Shawl Property Investments Ltd v A. and B

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 19 February 2021
• Neutral Citation: [2021] IECA 53
• Docket Number: Appeal Number: 2019/475
• Court: Court of Appeal (Ireland)
• Date: 19 February 2021

Between/

Shawl Property Investments Limited

Respondent

and

A. and B.

Appellants

[2021] IECA 53

Whelan J.

Faherty J.

Collins J.

Appeal Number: 2019/475

THE COURT OF APPEAL

Summary judgment – Data breach – Contempt of court – Appellants appealing from an order granting summary judgment – Whether the appellants’ counterclaim ought to have been dismissed

Facts: The appellants appealed to the Court of Appeal from an order of Allen J made on 16 October 2019 and perfected on 25 October 2019 granting summary judgment in plenary proceedings and, inter alia, declaring that the appellants had no estate, right, title or interest in two properties and further dismissing the counterclaim pursuant to O. 19, r. 28 of the Rules of the Superior Courts (RSC). The reasoned judgment was delivered on 1 October 2019. The grounds of appeal encompassed the following issues: (1) data breach arising from deployment of the unredacted 2015 judgment before the High Court; (2) contempt of court in respect of the said judgment exhibited by the respondent; (3) breach of the in camera rule arising from same; (4) fair trial and due process and European Convention on Human Rights Article 6 rights; and (5) miscellaneous fair trial and due process and access to the courts.

Held by Whelan J that, there being no appearance by or on behalf of the first appellant and no communication by him with the court, in the circumstances it was appropriate that his appeal be struck out and the orders of the High Court against him be affirmed together with an order for the respondent’s (Shawl Property Investments Ltd) costs of the appeal, on a party and party basis when ascertained. Whelan J held that the second appellant had failed to establish that any part of the defence should stand; it was correctly struck out by the High Court, albeit that in Whelan J’s view doing so was warranted pursuant to the inherent jurisdiction of the court as bound to fail. Whelan J affirmed the High Court order on the basis of the inherent jurisdiction in relation to the counterclaim save and except as to the parts of paras. 63, 64 and 65 of the counterclaim, confined solely and exclusively to the claim of alleged breach of the Data Protection Act 2018 together with paras. 6, 9 and 10 of the reliefs counterclaimed, said aspects alone to proceed to plenary hearing. Whelan J held that all other aspects of paras. 63, 64 and 65 of the counterclaim were to be struck out pursuant to the inherent jurisdiction of the court as bound to fail and not maintainable. Accordingly, Whelan J held that the declaratory and other reliefs and orders sought at paras. 1 to 5 and 7 to 8 inclusive of the prayer in the counterclaim were not maintainable and manifestly included a continuing slander of the respondent’s title and irrevocable damage to it and must likewise be struck out pursuant to the inherent jurisdiction.

Whelan J held that it was appropriate in the circumstances that the order for costs made against the second appellant in the High Court be set aside; it was in the interests of justice, in light of the gravity of her conduct, the nature of the interim and interlocutory orders made against her in January 2019 and February 2019, the failure of the second appellant to disclose to the Court the judgment and order of Donnelly J made in March 2020 and given the very limited nature of success in the appeal, that order for one half of the High Court costs of the respondent be made against the second appellant. Whelan J held that no order as to costs be made in favour of either party in respect of the appeal and if either party wished to contend for an alternative order, liberty was granted to apply to the Office of the Court of Appeal within 14 days of the date of delivery of the judgment for a brief supplemental hearing on the issue of costs.

Appeal allowed in part.

UNAPPROVED

REDACTED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 19th day of February 2021

1 . This is an appeal from an order of Allen J. made on 16 October 2019 and perfected on 25 October 2019 granting summary judgment in plenary proceedings and, inter alia, declaring that the appellants had no estate, right, title or interest in two properties and further dismissing the counterclaim pursuant to O. 19, r. 28 of the Rules of the Superior Courts (“RSC”). The reasoned judgment was delivered on 1 October 2019. Before considering the said judgment and orders, it is necessary to briefly review the salient background facts.

Key material facts

2 . By letter of loan offer dated 20 October 2005 EBS Building Society (“EBS”) offered to advance to A. a loan of up to €8,318,000 over 25 years for the purposes of the acquisition by him of eight investment properties. The proceedings concern two of the said properties. On 16 November 2005 A. accepted the said offer and drew down the entire sum of the funds on 13 December 2005. An express term of the agreement between EBS and A. confirmed that EBS would hold a first legal mortgage over each of the eight properties. Consequently on 6 January 2006 A. executed a deed of mortgage and charge over, inter alia, a property referred to hereinafter as “Blackacre”. On 10 January 2006 A. executed a further deed of mortgage and charge over, inter alia, a property hereinafter referred to as “Whiteacre”.

3 . A. failed to discharge his liabilities on foot of the said respective mortgages.

4 . On 29 October 2009 EBS obtained an order in the High Court against A. for possession of, inter alia, Blackacre and Whiteacre.

5 . EBS did not proceed to execute the order for possession but instead on 26 May 2010 appointed a receiver over the said properties including Blackacre and Whiteacre.

6 . Meanwhile, on 9 September 2013, EBS marked judgment in the Central Office of the High Court against A. in the sum of €9,433,173.79.

7 . From the date of his appointment on or about 26 May 2010, the receiver took possession of the properties, managed same and collected the rents and profits in accordance with the tenor of his appointment and of the said respective security instruments. He put the properties on the market in or about the month of March 2014. There was significant litigation as between the receiver and the appellants between 2014 and 2018, as hereinafter set out.

8 . On 4 April 2017 A. was adjudicated a bankrupt. On 29 April 2017 A. brought an application to show cause against his adjudication which application was dismissed by order of the High Court (Costello J.) on 17 July 2017. He was discharged from bankruptcy on 4 April 2018.

9 . Under and by virtue of a deed of conveyance and assignment bearing date 30 June 2017 EBS DAC (as by then it had become) effected a transfer and disposition of A.'s loan together with the securities held for same to Beltany Property Finance DAC (“Beltany”).

10 . On 10 September 2018 Beltany, in pursuance of the exercise of its power of sale as specified in the mortgage instruments aforesaid, sold the properties Blackacre and Whiteacre to Shawl Property Investments Limited (“Shawl”), the respondent. Shawl went into possession of Blackacre and Whiteacre on 11 September 2018. Memorials in respect of the said assurances to Shawl were duly registered in the Registry of Deeds in accordance with the Registration of Deeds Act (Ireland) 1707.

11 . B. is a former partner of A. They were never married to one another. She was not a party to any of the relevant mortgages referred to above and never held any legal interest in any of the properties.

The 2014 litigation

12 . On 29 April 2014 the receiver instituted proceedings before the High Court against A., B. and a third entity. Relevant to Blackacre and Whiteacre the said proceedings sought, inter alia, orders requiring the appellants to vacate the said premises and restraining them from entering upon, attending at or otherwise interfering with the receivership. The reliefs sought also extended to other properties which are not material to this appeal.

The 2015 judgment

13 . A redacted judgment of Donnelly J. delivered on 27 April 2015, [2015] IEHC 366 (“the 2015 judgment”), provided, inter alia, with particular reference to the claims of the appellant, B., as follows:-

“42. Shortly before the hearing commenced, [B.] swore another affidavit on the 17th November, 2014. In this affidavit, apart from exhibiting various loan offers, [B.] again asserted matters that were more properly the subject matter of submissions and these are dealt with in the course of this judgment. [B.] also exhibited and referred to various Registry of Deed search results in which she said that numerous loans had not been vacated. She also said that the schedule of documents listed to support the certificates of title sent by the solicitors in these proceedings did not contain deeds of release or vacates in relation to those loans. She said that this was a breach of contract by the EBS and was a clear breach of the law.

43. In that affidavit, she also made a counterclaim insofar as she claimed an order setting aside the plaintiff as receiver, an order restraining the plaintiff, his servants or agents from entering, attending or trespassing on or near the eight properties, a further order restraining the plaintiff, his servants or agents from receiving rent for the eight properties, an order preventing the EBS appointing further receivers and an order instructing the EBS and the defendants to engage in mediation to find an equitable solution to the problems set out.

44. In light of the above, the court views [B.'s] case as based upon two main planks. In the first place, she said that when taken together the loan offers and mortgage deeds are so full of errors (factual and legal), so flawed and/or so self-contradictory that they are null and void and/or cannot be relied upon to give legal justification to the appointment of the plaintiff as receiver. Her other argument...