Eamon Carthy v Ireland and 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

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conor Dignam
• Judgment Date: 31 July 2024
• Neutral Citation: [2024] IEHC 490
• Docket Number: Record No. 2022 1653P

Between

Eamon Carthy

Plaintiff

and

Ireland and 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

Defendant

[2024] IEHC 490

Record No. 2022 1653P

THE HIGH COURT

Abuse of process – Frivolous and vexatious proceedings – Fraud – Third, fourth and sixth defendants seeking to dismiss the plaintiff’s claim – Whether the plaintiff’s claim was an abuse of process

Facts: The plaintiff, Mr Carthy, claimed that the third, fourth and sixth defendants, Bank of Ireland Mortgage Bank, Bank of Ireland Mortgages Unlimited Company, and Whitney Moore Solicitors, deliberately misled the Circuit Court on various dates by “introducing manufactured evidence, deceit and misrepresentation knowingly”, committed fraud and did not reveal to the High Court in the plaintiff’s spouse’s appeal the “manufactured evidence, deceit, and misrepresentation” thereby violating the fundamental rights of the plaintiff, his spouse and children. It was claimed that this amounted to a violation of his family dwelling and lands attached thereto and a violation of the constitutional rights of his spouse and children. He claimed a breach of duty and neglect of statutory duty and sought damages “for breach of his 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”. The third, fourth and sixth defendants applied to dismiss the plaintiff’s claim: (i) as frivolous, vexatious and/or disclosing no cause of action pursuant to Order 19 Rule 28 of the Rules of the Superior Courts and/or pursuant to the High Court’s inherent jurisdiction as being unsustainable and/or bound to fail; (ii) as being unnecessary, scandalous or as tending to embarrass or delay pursuant to Order 19 Rule 27 of the Rules of the Superior Courts; and/or (iii) as an abuse of process pursuant to the Court’s inherent jurisdiction.

Held by Dignam J that there was no basis upon which the plaintiff could maintain proceedings in respect of an alleged violation of the constitutional rights of his spouse and children; any such breach was a matter for those affected parties to litigate. Dignam J noted that the essence of the plaintiff’s case was that the third, fourth and sixth defendants acted wrongfully in relying on fraud, deceit or manufactured evidence before the Circuit Court and then before the High Court on the plaintiff’s spouse’s appeal. This was, in Dignam’s view, an impermissible attack on final and binding decisions of the Circuit Court and High Court and it was on grounds that could have been and indeed were raised in those earlier proceedings.

Dignam J held that the claim made in the pleadings was frivolous and vexatious, disclosed no reasonable cause of action, was bound to fail and was an abuse of process under both Order 19 Rule 28 and the Court’s inherent jurisdiction. It seemed to Dignam J that it was appropriate to dismiss the plaintiff’s claim pursuant to Order 19 Rule 28 of the Rules of the Superior Courts and under the Court’s inherent jurisdiction.

Application granted.

Judgment of Mr. Justice Conor Dignam delivered on the 31 ^st day of July 2024

INTRODUCTION

1 This is an application by the third, fourth and sixth named defendants to dismiss the plaintiff's claim (i) as frivolous, vexatious and/or disclosing no cause of action pursuant to Order 19 Rule 28 of the Rules of the Superior Courts and/or pursuant to the Court's inherent jurisdiction as being unsustainable and/or bound to fail, (ii) as being unnecessary, scandalous or as tending to embarrass or delay pursuant to Order 19 Rule 27 of the Rules of the Superior Courts, and/or (iii) as an abuse of process pursuant to the Court's inherent jurisdiction.

2 There is some confusion in relation to the numbering of some of the defendants and how they are referred to by the plaintiff (see paragraph 18 below). The application is brought on behalf of Bank of Ireland Mortgage Bank, Bank of Ireland Mortgages Unlimited Company, and Whitney Moore Solicitors. They are the third, fourth and sixth named defendants in the title to the proceedings and an amended appearance was entered on their behalf as the third, fourth and sixth named defendants on the 26 ^th October 2022. Bank of Ireland Mortgage Bank changed its name to Bank of Ireland Mortgages Unlimited Company so I will refer to them as “the Bank”.

3 Similar applications were made on behalf of other defendants and judgments in those applications were delivered by Roberts J ( [2023] IEHC 508) and by Kennedy J ( [2024] IEHC 63) after I had reserved my judgment and before I delivered judgment. I invited the parties to make any submissions they might wish to make arising from those judgments. I am not bound by those judgments as they concerned applications brought by different defendants but they helpfully set out the background and the applicable legal principles. The background is set out in detail in those judgments and I will therefore only set out the background in summary, drawing from those judgments and the grounding affidavit of Ms. Emma Morrison. The contents of Ms. Morrison's affidavit insofar as it deals with the background is not seriously disputed in the affidavits delivered by the plaintiff.

4 On the 25 ^th February 2015, proceedings were issued on behalf of the Bank in Kilkenny Circuit Court seeking possession of lands in Folio 18916F on foot of mortgages in respect of two loan accounts which were claimed to be executed by the plaintiff and his wife, Ms. Bridget Carthy.

5 The Bank's charges were registered on the folio.

6 The plaintiff and Ms. Carthy (the defendants in the Circuit Court proceedings) brought an application to have those proceedings dismissed on the basis that the Circuit Court did not have jurisdiction. This was determined on the 23 ^rd November 2016 and the Circuit Court refused the application. As noted by Roberts J “ having been appraised by Mr Carthy of all his complaints regarding this certificate, the Circuit Court specifically declared it had such jurisdiction by order dated 23 November 2016”. The plaintiff pleads in these proceedings that on that date the solicitors on behalf of the Bank “ misled the court, by introducing manufactured evidence, deceit, and misrepresentation knowingly.” This alleged “ manufactured evidence” includes a Valuation Certificate issued by the seventh-named defendant which stated that the rateable valuation of the property had been determined at €39.75 notwithstanding that the property was, according to the plaintiff, not rateable, and the certificate was allegedly adduced in the Circuit Court proceedings as evidence that the Circuit Court had jurisdiction (see paragraph 18 of Roberts J's judgment).

7 On the 30 ^th March 2017, an Order for Possession was made by Kilkenny Circuit Court. A stay of twelve months was granted. The Order also directed Bank of Ireland Mortgages to provide details of the interest rate that had been applied and gave the plaintiff and Ms. Carthy leave to apply to vacate the Order.

8 This Order was not appealed.

9 The plaintiff and Ms. Carthy subsequently separately applied to re-enter the proceedings and to vacate the Order for Possession.

10 The Circuit Court re-entered the proceedings on foot of Ms. Carthy's motion and adjourned the question of vacating the Order to a future date. On the 19 ^th February 2019, His Honour Judge Meghan (who had made the Order for Possession) refused to vacate the Order for Possession.

11 Ms. Carthy appealed that refusal. The plaintiff in these proceedings did not do so.

12 On the 6 ^th March 2019, the sixth-named defendant started to act for the Bank (the fourth-named defendant had previously been acting for the Bank).

13 There was a very extensive exchange of affidavits in respect of Ms. Carthy's appeal.

14 Ms. Carthy's appeal came on for hearing in the High Court on the 2 ^nd March 2020. Ms. Carthy was represented by a solicitor. The plaintiff was in attendance but does not seem to have sought to participate in any way (he stated at the hearing of this motion that he did not participate) and did not seek time or liberty to put in an affidavit or to make submissions. By consent the appeal was struck out and the Order for Possession was affirmed. The plaintiff makes the point in these proceedings that the High Court did not make an Order for Possession but rather simply affirmed the Circuit Court Order. I do not accept that this is of any relevance. The Court decided to extend the stay which had previously been granted for a further period of seven months.

15 There was correspondence between the parties and between March 2021 and May 2021 the plaintiff sent a number of documents to the Bank variously headed up “ Notice of Demand”, “ Notice of Default”, “ Notice of Default and Dishonour”, “ First Statement of Truths and Facts” and “ Certificate of Rescission” respectively.

16 On the 5 ^th November 2021, Bank of Ireland Mortgage Bank changed its name to Bank of Ireland Mortgage Bank Unlimited Company pursuant to section 30 of the Companies Act 2014.

17 The plaintiff issued these proceedings on the 21 ^st April 2022 by way of plenary summons. He delivered a Statement of Claim on the 22 ^nd July 2022. I return to the claims made in these pleadings. At the same time, the plaintiff issued a motion in the Circuit Court proceedings seeking a stay on the Order for Possession pending determination of these High Court proceedings. That was struck out on the 14 ^th September 2022. The plaintiff also served a number of documents entitled “ Statutory Notice for Clarification of Capacity” (14 ^th October 2022),...