The High Court has struck out proceedings brought by Shane Hanley against Bank of Ireland Mortgage Bank and ordered the removal of a lis pendens registered against a Galway property.
In an ex tempore judgment delivered on 9 May 2018, Ms Justice Reynolds found that the issues in Mr Hanley’s statement of claim were relevant to earlier possession proceedings and should have been raised there. The court concluded that the claims were res judicata and that the proceedings constituted an abuse of process.
The Bank had sought dismissal on several grounds, including that the claim disclosed no reasonable cause of action, was frivolous or vexatious, had no reasonable prospect of success, repeated matters already decided, or had been delayed. It also sought an order under the Land and Conveyancing Law Reform Act 2009 to vacate the lis pendens registered by Mr Hanley on 8 June 2015 over the property at 84, County Meadows, Cloonthua, Tuam, County Galway.
The dispute arose from a €159,000 loan taken out in 2007 by Mr Hanley and co-borrower Alan Giblin to buy the property. After the mortgage account fell into arrears, the Bank demanded repayment in May 2012 and began possession proceedings in 2013. The Circuit Court granted possession to the Bank in December 2014. The borrowers’ appeal was dismissed by the High Court in November 2015. A later Court of Appeal judgment took a different view of the law, but Mr Hanley’s application to set aside the High Court judgment was also dismissed. The possession order was executed in early 2017, and the Bank had been in possession since then.
Mr Hanley had begun these separate proceedings by plenary summons in October 2014. The judgment records that the case remained dormant while the possession proceedings continued, and that a statement of claim was not properly served on the Bank. Mr Hanley did not attend the hearing of the Bank’s application. The court was satisfied, after considering service affidavits and the Bank’s submissions, that he knew the application was proceeding. No replying affidavit had been filed.
The claims included an alleged failure to receive the demand letter, a complaint that the loan agreement was unfair or improper, an alleged denial of access to relevant documents, and an alleged breach of the Consumer Protection Code. The court held these matters were or should have been raised in the earlier possession litigation. Its order struck out the proceedings and vacated the lis pendens. The judgment does not record a separate ruling on each of the Bank’s alternative grounds.