The High Court has struck out Patrick and Roseann McLaughlin’s 2016 proceedings against Ennis Property Finance and receiver Tom Kavanagh, finding that the claims revisited issues already decided or that could have been raised in earlier litigation. It also found that the plaintiffs’ conduct in a personal insolvency process amounted to an abuse of process.
In a judgment delivered on 11 May 2022, Ms Justice Nuala Butler granted the defendants’ application to strike out the proceedings. The case concerned loans secured on properties in south County Dublin and challenged, among other matters, the transfer of the loans and mortgages and the receiver’s appointment. The plaintiffs had sought 88 separate forms of relief.
The court said the High Court and Supreme Court had already decided issues concerning the loans, the “Latona clause”, the cross-border merger involving Bank of Scotland Ireland and Bank of Scotland, and the receiver’s appointment. It found that the later arguments were either covered by those decisions or could and should have been raised in the earlier proceedings. The judgment also rejected the argument that a tax write-down of impaired loans meant only part of the plaintiffs’ debt had transferred.
The court separately relied on events in 2019. After an initial refusal of a protective certificate in the personal insolvency process, the plaintiffs’ solicitor told the Insolvency Service of Ireland that the proceedings would be discontinued. The Circuit Court then granted a protective certificate on the understanding that the High Court proceedings would be withdrawn and the bankruptcy dismissal application would be withdrawn. No notice discontinuing the proceedings was served. The High Court found that the plaintiffs had assured the Circuit Court they would withdraw the case, then refused to honour that assurance, and held that continuing it was an abuse of process.
The court also granted the defendants’ application to vacate the lis pendens registered in connection with the proceedings. It found unreasonable delay: the plenary summons was issued in November 2016, served in June 2018, and the statement of claim was served in November 2020. The judgment said the lis pendens itself had not been exhibited, which would normally be essential proof, but concluded that the delay justified an order under section 123 of the Land and Conveyancing Law Reform Act 2009. It also said it was prepared to make that order because the proceedings were not being prosecuted bona fide.
The plaintiffs’ application for judgment in default of defence was also struck out, with no further order. The judgment deferred consideration of their separate motion concerning the Official Assignee until after the strike-out ruling; it does not record a decision on that motion.