Langan v The Property Registration Authority of Ireland and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Eileen Roberts
• Judgment Date: 21 April 2023
• Neutral Citation: [2023] IEHC 189
• Docket Number: 2019 No. 5471P
• Court: High Court

Between

David Langan

Plaintiff

and

The Property Registration Authority of Ireland and Thomas Langan and Kim Langan

Defendants

[2023] IEHC 189

2019 No. 5471P

THE HIGH COURT

Delay – Lis pendens – Vacation – Defendants seeking to vacate a lis pendens registered by the plaintiff – Whether there had been an unreasonable delay by the plaintiff in prosecuting the proceedings

Facts: The plaintiff, Mr Langan, issued the plenary summons, on 10 July 2019, seeking various orders and declarations, primarily that he was the “beneficial owner” of Folio 9071 of the Register Co Dublin (the Property). A motion was brought by the first defendant, the Property Registration Authority of Ireland (the PRA), in which it sought: (1) an order striking out or dismissing the plaintiff’s proceedings as disclosing no stateable cause of action as against the PRA and/or that such proceedings are bound to fail; (2) an order striking out the plaintiff’s claim against the PRA pursuant to the High Court’s inherent jurisdiction or Order 19 of the Rules of the Superior Courts (RSC); and/or in the alternative (3) an order striking out or dismissing the proceedings against the PRA on the grounds that it is not a necessary defendant to the matters at issue between the plaintiff and the second and third defendants, Mr and Ms Langan (the Purchasers). A motion was issued by the Purchasers seeking: (1) an order pursuant to s. 123 of the Land and Conveyancing Law Reform Act 2009 vacating the lis pendens registered by the plaintiff on 12 July 2019 on the Property; (2) an order pursuant to Order 19 rule 28 RSC striking out the plenary summons and dismissing the plaintiff’s claim insofar as it relates to the Purchasers on the grounds that it is frivolous and/or vexatious and that the pleadings disclose no reasonable cause of action against them; (3) an order pursuant to the court’s inherent jurisdiction dismissing or striking out the plaintiff’s claim as against the Purchasers on the grounds that it is unsustainable and/or otherwise bound to fail; and (4) an order restraining the plaintiff from issuing further proceedings against the defendants in respect of the Property without prior leave being granted by the court. In the alternative they sought an order prohibiting the plaintiff from interfering with or meddling in any future sale of the Property.

Held by Roberts J that the plaintiff had delayed in the prosecution of the proceedings to such an unreasonable extent as to justify an order by the court vacating the lis pendens he registered. She made an order vacating the lis pendens pursuant to the provisions of s. 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009. The proceedings were, in her view, bound to fail both as against the PRA and the Purchasers. She held that there was no wrongdoing claimed as against the PRA who to date had registered the lis pendens and not registered the Purchasers’ title. The general claim of unparticularised fraud pleaded against the PRA could not, in her view, be credibly or properly maintained against the PRA and in those circumstances she struck out the proceedings as against the PRA as such a claim was bound to fail. She also found that the PRA was not a necessary party to the proceedings. She held that there was no wrongdoing claimed as against the Purchasers save for similar unparticularised claims of fraud and illegality which appeared to be directed at the sales process itself. She noted that it was pleaded that the Purchasers may themselves have been the victims of this alleged fraud (rather than the perpetrators). She did not believe that the claim advanced against the Purchasers could succeed against them. She held that no wrongdoing was identified. In addition, she noted that the High Court had formally validated the appointment of Mr McCarthy (the Receiver) and, thus by extension, had confirmed that his powers had arisen. Furthermore, she held that there was considerable protection afforded to the Purchasers under s. 21(2) of the Conveyancing Act 1881 which confirmed that their title shall not be impeachable. She noted that the evidence was that the Purchasers acquired the Property as bona fide purchasers for value at a public auction. Accordingly, she struck out the proceedings as against the Purchasers as bound to fail. She held that the lis pendens registered by the plaintiff would also, in those circumstances, fall away.

Roberts J was not satisfied that there was sufficient evidence before the court to grant an Isaac Wunder order against the plaintiff and she refused that relief.

Motions granted.

JUDGMENT of Ms. Justice Eileen Roberts delivered on 21 April 2023

Introduction

1 . This judgment relates to two separate motions brought by the defendants.

2 . The first motion is brought by the first named defendant (the “ PRA”) in which it seeks:

• (1) an order striking out or dismissing the plaintiff's proceedings as disclosing no stateable cause of action as against the PRA and/or that such proceedings are bound to fail;

• (2) an order striking out the plaintiff's claim against the PRA pursuant to the court's inherent jurisdiction or Order 19 of the Rules of the Superior Courts (“ RSC”); and/or in the alternative

• (3) an order striking out or dismissing the proceedings against the PRA on the grounds that it is not a necessary defendant to the matters at issue between the plaintiff and the second and third named defendants.

3 . The second motion was issued by the second and third named defendants seeking:

• (1) an order pursuant to section 123 of the Land and Conveyancing Law Reform Act 2009 (the “ 2009 Act”) vacating the lis pendens registered by the plaintiff on 12 July 2019 on Folio 9071 of the Register Co Dublin (the “ Property”);

• (2) an order pursuant to O19 rule 28 of the RSC striking out the plenary summons and dismissing the plaintiff's claim insofar as it relates to the second and third named defendants on the grounds that it is frivolous and/or vexatious and that the pleadings disclose no reasonable cause of action against them;

• (3) an order pursuant to the court's inherent jurisdiction dismissing or striking out the plaintiff's claim as against the second and third named defendants on the grounds that it is unsustainable and/or otherwise bound to fail; and

• (4) an order restraining the plaintiff from issuing further proceedings against the defendants in respect of the Property without prior leave being granted by this court. In the alternative they seek an order prohibiting the plaintiff from interfering with or meddling in any future sale of the Property.

4 . Both motions arise in relation to the same proceedings and the same background circumstances. I propose to set out those circumstances and will then consider each of the motions in turn.

The parties and the background to this dispute

5 . The plaintiff was registered as the owner of the Property on 17 May 2006. He secured a loan to purchase the Property from ACC Bank plc who registered a first legal mortgage and charge over the Property by way of security for the loan on 17 May 2006. This mortgage obviously predates the operative date of mortgages covered by the 2009 Act (namely 1 December 2009) and so the plaintiff's mortgage is governed by the provisions of the Conveyancing Act, 1881, as amended. The plaintiff defaulted on the loan and, following demand, ACC Bank plc appointed Mr Shane McCarthy (the “ Receiver”) as receiver over all the plaintiff's assets by deed of appointment dated 23 February 2016.

6 . On 20 October 2017 the plaintiff issued proceedings (2017/8523P) against the Receiver, ACC Bank plc and the Receiver's firm KPMG. Those proceedings do not appear to have been advanced by the plaintiff, but they remain in place.

7 . The Receiver made two attempts to sell the Property but, allegedly following interference by the plaintiff, these sale attempts were unsuccessful. The Receiver then issued legal proceedings against the plaintiff on 29 June 2018 seeking injunctions (which were granted on an interlocutory basis) restraining interference by the plaintiff with the sales process. Those proceedings (2018/5913P) were the subject of a judgment by Mr Justice Allen on 1 October 2019 in McCarthy v. Langan [2019] IEHC 651 in which, following a full oral hearing on the merits, the court confirmed the validity of the appointment of the Receiver over the Property. The plaintiff appealed that judgment to the Court of Appeal, who struck out the appeal on 18 March 2021 for no appearance.

8 . The second and third named defendants (the “ Purchasers”) are a married couple. Although sharing the same surname, they are not related to the plaintiff. The evidence before this court is that they purchased the Property for value at a public auction on 24 October 2018. That sale was completed on 16 April 2019 with the mortgagee selling as mortgagee in possession.

9 . It is apparent from the above timeline that the Property was sold after the Receiver had obtained interlocutory orders preventing interference by the plaintiff with the sales process but before Mr Justice Allen delivered his judgment in the substantive proceedings on 1 October 2019. Allen J held at para 90 of his judgment that “ I have come to the conclusion that the appointment of the [Receiver] was valid”.

10 . The PRA is the State organisation responsible for the registration of property transactions in Ireland.

11 . On 18 April 2019, following their purchase of the Property, the Purchasers sought to register their interest with the PRA as the new owners of the Property.

12 . On 10 July 2019 the plaintiff issued the within proceedings against the PRA and the Purchasers. While those proceedings were served on the PRA, the plaintiff did not serve the proceedings on the Purchasers until almost one year later, on 3 July 2020.

13 . On 12 July 2019 the plaintiff registered a lis pendens over...