The Court of Appeal has dismissed appeals by Vico Limited and members of the O’Donnell family against orders striking out their claims over securities on Gorse Hill, a property in Killiney, and vacating a lis pendens registered against it.
The appeal concerned a High Court order made on 28 July 2015 after a motion by the first three defendants: the Governor and Company of the Bank of Ireland, Bank of Ireland Private Banking Limited and a receiver. The Court of Appeal held that the High Court had correctly applied the rule against abuse of process. It concluded the claims had either been raised, or should have been raised, in earlier Gorse Hill proceedings. The appeal judgment was delivered by Ms Justice Finlay Geoghegan on 12 October 2016.
The earlier litigation followed lending to Mr and Mrs O’Donnell, for which Vico had given guarantees and security over Gorse Hill. The judgment records that the Bank obtained a High Court judgment against the couple in 2011 for about €71 million. After the Bank appointed a receiver in 2012, the O’Donnell children brought proceedings seeking declarations that Vico’s guarantees and security were invalid. The High Court refused that relief in 2013, and their appeal was dismissed in 2014. The Supreme Court later extended the deadline for them to leave Gorse Hill to 2 March 2015.
Vico and the O’Donnell children issued the present proceedings in February 2015, again seeking to challenge the securities and to overturn orders requiring the children to leave the property. They also alleged, among other matters, that the Bank had negligently or fraudulently represented that Bank of Ireland Private Banking was a bank within the meaning of the Central Bank Act 1971.
The Court of Appeal said the children’s claims were matters that had been, or ought to have been, pursued in the earlier case. Although Vico had not been a party to that litigation, the court found a sufficient degree of identity between Vico and the children to make the earlier decision binding on Vico for these claims. The court also held that the evidence did not meet the test required to argue that the earlier judgments had been procured by fraud.
The court did not determine the appeal against the High Court judge’s April 2015 refusal to recuse himself. It said that, after upholding the substantive strike-out decision, deciding that issue was unnecessary. The Court of Appeal dismissed both appeals. The strike-out remained in place, and the lis pendens was to be vacated as a consequence.