The Court of Appeal has dismissed Fintan Fox’s appeal against the striking out of a second action over properties held as security for his debts to Danske Bank. It also upheld an order preventing him from bringing further proceedings concerning those properties without the court’s permission.
In a judgment delivered on 20 June 2017, Ms Justice Irvine said the High Court had been entitled to dismiss the action as disclosing no reasonable cause of action, being frivolous and vexatious, and constituting an abuse of process. The court also upheld the High Court’s conclusion that the claims were bound to fail.
Danske had obtained judgment against Mr Fox for €1,472,996.95 in April 2016. The bank had appointed Declan McDonald as receiver over properties secured by mortgages, with authority to sell them. Mr Fox’s earlier action challenging the bank’s conduct and the receiver’s appointment was dismissed after a High Court hearing. The Court of Appeal upheld that decision in May 2017, along with the bank’s summary judgment.
Mr Fox issued the action now under appeal on 12 July 2016, two days before the scheduled hearing of his earlier case. His counsel did not argue that the new action was materially different from the claims already litigated. The judgment records that Mr Fox hoped the second action would delay property sales while his appeals were pending and give him time to arrange finance to buy back the properties. He also sought to prevent sales at what he alleged could be an undervalue.
The court found that the central claim—that the bank had unlawfully appointed the receiver—had already been decided. The court said the action against the auctioneer defendants also could not proceed: Mr Fox had sought to join them in the earlier proceedings, but those applications were withdrawn or struck out by consent and were not appealed. The properties had not yet been sold, making a claim about an undervalue premature, the judgment said.
Justice Irvine said Mr Fox’s remedy, if any, had been to seek a stay of the earlier order pending appeal, rather than start a second action. The appeal was dismissed in its entirety, leaving the High Court’s orders in place, including the restriction on further proceedings concerning his properties without a further court order.