Mullaney v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Dignam
• Judgment Date: 17 January 2023
• Neutral Citation: [2023] IEHC 62
• Docket Number: Record No. 2014 4055 P
• Court: High Court

Between

Thomas Gerard Mullaney

Plaintiff

and

Danske Bank A/S and Grant Thornton, Corporate Finance Limited and Stephen Tennant

Defendants

Between

Thomas Mullaney

Plaintiff

and

Ireland, The Attorney General, The Minister for Justice and Equality, Danske Bank A/S Trading as Danske Bank

Defendant

[2023] IEHC 62

Record No. 2014 4055 P

Record No. 2021 5778 P

THE HIGH COURT

Frivolous and vexatious proceedings – Bound to fail – Strike out – Defendant seeking orders striking out proceedings – Whether the proceedings were frivolous, vexatious and bound to fail

Facts: Three motions were brought in two separate sets of proceedings (the 2014/4055P and 2021/5778P proceedings). In the first set of proceedings a notice of motion was issued on behalf of the first defendant, Danske Bank A/S (Danske), on the 12th January 2022 seeking the following reliefs: (a) an order pursuant to Order 122 Rule 11 of the Rules of the Superior Courts (RSC) dismissing the claim of the plaintiff, Mr Mullaney, for want of prosecution, no step having been taken in the proceedings for more than two years; (b) in the alternative, an order pursuant to Order 19 Rule 28 RSC striking out the proceedings on the basis that they failed to disclose any reasonable cause of action and/or they were frivolous or vexatious; (c) further and/or in the alternative, an order pursuant to the inherent jurisdiction of the High Court striking out the proceedings on the basis that they were bound to fail and/or were frivolous and vexatious; and (d) an order pursuant to s. 123(b) of the Land and Conveyancing Law Reform Act 2009 vacating lis pendens registered on Folios 1991F, 28094, 15931F and 1824F of the Register County Roscommon. In the second set of proceedings the fourth defendant, Danske, issued a motion on the 12th January 2022 seeking the following relief: (a) an order striking out and/or dismissing the proceedings on the grounds that the plaintiff, Mr Mullaney, was an undischarged bankrupt and had commenced the proceedings without the leave of the Official Assignee in Bankruptcy and/or the Court; (b) an order pursuant to Order 19 Rule 28 RSC striking out the proceedings on the grounds that they failed to disclose any reasonable cause of action as against Danske and/or that they were frivolous and vexatious; and (c) further and/or in the alternative, an order pursuant to the inherent jurisdiction of the High Court striking out the proceedings on the basis that they were bound to fail and/or were frivolous and vexatious. The third motion was brought by the plaintiff in which he sought: (a) an order for contempt by Danske, Solicitor Macken, and Ivor Fitzpatrick Solicitors whose motion to strike out the plaintiff’s constitutional case was a denial of the plaintiff’s constitutional rights under Article 40.1 of the Constitution and Article 2 of the Treaty of Europe; and (b) an order for the investigation and prosecution of perjury by Solicitor Macken who knowingly, willingly, and intentionally committed perjury in his sworn affidavit dated 11th January 2022 when he described the plaintiff’s constitutional rights under Article 40.1 of the Constitution and Article 2 of the Treaty of Europe as frivolous and vexatious.

Held by Dignam J that the 2014/4055P and 2021/5778P proceedings were frivolous, vexatious, bound to fail and should be struck out on that basis. He held that it followed from the dismissal of the proceedings in which the lis pendens was registered that the lis must be discharged. He held that it followed from his conclusion that the 2021/5778P proceedings should be struck out that the plaintiff was not entitled to the relief sought in his notice of motion.

Dignam J refused the relief sought by the plaintiff, made orders striking out the 2014/4055P (on the basis of the Court’s inherent jurisdiction) and 2021/5778P (on the basis of Order 19 rule 28 RSC and the Court’s inherent jurisdiction) proceedings and made an order pursuant to s. 123(b) of the 2009 Act vacating the lis pendens registered in Folios 1991F, 28094, 15931F and 1824F of the Register of County Roscommon.

Relief sought by defendant granted. Relief sought by plaintiff refused.

Judgment of Mr. Justice Dignam delivered on the 17th day of January 2022 .

Introduction

1 This judgment deals with three motions brought in two separate sets of proceedings: plenary proceedings titled ‘ 2014/4055P Thomas Gerard Mullaney v Danske Bank A/S and Grant Thornton, Corporate Finance Limited and Stephen Tennant’ and plenary proceedings titled ‘ 2021/5778P Thomas Mullaney v Ireland, The Attorney General, The Minister for Justice and Equality, Danske Bank A/S trading as Danske Bank’.

2 In the first set of proceedings a Notice of Motion was issued on behalf of the first-named defendant (“Danske”) on the 12th January 2022 seeking the following reliefs:

“a) An Order pursuant to Order 122 Rule 11 of the Rules of the Superior Courts dismissing the Plaintiff's claim for want of prosecution, no step having been taken in the proceedings for more than two years.

b) In the alternative, an Order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts striking out the within proceedings on the basis that they fail to disclose any reasonable cause of action and/or they are frivolous or vexatious;

c) Further and/or in the alternative, an Order pursuant to the inherent jurisdiction of this Honourable Court striking out the within proceedings on the basis that they are bound to fail and/or are frivolous and vexatious;

d) An Order pursuant to section 123(b) of the Land and Conveyancing Law Reform Act 2009 vacating Lis Pendens registered on Folios 1991F, 28094, 15931F and 1824F of the Register County Roscommon.”

3 At the hearing, counsel on behalf of Danske made clear that the relief under section 123(b) of the Land and Conveyancing Law Reform Act, i.e. paragraph (d) of the Notice of Motion, was being sought as ancillary to the reliefs at (a) to (c). He also stated that Danske was not imploring the Court to strike out the proceedings for want of prosecution. I therefore deal with paragraph (a) last.

4 Reference was also made to the motion having been brought on behalf of the three defendants but it is clear from the face of the Notice of Motion that it was brought on behalf of Danske only.

5 In the second set of proceedings the fourth-named defendant in the proceedings, Danske, issued a motion on the 12th January 2022 seeking the following relief:

“a) An Order striking out and/ or dismissing the within proceedings on the grounds that the Plaintiff is an undischarged bankrupt and has commenced the within proceedings without the leave of the Official Assignee in Bankruptcy and/or the Court;

b) An Order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts striking out the within proceedings on the grounds that they fail to disclose any reasonable cause of action as against the Fourth Named Defendant and/or that they are frivolous and vexatious;

c) Further and/or in the alternative, an Order pursuant to the inherent jurisdiction of this Honourable Court striking out the within proceedings on the basis that they are bound to fail and/or are frivolous and vexatious;”

6 The third motion is a motion brought by the plaintiff in which he seeks:

“ (a) An Order for Contempt by Danske Bank, Solicitor Graham Macken, and Ivor Fitzpatrick Solicitors whose Motion to Strike Out the Plaintiff's Constitutional Case is a denial of the Plaintiff's Constitutional Rights under Article 40.1 of the Constitution and Article 2 of the Treaty of Europe.

(b) An Order for the investigation and prosecution of PERJURY by Solicitor Graham Macken who knowingly, willingly, and intentionally committed PERJURY in his Sworn Affidavit dated 11th January 2022 when he described the Plaintiff's Constitutional Rights under Article 40.1 of the Constitution and Article 2 of the Treaty of Europe as Frivolous and Vexatious.”

7 At the hearing of the first two motions I was informed that the plaintiff had issued this third motion on the morning of the hearing and that it was returnable for a date well after the hearing. Essentially the third motion was brought on the basis that the bringing of a motion to strike out the plaintiff's claim in the 2021/5778P proceedings was a contempt of court and the solicitor, in allegedly describing the plaintiff's constitutional rights as “ frivolous and vexatious” in the grounding affidavit, had committed perjury. I was of the view that given that the motion was brought so late in the day it should not hold up the hearing of the original two motions (the only explanation given by the plaintiff for bringing his motion so late was that although he had received the motion papers in February, he only got the booklets in the few days before the hearing). More importantly, I was of the view that the plaintiff would be able to make any of the points which he was going to make in his contempt and perjury motion at the hearing in opposition to Danske's motions and it was therefore not necessary to adjourn these motions to after the hearing of the plaintiff's contempt motion.

8 In fact as matters transpired, before I delivered judgment in respect of the first two motions, the plaintiff's motion came on for hearing before me and this judgment therefore deals with all three.

Background

9 There is a considerable background to these motions. There have been two sets of summary proceedings in which orders were made granting judgment to Danske, plenary proceedings instituted by a receiver appointed by Danske to the plaintiff's lands in which Stewart J granted injunctive relief to the receiver, the two sets of plenary proceedings instituted by the plaintiff against Danske (and others) in which the current motions are brought, Circuit Court proceedings in which the plaintiff sought approval of a Personal Insolvency Arrangement, and bankruptcy...