Moffitt v Agricultural Credit Corporation Plc

JudgeMr. Justice Clarke
Judgment Date27 July 2007
Neutral Citation[2007] IEHC 245
Docket Number[No. 5369 P/2001]
CourtHigh Court
Date27 July 2007





[2007] IEHC 245

[No. 5369 P/2001]



Practice and procedure - Statute of Limitations 1957 - Land law - Well-charging order - Order - Amendment of Statement of Claim - Initially lay litigant - Interest and Statute of Limitations - Res judicata - Rule in Henderson v. Henderson - Whether plaintiff former lay litigant could amend pleadings

Facts: The defendant brought debt collection proceedings in the Circuit Court against the plaintiff. The defendant obtained a judgment and subsequently a well-charging order against certain lands of the plaintiff. The plaintiff, initially a lay litigant, alleged that the order for sale of his lands was statute barred now and void. The defendant brought a motion to dismiss the plaintiff's claim. The issue arose as to the entitlement of the plaintiff now with representation, to amend his pleadings.

Held by Clarke J., that as currently pleaded the issues raised in the proceedings were res judicata. The plaintiff's lawyers would now be allowed to amend the statement of claim to advance claims relating to the well-charging order and the application of the Statute of Limitations to the interest of the debt. The motion would be refused.

Reporter: E.F.

1. Introduction

1.1 This history of the events which give rise to these proceedings go back to the late 1980's. At that time the defendant ("ACC") brought debt collection proceedings against the plaintiff ("Mr. Moffitt"). On the 10th March, 1986, ACC obtained a judgment for the sum of IR£13,741.60 together with costs against Mr. Moffitt, in those proceedings, which had record no. 39/1986 in the Circuit Court, Midlands Circuit, County of Roscommon. Thereafter the ACC registered that judgment as a judgment mortgage against certain lands allegedly owned by Mr. Moffitt and brought well charging proceedings, again in the Circuit Court, on an equity civil bill with record no. E63/1986 between the ACC and Mr. Moffitt.


1.2 On the 18th March, 1987, O'Higgins J. made a well charging order in those latter proceedings in respect of the sum of IR£29,861.06 and continuing interest and costs together with an order for sale of the relevant lands which were described as those contained in folios 15053, 19966, 4376F and 3796F of the register for County Roscommon. That order also directed that the County Registrar for Roscommon take accounts and inquiries as to encumbrances, priorities between encumbrancers and amounts owing to the ACC and other encumbrancers and directed that the result of such accounts and inquiries be certified to the court.


1.3 Matters were complicated by the fact that a second well charging order in respect of at least some of the relevant folios was obtained by Bank of Ireland in this court (Blayney J.) and disputes arose between ACC and Bank of Ireland as to how the matter should proceed given that there were well charging orders in respect of what were, to a significant extent, the same lands, made by two different courts.


1.4 Those difficulties, at least in part, explain why little progress was achieved in attempting to move forward the accounts and inquiries on foot of the Circuit Court order. The issue of accounts and inquiries was resurrected by ACC in 1999, in a manner which I describe at para 2.1 of this judgment. In the meantime a number of changes in the registration of the lands comprised in the folios specified in the well charging order occurred. It would appear that two of the folios referred to now have no lands contained within them. Some of the lands originally contained within the original folios have been transferred into a separate folio in respect of which Mr. Moffitt remains the registered owner. Others of the lands have been transferred into folios in respect of which third parties are the registered owners. It is contended by Mr. Moffitt that the transfers to those third parties predate the registration of the judgment mortgage by ACC.


1.5 I should also note that there has been a significant history of other litigation relating to these matters which is relevant to the issue which I have to decide. I will turn to that other litigation in due course.


1.6 Mr. Moffitt commenced these proceedings as a litigant in person, although he is now represented by solicitor and counsel. In the general endorsement of claim, Mr. Moffitt seeks a declaration that the order for the sale of his lands by the Circuit Court of the 18th March, 1987, is "now statute barred and thereby is void and of no effect". He further seeks injunctions restraining any action being taken on foot of the order. The proceedings were not progressed by Mr. Moffitt until he filed a Statement of Claim on the 26th June, 2006. That Statement of Claim contains a small number of assertions. In respect of the original judgment made in March 1986, Mr. Moffitt contends that he had instructed solicitors to enter an appearance but that they failed to do so. It does not appear that this fact, if it be so, could have any influence on these proceedings. If there was a defence to the proceedings brought by ACC at that time and if, due to an error on the part of a solicitor instructed, that defence was not put up, then the proper course of action would have been to seek to have the judgment set aside. Any such application would, of course, have been to the Circuit Court. No such application was brought and it is now far too late for any such application to now be brought. Apart altogether from the delay generally further applications and steps have been taken in the Circuit Court without any challenge to the validity of the original order. The time is, therefore, long since past when the original order is capable of challenge.


1.7 The next contention contained in the Statement of Claim is to the effect that the obtaining by ACC of an order for sale showed "no respect for Patrick Moffitt's constitutional rights and the Family Home Protection Act inter alia".


1.8 Again any issues which could have been raised relating to the appropriateness or otherwise of making the order for sale should have been raised at that time, whether before the Circuit Court or, if desired, on appeal to this court. It is again far too late to raise those issues.


1.9 Finally, Mr. Moffitt asserts that any claim by ACC under the court order "is statute barred pursuant to s. 11(1)(a) and s. 11(2) of the Statute of Limitations 1957". I will return to this issue in due course.


1.10 Mr. Moffitt brought a motion for judgment in default of defence against the ACC. The ACC, in turn, brought a motion seeking to have Mr. Moffitt's proceedings dismissed as being bound to fail. It was agreed between the parties that, logically, the ACC motion should be considered first so that, in the event that it should succeed, there would be no need to file a defence and in the event that it should fail ACC would seek a brief extension of time to file a defence. I am, therefore, concerned, at this stage, solely with the ACC application. As that application is, to a significant extent, based upon a contention that the issues now sought to be raised by Mr. Moffitt are res judicata it is important that I now set out the history of the previous proceedings in this court between the parties.

2. The previous proceedings

2.1 The previous plenary proceedings brought by Mr. Moffitt bore record no. 1993 No. 3165 P ("the previous proceedings"). In those proceeding Mr. Moffitt sought an order restraining ACC from enforcing the order previously made by O'Higgins J. and a declaration to the effect that that order was of no force and effect. The statement of claim in that case was delivered on the 26th August, 1999 and alleges a lack of service, the fact that there was a family home on the lands and that a Michael Bailey and a Thomas Kenny were the rightful owners of some of the land. The context of those proceedings was that, in February, 1999, ACC had brought an application before Kennedy J. sitting at Tullamore in the Circuit Court for orders designed to resurrect the holding of the accounts and inquiries which had been directed over a decade earlier. Kennedy J. made an order directing the County Registrar for Co. Roscommon to make the accounts and inquiries concerned. Mr. Moffitt appealed that order to this court. The appeal came on for hearing before Smyth J. on the 19th July, 1999 and, on the 26th July, 2006, an order was made dismissing the appeal and affirming the order of the Circuit Court. It would also appear that, at that time, Mr. Moffitt had sought leave to bring judicial review proceedings in this court which leave was refused. An appeal was taken to the Supreme Court in respect of the refusal to grant leave, but does not appear to have been pursued.


2.2 In any event ACC brought an application to this court in respect of the previous proceedings seeking to have them dismissed as disclosing no cause of action. The matter came before Murphy J. who made an order on the 3rd November, 2000, directing that the proceedings be struck out "on the ground that it discloses no reasonable cause of action" and that the proceedings were frivolous and vexatious. Mr. Moffitt appealed against that decision. The appeal was struck out on the basis of no appearance and Mr. Moffitt sought to have same reinstated, but that application (which was made almost two years after the original order dismissing the appeal) was ultimately refused by an order of the Supreme Court made on the 13th October, 2006. Against that background, ACC contends that the issues now sought to be raised by Mr. Moffitt are exactly the same as those which were already raised in the previous proceedings and are res judicata. That being...

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