Pepper Finance Corporation (Ireland) DAC v Persons unknown in Occupation of the Property known as 31 Richmond Avenue, Dublin 3
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 15 March 2022 |
| Neutral Citation | [2022] IEHC 140 |
| Court | High Court |
| Docket Number | [2020 No. 6889P.] |
[2022] IEHC 140
[2020 No. 6889P.]
[2020 No. 6888P.]
THE HIGH COURT
Statement of claim – Extension of time – O. 27, r. 1 of the Rules of the Superior Courts – Defendants seeking orders dismissing two actions – Whether the plaintiff ought not to be required to deliver a statement of claim
Facts: The defendants, persons unknown in occupation of the property known as 31 Richmond Avenue, Dublin 3 and persons unknown in occupation of the property known as 21 Little Mary Street, Dublin 7, applied to the High Court seeking orders pursuant to O. 27, r. 1 of the Rules of the Superior Courts dismissing two actions by reason of the failure of the plaintiff, Pepper Finance Corporation (Ireland) DAC (Pepper), to deliver a statement of claim. The plaintiff contended that it ought not be required to deliver a statement of claim. It was submitted that it was evident from the outcome of several interlocutory applications and appeals that the defendants’ position was hopeless and that a trial of the action would amount to no more than a more costly and protracted consideration of arguments which had already been held to be devoid of merit. Acknowledging that it is unusual for any case in which a party has obtained interlocutory injunctive relief not to be progressed to a full trial, the plaintiff submitted that in this case a trial would be a complete waste of court time and would give rise to wholly avoidable legal costs. It was argued that the action was effectively moot, that the occupants did not have a limitless entitlement to judicial resources and court time, and that to permit the occupants to continue ventilating arguments which had been conclusively rejected by the High Court and the Court of Appeal would be to countenance an abuse of process. The occupants’ case was that they were entitled, by O. 20, r. 3 of the Rules of the Superior Courts, to delivery of a statement of claim, and that they were entitled, by Article 6.1 of the European Convention on Human Rights to a determination of their civil rights and obligations and a hearing within a reasonable time. It was said that there had never been any particularisation of the claims set out in the plenary summons. The order of 25th November, 2020, it was said, was on its face an interlocutory injunction that was granted “pending the trial of the action”. The occupants, it was said, had virtually no access to documents and records. While it was acknowledged that the occupants were unsuccessful at the interlocutory stage, it was submitted that it did not necessarily follow that they would be unsuccessful at trial. “Justice”, it was said, “demands that the plaintiff state the case that the defendants must answer”. The defendants also contended that there had been a twelve year delay on the part of the plaintiff. It was suggested that the cause of action accrued on 23rd June, 2008 – when the order for possession was made – and that Pepper was continuing the delay by refusing to deliver a statement of claim. It was said that Pepper had failed to give any meaningful reason for the delay and that it was inexcusable.
Held by Allen J that in form these were applications to dismiss the two actions for failure to deliver a statement of claim but the motions were opened by counsel for the occupants as applications for delivery of a statement of claim; counsel for Pepper made clear that if the court was against him, his client would deliver statements of claim. Allen J held that these were not cases of an unexplained delay in the prosecution of an action in which interlocutory orders had been obtained but of incredulity of the defendants’ insistence on delivery of a statement of claim, born of a forlorn hope on the part of the plaintiff that the defendants would recognise what the plaintiff, at least, believed to be the futility of their position.
Allen J extended the time for delivery of the statement of claim in each case for fourteen days. He could think of no reason why the moving parties should not have the costs of the motions. He could think of no reason why execution on foot of those orders should not be stayed pending the final determination of the proceedings.
Extension of time for delivery of statement of claim.
JUDGMENT of Mr. Justice Allen delivered on the 15th day of March, 2022
The is my judgment on two applications for orders pursuant to O. 27, r. 1 of the Rules of the Superior Courts dismissing two actions by reason of the plaintiff's failure to deliver a statement of claim.
Save as to the properties to which they relate, the actions are identical. They were both commenced by plenary summons issued on 8th October, 2020. Appearances were entered on 23rd November, 2020 and 22nd February, 2011. The notices of entry of appearance did not call for delivery of a statement of claim but letters of the following day, and many subsequent letters, did.
Order 20, r. 3 of the Rules of the Superior Courts provides that:-
“Where the defendant enters an appearance to a plenary summons and, at the time of entering such appearance or within eight days thereafter, gives notice in writing to the plaintiff or his solicitor, that he requires a statement of claim to be delivered, the plaintiff, if he has not already done so, shall deliver a statement of claim within twenty-one days from the receipt of such notice.
The several persons on whose behalf the appearances were entered insist that they are entitled to a statement of claim.
Notwithstanding the plain wording of the rule, the plaintiff contends that it ought not be required to deliver a statement of claim. It is submitted that it is evident from the outcome of several interlocutory applications and appeals that the defendants' position is hopeless and that a trial of the action would amount to no more than a more costly and protracted consideration of arguments which have already been held to be devoid of merit.
To understand the plaintiff's argument that the actions should go no further it is necessary to look at the history of the proceedings and the history and current position of another action in relation to the same properties.
By special summons issued on 29th November, 2006 IIB Homeloans Limited commenced proceedings against Mr. Jerry Beades for an order for possession of the properties at 31 Richmond Avenue, Fairview, Dublin 3 and 21 Little Mary Street, Dublin 7 on the ground that Mr. Beades had defaulted on a loan which was secured by a mortgage of the properties. On 23rd June, 2008 the High Court (Dunne J.) made an order for possession. An appeal by Mr. Beades to the Supreme Court was dismissed on 12th November, 2014 and the order of the High Court was affirmed.
On 25th July, 2018, following a change of name and a transfer of the loan and mortgage, an order was made by the High Court (Costello J.) giving liberty to KBC Bank Ireland plc to issue execution on foot of the order for possession. Mr. Beades appealed.
On 14th October, 2019, following a further transfer, a order was made by the High Court (Reynolds J.) giving liberty to Beltany Property Finance DAC to issue execution. Mr. Beades appealed.
On 18th November, 2020, following yet another transfer, an order was made by the High Court (Twomey J.) giving liberty to Pepper Finance Corporation (Ireland) DAC to issue execution on foot of the order for possession. Mr. Beades appealed.
Mr. Beades' appeals against the orders of 25th July, 2018 and 14th October, 2019 were heard together by the Court of Appeal on 25th September, 2020 and, for the reasons given in written judgments delivered on 17th February, 2021 by Whelan J., [2021] IECA 40 and [2021] IECA 41, dismissed.
Mr. Beades' appeal against the order of 18th November, 2020 was heard by the Court of Appeal on 13th July, 2021 and, for the reasons given in a written judgment delivered on 14th October, 2021 by Binchy J., [2021] IECA 256, was dismissed.
In the meantime, an application for a stay on execution of the High Court order pending the hearing of the appeal had been refused by the Court of Appeal (Costello J.) on 22nd January, 2021 and, for the reasons given in a written judgment delivered on 17th February, 2021 [2021] IECA 39, Pepper had been joined as a co-respondent to both appeals.
By plenary summonses issued on 8th October, 2020, Pepper claimed an order requiring all those in occupation of each of the properties to immediately surrender possession and control of the properties to Pepper and a variety of negative injunctions restraining interference with the properties, and by notices of motion issued on 14th October, 2020 applied for interlocutory relief in the same terms.
Pepper's motions were heard by Reynolds J. on 25th November, 2020 and, on Pepper's undertaking as to damages in the ordinary way, orders were made, pending the trial of the action, for the immediate surrender of possession and control of the property and restraining all persons with notice of the making of the order from impeding or obstructing Pepper.
On 23rd November, 2020 two appearances were entered in each of the actions by litigants in person. By reference to the appearances later entered by F. H. O'Reilly & Co., solicitors, on behalf of those in occupation of each of the properties, it appears that Ms. Margaret Hanrahan was one of the occupants of 31 Richmond Avenue and Mr. Gabriel Petrut was one of the occupants of 21 Little Mary Street. They did not appear at the hearing of the motions but they later filed notices of...
To continue reading
Request your trial