McDonagh v Ulster Bank Ireland DAC and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Michael Quinn
• Judgment Date: 30 January 2024
• Neutral Citation: [2024] IEHC 36
• Docket Number: [2018 5922 P]

Between

Ulster Bank Ireland DAC, Paul McCann and Patrick Dillon,

Plaintiffs

and

Brian McDonagh, Kenneth McDonagh and Maurice McDonagh

Defendants

[2024] IEHC 36

[2018 5922 P]

THE HIGH COURT

COMMERCIAL

Right of access to the court – Instituting proceedings – Re-entering proceedings – Plaintiffs seeking an order restraining the defendants from instituting or re-entering any proceedings as against them without leave of the President of the High Court – Whether there was a clear intention to persist in the re-examination of issues already determined

Facts: The plaintiffs, Ulster Bank Ireland DAC, Mr McCann and Mr Dillon, applied for an order pursuant to the inherent jurisdiction of the High Court restraining the defendants, the McDonaghs, from instituting or re-entering any proceedings as against them and as against Grant Thornton, Promontoria (Aran) Ltd and Link ASI Ltd, or any of their respective servants or agents, without leave of the President of the High Court (or such Judge as may be nominated by the President),“including, but not limited to any proceedings concerning or in any way relating to” eleven events and matters identified in the Notice of Motion as follows: (i) the loan facility first advanced by way of facility letter dated 20 July 2007 as between the first plaintiff and the defendants and any security pertaining thereto; (ii) the 80 acres of land at Kilpeddar, Co. Wicklow comprised in Folios WW 21790 F and WW 36738 F; (iii) the withdrawal of €325,000 from an account held in the name of the first defendant; (iv) the Compromise Agreement as between the first plaintiff and the defendants; (v) the appointment of the second and third plaintiffs as receivers over the Kilpeddar lands and the manner in which they conducted themselves as receivers over the Kilpeddar lands; (vi) the proceedings entitled “Brian McDonagh, Maurice McDonagh and Kenneth McDonagh, Plaintiffs, and Ulster Bank Ireland Limited DAC, Norman Ginnelly, Paul McCann, Patrick Dillon, CBRE, Promontoria (Aran), Link ASI Limited, Conor Maher and Alan Monaghan, High Court no. [2021] 850 P”; (vii) the purported Heads of Agreement dated 13 June 2014 as between the defendants and Granja Ltd; (viii) the acquisition by Promontoria (Aran) from the first plaintiff of the loan facility and any security pertaining thereto; (ix) the sale of the Kilpeddar lands by the receivers and consideration received or to be received on foot thereof; (x) the debt due and owing by the defendants on foot of the loan facility; (xi) the appointment by the first plaintiff of receivers over any properties owned by the first respondent, including, without prejudice to the generality of the foregoing, Units 1 and 4 Ballymount Business Park, Ballymount Dublin 24, 8 Bloomfield Avenue, Dublin 8, 60A Albert Close, Glenageary Co. Dublin, and 13 Grosvenor Square, Rathmines, Dublin 6, or the subsequent sale of those properties.

Held by Quinn J that the court was required to balance the constitutionally protected right of access to the court against the protection of parties from persistent allegations being made in new proceedings which repeat claims which have been disposed of in previous proceedings and judgments and the need to avoid further waste of court time and resources on matters previously determined. He held that the correspondence exhibited on the application and the first defendant’s replying affidavit revealed a clear intention to persist in “re-examination” of issues already determined, by whatever means the defendants themselves considered appropriate, including further proceedings.

Quinn J made an order in the terms sought with three limitations: firstly, the restriction will relate only to institution of new proceedings; secondly, the order will restrict only new proceedings concerning or in any way relating to the matters identified by the plaintiffs at paragraphs 2(i)-(xi) of the Notice of Motion, and will not include the proposed phrase “including, but not limited to”; and thirdly, the order will not restrict the progress and determination of the proceedings which had already been commenced, including any appeals.

Application granted.

Judgment of Mr. Justice Michael Quinn delivered on the 30th day of January 2024

1 . The plaintiffs have applied for an order pursuant to the inherent jurisdiction of the court restraining the defendants, referred to in parts of this judgment as “the McDonaghs”, from instituting or re — entering any proceedings as against them and as against Grant Thornton, Promontoria (Aran) Limited and Link ASI Limited, or any of their respective servants or agents, without leave of the President of the High Court (or such Judge as may be nominated by the President), “including, but not limited to any proceedings concerning or in any way relating to” eleven events and matters identified in the Notice of Motion as follows:-

(i) the loan facility first advanced by way of facility letter dated 20 July 2007 as between Ulster Bank Ireland Limited (as it was then known) and the McDonaghs (the “loan facility”) and any security pertaining thereto;

(ii) the 80 acres of land at Kilpeddar, Co. Wicklow comprised in Folios WW 21790 F and WW 36738 F (“the Kilpeddar lands”);

(iii) the withdrawal of €325,000 from an account held in the name of Brian McDonagh;

(iv) the agreement, commonly referred to as the Compromise Agreement, as between Ulster Bank Ireland Limited (as it was then known) and the McDonaghs;

(v) the appointment of Messrs Paul McCann and Patrick Dillon as receivers over the Kilpeddar lands and the manner in which they conducted themselves as receivers over the Kilpeddar lands;

(vi) the proceedings entitled “Brian McDonagh, Maurice McDonagh and Kenneth McDonagh, Plaintiffs, and Ulster Bank Ireland Limited DAC, Norman Ginnelly, Paul McCann, Patrick Dillon, CBRE, Promontoria (Aran), Link ASI Limited, Conor Maher and Alan Monaghan, High Court no. [2021] 850 P”;

(vii) the purported Heads of Agreement dated 13 June 2014 as between the McDonaghs and Granja Limited;

(viii) the acquisition by Promontoria (Aran) from Ulster Bank Ireland DAC of the loan facility and any security pertaining thereto;

(ix) the sale of the Kilpeddar lands by the receivers and consideration received or to be received on foot thereof;

(x) the debt due and owing by the McDonaghs on foot of the loan facility;

(xi) the appointment by Ulster Bank Ireland Limited (as it was then known) of receivers over any properties owned by Brian McDonagh, including, without prejudice to the generality of the foregoing, Units 1 and 4 Ballymount Business Park, Ballymount Dublin 24, 8 Bloomfield Avenue, Dublin 8, 60A Albert Close, Glenageary Co. Dublin, and 13 Grosvenor Square, Rathmines, Dublin 6, or the subsequent sale of those properties.

2 . It is unusual that an order of this nature, commonly referred to as an ‘Isaac Wunder’ order, is sought by a plaintiff. But, at the time of hearing this application, there had been commenced between the parties or entities related to the parties ten sets of proceedings including these proceedings.

3 . In six of the proceedings the plaintiff, or petitioner in one case, is Ulster Bank (Ireland) DAC (“the Bank”) together with in some cases the second and third plaintiffs Mr. McCann and Mr. Dillon.

4 . In four of the cases, the McDonaghs or a company called Granja Limited (“Granja”) are plaintiffs. Granja has been found by the High Court (Twomey J.) to be front for Mr. Brian McDonagh ( [2020] IEHC 185 and [2022] IECA 87).

5 . Before turning to the history and background to this application, I shall list those proceedings:-

Case No 1 . Brian McDonagh v. Ulster Bank Ireland Limited (2014/834P) (the “Brian McDonagh” Proceedings)

Case No.2 . Granja Limited v. Paul McCann, Patrick Dillon, Ulster Bank Ireland Limited, Brian McDonagh, Kenneth McDonagh and Maurice McDonagh (2014/10190P) (the “Granja Specific Performance Proceedings”)

Case No. 3 Ulster Bank Ireland DAC, Paul McCann and Patrick Dillon v. Brian McDonagh, Kenneth McDonagh, and Maurice McDonagh (2018/5922P) (the “Judgment Proceedings”) (the proceedings in which this application is made)

Case No. 4 Ulster Bank Ireland DAC, Paul McCann and Patrick Dillon v. Granja Limited (2019/117SP) (the “Granja Caution Proceedings”)

Case No. 5 In the matter of Granja Limited and the Companies Act 2014 (2019/249COS) (the “Granja Winding Up Proceedings”)

Case No. 6 Brian McDonagh, Maurice McDonagh and Kenneth McDonagh v. Ulster Bank Ireland DAC, Norman Ginnelly, Paul McCann, Patrick Dillon, CBRE, Promontoria Aran, Link ASI Limited, Conor Maher, and Alan Monaghan (2021/850P) (the “CBRE Proceedings”)

Case No. 7 Kenneth McDonagh, Maurice McDonagh and Brian McDonagh v. Fane Investments Ltd., Quanta Capital Investments Ltd., Mel Sutcliffe, and Ulster Bank Ireland DAC (2021/4439P) (the “Fane Proceedings”)

Case No. 8 Ulster Bank Ireland DAC v. Brian McDonagh (2022/96SP) (the “Brian McDonagh Well Charging Proceedings”)

Case No. 9 Ulster Bank Ireland DAC v. Maurice McDonagh (2022/107SP) (the “Maurice McDonagh Well Charging Proceedings”)

Case No. 10 Ulster Bank Ireland DAC v. Kenneth McDonagh (2022/108SP) (the “Kenneth McDonagh Well Charging Proceedings”)

Events before commencement of proceedings

6 . On 20 July 2007, the Bank issued a facility letter to the defendants for a total sum of €21.5 million. The letter recorded that the facility would be reviewed in August 2008, and it provided for security to include a first legal charge over 80 acres of lands at Kilpeddar Co. Wicklow, and other security.

7 . On 3 August 2007 the acquisition of the Kilpeddar property by the defendants was completed and they executed a mortgage of the property in favour of the Bank.

8 . The borrowings were restructured in January 2009 for a higher amount of €21,855,000.

9 . When the defendants failed to...