Geary v Property Registration Authority

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 19 November 2018
• Neutral Citation: [2018] IEHC 727
• Docket Number: Record No. 2018/3000P
• Court: High Court
• Date: 19 November 2018

BETWEEN:

DECLAN GEARY

and

MARIE GEARY

Plaintiffs

-and-

PROPERTY REGISTRATION AUTHORITY, ENNIS PROPERTY FINANCE DAC, BANK OF SCOTLAND PLC, TOM KAVANAGH, MAPLES AND CALDERS SOLICITORS

Defendants

[2018] IEHC 727

Ní Raifeartaigh J.

Record No. 2018/3000P

THE HIGH COURT

Motion – Struck out – Abuse of process– Defendants seeking motions to have the proceedings struck out as against them – Whether there was an unnecessary duplication of issues as between the proceedings

Facts: The fourth defendant, Mr Kavanagh, a receiver appointed by the second defendant, Ennis Properties, brought proceedings against the plaintiffs, Mr and Mrs Geary, in order to enable the receiver to carry out his duties in respect of certain commercial property in Limerick. Various court orders were made in those proceedings and a timetable set for the exchange of pleadings. However, before the Gearys filed a defence to those proceedings, and despite the court-ordered deadline for them to do so having expired, they commenced a second set of proceedings, not only against the receiver and Ennis Properties, but also against the first, third and fifth defendants; namely, the Property Registration Authority, Bank of Scotland, who gave them the original loans, and Maples and Calder Solicitors, agents for Ennis Property and the receiver. A number of motions issued from various parties in the context of both sets of proceedings. What came before the High Court (Ní Raifeartaigh J) by way of motion was; (1) a motion (in the second set of proceedings) on behalf of Mr Kavanagh, Ennis Property and Maples and Calder solicitors to have the proceedings struck out as against them; (2) a motion (in the second set of proceedings) on behalf of Bank of Scotland to have the proceedings struck out as against them; and (3) a motion (in the second set of proceedings) on behalf of the Gearys seeking reliefs against the Property Registration Authority and the receiver.

Held by Ní Raifeartaigh J that, concerning the motion of Ennis Property Finance, the receiver and Maples and Calder Solicitors seeking to have the Geary proceedings struck out as against them, there was no reason the issues the Gearys raised in their own proceedings could not have been raised in the context of the existing proceedings and there was therefore an unnecessary duplication of issues as between the proceedings, which amounted to an abuse of the court process. Regarding Bank of Scotland’s motion to strike out the Geary proceedings as against them, Ní Raifeartaigh J held that although the threshold is high for exercising the “strike out” jurisdiction, that threshold had been reached in this case and the Gearys were essentially seeking to re-litigate matters that had already been decided in previous decisions of the High Court and Supreme Court. Concerning the Gearys’ motion in relation to the Property Registration Authority, Ní Raifeartaigh J held that the relief sought in that motion was expressed as relief in final terms rather than interlocutory reliefs; final reliefs cannot be sought by way of motion.

Ní Raifeartaigh J held that orders would be made in respect of each of the motions as follows: (1) granting the reliefs sought by the second, fourth and fifth defendants and striking out the proceedings as against them; (2) granting the reliefs sought by the third defendant and striking out the proceedings against it; (3) refusing the relief sought by the Gearys in their motion in respect of the Property Registration Authority and the receiver, and striking out the proceedings as against the Property Registration Authority. Ní Raifeartaigh J held that costs should follow the event in respect of each of the motions, but she would place a stay on execution pending the determination of the first set of proceedings.

Relief granted in part.

Judgement of Ms. Justice Ní Raifeartaigh delivered on the 19th day of November, 2018

Nature of the Case

1 This is a case in which a receiver (Mr. Kavanagh), appointed by Ennis Properties, had brought proceedings against Mr. and Mrs. Geary in order to enable the receiver to carry out his duties in respect of certain commercial property in Limerick. Various court orders were made in those proceedings and a timetable set for the exchange of pleadings. However, before the Gearys filed a defence to those proceedings, and despite the court-ordered deadline for them to do so having expired, they commenced a second set of proceedings, not only against the receiver, Mr. Kavanagh, and Ennis Properties, but also against a number of other parties; namely, the Property Registration Authority (hereinafter ‘the PRA’), Bank of Scotland, who gave them the original loans, (hereinafter ‘BOS’), and Maples and Calder Solicitors (agents for Ennis Property and the Receiver). A number of motions have issued from various parties in the context of both sets of proceedings. What came before me by way of motion was; (1) a motion (in the second set of proceedings) on behalf of Mr. Kavanagh, Ennis Property and Maples and Calder solicitors to have the proceedings struck out as against them; (2) a motion (in the second set of proceedings) on behalf of Bank of Scotland to have the proceedings struck out as against them; and (3) a motion (in the second set of proceedings) on behalf of the Gearys seeking reliefs against the Property Registration Authority and the Receiver.

2 A feature of the proceedings was that neither Mr. nor Mrs. Geary, nor anyone on their behalf, appeared before the Court on the dates on which hearings took place before me. The Gearys are litigants in person, and Mr. Geary, who had been dealing with the proceedings, became unfit to appear in court from May 2018 as a result of acute stress-related reactions. I set out further detail in this regard below.

Relevant Chronology

3 I will refer to the first set of proceedings as ‘The Receiver Proceedings’. These have the Record No. 2017/6534P and are entitled Tom Kavanagh v Declan Geary and Marie Geary and Habanville Ltd. These proceedings were issued in July 2017, seeking possession of property and related reliefs. As originally constituted, they were against the Gearys only. In December 2017, Habanville ltd. were added as defendant by court order as the Gearys informed the court that Habanville ltd. were now the tenants of the property

4 I will refer to the second set of proceedings as the ‘Geary Proceedings’. These bear the Record No. 2018/3000P and are entitled Geary v. Property Registration Authority, Ennis Property Finance DAC, Bank of Scotland plc, Tom Kavanagh and Maples and Calder Solicitors. These proceedings were issued in April 2018 by the Gearys, some 9 months after the Receiver proceedings had been commenced, and at a point in time when they themselves had failed to comply with a (second) court-ordered deadline for the delivery of a defence to the first set of proceedings.

5 The property the subject of the receivership is registered land in County Limerick from which the Gearys conducted a business. Charges had been registered in the Land Registry Folios in respect of the land; first, by Bank of Scotland on the 9th April, 2015, and subsequently by Ennis Properties on the 24th April, 2015. Bank of Scotland had never taken any enforcement action against the Gearys. In December 2014, Bank of Scotland sold a portfolio of loan facilities, including those of the Gearys, to Ennis Propertie. By two letters dated the 7th November, 2016, Ennis demanded €1,337,013.03 from the defendants by the 10th November, 2016.

6 On the 14th November, 2016, Ennis Properties appointed Mr. Kavanagh as Receiver by Deed of Appointment. This was followed by correspondence from the Gearys, from which it became clear that they were disputing the validity of the appointment of the receiver, although it may be noted that there was no suggestion by them that the sums in question were not due.

7 The first set of proceedings was then issued on behalf of the Receiver in July 2016. By order dated the 6th December, 2017, the High Court (Gilligan J.) granted liberty to join Habanville ltd. as co-defendant. He also ordered that the defendants co-operate with the plaintiff receiver to enable him to access the properties on reasonable notice and that the matter be remitted to plenary hearing. Gilligan J. set out a timetable for the exchange of pleadings and particulars and discovery.

8 The Gearys subsequently took the view that they could not comply with the timetable until they obtained ‘clarification’ of the above court order, and sought the DAR of the relevant court date. By order dated the 29th January 2018, the High Court (Barniville J.) directed the Gearys to deliver a defence by the 8th March, 2018. To date, they have not complied with this deadline. Instead, they issued a motion dated 12th March, 2018 seeking to strike out the proceedings on the basis they were frivolous, vexatious and bound to fail. Also, they commenced the second set of proceedings on the 5th April 2018 by plenary summons, and on the same date, issued a motion seeking reliefs against the PRA and the Receiver.

9 On the 23rd April, 2018, the second, fourth and fifth defendants issued a motion seeking to have the plenary summons in the second set of proceedings struck out as against them.

10 On the 30th April, 2018, the third defendant (Bank of Scotland) issued a motion seeking to have the second set of proceedings struck out as against them.

11 On the 17th May, 2018, the High Court (O'Connor J.) refused to grant the relief sought by the Gearys in their motion to strike out the first set of proceedings, apparently on the basis that they had failed to file a defence in compliance with the previous High Court order. Mr. Geary complains that he was subjected to humiliating treatment in court and that this caused a rapid deterioration in his mental health situation. He has not appeared in court since that date.

12 On the...