Start Mortgages Designated Activity Company v Bernard (Otherwise Ben) Gilroy

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date18 May 2021
Neutral Citation[2021] IECA 147
CourtCourt of Appeal (Ireland)
Docket NumberCourt of Appeal Record Number 2019/482
Date18 May 2021
Between
Start Mortgages Designated Activity Company
Plaintiff/Respondent
and
Bernard (Otherwise Ben) Gilroy
Defendant/Appellant

[2021] IECA 147

Costello J.

Binchy J.

Pilkington J.

Court of Appeal Record Number 2019/482

THE COURT OF APPEAL

Interlocutory injunction – Common law rights – Freedom of speech – Appellant seeking to appeal against an interlocutory injunction – Whether the trial judge was entitled to grant the reliefs sought by the respondent

Facts: The defendant/appellant, Mr Gilroy, appealed to the Court of Appeal against an interlocutory injunction granted by the High Court on 31 October 2019 restraining the appellant, pending the trial of the action, from (1) arresting or (2) publishing the home addresses of any of the respondent’s officers, employees or legal advisors of the plaintiff/respondent, Start Mortgages Designated Activity Company, (3) from giving legal advice or assistance in relation to the respondent, and (4) from publishing any allegations that the respondent or its legal advisors are perpetrating a fraud. The appellant was also directed to remove certain online content referring to the respondent. The respondent was awarded the costs of the application. The appellant appealed on four grounds: (1) the judge erred in fact and law by ordering the common law rights of the appellant to arrest, restrain and detain any suspected criminal committing an indictable offence be removed; (2) the judge erred in fact and law by restraining the appellant from highlighting certain documentation which may be of assistance to Irish families who may be defrauded in relation to their dwellings; (3) the judge erred in fact and law by removing the appellant’s freedom of speech and of expression especially in circumstances where the appellant was seeking to expose frauds that the appellant believed had been committed and were continuing; and (4) the judge erred in fact and law by granting costs to whom the appellant believed were criminals in circumstances where Reynolds J stated she did not see the video made by the appellant highlighting the fraud that he believed existed and continued.

Held by Costello J that the trial judge was presented with overwhelming evidence that the appellant insisted that the respondent, its solicitors and counsel, had perpetrated and were perpetrating a fraud. Costello J noted that on the basis of the appellant’s conclusion that this was so, he had posted, and intended to further post online, posts, videos and images alleging fraud and calling for the arrest of the persons he identified as being responsible, including organising a posse to effect a citizen’s arrest of the persons he accused of fraud. Costello J noted that the appellant posted instructional videos advising viewers how to respond to claims for possession of their homes based, inter alia, on documents he wrongfully seized from the offices of the respondent. Costello J held that the appellant was entitled to do none of these things. Costello J noted that the appellant refused to substantiate his claims of fraud and he insisted on his entitlement to post the material online which was gravely damaging to the respondent, its officers, employees, solicitors and counsel, and potentially could give rise to dangerous developments at attempted arrests. Costello J noted that the appellant denied that he was acting in breach of the permanent injunction of 10 September 2018, prohibiting him from assisting or advising people engaged in litigation in the state, while simultaneously insisting on his right to advise people how to resist claims to repossess their homes. Costello J held that, in the circumstances, the trial judge was entitled, in the exercise of her discretion, to grant the reliefs sought by the respondent. For those reasons, Costello J held that she would refuse the appeal.

Costello J’s provisional view was that the appeal had been refused in its entirety and thus, the respondent had been completely successful on the appeal. Costello J held that the provisions of s. 169 of the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts applied and, in her judgment, there were no reasons to depart from the normal rule that costs follow the event.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Costello delivered on the 18th day of May 2021

Introduction

1

. This is an appeal by the defendant against an interlocutory injunction granted by the High Court on 31 October 2019 restraining the appellant, pending the trial of the action, from (1) arresting or (2) publishing the home addresses of any of the respondent's officers, employees or legal advisors, (3) from giving legal advice or assistance in relation to the respondent, and (4) from publishing any allegations that the respondent or its legal advisors are perpetrating a fraud. The appellant was also directed to remove certain online content referring to the respondent. The respondent was awarded the costs of the application.

2

. The appellant, who represents himself, appealed on four grounds as follows:-

  • “1. The judge erred in fact and law by ordering the common law rights of the appellant to arrest, restrain and detain any suspected criminal committing an indictable offence be removed.

  • 2. The judge erred in fact and law by restraining the appellant from highlighting certain documentation which may be of assistance to Irish families who may be defrauded in relation to their dwellings.

  • 3. The judge erred in fact and law by removing the appellant's freedom of speech and of expression especially in circumstances where the appellant is seeking to expose frauds that the appellant believes have been committed and are continuing.

  • 4. The judge erred in fact and law by granting costs to whom the appellant believes are criminals in circumstances where the (sic) Reynolds J. stated she did not see the video made by the appellant highlighting the fraud that he believes exists and continues.”

Background
3

. In 2006, the appellant and his wife borrowed €310,000 from Start Mortgages Limited (since renamed Start Mortgages Designated Activity Company) (“the respondent”). The loan was secured over their principal private dwelling in Navan, County Meath. The mortgage, dated 30 November 2006, was registered as a burden against the interests of the appellant and his wife on the relevant folio on 21 March 2007.

4

. The appellant and his wife fell into arrears and ultimately the respondent instituted proceedings seeking possession of the property in the Circuit Court. As of 25 June 2019, the balance then outstanding stood at €512,244.85. The last payment towards the balance due was made on 2 February 2011 in the sum of €200.

5

. The proceedings have been before the Circuit Court for approximately five years and the appellant filed no replying affidavit. The appellant requested inspection of the original mortgage and title documents pertaining to this home and a meeting took place for this purpose at the respondent's offices on 15 May 2019. During the meeting the appellant seized the original title documents (“the seized documents”) and, despite the protestation of the respondent's Litigation Manager, Mr. Justin Nevin, removed the seized documents from the offices of the respondent. The appellant confirmed that he recorded the entire meeting despite the fact that neither Mr. Nevin nor his companion were asked to consent, nor consented, to the recording of the meeting.

6

. The solicitors of the respondent, Lavelle Solicitors, wrote on 20 May 2019 calling upon the appellant to return the seized documents wrongfully removed. The appellant failed to do so and instead sought a meeting with the managing partner of the respondent's solicitors, Mr. Michael Lavelle. He was requested, on 31 May 2019, to make any proposal directly to the respondent by 10 June 2019. By letter dated 11 June 2019, the respondent's solicitors offered to meet the appellant subject to the precondition that he deliver the seized documents and a proposal for the discharge of the liabilities no later than twenty-four hours in advance of any proposed meeting.

7

. On 17 June 2019 (by letter incorrectly dated 2018) the appellant wrote to Mr. Lavelle. He said that he may have to commence criminal proceedings for “the common law offence of conspiracy to defraud” in relation to his family home:-

“It may also be necessary for me to make a number of arrests if I have to pursue that matter, and trust me when I tell you I will have no hesitation in doing that and same will be videoed for my protection.

Therefore, Michael, my position is very clear; I do not wish to see harm come to anybody so there is an opportunity here for this matter to be sorted amicably.

Apart from my business partner… I do not know of anybody else in the country, who is either aware of these documents, or has them in their possession. I would suggest that it is probably better to keep it that way, in circumstances where you have fraudulently taken family dwellings and same are either sold or boarded up and in other circumstances some unfortunate people may have committed suicide.”

8

. He threatened that if a meeting was not forthcoming that he would:

  • (1) make a series of YouTube videos called “The Fraud of Start Mortgages”. He would post videos “explaining every document in the suite of documents in [his] possession and the download button to download that very document”;

  • (2) he would publish the home addresses of the directors of the appellant and its affiliate companies on the internet and “explain to people how anybody can arrest any of these directors if they have conspired to commit fraud against any of the mortgagors listed in the 5,800 mortgage accounts”;

  • (3) he would arrest those directors and any solicitors or barristers who attempted to pursue the Circuit Court proceedings against the appellant.

...

To continue reading

Request your trial
1 cases
  • Beaumont Hospital Board and Another v O'Doherty
    • Ireland
    • High Court
    • 9 July 2021
    ...injunction restraining publication, Mr. McCullough referred to the recent judgment of Costello J. in Start Mortgages D.A.C. v. Gilroy [2021] IECA 147 where it was said, at para. 63:- “The respondent also relied upon the decision of Peart J. in Tansey v. Gill [2012] 1 I.R. 380, para. 24, whe......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT