Flynn v Buckley

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.
• Judgment Date: 24 April 1980
• Neutral Citation: 1980 WJSC-SC 999
• Court: Supreme Court
• Docket Number: [S.C. No. 169 of 1978]
• Date: 24 April 1980

FLYNN, B. v. BUCKLEY, O. & ORS.

BRENDAN FLYNN

Plaintiff

and

OLIVER BUCKLEY

and

JAMES WALLACE (MULLINGAR) LIMITED

Defendants

1980 WJSC-SC 999

No.169/1978

THE SUPREME COURT

1 JUDGMENT delivered the 24th day of April 1980by O'HIGGINS C.J. (nem.diss)

2 The Court has already allowed the Plaintiff's appeal but by reason of the importance in practice of the question raised has reserved until to-day a statement of the reasons for its decision.

3 The appeal was brought against the Judgment and Order of Mr. Justice McWilliam discharging a lis pendens registered by the Plaintiff against the Defendants interest in certain property. The Plaintiff had by Plenary Summons issued on the 22nd September 1978 commenced proceedings against the Defendants for the specific performance of a contract for the sale to him by them of their supermarket premises in Mullingar. On the same date he had registered the proceedings as a lis pendens against the Defendants" interest in the property.On the 15th October 1979 the Plaintiff pursuant to an Order of the Master of the High Court extending the time for doing so, delivered his Statement of Claim. By Notice of Motion served for the 5th November 1979 the Defendants applied to the High Court for an Order that the Plaintiff's Ms Pendens registered against the property the subject of the contract for sale be vacated and also for an Order that the Plaintiff's proceedings be dismissed or stayed. This Notice of Motion was grounded on affidavits deposing to a rescission of the contract for sale by agreement between the parties prior to action brought. No replying affidavit was filed on behalf of the Plaintiff although an opportunity to do so was afforded to his advisers prior to the decision from which this appeal was brought. Apparently the reason that such was not done was because counsel on behalf of the Plaintiff took the view that the Defendants" application was not entertainable by the Court. They took the view that there was no jurisdiction to vacate a Lis Pendens without the consent of the registering party. They also took the view thatin the circumstances of this case no procedure existed whereby the Plaintiff's proceedings could be dismissed in the absence of a plenaryhearing.

4 In making the application to the Court the Defendants relied on the provisions of the statute 30 and 31 Viet.C.47, known as the Lis Pendens Act 1867. This Act by Section 2, reciting that a registered lis pendens "cannot be vacated without the consent of the person by whom it was registered, and, that such consent is sometimes withheld although the suit or proceedings is at an end, or "is not being bona fide prosecuted", authorises the Court before whom the property sought is in litigation, upon the determination of the lis pendens or during the pendency thereof, where the Court is satisfied that the litigation is not prosecuted bona fide, to make an Order if it sees fit, for the vacating of the lis pendens without the consent of the party who registered it. The Section goes on to provide that if such Order is made "the Senior Master of the Common Pleas at Westminster shall, upon the filing with him of an office copy of such Order, enter a discharge of such lis pendens........."The Act contains no provisions limiting its application to any particular part of the then United Kingdom. In Giles Brady 1974I.R. 462 Mr. Justice Kenny, then a Judge of the High Court, had occasion to consider whether this Act applied to Ireland. He came to the conclusion that it did not. In arriving at this conclusion he was influenced by the fact that Section 1 (since repealed) referred to a Section of the Companies Act 1862 which did not apply to Ireland and by the reference in Section 2 to "the Senior Master of the Common Pleas at Westminster", an office which did not exist in Ireland. His decision in this respect had, however, not been followed by Mr. Justice McWilliarn in Culhane v. Hewson (decided 20th October 1978). In that case Mr. Justice McWilliam came to an opposite conclusion. He was influenced in so doing because of an Order made by this Court on the 28th July 1975 in an unreported case, GlencourtInvestments Limited and The Companies Act, and also by the fact that in the official index to the statutes for 1867 the Act appears with the letters...