O'Connor v Sherry Fitzgerald Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 15 March 2018
• Neutral Citation: [2018] IECA 67
• Date: 15 March 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 67 Record No: 2016 / 383 High Court Record No: 2016 No 1704P

PATRICK O'CONNOR

Plaintiff/Appellant

V

SHERRY FITZGERALD LIMITED, RONAN DALY JERMYN

and by Order

MICHAEL COTTER

and

LUKE CHARLETON

Defendants/Respondents

[2018] IECA 67

Neutral Citation Number: [2018] IECA 67

Record No: 2016 / 383

High Court Record No: 2016 No 1704P

THE COURT OF APPEAL

Abuse of process – Re-litigation – Unfair proceedings – Appellant seeking to appeal against High Court judgment and orders – Whether proceedings should have been dismissed as an abuse of process

Facts: The appellant, Mr O'Connor, claimed inter alia, return of a registered property at 16 Amberley Heights, Douglas, Co. Cork, and damages for alleged loss, damage and expense incurred by the appellant due to the first and second respondents, Sherry Fitzgerald Ltd and Ronan Daly Jermyn. The appellant also claimed an Order for Partition in respect of property in co-ownership and a stay on all actions of the selling agents and solicitors until the final determination of the proceedings including the exhaustion of all and any potential appeals. The appellant sought to restrain the sale of the property at 16 Amberley Heights. The first and second respondents issued a motion, seeking inter alia the dismissal of the proceedings as being an abuse of process and/or alternatively on the basis of the rule in Henderson v Henderson (1843) 3 Hare 100. On the 8th of June 2016, the High Court (McGovern J) held that the first and second respondents were entitled to an order under para 3(A), 4, 5 and 6 of the notice of motion. The appellant appealed to the Court of Appeal against the judgment and orders of McGovern J. First, the appellant maintained that he had stateable legal points to make, and that in the circumstances his proceedings were not doomed to failure. Secondly, he submitted that this was not an attempt to re-litigate previously decided legal issues and these proceedings were not therefore an abuse of the process. Thirdly, he submitted that the issues that he sought to pursue in the proceedings did not fall foul of the rule in Henderson v Henderson. Fourthly, he argued that the conduct of the proceedings in the court below was in certain respects unfair to him, that there were procedural irregularities, and that the judgment of the High Court judge contained both factual and legal errors. Fifthly, he claimed that there was no justification for the granting of an Isaac Wunder Order, Wunder v Irish Hospitals Trust (1940) Limited (Unreported, Supreme Court, 24th January, 1967), and that the fact that it was granted infringed his right of access to the courts, and other personal rights guaranteed both under the Constitution and/or by the ECHR.

Held by Edwards J that the High Court was fully correct in its ruling that the proceedings should be dismissed as an abuse of process for the combined reasons that they sought to re-litigate a matter previously litigated and rejected, and they sought to litigate other matters that could and should have been litigated in earlier proceedings. Edwards J was satisfied that the proceedings in the High Court were not unfair to the appellant.

Edwards J held that he rejected all of the grounds of appeal against the High Court's dismissal of the appellant's proceedings, and consequently he would dismiss that appeal. Edwards J concluded that the High Court judge was correct to grant the Isaac Wunder Order in the circumstances of this case, and in the terms in which he did so.

Appeal dismissed.

Judgment delivered on the 15th day of March, 2018 by Mr. Justice Edwards

Introduction

1 This is an appeal against the judgment and orders of the High Court (McGovern J) delivered and made on the 8th of June 2016 in these proceedings. For convenience in this judgment the plaintiff / appellant will be referred to simply as 'the appellant' and the defendants / respondents as 'the respondents'.

Background to the appeal

2 The appellant is indebted to Bank of Scotland Plc (the Bank). The original loan had been with Bank of Scotland (Ireland) Ltd (BOSI) but following the winding down of BOSI's operations in this country BOSI's debtors book, including the appellant's debt to BOSI, had been acquired by the Bank (in what is referred to by the appellant in these proceedings as 'the cross-border merger'). The appellant was sued in respect of that debt by the Bank in proceedings entitled Bank of Scotland Plc v Patrick O'Connor [2012] No. 4449S. For shorthand purposes the High Court judge referred to these proceedings as 'the judgment proceedings', and I propose to adopt the same convention. By order of the High Court (Cregan J) made on the 6th of March 2015 in those proceedings, judgment was entered against the appellant in the sum of €7,683,999.96.

3 At all material times the appellant was the owner of a registered property at 16 Amberley Heights, Douglas, Co Cork, being the lands and premises comprised in Folio 78315F of the Register of Freeholders for the County of Cork, which, together with other properties, had been pledged by way of security to BOSI in respect of the appellant's indebtedness. The relevant instrument was a Deed of Mortgage and Charge dated the 6th of July 2010. When the appellant ran into financial difficulties and defaulted on his loan the Bank, to whom in the meantime the benefit of the appellant's debt had been transferred from BOSI, and in accordance with what it understood to be its entitlement under Part 9 of the relevant Deed of Mortgage and Charge, appointed the third and fourth named respondents in the present proceedings, as joint receivers of the property at 16 Amberley Heights, Douglas, Co Cork. The appointment was by Deed of Appointment dated the 21st of September 2012.

4 In advance of the Bank obtaining its said judgment in the judgment proceedings the appellant commenced separate proceedings entitled Patrick O'Connor v Bank of Scotland (Ireland) Limited & Ors [2012] No 12108P, in which he sued BOSI and the Bank, respectively, alleging loss and damage due to breach of contract, undue influence, fraudulent or negligent misrepresentation, deceit and/ or negligence, arising out of various commercial property loans made between the Bank and appellant, and in the same proceedings also sued the receivers alleging negligence, breach of fiduciary duty and conflict of interest. Having issued these proceedings the appellant then registered a lis pendens against the property at 16 Amberley Heights, Douglas, Co Cork.

5 The effect of a lis pendens is that once a suit is instituted (and details of it are registered), any person subsequently dealing with the property, whether (s)he be purchaser, lessee or mortgagee, takes the property subject to all the rights and liabilities which might be declared in the suit, whether or not (s)he had notice of the suit. Such a registered lis pendens may be vacated under an order of the court but there is no jurisdiction to order a lis pendens to be vacated without the consent of the person who registered it until the suit has been determined. The proceedings on foot of which the lis pendens was registered by the appellant may conveniently be referred to hereinafter as 'the lis pendens proceedings'.

6 Both the judgment proceedings, and the lis pendens proceedings, were admitted to the Commercial Court list in the High Court, and were set down and heard together before Cregan J, who, on the 20th of February 2015, gave a single judgment dealing with both cases. The High Court granted judgment against the appellant in the judgment proceedings for the sum previously stated (which judgment is reflected in the previously mentioned Order of the 6th of March 2015); further it dismissed all of the appellant's claims against the defendants in the lis-pendens proceedings, and vacated the lis pendens.

7 In further proceedings bearing High Court record number [2015 No. 2002 P] and entitled Patrick O'Connor v. Michael Cotter & Luke Charleton, the appellant sought to further challenge the appointment of the joint receivers and their entitlement to sell the property situate at 16 Amberley Heights, Douglas, Co. Cork ('the receiver proceedings'). By order of Haughton J. dated 30th July, 2015, those proceedings were dismissed under the rule in Henderson v. Henderson on the basis that the plaintiff was attempting to litigate one or more issues that had not previously been decided but which could have been canvassed in previous proceedings, namely, in the judgment proceedings and also in the lis pendens proceedings.

8 The appellant appealed the orders made in the judgment proceedings and the lis pendens proceedings to the Court of Appeal, which dismissed both appeals in a single judgment dated the 10th of February 2017 delivered by Peart J, and in a single supplementary judgment dated the 1st of March 2017, delivered by Finlay Geoghegan J. The Court agreed to deliver a supplementary judgment in circumstances where, subsequent to the first judgment (i.e., that of Peart J) the appellant complained that an issue raised by him in a motion filed in the course of the appeal concerning the locus standi of one of the parties to the judgment proceedings, namely the Bank, had not been expressly dealt with in the first judgment.

9 In the course of delivering the Court of Appeal's said supplementary judgment, Finlay Geoghegan J stated the following (at paras 13 & 14):

'13. For those reasons the Court was satisfied that BOS did continue to have locus standi to continue as the respondent in the appeal in the judgment proceedings. The appeal against judgment of 6th March 2015 has been dismissed by the Court's first judgment.

14. It is important to stress that the question as to the person who is now entitled to seek to enforce the High Court judgment against the appellant is not determined by this judgment. Any future application by reason of the sale of the loans of the appellant would be to the High Court and different issues may...