The High Court has refused an application by Donal Morrissey and two companies to vacate a lis pendens registered in proceedings over land in County Laois. The court held that the timing and manner of registration did not give it grounds to cancel the notice.
The dispute between Dan Morrissey (IRL) Limited and Dan Morrissey Limited, as plaintiffs, and the defendants concerns ownership of registered land and an alleged right of way across adjacent land. The proceedings began in 2001 and had reached the stage where a notice of trial had been served.
The lis pendens was registered in the Central Office of the High Court on 24 August 2007. The plaintiffs said they acted after a December 2006 conversation in which it was intimated that at least some of the land had been charged in favour of the defendants’ bankers as part of a financing reorganisation. They said they were concerned that a bank might take the land without notice. The defendants averred that the bank had been aware of the proceedings throughout the relevant period.
The notice was filed without advance warning to the defendants and was not registered as a burden on the relevant land folios. The defendants argued that the public record therefore did not show the extent of the claims against particular parts of the lands.
In a judgment delivered on 28 February 2008, Mr Justice Clarke said the defendants did not challenge the bona fides of the plaintiffs’ underlying land claims. He found that a lis pendens serves to notify potentially interested third parties of litigation affecting land, and that a plaintiff with a bona fide claim could register one as of right. The court said late filing, lack of notice to the defendants, and failure to register the notice as a burden on the relevant folios did not alter that entitlement.
The court concluded that it had no general discretion to vacate a lis pendens based on how or when it was filed. Its stated exception was where the underlying proceedings were not bona fide. The defendants had not established an entitlement to have this lis pendens vacated. The judgment addressed only their application to vacate the notice; it did not decide the underlying ownership or right-of-way claims.