The Court of Appeal has dismissed Patrick O’Connor’s appeal against the dismissal of proceedings he brought against two receivers, holding that the case was an abuse of process because the challenge to their appointment could have been raised in earlier litigation.
The judgment, delivered on 10 February 2017 by Ms Justice Finlay Geoghegan, concerned proceedings issued in March 2015 against Michael Cotter and Luke Charleton, trading as Ernst and Young. O’Connor sought damages and challenged the validity of the receivers’ appointment, including on the ground that the deed of appointment lacked a seal.
The High Court dismissed the proceedings in July 2015 under the rule in Henderson v Henderson and set aside a lis pendens registered in the proceedings. The Court of Appeal was reviewing that decision and order, not deciding the underlying damages claim on its merits.
The court considered O’Connor’s earlier 2012 proceedings, in which the receivers had also been defendants. Those proceedings included a challenge to the validity of their appointment. According to the Court of Appeal’s account of the transcript, O’Connor raised the alleged lack of sealing during the earlier hearing, but could not identify where that issue had been pleaded. The issues ultimately agreed for determination included a challenge concerning lands identified as common areas in the Lindeville development, but no other appointment-related issue.
O’Connor argued that the parties in the two sets of proceedings were not identical because additional defendants had been joined in 2012. The court rejected that point: the receivers had been parties to the earlier proceedings and claims had been made against them. It also accepted that an application to dismiss before delivery of a statement of claim was unusual, but found no rule preventing it. The claim was sufficiently identified in the plenary summons endorsement for the High Court to decide the motion.
Applying the Henderson v Henderson rule as qualified by the merits-based approach in Johnson v Gore Wood, the Court of Appeal agreed that O’Connor was seeking to pursue in 2015 an issue he could have pursued in 2012. It dismissed the appeal. The judgment does not determine the merits of the damages claim or make a fresh finding on the alleged defect in the appointment; it upholds the dismissal of the 2015 proceedings as an abuse of process.