The Court of Appeal dismissed James Osborne’s appeal as an abuse of process, finding that he had filed it in breach of an undertaking restricting further proceedings without leave. It also ordered that he must obtain prior leave before bringing specified proceedings or appeals concerning his borrowing from KBC Bank Ireland plc, the related security or receiver Ken Tyrrell.
The appeal arose from a High Court decision on 20 June 2022. Mr Osborne had asked the High Court to vacate a 2015 summary judgment for €6,217,162.27, or alternatively to set up monthly instalments or vary the judgment. McDonald J. declined to deal with the request, explaining that he had no power to vacate a judgment given by another High Court judge.
The original judgment was granted to KBC in December 2015 for the balance it said was due on commercial loan facilities made available to Mr Osborne between 2002 and 2007. He did not appeal that judgment. Later efforts to appeal, set it aside, stay enforcement or challenge it indirectly were unsuccessful. In 2018, Mr Osborne undertook through counsel not to bring proceedings, appeals or applications against the Bank and related parties without leave from the relevant court’s president.
Mr Osborne later sought to have that undertaking lifted. Following a two-day hearing in 2021, the High Court found in May 2022 that he had instructed counsel to give it and refused to vacate it. The court also refused permission to issue fresh proceedings.
In the appeal, Mr Osborne raised arguments challenging the original judgment. The Court of Appeal said it would not examine their substance, focusing instead on the breach of the undertaking. It found that he had issued the May 2022 motion and filed the appeal without seeking or obtaining the required leave. The court said the appeal should be dismissed on that ground.
The order restrains Mr Osborne from initiating proceedings against KBC, an assignee of its interest in the debt, Mr Tyrrell, or their respective servants, agents or legal representatives concerning the borrowing, the 2015 judgment or the security, and from making motions or appeals in these proceedings, unless he first obtains leave from the president of the High Court or Court of Appeal, or a nominated judge. Any leave application must include a full account of his previous related proceedings and appeals.
The court also directed that its order be sent to the chief registrars of both courts for circulation to relevant office staff. It did not declare that steps taken without leave would automatically be null and void. Instead, KBC, its successors and assigns, and Mr Tyrrell may notify the relevant chief registrar of a breach. The judgment was delivered on 28 November 2022, with Costello and Collins JJ. agreeing.