Mars Capital Ireland No. 2 Designated Activity Company v McKeever

JudgeMs. Justice Bolger
Judgment Date14 November 2022
Neutral Citation[2022] IEHC 640
CourtHigh Court
Docket Number[2021-186-CA]
Mars Capital Ireland No. 2 Designated Activity Company
John Mc Keever and Michele Mc Keever

[2022] IEHC 640



JUDGMENT of Ms. Justice Bolger delivered on the 14 th day of November, 2022


. This is the second named defendant's appeal from an order of the Circuit Court of Judge O'Sullivan dated 16 November 2021 refusing her motion to dismiss the proceedings. For the reasons set out below, I refuse this appeal.


. The plaintiff issued possession proceedings against the defendants by Civil Bill on 30 August 2018. Previous possession proceedings were brought in 2014 by the plaintiff's predecessor in title in relation to the same property and loans and came before the Circuit Court on a number of occasions. On 28 November 2017, the plaintiff sought an adjournment and Judge Griffin allowed the adjournment but marked it peremptory against the plaintiff. When the matter came back before the Circuit Court on 27 February 2018, the plaintiff sought, once again, to adjourn the matter. A transcript of the DAR of that application has been exhibited by the plaintiff and confirms that the second-named defendant (hereinafter “the defendant”) asked Judge O'Donoghue to dismiss the case against her as it had been made peremptory against the plaintiff by Judge Griffin. Judge O'Donoghue acceded to her application and, when the plaintiff's counsel sought to make submissions, Judge O'Donoghue said he could not look into Judge Griffin's order and the matter was essentially dealt with by Judge O'Donoghue on that very brief, but clearly proper, basis.


. The plaintiff submitted to this Court that it chose not to appeal that decision as it considered there was no merit in doing so. In Start Mortgages v. Ryall [2022] IEHC 200 I said at para. 23 that there must be consequences for a party against whom an adjournment is granted on a peremptory basis, who seeks a further adjournment. Therefore the plaintiff's decision not to appeal the decision of Judge O'Donoghue seems to have been a wise one.


. The plaintiff issued the within possession proceedings in August 2018. By notice of motion dated 5 December 2019, the defendant sought an order dismissing the proceedings.

The defendant's submissions

. The defendant is a lay litigant. She does not identify the grounds or the jurisdiction for her application to dismiss in her notice of motion, but, in her grounding affidavit she makes the following two points:-

The defendant identifies the stress of dealing with the litigation as the prejudice she has suffered. She also submits that her ECHR right to a fair and expeditious trial has been breached. She argues that the plaintiff's obtaining of the DAR was a further abuse of process and that this prejudiced her because she says the transcript should not have been put into evidence. The defendant raises issues about the conduct of the plaintiff's legal team in, she claims, giving her the incorrect link to remote hearing. The defendant accepted that neither Judge Griffin nor Judge O'Donoghue had conducted any assessment of the issues in the substantive possession proceedings, but she said this was because the plaintiff did not avail of the opportunity they had to have all the issues addressed. Finally, the defendant sought to rely on the decision of Supreme Court in Bank of Ireland v. O'Malley [2019] IESC 84 where a failure to particularise a loan was criticised by the Supreme Court. The defendant accepted that this was not an issue or ground identified by her in her affidavit grounding her application to dismiss and was not, therefore, before the court.

  • (1) The plaintiff's grounding affidavit is inadmissible because it was witnessed by a solicitor who cannot perform legal duties outside of his employment as an in-house solicitor for a different organisation. The defendant relies on an email from a regulation assistant of the Law Society of Ireland confirming that the solicitor in question, who was employed as an in-house solicitor, could only provide legal services for his employer and could not perform any duties outside his employment.

  • (2) Res judicata and/or the rule in Henderson v. Henderson applies to preclude the plaintiff's proceedings because they seek to bring the same case as they brought previously and which the defendant says they lost and failed to appeal. The defendant describes the second proceedings as an abuse of process. She relies on a number of decisions, not all of which seem to be relevant to the issues identified by her in her appeal. She relies, in particular, on the decision of the Court of Appeal in Carney v. Bank of Scotland [2017] IECA 295 which she says requires the court to see whether, in all the circumstances of the case, the plaintiff's conduct was an abuse of process. The defendant contends that the plaintiff's conduct here in bringing her to court several times over four years, between 2014 when they instituted the possession proceedings and 2018 when her application to dismiss was allowed, and never trying to bring the case to a full hearing, was such an abuse of process.


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