Mullaney v Ireland and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 25 July 2023
• Neutral Citation: [2023] IECA 195
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2023 62

Between

Thomas Mullaney

Plaintiff/Appellant

and

Ireland, The Attorney General, The Minister for Justice and Equality and Law Reform

Defendants

and

Danske Bank A/S Trading as Dankse Bank

Defendant/Respondent

[2023] IECA 195

Costello J.

Noonan J.

Haughton J.

Court of Appeal Record Number: 2023 62

High Court Record Number: 2021 5778P

THE COURT OF APPEAL

CIVIL

[Approved]

[No Redaction Needed]

JUDGMENT of Ms. Justice Costello delivered ex tempore on the 25 ^th day of July 2023

1 . The appellant's claim is set out in full in the judgment of the High Court and it is not necessary to reproduce it here. The essential premise underpinning these proceedings is that emanations of the State, Ministers of the Government, the Attorney General, the DPP are all immune to Court Summons and Court Orders; the appellant is entitled to be held equal before the law under Article 40.1 of the Constitution and, accordingly, he too is immune to Court Orders and Court Summons, as that equality is guaranteed under Article 40.1 of the Constitution and Article 2 of the TEU.

2 . This premise is “based on a hopeless misconception of the meaning and effect of the guarantee of equality under Article 40.1 of the Constitution of Ireland” and is “preposterous”, in the words of Simons J. in Fennell v Collins [2019] IEHC 572

3 . The State is not immune from suit: Byrne v Ireland [1972] IR 241; Kelly: The Irish Constitution, 5th ed., para 3.2.01. It follows that there is no basis for the appellant's assertion that he is entitled to immunity from suit based upon either Article 40.1 of the Constitution, or Article 2 of the TEU. The appellant, like any other person in the state, is subject to the law and may be sued in the courts. The fact that certain cases against the State, a minister, the Attorney General or the DPP may have been dismissed — for whatever reason- does not alter this fundamental principle.

4 . This unstateable argument has been rejected by the High Court seven times, including the judgment under appeal.

— Fennell v Collins [2019] IEHC 572 (Simons J)

— Mullins v Ireland and Ors [2022] IEHC 296 (O'Moore J)

— Keary v Property Registration Authority [2022] IEHC 28 (O'Moore J)

— Towey and anor v Government of Ireland and Ors [2022] IEHC 559 (Dignam J)

— Brennan v Ireland and Ors [2023] IEHC 107 (Roberts J)

— O'Hara v Ireland and Ors [2023] IEHC 268 (O'Moore J)

5 . For the reasons set out in these judgments, and the judgment under appeal, the proposition underpinning the proceedings is legal nonsense and the High Court was correct to strike out the proceedings against the respondent (“the Bank”) on the basis that they were bound to fail. To bring and maintain these proceedings was vexatious, but to appeal an order striking them out as being without any legal basis whatsoever compounds the abuse perpetrated by the continuance of these utterly unmeritorious proceedings.

6 . If possible, the case is even more preposterous against the Bank. The proceedings disclose no claim against the Bank and there is no suggestion that the Bank is immune from suit. In his affidavit opposing the Bank's application to strike out the proceedings against it, the appellant says these proceedings are “ a Constitutional Case and not a Banking Case.” He makes no attempt to identify any case or claim against the Bank.

7 . The clear intention of bringing the proceedings is to mount a collateral attack on orders which the Bank has obtained against the appellant and which he failed to appeal. They are thus binding orders to which the High Court and this court should give full effect. On 16 October 2016 the Bank obtained judgment against the appellant and Ms Breege Mullaney in two summary proceedings in the sums of €239,095.20 and €69,061.66 respectively. In an application for a PIA under the Personal Insolvency Act 2013, the appellant acknowledged these debts. It is thus not open to him now to contend that the debt is not due to the Bank. On 3 July 2019, the Bank petitioned for the adjudication of the appellant as a bankrupt and on 13 October 2021, the High Court adjudicated him a bankrupt. The day before the order of adjudication, 12 October 2021, the appellant issued these proceedings. The sole purpose of suing the Bank in these proceedings is to mount a collateral attack on...