceedings which are frivolous or vexatious can be struck out. However, in the ordinary way there is nothing to prevent a litigant from commencing frivolous and vexatious proceedings and placing a burden on the defendant concerned to consider those proceedings and, if thought appropriate, to bring an application before the court seeking to have the proceedings struck out. However, where a party has abused the process of the court, by means of bringing a number of frivolous or vexatious proceedings, the court has a jurisdiction to make an Isaac Wunder order so as to give the defendant in such circumstances the added protection of precluding the plaintiff from maintaining proceedings against that defendant without court leave. It would, of course, be wholly inappropriate to prevent a party who is the subject of such an order from having an opportunity to persuade the court that whatever may have been the past history of litigation between the parties, new proceedings were contemplated which were not frivolous and vexatious and which should, therefore, proceed.”

9 . As noted by Ó Caoimh J. in Riordan v Ireland (No. 5), in assessing if the proceedings are vexatious, the court may consider the “ whole history of the matter and it is not confined to a consideration as to whether the pleadings discloses a cause of action”. In the Riordan judgment Ó Caoimh J. identified a number of features that would tend to show that a proceeding was vexatious:

“(a) the bringing up on one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) where the person instituting the proceedings has failed to pay the cost of unsuccessful proceedings;

(f) where the respondent persistently takes unsuccessful appeals from judicial decisions.”

THE HISTORY OF THE PROCEEDINGS

10 . The court has been furnished by the lawyers for the third-named defendant with an extensive series of booklets that set out the history of the proceedings brought by Mr. O'Connor, and which led to the making of Isaac Wunder orders in this case. Those matters have been produced as exhibits to a replying affidavit sworn by Ricky Kelly on behalf of the third-named defendant on 19 October 2023. It is not necessary for the purposes of this judgment to rehearse the full details of the cases and the issues that were engaged. However, it is necessary to set out a brief history of how they were decided, and the orders were made.

11 . Mr. O Connor has brought the following proceedings:

• a. High Court proceedings bearing the record number 2012 No. 12108P, brought by the plaintiff against Bank of Ireland Scotland (Ireland), Bank of Scotland Plc, Michael Cotter and Luke Charleton and Others (described by Mr. Kelly as the “ 2012 lis pendens proceedings”).

• b. High Court proceedings bearing the record number 2012 No. 4449S, brought by Bank of Scotland against Mr. O'Connor (the “ 2012 judgment proceedings”).

• c. High Court proceedings bearing the record number 2015 No. 2002P, brought by Mr. O'Connor against Michael Cotter and Luke Charleton defendants (the “ 2015 Receiver proceedings”).

• d. The High Court proceedings bearing the record number 2016 No. 1704P, brought by Mr. O'Connor against Sherry Fitzgerald Ltd and Ronan Daly Jermyn solicitors (the “ 2016 Sherry Fitzgerald proceedings”).

• e. High Court proceedings bearing the record number 2017 No. 4894P, brought by Mr. O'Connor against James Kelly, Amy McCarthy, and Adrian MacNamara trading as Murphy MacNamara & Company Solicitors, defendants (the “ 2017 Purchaser proceedings”), and

• f. High Court proceedings bearing the record number 2016 No. 4510P, brought by Mr. O'Connor against The Property Registration Authority of Ireland (the “ 2016 PRAI proceedings”).

12 . It should be noted that the application for leave to bring the new proceedings was brought in the context of the 2016 PRAI proceedings, as required by the Orders made by McGovern J. in 2017.

13 . In the 2012 lis pendens proceedings, Mr. O'Connor, inter alia, challenged the validity of the appointment of the joint receivers as receivers over the properties that had been mortgaged and/or charged by him to the bank. As part of his defence and counterclaim in the 2012 judgment proceedings, the validity of the appointment of joint...