Hinde v Pentire Property Finance dac

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 19 October 2018
• Neutral Citation: [2018] IEHC 575
• Docket Number: [2018 3606 P.]
• Court: High Court
• Date: 19 October 2018

[2018] IEHC 575

THE HIGH COURT

Costello J.

[2018 3606 P.]

BETWEEN

PATRICIA HINDE

PLAINTIFF

AND

PENTIRE PROPERTY FINANCE DESIGNATED ACTIVITY COMPANY

AND

TOM KAVANAGH

DEFENDANTS

Evidence – Admission – Abuse of process – Plaintiff seeking to adduce further evidence – Whether the application amounted to an abuse of process

Facts: The plaintiff, Ms Hinde, commenced proceedings by a plenary summons issued on the 24th April, 2018. She delivered her statement of claim on the 18th June, 2018. The defendants issued a motion on the 5th June, 2018 seeking an order vacating a lis pendens registered on the 24th April, 2018 in relation to a dwelling house and premises known as 22 The Beeches, New Road, Straffan, County Kildare and an order striking out the plaintiff’s proceedings either pursuant to O. 19 r. 28 of the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the High Court on the grounds that the proceedings are frivolous, vexatious and bound to fail. The motion proceeded in the normal way for hearing over two days. After the hearing had concluded and before judgment had been delivered the plaintiff wished to adduce further evidence in relation to a factual issue upon which the plaintiff relied on making her submissions to the court. The solicitor for the plaintiff applied to Costello J on an ex parte basis on 30th July, 2018 for leave to adduce further evidence while she was sitting as the bankruptcy judge. She gave the plaintiff leave to bring a motion seeking leave to adduce further evidence and directed that the matter be heard on notice to the defendants. Upon her return from vacation she wrote her judgment as she had no note or recollection of the fact that the plaintiff had liberty to issue a motion seeking to adduce further evidence. The parties were contacted when she intended to deliver her judgment on 25th September, 2018. The plaintiff’s solicitor wrote to say that he had made an application to Costello J sitting in the chancery list on 30th July 2018 and that he had been given leave to adduce further evidence. Costello J’s attention was not drawn to the order she in fact made. She proceeded to deliver judgment on 25th September, 2018 in the absence of representatives of the plaintiff, though they were aware of the fact that the matter was listed for judgment. The matter was put back for mention and no order was perfected. Subsequently, the sequence of events was clarified and she agreed to hear the plaintiff’s application for leave to adduce further evidence in the circumstances. The new evidence sought to be introduced by way of an affidavit sworn by the plaintiff’s solicitor, Mr Turner, was with a view to establishing the relationship between an English company, CarVal UK Ltd and the first defendant, Pentire Property Finance dac. The evidence which the plaintiff sought liberty to adduce comprised companies office searches and documents available from Companies House in the UK. It also included company documentation filed in Luxembourg. All of the material was publicly available online.

Held by Costello J that she accepted the reasoning of Clarke J in McInerney Homes Ltd [2011] IEHC 25 that such an application, unless justified on the grounds set out, amounts to an abuse of process and would lead to procedural chaos and injustice on a broad scale.

Costello J held that she would refuse the application to admit the further evidence set out in the affidavit of Mr Turner sworn on the 19th September, 2018.

Application refused.

JUDGMENT of Ms. Justice Costello delivered on the 19th day of October, 2018.

The Facts

1 The plaintiff commenced these proceedings by a plenary summons issued on the 24th April, 2018. She delivered her statement of claim on the 18th June, 2018. The defendants issued a motion on the 5th June, 2018 seeking an order vacating a lis pendens registered on the 24th April, 2018 in relation to a dwelling house and premises known as 22 The Beeches, New Road, Straffan, County Kildare and an order striking out the plaintiff's proceedings either pursuant to O. 19 r. 28 of the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the court on the grounds that the proceedings are frivolous, vexatious and bound to fail. The application was grounded upon the affidavit of the second named defendant sworn on the 1st June, 2018. The plaintiff replied to this affidavit and Mr. Jeremy Irwin, solicitor for the defendants, in turn replied to her affidavit. The matter was listed for hearing and was heard over two days on the 25th and 26th July, 2018.

2 Counsel for the defendants produced written submissions dated the 29th June, 2018. Counsel for the plaintiff replied to those submissions on the 9th July, 2018.

3 In these circumstances, the plaintiff had the benefit of legal advice from solicitor, junior and senior counsel before she commenced her proceedings and in responding to the defendants” motion to dismiss her proceedings on the basis that they were frivolous, vexatious and/or bound to fail. She was fully informed of the case to be advanced by the defendants from the affidavit sworn on the 1st June, 2018 and the written submissions of counsel for the defendants dated the 29th June, 2018. At the hearing of the motion there was no indication that she was not fully prepared to meet the application and there was no application to adjourn the motion.

4 The motion proceeded in the normal way for hearing over two days. At the end of the hearing I reserved judgment.

5 After the hearing had concluded and before judgment had been delivered the plaintiff wished to adduce further evidence in relation to a factual issue upon which the plaintiff relied on making her submissions to the court. The solicitor for the plaintiff applied to me on an ex parte basis on 30th July, 2018 for leave to adduce further evidence while I was sitting as the bankruptcy judge. I gave the plaintiff leave to bring a motion seeking leave to adduce further evidence and directed that the matter be heard on notice to the defendants. Upon my return from vacation I wrote my judgment as I had no note or recollection of the fact that the plaintiff had liberty to issue a motion seeking to adduce further evidence. The parties were contacted when I intended to deliver my judgment on 25th September, 2018. The plaintiff's solicitor wrote to say that he had made an application to me sitting in the chancery list on 30th July 2018 and that he had been given leave to adduce further evidence. This was incorrect. My attention was not drawn to the order I in fact made. I proceeded to deliver judgment on 25th September, 2018 in the absence of representatives of the plaintiff, though they were aware of the fact that the matter was listed for judgment. The matter was put back for mention and no order was perfected. Subsequently, the sequence of events was clarified and I agreed to hear the plaintiff's application for leave to adduce further evidence in the circumstances. This is my judgment on this application.

The Plaintiff's case

6 The new evidence sought to be introduced by way of an affidavit sworn by the plaintiff's solicitor, Mr. David Turner, is with a view to establishing the relationship between an English company, CarVal UK Ltd and the first named defendant. The relevance of this evidence has to be assessed by reference to her case. The plaintiff sets out her case in paras. 4 to 10 of the statement of claim as follows:

‘4. In or...