Kane v Property Registration Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 13 December 2019
• Neutral Citation: [2019] IEHC 948
• Docket Number: [2018 No. 1105 P]
• Court: High Court
• Date: 13 December 2019

[2019] IEHC 948

THE HIGH COURT

Tony O'Connor

[2018 No. 1105 P]

BETWEEN

ROLF KANE

PLAINTIFF

AND

PROPERTY REGISTRATION AUTHORITY, TANAGER DESIGNATED ACTIVITY COMPANY, BANK OF SCOTLAND PLC

AND

THE ATTORNEY GENERAL

DEFENDANTS

Cross-border merger – Loan sale transaction – Fair procedures – Defendants seeking to strike out the plaintiff’s claims against them – Whether the plaintiff’s claims against the defendants were bound to fail

Facts: The plaintiff, Mr Kane, agreed that the applications of the second and third defendants, Tanager DAC (Tanager) and Bank of Scotland Plc (BOS), to strike out the plaintiff’s claims against those defendants should proceed. The plaintiff’s approach to the recovery by Tanager of monies which he borrowed and secured on his home in Clonsilla for the sum of €266,000 from Bank of Scotland (Ireland) Ltd (BOSI) in 2006 had been complicated and protracted. The plaintiff advanced similar grounds in his complaints against BOS which realised its security for a loan of some €240,000 by BOSI to the plaintiff in respect of a buy-to-let at Warrenstown. The claims made by the plaintiff were grouped as follows: (a) the challenge to the cross-border merger which resulted in BOS acquiring the rights of BOSI under the undisputed loan and security arrangements with the plaintiff; (b) the challenge to the loan sale transaction with Tanager; (c) the challenge to the approved order; (d) the challenge to the regulatory status of BOS; (e) a fair procedures challenge; (f) the absence of registration in the first defendant, the Property Registration Authority (PRA); and (g) the personal data complaint.

Held by the High Court (O’Connor J) that it found guidance in the following three judgments: (i) the Supreme Court judgments in Kavanagh v McLaughlin [2015] IESC 27 and Freemans v Bank of Scotland Plc [2016] IESC 14 concerning the cross-border merger; and (ii) the judgment of Simons J in Leahy v Bank of Scotland Plc [2019] IEHC 203 concerning an application covering many of the grounds relied upon by the plaintiff when drafting these proceedings which originally issued on 7th February, 2018. As far as the Court was concerned, the three judgments, when read and understood, revealed that all bar two of the categories of claims i.e. data privacy and the effect of the judgment of Baker J in Tanager DAC v Kane [2018] IECA 352, on the plaintiff’s grounds for seeking the reliefs sought at paras. 17(l)-(q) and 17(u) of the latest amended statement of claim were unreasonable and did not disclose a subsisting cause of action for the plaintiff against the second and third defendants taking the facts as pleaded by the plaintiff. O’Connor J held that the plaintiff’s ground that the dictum of Laffoy J in Kavanagh v McLaughlin means that one should be registered before there could be a lawful transfer was decided and issue estoppel arose; for that reason, this ground of the plaintiff, additional to those comprehensively determined by the three judgments, meant that the plaintiff’s claim against the second and third defendants as eventually pleaded and elaborated upon in the Court was bound to fail.

O’Connor J held that the Court would make an order striking out the plaintiff’s claim against the second and third defendants as pleaded in his latest statement of claim pursuant to O. 19 r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the Court. O’Connor J held that the plaintiff’s claim against those defendants was struck out insofar as the reliefs sought at paras. 17(p), (q), (r) and (u) were concerned. The Court directed the plaintiff to discharge the costs of the second and third defendants to be adjudicated upon in the event that there was no agreement concerning the assessment of costs.

Motion granted.

EX TEMPORE JUDGMENT of Mr. Justice Tony O'Connor delivered on the 13th day of December, 2019

1 Following consideration of the ruling yesterday about the sequencing of the motions to be heard before the Court, the plaintiff agreed that the applications of the second and third named defendants (“these defendants”) to strike out the plaintiff's claims against these defendants should proceed. The plaintiff's approach to the recovery by the second named defendant (“Tanager”) of monies which he borrowed and secured on his home in Clonsilla for the sum of €266,000 from Bank of Scotland (Ireland) Limited (“BOSI”) in 2006 has been complicated and protracted. The plaintiff advances similar grounds in his complaints against the third named defendant (“BOS”) which realised its security for a loan of some €240,000 by BOSI to the plaintiff in respect of a buy-to-let at Warrenstown.

2 The claims made by the plaintiff can be grouped as follows: -

(a) The challenge to the cross-border merger which resulted in BOS acquiring the rights of BOSI under the undisputed loan and security arrangements with the plaintiff;

(b) The challenge to the loan sale transaction with Tanager;

(c) The challenge to the approved order;

(d) The challenge to the regulatory status of BOS;

(e) A fair procedures challenge;

(f) The absence of registration in the Property Registration Authority (“PRA”);

(g) The personal data complaint.

3 The ability of a mortgagor involved with BOSI to rely on the cross-border merger whereby BOSI was dissolved has been the subject of judgments of the Superior Courts over the past number of years. Furthermore, the ability of a mortgagor to rely on a failure which could only affect the rights of a...