The High Court ordered two lis pendens registered against the Gorse Hill property vacated, finding that the proceedings brought by Vico Limited and four members of the O’Donnell family were an abuse of process and barred by earlier decisions.
Mr Justice Brian McGovern delivered the judgment on 24 July 2015. The notices had been registered on 3 March 2015, the same day the court refused the plaintiffs’ application for an interlocutory injunction to restrain the Bank from taking possession of the property at Vico Road, Killiney, Co Dublin. The application to vacate them was brought by the first three defendants: the Bank of Ireland, Bank of Ireland Private Banking Limited and receiver Tom Kavanagh.
The plaintiffs challenged the security documents under which Vico Limited had pledged Gorse Hill as security for loans to Brian O’Donnell and Mary Patricia O’Donnell. They sought to prevent steps being taken under those documents and, for the O’Donnell children, to protect their claimed possession and use of the property. The defendants argued that the claims repeated issues from earlier Gorse Hill proceedings and should have been brought then.
The judgment recounts that the Bank had obtained judgment in December 2011 against the O’Donnells and related companies for about €71 million after default on a settlement agreement. The Bank later appointed a receiver over Gorse Hill. In earlier proceedings, the O’Donnell children had challenged the security; the High Court and Supreme Court had upheld its validity. Justice McGovern said the substantial claims now made by Vico had also been advanced and disposed of on their merits in that litigation, and that Vico could have joined as a plaintiff or brought parallel proceedings.
The plaintiffs alleged that Bank witnesses had given false evidence about whether lending was by the Bank or Bank of Ireland Private Banking. The judgment records that the lending issue had been raised in the earlier case, but the plaintiffs had not been permitted to argue it because it was not pleaded and did not raise it on appeal. The judge held it could not be pursued in these proceedings. He also rejected the plaintiffs’ arguments on several other grounds, finding, among other things, that some claims could have been raised earlier or lacked a proper basis for these plaintiffs.
The court concluded that the proceedings sought the same practical result as the earlier litigation: setting aside the security, removing the receiver and restoring the property to the O’Donnell family. It also found unreasonable delay in registering the lis pendens and said they had been registered for the improper purpose of frustrating the Bank and receiver. The judgment states that the first three defendants were entitled to the relief sought in their notice of motion. The supplied judgment does not reproduce a separate formal order or specify further terms.