Ryan v KBC Bank Irl Plc

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 12 January 2015
• Neutral Citation: [2015] IEHC 194
• Court: High Court
• Date: 12 January 2015

[2015] IEHC 194

THE HIGH COURT

[No. 11705 P/2013]

Ryan v KBC Bank Irl PLC

CORNELIUS RYAN

PLAINTIFF

AND

KBC BANK IRELAND PLC

DEFENDANT

Property – Bank Loan – Appointment of receiver – Statute of Limitation Act 1957 – Res judicata.

Facts: The plaintiff earlier in the first proceedings sought an order against the defendants for alleged appointment of receiver as a result of non repayment of money borrowed by the plaintiff. The plaintiff claimed that the defendants attempted to sell the property without the proper preparation. The plaintiff contended that a bona fide buyer was not afforded sufficient time to perform the diligence. The defendant now sought an order pursuant to O.19 r.28 of the Rules of the Superior Courts striking out the plaintiff's proceedings.

Ms. Justice Donnelly held that an order pursuant to O.19 r.28 of the Rules of the Superior Courts striking out the plaintiff's proceedings would be granted. The Court struck out the petition of the plaintiff against the defendants. The Court observed that the plaintiff failed to prove that the claims disclosed reasonable cause of action. The Court observed that no reasonable cause of action against the defendant was established. The Court rejected the plaintiff's assertions that the receiver was acting as an agent of the defendant. The Court stated that the focus by the plaintiff on the principle of res judicata would be somewhat misplaced. The Court held that the plaintiff's reliance on s. 71(1) of the Statute of Limitations Act, 1957 would be inapplicable to the nature of the claim. The Court stated that the plaintiff failed to place evidence before the Court to sustain such a claim.

Introduction

1 1. The defendant bank ("the Bank") seeks an order striking out the plaintiff's proceedings on the grounds that the plaintiff's proceedings are vexatious and/or frivolous and/or an abuse of process and/or disclose no reasonable cause of action. The order is sought pursuant to 0. 19 r.28 of the Rules of the Superior Courts and/or the inherent jurisdiction of the court. Further or in the alternative, the Bank seeks an order dismissing the plaintiff's proceedings on the ground that they are statute barred. In the event that the Bank succeeds in toto in this application, the Bank seeks an Isaac Wunder Order against the plaintiff ("Mr. Ryan"). However, in the course of the hearing of the motion, it was agreed that argument on the Isaac Wunder Order application would be left over to another day should the Court decide to strike out the entirety of Mr. Ryan's proceedings.

2 2. The Bank grounds this application primarily by reference to two prior sets of proceedings brought against it by Mr. Ryan. All three sets of proceedings revolve around Mr. Ryan's ownership of a property known as Kinnitty Castle, Kinnitty, County Offaly and the fact that arising from his default in the repayment of substantial borrowing from the Bank, a receiver was appointed to the property. Mr. Ryan asserts that the property is correctly called "Castle Bernard" but for the purpose of these proceedings it will be referred to as Kinnitty Castle being the name by which it is commonly known. Kinnitty Castle operated at all material times as a hotel and continues to so operate.

The Litigation History

3 3. By plenary summons issued in December 2008 ("the first proceedings") Mr. Ryan and his wife sought various reliefs against the Bank and the receiver. The first relief claimed was that the Bank was not entitled to appoint Mr. Declan Taite as receiver and manager of Kinnitty Castle. Mr. and Mrs. Ryan also sought an order injuncting the defendants from continuing with or concluding the tender process for the sale of Kinnitty Castle. Another relief sought the approval of the court should the defendants wish to accept a bid of less than €10 million. A further relief claimed was that Mr. Ryan be at liberty to enter into a contract for sale if a bid was received by him of sufficient amount to discharge his indebtedness to the Bank. Of note is that para. 9 of the plenary summons sought an order that the defendants include, together with the sale of Kinnitty Castle Hotel, the rights to the registered trademark "Kinnitty Castle" and the rights to the website www.kinnittycastle. com. That relief also sought that the defendants market the fact that the trademark and website would be included with the sale of the castle, with all issues relating to the apportionment of any additional revenues received (including whether same were outside the security held by the Bank) to be decided at a later date.

4 4. Mr. and Mrs. Ryan then issued a notice of motion seeking corresponding interlocutory relief. In para. 22 of the affidavit sworn by Mr. Ryan in those proceedings, he referred to his ownership of the above trademark and website. Mr. Ryan said that he was willing to include those matters in the sale of the hotel. He claimed that by not including them, the receiver was deliberately and/or negligently not seeking to achieve the best price for the hotel. He alleged that the receiver or any purchaser of the property may end up infringing his rights in the trademark and the website. Specifically, he averred "although I have drawn this aspect of matters to the attention of the defendants, it is not a course of action that I wish to pursue." He said that he could not account for the receiver's decision not to cooperate in relation to that matter. The Bank submits that by this assertion, Mr. Ryan clearly indicated that he did not wish to pursue the matter of the trademark and the website.

5 5. In any event, those matters came on for hearing before Charleton J. on the 22 ^nd of December, 2008. It appears from the order placed before me that all reliefs were sought, including the relief concerning the trademark and the website. Furthermore, it is clear that Charleton J. refused to grant the reliefs sought. The costs of that motion were reserved.

6 6. A motion for directions in the case came before Kelly J. on the 26 ^th of January, 2009. The order records that counsel for the defendants updated the court as to the outcome of the tender process, namely that the receiver had not accepted any tender received and that by default Kinnitty Castle was back for sale by private treaty on the open market. The order specifically records:-

"and said counsel for the plaintiffs intimating to the court that the plaintiffs are not proposing to proceed further with these proceedings...it is ordered and adjudged that the defendants do recover as against the plaintiffs the costs of these proceedings...".

7 7. It was over four and a half years before any further proceedings issued. In the meantime, Kinnitty Castle was never sold. The receiver continued to operate the premises as a hotel.

8 8. By plenary summons dated the 15 ^th of August, 2013, Mr. Ryan issued a plenary summons against the Bank ("the second proceedings"). In that claim, which was stated to be for gross negligence and misrepresentation, it was alleged the Bank had broken serious liquidity laws which had caused the financial collapse. Mr. Ryan claimed that but for that action and knowledge of same, he would or could have made different decisions about his financial affairs. He also claimed that without disclosure and forethought of the Bank's intention, the contract was seriously flawed. He claimed that due to excessive securitisation the banks created the false boom and bust situation that crippled the country. He also claimed for reckless lending procedures saying the Bank had ignored its own guidelines in breach of the consumer protection code. He claimed that his health, wellbeing and personal relationships have suffered greatly as a result of the Bank's actions. He claimed €7 million damages and an order declaring the mortgage null and void.

9 9. No statement of claim ever issued. Instead, the Bank brought an application under RSC 0. 27 r.1 dismissing Mr. Ryan's claim for want of prosecution for failure on his part to deliver a statement of claim within the prescribed time. That motion issued on the 30 ^th of January, 2014, and was returnable for the 24 ^th of February, 2014. Mr. Ryan had, by letter dated the 6 ^th of December, 2013, sought additional time to complete his statement of claim on the ground he was a plaintiff in person commonly referred to as a lay litigant.

10 10. On the 24 ^th of February, 2014, an order was made dismissing the action for want of prosecution for failure to deliver a statement of claim. Mr. Ryan appeared in person to that motion. He informed the court that he was not opposing the motion. He was also ordered to pay the defendant the costs of that motion. Those costs have not been discharged but neither have they been taxed and ascertained.

11 11. A further plenary summons issued on the 24 ^th of October, 2013, ("the present proceedings"). Thus it can be seen that they were issued before the second proceedings were struck out and indeed prior to the letter of Mr. Ryan seeking further time in which to file a statement of claim.

12 12. The present proceedings were initially brought against the Bank only. The general endorsement of claim states that the plaintiff's claim is for an injunction against the Bank and the receiver. However, the receiver was not originally a party to those proceedings. Mr. Ryan issued and served the proceedings as a lay litigant.

13 13. The claim made in this plenary summons is in fact quite limited. It is a claim in respect of misuse of the trademark owned and registered exclusively to Mr. Ryan. It concerns an injunction in respect of the misuse of the trademark. Mr. Ryan sought interlocutory relief. At the hearing of the motion on the 12 ^th of Deecember, 2013, counsel for Mr. Taite, the receiver, appeared as a courtesy to the court. It was ordered that Mr. Taite be...