Tucker v Tailte Eireann

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms Justice Costello
• Judgment Date: 04 April 2025
• Neutral Citation: [2025] IECA 80
• Docket Number: [2021 No. 2213P]

Between

Martin Tucker

Plaintiff/Appellant

and

Tailte Éireann

Defendant/Respondent

[2025] IECA 80

The President

Whelan J

Pilkington J

[2021 No. 2213P]

[2024 No. 263]

THE COURT OF APPEAL

CIVIL

Mortgage – Abuse of process – Frivolous and vexatious proceedings – Appellant appealing against the judgment and order dismissing the proceedings – Whether the proceedings constituted an abuse of process and were frivolous and vexatious

Facts: The appellant, Mr Tucker, in proceedings commenced in 2021, sought to challenge the registration in the Registry of Deeds of the mortgage entered into between himself and “Ms C” and Irish Life & Permanent plc dated 18 June 2003, whereby a property in Clontarf in the City of Dublin was mortgaged to Irish Life & Permanent plc to secure the repayment of a loan (the Mortgage Deed), and secondly, the Deed of Conveyance and Assignment by Permanent TSB plc to Havbell Ltd dated 19 June 2015 (the Deed of Conveyance and Assignment), whereby certain identified loans and associated securities were conveyed and assigned by Permanent TSB plc to Havbell Ltd. He did so on the basis of alleged breaches of the Registration of Deeds Rules, 2008. The appellant appealed to the Court of Appeal against the judgment of 31 July 2024 and order of 22 October 2024 of the High Court, dismissing the proceedings pursuant to O. 19, r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the court on the grounds that the proceedings constituted an abuse of process and were frivolous and vexatious. The appellant alleged that the High Court erred in hearing and determining the motion of the respondent, Tailte Éireann, to dismiss the proceedings prior to ruling upon his motion for discovery. Secondly, he said that the High Court erred in failing to deal with a motion to admit new evidence issued long after the hearing had concluded but prior to delivering judgment.

Held by Costello P that she would refuse the appeal insofar as it was grounded upon the failure of the High Court to deal with the discovery motion prior to the respondent’s motion to dismiss or strike out the proceedings. She held that she was in complete agreement with the reasoning and logic expressed by Butler J in Tucker v Havbell DAC [2023] IECA 24; it applied with equal force to that ground of appeal in these proceedings. She held that the appellant’s failure to raise the issue before Dignam J was fatal to his appeal. Costello P held that the evidence which the appellant sought to introduce in relation to the differing mortgage terms and conditions issued by Permanent TSB plc was not relevant to the validity of the registration of the Mortgage Deed and thus to any issue to be decided by the High Court on the motion to dismiss the proceedings. That being so, she held that the failure of the High Court to address a motion to adduce new irrelevant evidence could not form a basis for overturning the decision of the High Court. She rejected that ground of appeal. In any event, she was quite satisfied, based upon a limited scrutiny of the key documents in the case, that the appellant’s arguments that the Mortgage Deed and the Deed of Conveyance and Assignment were wrongly registered and ought to be removed from the Register were misguided and unstateable.

Costello P dismissed the appeal.

Appeal dismissed.

[approved]

[no redaction needed]

JUDGMENT of Ms Justice Costello delivered on the 4 ^th day of April 2025

Introduction

1 . This appeal is against the judgment of 31 ^st July 2024 and order of 22 ^nd October 2024 of the High Court, dismissing these proceedings pursuant to O.19, r.28 of the Rules of the Superior Courts and the inherent jurisdiction of the court on the grounds that the proceedings constitute an abuse of process and are frivolous and vexatious. The court also made an order restraining Mr Tucker (“the appellant”) from issuing any further proceedings (in any court or forum) against the respondent (“the respondent”) or any servant or agent of the respondent relating to or touching upon a property in Clontarf in the City of Dublin (“the property”), without prior leave of the President of the High Court or such other judge as may be nominated by the President of the High Court, with the respondent having been put on notice of any application for such leave.

2 . The appellant appealed the dismissal of the proceedings but not the litigation restriction order.

Background

3 . The appellant has been involved in extensive litigation which has been detailed in a number of judgments of the High Court and this Court, the details of which are set out in an appendix to this judgment. Allen J, in the High Court, in proceedings entitled Martin Tucker v Havbell Designated Activity Company [2020 No 7879P], [2022] IEHC 15, noted that the Dublin County Registrar granted an order for possession of the property on 10 ^th May 2018 and that the premise for the Civil Bill action — and thus the order—was:

“ 1. That Mr. Tucker and [Ms. C.] had borrowed €260,000 from Irish Life & Permanent plc and had, by deed dated 18th June, 2003, mortgaged the property to Irish Life & Permanent plc to secure the repayment of the loan;

2. That on 29th June, 2012 Irish Life & Permanent plc changed its name to Permanent TSB plc;

3. That by deed of conveyance and assignment dated 19th June, 2015 Mr. Tucker's and [Ms. C's] loan and the security held for it were assigned to Havbell, which was then a limited liability company;

4. That the assignment to Havbell had been duly registered in the Registry of Deeds;

5. That on 29th September, 2016 Havbell was converted into a designated activity company;

6. That Mr. Tucker and [Ms. C] had failed to pay the instalments due on foot of the loan;

7. That Havbell had demanded repayment of the loan;

8. That the loan had not been repaid;

9. That Havbell was entitled to an order for possession of the property.”

4 . It is important to emphasise that the title to the property is unregistered and that the Mortgage Deed and the Deed of Conveyance and Assignment were each duly registered in the Registry of Deeds. Registration of these deeds does not affect the title of the grantee to the security over the property, as the appellant appears to believe. The system of registration of deeds — as opposed to registration of title — governs the priority of interests in land; it does not determine interests in land.

5 . The appellant's attempts to appeal the order of the County Registrar, and thereafter to extend time in which to appeal the order of the Circuit Court affirming it, were all unsuccessful. Thus, the order for possession is final and conclusive and Havbell's right to possession of the property is no longer open to question.

6 . On 21 ^st March 2019, the order for possession was executed by the Dublin City Sheriff. The appellant re-entered the property on 15 ^th May 2019. This was just the commencement of what can only be described as an extraordinary campaign by the appellant to resist the realisation of the security he and Ms C gave for a loan which remains outstanding. The details of this campaign are set out in the judgments of Allen J, referred to above, Butler J, on an appeal from the decision of Allen J, Noonan J in proceedings entitled Martin Tucker v A Judge of the Circuit Court [2021 No. 808 JR] [2022] IECA 32, the judgment the subject of this appeal [2024] IEHC 491, and the appendix to this judgment. What is undeniable is that since 10 ^th May 2018, there has been an order for possession of the property which has become final and conclusive, and it is not open to the appellant to challenge this order further. It follows that any attempts to do so are an abuse of the processes of the courts.

These Proceedings

7 . In these proceedings, commenced in 2021, the appellant seeks to challenge the registration in the Registry of Deeds of the mortgage entered into between himself and Ms C and Irish Life & Permanent plc dated 18 ^th June 2003, whereby the property was mortgaged to Irish Life & Permanent plc to secure the repayment of the loan (“the Mortgage Deed”), and secondly, the Deed of Conveyance and Assignment by Permanent TSB plc to Havbell Ltd dated 19 ^th June 2015 (“the Deed of Conveyance and Assignment”), whereby certain identified loans and associated securities were conveyed and assigned by Permanent TSB plc to Havbell Ltd. He does so on the basis of alleged breaches of the Registration of Deeds Rules, 2008.

Jurisdiction to dismiss proceedings which are bound to fail or an abuse of the process of the court

8 . The High Court set out the relevant principles and authorities applicable to an application of this nature. As they are well known and there was no suggestion that they were not correctly stated, I shall adopt Dignam J's statement of those principles and apply them to this appeal.

Collateral Attack on the Order for Possession

9 . At para. 61 of his judgment, Dignam J held that the appellant's claim was “frivolous and vexatious and an abuse of process as being brought for an improper purpose as a collateral attack on the earlier judgments of the Circuit Court and the High Court”. He reiterated this at para. 67. He identified the appellant's motives in bringing these proceedings by reference to the appellant's own words. Dignam J. sets these out in detail at paras. 69 to 72 of his judgment. It is not necessary to repeat them here. At para. 73, he concluded:

“It is clear from the above that these proceedings are brought for the collateral purpose of continuing a long battle with Havbell which has proceeded through several sets of proceedings in the Circuit Court and High Court and appeals or attempted appeals to the Court of Appeal and the Supreme Court. They are brought with a view to ‘obtaining evidence’ against Havbell to undermine or attack the Order of the Circuit Court. Any issue about Havbell's entitlement to...