Scanlan v Danske Bank and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 27 April 2023 |
| Neutral Citation | [2023] IECA 102 |
| Docket Number | Appeal Number: 2022/233 |
| Court | Court of Appeal (Ireland) |
and
[2023] IECA 102
Whelan J.
Faherty J.
Allen J.
Appeal Number: 2022/233
THE COURT OF APPEAL
CIVIL
JUDGMENT of Mr. Justice Allen delivered on the 27 th day of April, 2023
. This is an appeal by the plaintiff, Ms. Gerardine Scanlan, against the judgment of the High Court (Heslin J.) delivered on 16 th March, 2022 and the consequential order made on 30 th August, 2022 by which it was ordered that Ms. Scanlan's action against the first defendant, Danske Bank, and the third defendant, Mr. Stephen Tennant, be dismissed as an abuse of process and as frivolous and vexatious and bound to fail and for disclosing no reasonable cause of action.
. Ms. Scanlan is a litigant in person. The Bank and Mr. Tennant are represented by solicitors and counsel.
. The background to the litigation is generally unremarkable. In October, 2008 Ms. Scanlan borrowed money from Danske Bank on the security of a residential investment property in Cork. Ms. Scanlan was unable to meet the repayments due on foot of the mortgage and in 2013 the Bank made a demand for payment of the balance of the loan. Ms. Scanlan did not pay the amount due and the Bank appointed a receiver over the property, which was eventually sold. In 2016 the Bank recovered judgment against Ms. Scanlan for judgment the remaining balance of the loan, credit having been given for the proceeds of realisation of the security.
. If the background is unremarkable, the same cannot be said of the protracted and convoluted litigation which it has spawned. It has proved challenging to try to unpick – and to resist the temptation to cut – the knot of Ms. Scanlan's prolix, vague, obscure, and contradictory claims. I will lay out the strands.
. In October, 2008 Ms. Scanlan borrowed €107,500 from Danske Bank on the security of a residential investment property in Cork. Ms. Scanlan having failed to meet the repayments due on foot of the mortgage, the Bank, by letter dated 17 th July, 2013 demanded repayment of the sum of €84,599.44 then said to be due and owing. Ms. Scanlan did not pay the amount due and by deed dated 15 th August, 2013 Danske Bank appointed Mr. Tennant as receiver over the property.
. By summary summons issued on 6 th June, 2014 the Bank commenced proceedings to recover the balance of the loan and by notice of motion issued on 9 th September, 2014 applied for leave to enter final judgment.
. By plenary summons issued on 21 st October, 2014 – 2014 No. 8950P, to which I will refer as the 2014 action – Ms. Scanlan instituted a cross action against the Bank and Mr. Tennant. In her statement of claim in that action delivered on 23 rd February, 2015 Ms. Scanlan made a wide range of claims including that the Bank had engaged in reckless lending; that by reason of the actions of the Bank and Mr. Tennant, Ms. Scanlan had suffered personal injuries; that Ms. Scanlan's right to privacy and confidentiality had been violated; that the Bank had breached various provisions of consumer protection legislation; that the Bank had “prematurely” appointed Mr. Tennant as receiver; that the Bank had made “no attempt at positive communication” with Ms. Scanlan and had appointed a receiver “to a very modest financial situation”, adding unnecessary expense and stress to her situation; that Mr. Tennant had failed to comply with his “duty of care”; that the Bank and Mr. Tennant and their agents had been unjustly enriched; that the Bank was carrying on business in the State without a valid banking licence; that the Bank had breached various legislative provisions; that the Bank had engaged in “excessive securitisation”; that the Bank had acted negligently in its dealings with Ms. Scanlan and the mortgaged property; that the Bank and Mr. Tennant had engaged in “Robo-signing” – that is to say that affidavits had been sworn by persons with no knowledge of the facts deposed to; that the Bank and Mr. Tennant had been guilty of “gross misconduct”; and that the Bank and Mr. Tennant had attempted to illegally enter the mortgaged property and had harassed the residents.
. By notice of motion dated 18 th March, 2015 the Bank applied to the High Court for an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of the court dismissing the 2014 action on the grounds that the summons and statement of claim failed to disclose any reasonable cause of action and that the claims were frivolous and vexatious and bound to fail.
. The Bank's motion for summary judgment and its motion to dismiss Ms. Scanlan's cross action were heard together by the High Court (Fullam J.) on 19 th October, 2015. In the meantime, on 12 th June, 2015, the mortgaged property was sold and the net proceeds of sale applied in reduction of Ms. Scanlan's indebtedness.
. For the reasons given in a written judgment delivered on 25 th February, 2016, ( [2016] IEHC 118) on both motions, Fullam J. found that Ms. Scanlan's action should be dismissed and that the Bank was entitled to summary judgment in the sum of €47,704.46. Following a contested costs hearing on 18 th March, 2016 the orders in each case – the Bank's action 2014 No. 1456S, and Ms. Scanlan's action 2014 No. 8950P – were perfected on 5 th July, 2016.
. There was no appeal by Ms. Scanlan against either order.
. Mr. Tennant is a partner in Grant Thornton. On 11 th September, 2015, in response to a previous data access request to Grant Thornton, Ms. Scanlan was provided with a CD. The CD contained not only Ms. Scanlan's data but also, inadvertently, confidential and personal data relating to unconnected third parties and confidential proprietary information the property of Grant Thornton. That inadvertent disclosure, it will have been noted, occurred about a month before the hearing before Fullam J.
. By plenary summons issued on 27 th November, 2015 Grant Thornton and Grant Thornton Corporate Finance Ltd. commenced proceedings against Ms. Scanlan seeking orders for the return of the information and related relief. I will refer to this action as the Grant Thornton action. The course of that litigation has not been smooth but it is unnecessary for present purposes to dwell on all of the detail.
. What is relevant – as will become apparent – is that an application by Ms. Scanlan to join the Bank as a party to those proceedings was refused by the High Court (Gilligan J.) ( [2017] IEHC 648) and an appeal by Ms. Scanlan against that refusal was dismissed by the Court of Appeal, in a judgment delivered by Baker J. (with which Irvine and Donnelly JJ. agreed) on 31 st October, 2019 ( [2019] IECA 276).
. The Court of Appeal affirmed the conclusion of Gilligan J. that there was no connection between the claims of the plaintiffs in that action and Ms. Scanlan's complaints involving Danske Bank. Moreover, Baker J. agreed with a submission which had been made on behalf of the Bank that Ms. Scanlan's attempt to join the Bank amounted to an attempt to mount an as-yet unarticulated collateral attack on the 2016 judgment and order of Fullam J.
. It is also relevant – and for the moment I just note – that on 30 th June, 2016 Ms. Scanlan delivered a counterclaim in the Grant Thornton action. It will be necessary in due course to examine that counterclaim in some detail.
. The action which is the subject of the appeal now before this court was commenced by plenary summons issued on 17 th July, 2017. I will refer to it as the 2017 action. Ms. Scanlan did not deliver her statement of claim until 27 th April, 2020. The statement of claim was delivered long after the time limited by the Rules of the Superior Courts had expired and without leave or consent but while Mr. Tennant complained that Ms. Scanlan had been guilty of inordinate and inexcusable delay in prosecuting her action, neither he nor the Bank challenged the validity of the statement of claim.
. On 17 th June, 2020 a motion was issued on behalf of the Bank by which the High Court was asked to dismiss the 2017 action pursuant to O. 19, r. 28 of the Rules of the Superior Courts on the grounds that the statement of claim disclosed no reasonable cause of action and/or pursuant to the inherent jurisdiction of the court on the grounds that Ms. Scanlan was seeking to re-litigate issues decided in the 2014 action and/or to mount an impermissible collateral attack on the 2016 judgment and order and/or to litigate matters which properly and conveniently could and should have been made as part of the previous proceedings.
. On 4 th August, 2020 a similar motion was issued on behalf of Mr. Tennant, to which there was added a further alternative claim that the action should be dismissed for inordinate and inexcusable delay.
. I note for completeness that both the Bank's and Mr. Tennant's motions also sought orders – in the alternative and if necessary – pursuant to O. 19, r. 27 and/or the inherent jurisdiction of the court striking out the summons and statement of claim of portions of them as unnecessary and/or scandalous and/or as tending to embarrass or delay the fair trial of the action, but those reliefs do not appear to have been pursued.
. The motion on behalf of the Bank was grounded on an affidavit of Mr. Michael Leonard filed on 17 th June, 2020 and the motion on behalf of Mr. Tennant was grounded on an affidavit of Ms. Patricia Shaw filed on 5 th August, 2020. Ms. Scanlan swore a single affidavit in reply to both motions on 19 th November, 2020, and supplemental affidavits – again in response to both motions – on 24 th May, 2021, 8 th...
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