Gerardine Scanlan v Danske Bank T/A Danske Bank and Sharon Keenan and Stephen Tennant and Targeted Investment Opportunities ICAV

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 16 March 2022
• Neutral Citation: [2022] IEHC 160
• Court: High Court
• Docket Number: [2017 No. 6470 P.]

Between

Gerardine Scanlan

Plaintiff

and

Danske Bank T/A Danske Bank and Sharon Keenan and Stephen Tennant and Targeted Investment Opportunities ICAV

Defendants

[2022] IEHC 160

[2017 No. 6470 P.]

THE HIGH COURT

Abuse of process – Cause of action – Bound to fail – Defendants seeking orders dismissing the plaintiff’s claim – Whether the plaintiff’s proceedings failed to disclose any reasonable cause of action

Facts: The plaintiff, Ms Scanlan, commenced proceedings by means of a plenary summons issued on 19 July 2017. She was critical of the manner in which the first defendant, Danske Bank, dealt with her default in respect of her mortgage and appointed a receiver over the relevant property. She also made allegations arising out of an inadvertent disclosure of data to her by Grant Thornton. Her claims had been the subject of three sets of proceedings namely: (i) Danske Bank A/S T/A Danske Bank v Gerardine Scanlan bearing record no. 2014/1456 S; (ii) Gerardine Scanlan v National Irish Bank, now acting in the style of Danske Bank A/S (T/A Danske Bank) and Stephen Tennant, bearing record no. 2014/8950 P; and (iii) Grant Thornton (a firm) and by order Grant Thornton Corporate Finance Ltd v Gerardine Scanlan, bearing record no. 2015/9954 P. On 17 June 2020, Danske Bank issued a motion seeking the following reliefs: (1) an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of the High Court dismissing the plaintiff’s claim against Danske Bank on the grounds the plaintiff is seeking to re-litigate issues decided in previous decisions, and to mount impermissible collateral challenges to those previous decisions; and (2) an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of the Court dismissing the plaintiff’s claim as against Danske Bank on the grounds that the plaintiff’s proceedings failed to disclose any reasonable cause of action and are bound to fail. On 4 August 2020, the third defendant, Mr Tennant (the Receiver), issued a similar motion seeking to strike out the plaintiff’s claim.

Held by Heslin J that the proceedings issued by the plaintiff in 2017 must be halted and doing so reflects the interests of justice. He held that comparing the plaintiff’s plenary summons and statement of claim in her 2014 proceedings with the statement of claim and draft amended statement of claim delivered in these proceedings illustrated that, in this claim, the plaintiff was seeking to litigate the same, or substantially the same issues for a second time; this offends against the res judicata principle and constitutes an abuse of process. He held that these proceedings constituted an attempt by the plaintiff to mount an impermissible challenge to previous decisions made in the 2014 and 2015 proceedings. Insofar as the plaintiff sought to re-litigate her case with reference to variations on claims made in prior proceedings or with reference to new claims, he held that this offends the rule in Henderson v Henderson (1843) 3 Hare 10. He held that such variations could and should have been raised by the plaintiff in her 2014 proceedings and must be struck out as an abuse of process. Were it the case, and he was satisfied that it is not, that there were some residual issues (i) not raised or determined in the 2014 proceedings and (ii) which could not, with reasonable diligence, have been raised by the plaintiff in the 2014 proceedings, he held that such residual issues require to be struck out as frivolous, vexatious and bound to fail, disclosing no reasonable cause of action.

Heslin J’s preliminary view was that there were no facts or circumstances which would justify a departure from the normal or general rule that costs should ‘follow the event’.

Relief granted.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 16th day of March 2022

Introduction

1 On 17 June 2020, the first named defendant (hereinafter “Dankse” or “the bank”) issued a motion seeking the following reliefs:-

• “(1) An order pursuant to O. 19, r. 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Honourable Court dismissing the plaintiff's claim against the first named defendant on the grounds the plaintiff is seeking to re-litigate issues decided in previous decisions, and to mount impermissible collateral challenges to those previous decisions;

• (2) An order pursuant to O. 19, r. 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Honourable Court dismissing the plaintiff's claim as against the first named defendant on the grounds that the plaintiff's proceedings failed to disclose any reasonable cause of action are bound to fail.

• (3) In the alternative, and without prejudice, and where necessary, an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Honourable Court dismissing the plaintiff's claim against the first named defendant on the grounds that the plaintiff is seeking to litigate matters in the present proceedings which properly and conveniently could and should have been made as part of previous proceedings.

• (4) In the alternative, and without prejudice, and where necessary, an order pursuant to O. 19, r. 27 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Honourable Court striking out the plenary summons and statement of claim or portions thereof as inter alia unnecessary pleadings, or pleadings which tend to prejudice or delay.

• (5) Further or other relief.

• (6) Costs”.

2 On 4 August 2020, the third named defendant (hereinafter “the Receiver”) issued a similar motion seeking to strike out the plaintiff's claim and the relief sought in that motion was in the following terms:-

• “(1) An order pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out the plaintiff's claim on the grounds that it discloses no reasonable cause of action and/or is frivolous and/or vexatious.

• (2) Further or in the alternative, an order pursuant to the inherent jurisdiction the court dismissing the plaintiff's claim on the grounds that it is an abuse of process and/or otherwise bound to fail and/or is frivolous and/or vexatious.

• (3) Further or in the alternative, an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff's claim on the grounds of inordinate and inexcusable delay.

• (4) Further and/or in the alternative, an order pursuant to O. 19, r. 27 of the Rules of the Superior Courts and/or pursuant to the court's inherent jurisdiction striking out all portions and/or paragraphs of the plenary summons and statement of claim which are unnecessary and/or scandalous and/or which may tend to prejudice, embarrass or delay the fair trial of the action.

• (5) Such further or other orders, reliefs or directions as this Honourable Court deem fit.

• (6) Costs”.

3 In addition to the foregoing, the plaintiff has brought a motion seeking to remove the second and fourth named defendants from the proceedings, which motion appears to have been listed on 15 March 2021 but adjourned generally, quite possibly due to COVID-19 restrictions. The co-defendants consent to the removal of the second and fourth named defendants.

The first defendant's motion

4 Insofar as the motion brought by the first named defendant is concerned, I have carefully considered the following:-

The third defendant's motion

• • The affidavit sworn by Mr. Michael Leonard on 9 June 2020 on behalf of the bank together with the exhibits thereto;

• • The replying affidavit of the plaintiff sworn on 19 November 2020;

• • The supplemental affidavit sworn by the plaintiff on 24 May 2021 and the documentation exhibited therewith;

• • The further supplemental affidavit of the plaintiff sworn on 8 June 2021 and the exhibits thereto;

• • The affidavit sworn by Mr. Ian Bell solicitor for the first named defendant on 10 June 2021 and the exhibits thereto.

5 As regards the third named defendant's motion, I have carefully considered the contents of the following:-

• • The affidavit of Ms. Patricia Shaw sworn 4 August 2020 together with the exhibits thereto;

• • The replying affidavit sworn by the plaintiff on 19 November 2020 (the plaintiff swore a single affidavit on this date in opposition to both motions);

• • The supplemental affidavit of the plaintiff sworn 24 May 2021 (again the plaintiff swore a single affidavit on this date in opposition to both motions);

• • The further supplemental affidavit of the plaintiff sworn 8 June 2021 (again, a single affidavit was sworn by the plaintiff in opposition to both motions);

• • The further supplemental affidavit of the plaintiff sworn 22 November 2021 and exhibits thereto.

Relevant facts in chronological order

6 Having regard to the contents of the various pleadings, affidavits and exhibits put before the court, the following chronology of relevant events emerges:

8 September 2008 facility letter

7 The plaintiff obtained borrowings from Dankse, the relevant facility letter being dated 8 September 2008 in respect of a loan in the sum of €107,500. The plaintiff accepted the foregoing loan facility on 02 October 2008 and the funds were advanced to her and secured over property at 19, Radharc na Sleibhte, Churchtown, Mallow, Co. Cork (hereinafter “the property”).

21 August 2003 – All sums mortgage

8 The loan from the bank which the plaintiff availed of was secured in the form of a mortgage over the property by way of an all sums deed of mortgage dated 21 August 2003.

17 July 2013 – arrears notice

9 The plaintiff failed to comply with the terms of an arrears notice from the bank, which notice was dated 17 July 2013.

7 August 2013 – bank's letter demanding repayment

10 By letter dated 7 August 2013 the bank demanded that the plaintiff repay the outstanding balance of the relevant loan which then stood at...