McAndrew v Launceston Property Finance DAC

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 27 February 2023
• Neutral Citation: [2023] IECA 43
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2018/368

Between/

Sean McAndrew

Plaintiff/Appellant

and

Launceston Property Finance DAC and Tom Kavanagh

Defendants/Respondents

[2023] IECA 43

Barniville P.

Faherty J.

Ní Raifeartaigh J.

Appeal Number: 2018/368

THE COURT OF APPEAL

Strike out – Fair trial – Access to the courts – Appellant appealing from orders directing that his motion to amend his pleadings and to join a third party be struck out and that his statement of claim be struck out – Whether the judge erred in law in striking out the proceedings in their entirety

Facts: The plaintiff/appellant, Mr McAndrew, on 27 July 2017, issued proceedings by way of plenary summons claiming that the defendants/respondents, Launceston Property Finance DAC and Mr Kavanagh, trespassed upon his properties and defamed him “when they were involved in the theft of the Plaintiff’s property, alleging that they had the Legal Authority to take possession of the Plaintiff’s properties”. The plaintiff appealed to the Court of Appeal from two orders of the High Court (Noonan J) made on 25 July 2018, the first of which directed that the plaintiff’s motion to amend his pleadings and to join a third party be struck out and the second of which ordered that the plaintiff’s statement of claim be struck out. The plaintiff’s grounds of appeal as set out in the notice of appeal were as follows: (1) the judge delivered judgment on 25 July 2018 in circumstances where the plaintiff was not in attendance to defend the strike out application, it had been made clear to the judge that the plaintiff was unwell and would not be able to attend, and the proceedings had not been made pre-emptory against the plaintiff; (2) the judge erred in law in striking out the proceedings in their entirety, thus preventing the plaintiff from receiving a fair trial, the plaintiff not having been given an opportunity to litigate his proceedings in full before the High Court; and (3) the judge erred in acting contrary to Article 6(1) of the European Convention on Human Rights in denying the plaintiff access to the courts and where the issue to be tried was determined in circumstances where the plaintiff was not afforded an opportunity to call evidence or fully litigate the matters in question. The defendants’ notice opposed the appeal in full.

Held by Faherty J that the judge properly addressed the defendants’ application to strike out the plaintiff’s statement of claim, both pursuant to O. 19, r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the court, the requirements of both tests having been met by the defendants in the case. Faherty J was also satisfied that by the manner in which he proceeded to consider the defendants’ motion, the judge acted fairly and proportionately, and that his approach satisfied the requirements set out in Tracey v Minister for Justice & Law Reform [2018] IESC 45 and Tracey v Irish Times [2019] IESC 62.

Faherty J dismissed the appeal on all grounds. She held that the defendants should be awarded their costs.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Faherty delivered on the 27 ^th day of February 2023

1 . This is an appeal by Mr. McAndrew (hereinafter “the plaintiff”) from two Orders of the High Court (Noonan J.) made on 25 July 2018, the first of which directed that the plaintiff's motion to amend his pleadings and to join a third party be struck out and the second of which ordered that the plaintiff's statement of claim be struck out.

Background and procedural history

2 . On 27 July 2017, the plaintiff issued proceedings by way of plenary summons claiming that the defendants trespassed upon his properties and defamed him “when they were involved in the theft of the Plaintiff's property, alleging that they had the Legal Authority to take possession of the Plaintiff's properties”. No relief was claimed. At the time he commenced his proceedings the plaintiff was a litigant in person. He retained that status until shortly before the hearing of the within appeal.

3 . The defendants entered an appearance on 3 August 2017. On 21 August 2017, the plaintiff swore an affidavit which purported to be the statement of claim in the proceedings (and which was duly accepted as such by the defendants and the High Court Judge). At para. 3 of his affidavit the plaintiff avers that he has been defamed by the defendants due to the fact that they did not have any legal right to trespass on his property on 6 July 2017 “when they stated that they were taking possession of my properties”. At para. 4, he avers that he has legal documents which prove that the defendants do not have any right to seize his property and defame him and he references “Order No. 2003/4505[SP] perfected March 2 ^nd 2004”. At para. 5, he avers that the defendants failed to comply with his request dated 23 May 2017 for the documents which entitled them to repossess his property. At para. 6, he refers to “the case” having been discontinued by the courts on 9 March 2009. He says, at para. 7, that the defendants proceeded to defame him on 6 July 2017 “despite the fact that they had agreed to hold a meeting [with him], confirmed by phone call records.” At para. 8, he states that the defendants had earlier requested documentation from him and he asserts that all documents should have been in the defendants' possession. At para. 9, he alleges that letters dated July 2006, August 2006 and February 2007 confirm that the defendants caused him serious financial loss when they refused to allow a new solicitor to represent him. At para. 10, he says that he wrote to the defendants in September 2013 and 17 November 2016 outlining the history of “the loan”. Thereafter, he avers that he is lodging a criminal complaint with the Gardaí in relation to trespass and fraud by the defendants and that when that criminal investigation is complete, he will provide additional evidence on affidavit.

4 . On 4 December 2017, the defendants filed a notice for particulars requesting details, inter alia, of the alleged defamatory statement said to have been made by the defendants and what the defamatory statement is alleged to have meant and been understood to mean. In respect of the alleged trespass, the plaintiff was asked for particulars of who it was had trespassed on his property and the identity of the property on which the defendants had allegedly trespassed. He was also requested to provide the factual basis on which it was alleged that the defendants did not have the right to seize his property. Various other particulars were raised with regard to each of the claims made in the statement of claim.

5 . There was no response by the plaintiff to the notice for particulars.

6 . By notice of motion dated 13 October 2017, the plaintiff applied for judgment in default of defence. The defendants resisted this application on the basis that the time for delivery of the defence had not begun to run in the absence of any affidavit of verification from the plaintiff as required under Order 18, r.2(4) RSC.

7 . In the event, on 4 December 2017, in the absence of an affidavit of verification from the plaintiff, the defendants delivered a defence. By way of preliminary objection they plead that the statement of claim discloses no reasonable cause of action and/or is frivolous and vexatious and bound to fail, with the defendants reserving the right to bring an application to have the proceedings struck out pursuant to the provisions of O.19, r. 28 of the Rules of the Superior Courts (“RSC”). They plead that the plaintiff has failed both in his plenary summons and statement of claim to identify the reliefs he is seeking and that the statement of claim does not contain a statement in summary form of the material facts on which the plaintiff relies for his claim. It is also pleaded that the statement of claim does not contain any or any adequate particulars of the wrongs alleged and fails to particularise adequately or at all the allegations of fraud or any factual basis for the alleged defamation, thus impeding the defendants' ability to invoke the statutory defences provided for in the Defamation Act 2009 (“the 2009 Act”). The defendants say that in consequence they are prejudiced by their inability to know the case being made against them.

8 . There follows, without prejudice to the defendants' preliminary objection, a full traverse of the claims made in the statement of claim including a denial that the defendants trespassed on the plaintiff's property or defamed him or engaged in theft.

9 . The defendants plead that if the alleged defamatory statement of which the plaintiff complains is to the effect that the first defendant was entitled to appoint the second defendant as receiver over the plaintiff's property and that the second defendant was entitled to take possession of the property, such statement is true in all material respects by virtue of the following:

• • On 29 September 2000, Anglo Irish Bank Corporation Plc (“Anglo”) advanced a loan to the plaintiff in the sum of £90,000 said to be in addition to a loan already extended to him in the sum of £243,000. The facility was to be repaid on demand without prejudice on or before 30 September 2001.

• • The loans were secured by way of a mortgage given by the plaintiff dated 18 April 2000 over lands owned by him and which are comprised in three folios, as described in the defence.

• • It was an express term of the loan that if the plaintiff was in default in respect of his repayment options the mortgagee was entitled to appoint a receiver to take possession of the mortgaged properties.

• • The plaintiff failed to make repayment to Anglo or its successor in title, Irish Bank Resolution Corporation Limited (“IBRC”), in accordance with the terms of the loan agreement.

• • In 2014, IBRC sold and assigned its loan agreements with the plaintiff and the associated securities to the first defendant. The first...