Robinson v Ballinlaw Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 18 October 2022
• Neutral Citation: [2022] IEHC 527
• Court: High Court
• Docket Number: 2020 No. 300 SP

Between

Jane Robinson

Eamonn Robinson

Robinson Family Investments Limited

Plaintiffs

and

Ballinlaw Limited

Defendant

[2022] IEHC 527

2020 No. 300 SP

THE HIGH COURT

Lis pendens – Registration – Vacation – Plaintiffs seeking to vacate the registration of a lis pendens – Whether the alleged delay in prosecuting the arbitral proceedings is cognisable for the purposes of an application to vacate the registration of a lis pendens

Facts: The plaintiffs, Ms Robinson, Mr Robinson and Robinson Family Investments Ltd, applied to the High Court to vacate the registration of a lis pendens. The application was made pursuant to s. 123 of the Land and Conveyancing Law Reform Act 2009. There was an initial delay in the service of the underlying proceedings, and this necessitated an application to renew the plenary summons. Thereafter, the dispute between the parties was referred to arbitration and an order made staying the court proceedings pending the determination of the arbitral proceedings. The application to vacate the registration of the lis pendens presented a number of novel points of law: the first issue was whether any application to vacate the registration of the lis pendens must await the outcome of the arbitral proceedings; the second issue was whether the earlier order renewing the plenary summons gives rise to an estoppel by way of res judicata; the third issue was whether the (alleged) delay in prosecuting the arbitral proceedings is cognisable for the purposes of an application to vacate the registration of a lis pendens.

Held by Simons J that the decision on whether or not to vacate the registration of a lis pendens pursuant to s. 123 of the 2009 Act is exclusively a matter for the court which has seisin of the proprietary action; this is so notwithstanding that the underlying dispute between the parties may have been referred to arbitration pursuant to the Arbitration Act 2010. He held that it was neither necessary nor appropriate for the court to adjourn an application to vacate the lis pendens to await the outcome of the arbitral proceedings. He held that the issues which fall for determination on an application to vacate the registration of a lis pendens pursuant to s. 123 of the 2009 Act, and those for determination on an application to renew a plenary summons pursuant to Order 8 of the Rules of the Superior Courts, respectively, are very different. He held that the making of an order extending time for the renewal of the plenary summons in the proprietary action does not render res judicata the separate and distinct question of whether there has been “an unreasonable delay in prosecuting the action” for the purposes of s. 123. He held that the lis pendens should be vacated in circumstances where there has been unreasonable delay in prosecuting the proceedings in aid of which the lis pendens has been registered.

Simons J held that an order would be made, pursuant to s. 123 of the 2009 Act, vacating the lis pendens registered in respect of the lands contained in Folio 18671 of the Register County Dublin; this would result in the cancellation of the entry made in the register of lis pendens maintained in accordance with s. 122 of the same Act. He held that it was not necessary to make any consequential order directed specifically to the Property Registration Authority in respect of the entry on the folio; rather, the plaintiffs’ solicitor could arrange to have the lis pendens cancelled by lodging a certificate as provided for under Order 72A, rule 5 of the Rules of the Superior Courts. Lest there be any difficulty in that regard, Simons J held that the parties had liberty to apply. His provisional view was that having regard to s. 169 of the Legal Services Regulation Act 2015, the plaintiffs, having been entirely successful in their application, were entitled to recover their costs as against the defendant, Ballinlaw Ltd.

Application granted.

Appearances

Eoghan Cole for the plaintiffs instructed by Orlaith J. Byrne & Company

Neil Rafter for the defendant instructed by Kenny Stephenson Chapman

JUDGMENT of Mr. Justice Garrett Simons delivered on 18 October 2022

INTRODUCTION

1 This judgment is delivered in respect of an application to vacate the registration of a lis pendens. The application is made pursuant to Section 123 of the Land and Conveyancing Law Reform Act 2009. The procedural history is convoluted: there was an initial delay in the service of the underlying proceedings, and this necessitated an application to renew the plenary summons. Thereafter, the dispute between the parties was referred to arbitration and an order made staying the court proceedings pending the determination of the arbitral proceedings.

2 The application to vacate the registration of the lis pendens presents a number of novel points of law which have not yet been the subject of a written judgment. The first issue is whether any application to vacate the registration of the lis pendens must await the outcome of the arbitral proceedings. The second issue is whether the earlier order renewing the plenary summons gives rise to an estoppel by way of res judicata. The third issue is whether the (alleged) delay in prosecuting the arbitral proceedings is cognisable for the purposes of an application to vacate the registration of a lis pendens.

STATUTORY FRAMEWORK

3 Section 123 of the Land and Conveyancing Law Reform Act 2009 provides that the court may vacate a lis pendens where it is satisfied that there has been an unreasonable delay in prosecuting the action or that the action is not being prosecuted bona fide.

4 An application to vacate may be brought by any person affected by the lis pendens, and must be made on notice to the person at whose instance the lis pendens had been registered.

5 The considerations to be taken into account on an application to vacate the registration of a lis pendens have been summarised as follows by the Court of Appeal in Carthy v. Harrington [2018] IECA 321 (at paragraphs 28 to 31):

“The court is entitled to make an order to vacate a lis pendens at the behest of a ‘ person affected’ by, it inter alia, ‘(ii) where the court is satisfied that there has been an unreasonable delay in prosecuting the action.’

The considerations as to what constitutes ‘ unreasonable delay’ in this statutory context are, accordingly, quite distinct from the principles and the complex jurisprudence which has developed in regard to litigation delay where a party to litigation can seek to stay or dismiss proceedings on grounds of delay and for want of prosecution.

It must be emphasised that the vacating of a lis pendens pursuant to s. 123 of the 2009 Act does not affect the pleadings in this suit and they continue in being as between the parties thereto. […]

It behoves a litigant who asserts a beneficial interest in or over encumbered property and who institutes proceedings in relation to same to prosecute such a claim with reasonable expedition, particularly in circumstances where the registered legal owners of the property are substantially indebted and where the rights and interests of third parties including a chargeholder who has validly appointed a receiver stand to be adversely impacted by delays in litigation.”

6 The principles governing the exercise of the statutory discretion have been elaborated upon by the High Court (Barniville J.) in Hurley Property ICAV v. Charleen Ltd [2018] IEHC 611 (at paragraphs 81 and 82) as follows:

“Having included a new jurisdiction to vacate a lis pendens (in the case of ‘ unreasonable delay’ in the prosecution of the action) it is clear that the Oireachtas intended to impose an obligation on a litigant who has registered a lis pendens to prosecute the proceedings expeditiously. This is an obligation over and above the obligation which already exists under the Rules of Superior Courts prescribing time limits for the delivery of pleadings and for the taking of steps in the proceedings and over and above the jurisdiction which already inheres in the court to dismiss proceedings in the circumstances outlined by the Supreme Court in Primor plc. v Stokes Kennedy Crowley [1996] 2 I.R. 459 (‘ Primor’). In my view, therefore, the consideration as to whether a person who has registered a lis pendens has been responsible for an ‘ unreasonable delay’ in the prosecution of the proceedings for the purposes of s. 123(b)(ii) of the 2009 Act does not require the sort of assessment which a court must undertake in deciding whether to dismiss proceedings in accordance with the test in Primor which requires not only a consideration as to whether the delay in the prosecution of proceedings has been inordinate and inexcusable but also, critically, involves the court undertaking a complex assessment of the balance of justice, including issues such as prejudice to the defendant and Constitutional principles of basic fairness of procedures. I do not believe that such considerations arise in the context of the court's assessment as to whether there has been ‘ unreasonable delay’ in the prosecution of an action for the purpose of s. 123(b)(ii) of the 2009 Act. Rather, that section was intended to counterbalance the statutory entitlement conferred on a person in certain circumstances to register as of right a lis pendens and to impose a corresponding obligation on that person to expeditiously prosecute the proceedings in respect of which the lis pendens was registered. While the purpose of a registration of a lis pendens is, as Clarke J. explained in Morrissey, to bring to the attention of third parties who might be interested in acquiring the particular property or a charge over it the fact that there are proceedings in existence in relation to the property which might affect their interests, the registration of a lis pendens can adversely affect or hinder the ability of a person to sell his or her property or otherwise affect...