The High Court struck out Cornelius M. Cagney’s proceedings against the Governor and Company of the Bank of Ireland, finding that the remedies sought over a joint business account were moot and that the remaining complaints could not be litigated again.
In an ex tempore judgment delivered on 25 November 2016, Mr Justice MacEochaidh granted the bank’s motion under Order 19, rule 28 of the Rules of the Superior Courts and/or the court’s inherent jurisdiction. The motion had sought to strike out the claim.
The proceedings began with a 2012 plenary summons seeking an injunction over a bank letter dated 29 August 2012. The letter said the bank would terminate the overdraft facility and stop providing banking facilities. The claim also included complaints about credit card proceedings, communications concerning Mr Cagney’s creditworthiness and alleged negative and defamatory comments to the Irish Credit Bureau Ltd.
The bank argued that the account-related part of the case was moot because Mr Cagney and the other joint account holders had instructed the bank to close the account in June 2014 after its outstanding balance was paid. Mr Cagney said he had not closed it of his own volition. The judge found that he had closed it voluntarily, but said that distinction did not affect the result: because the account no longer existed, the court could not grant the requested protection concerning its operation. The judge noted that the Supreme Court had previously found the injunction application and appeal concerning the account moot.
As to the other complaints, the bank submitted that they had already been litigated in separate defamation proceedings. In those proceedings, Hedigan J had withdrawn the matter from the jury and dismissed the action, ruling that the communications at issue were covered by qualified privilege. Justice MacEochaidh said he could not identify a material difference between those claims and the complaints in the present case. He held that the rule in Henderson v Henderson and the principle of res judicata barred their re-litigation.
Cagney also relied on the possibility of an appeal from Hedigan J’s order. The Court of Appeal had reserved judgment on his application for an extension of time to appeal. Justice MacEochaidh held that the pending appeal issue did not change the result in these proceedings. He struck out the claim in full.