Ulster Bank Ltd v Lyons (No. 2)
Jurisdiction | Ireland |
Judge | Keane C.J. |
Judgment Date | 11 March 2002 |
Neutral Citation | 2002 WJSC-SC 7090 |
Court | Supreme Court |
Docket Number | [S.C. No. 81 of 2000] |
Date | 11 March 2002 |
2002 WJSC-SC 7090
THE SUPREME COURT
Keane C.J.
McGuinness J.
Geoghegan J.
Citations:
BRADSHAW V MCMULLIN 1915 IR 188
BARDEN V DOWNES 1940 IR 131
RSC O.2 r1(1)
TALBOT V BERKSHIRE CO COUNCIL 1993 3 WLR 708
Synopsis:
PRACTICE AND PROCEDURE
Summary judgment
Banking law Property - Res judicata - Estoppel - Multiplicity of actions - Rule in Henderson's case - Order of possession already issued - Whether claim already litigated - Rules of the Superior Courts, 1986 order 2 rule 1, orders 3, 37, 38 (81/2000 - Supreme Court - 11/03/2002)
Ulster Bank v Lyons - [2003] 4 IR 28
Facts: The plaintiff bank had obtained an order for possession against the defendants a number of years previously which had not been enforced. In these proceedings the plaintiff sought summary judgment against the defendants. The defendants claimed that the present proceedings were substantially the same as those previously litigated and that accordingly the plaintiff was estopped from maintaining the present proceedings. In the High Court Ó Caoimh J held that the instant proceedings were not substantially the same as the previous proceedings and accordingly there was no rule which prevented the plaintiff from maintaining the present proceedings.
Held by the Supreme Court (Keane CJ delivering judgment; McGuinness J and Geoghegan J agreeing) in dismissing the appeal. There was no question but that the plaintiff was entitled to proceed by way of special summons when seeking the order for possession and to proceed by summary summons in relation to the liquidated sum. The rules of the Superior Courts clearly envisaged that proceedings in which a mortgagee sought an order for possession were properly brought by a special summons, and those in which relief was sought in the form of a judgment for a liquidated sum were properly brought by way of summary summons. There was no reason why a mortgagee seeking an order for possession should seek to join with it an order which was properly brought by way of a summary summons, in the case of a claim for liquidated sum. This was not a case of action estoppel because the cause of action in the two sets of proceedings was entirely different. One a cause of action based on the right of a mortgagee to possession, the second, the right of a creditor to recover the money owed by a debtor.
11th day of March. 2002 by Keane C.J.
The history of this matter is that the plaintiff bank had a mortgage on the premises of the defendants and, the defendants having been admittedly in default with their payments in respect of their indebtedness to the bank, brought proceedings by way of special summons in which they claimed an order for possession of the mortgaged premises. Those proceedings were not defended and the High Court duly gave an order for possession in respect of the mortgaged property. It is to be inferred that the bank in the normal course would presumably, having obtained possession of the premises, would then have proceeded to sell them in the ordinary way in order to realise their security. That did not happen and the bank subsequently issued the proceedings which are now before this court on appeal from the High Court. These proceedings were brought by way of summary summons. In the proceedings, the plaintiffs claim the sum of £104,928.68 which they say is the total amount due by the defendants in respect of principal interest as of the date of issue of the summary summons. The proceedings were defended in the High Court but they were defended solely on the ground that the plaintiffs having previously sought possession of the property in the earlier proceedings by way of special summons, having succeeded in those proceedings and obtained an order for possession, were now precluded from maintaining the subsequent proceedings by the operation of the doctrine of cause of action estoppel that the matter had passed in the Latin phrase per rem judicatam as a result of the earlier proceedings. The learned High Court judge, Mr. Justice Ó Caoimh in a written judgment available to the court has rejected that and said he was satisfied that neither cause of action estoppel or indeed any form of estoppel precluded the plaintiff, in his view, from instituting and maintaining the present proceedings.
In this court Mr. Cahill who has certainly urged everything that could be urged on behalf of the defendants has adopted a somewhat different approach, while not abandoning the approach adopted in the High Court. He has sought to rely on some early authorities in particular the case of Bradshaw -v- McMullin decided in 1915 IR 188 and a subsequent decision of the Supreme Court of Saorstait Éireann a case of Barden -v- Downesand the effect of the combined decisions, Mr. Cahill argues, is to preclude the mortgagee in a situation such as the present from instituting two separate sets of proceedings. He submits that it emerges from those decisions that only one set of proceedings can be brought in these circumstances and that the court should stay the second set...
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