Judgment: 2019-12-20 · Court archive

Court of Appeal upholds dismissal of Fitzsimons’ property case but lifts filing restriction

The court ruled that a prior Circuit Court possession order could not be challenged through later proceedings. It set aside a restriction on further filings, finding this was Fitzsimons’ first case as a plaintiff.

Court of Appeal · [2019] IECA 336

Who, what, where, when and why

Who
  • Leslie Fitzsimons (Plaintiff)
  • Tanager Limited
  • Bank of Scotland plc (Defendant)
  • Bank of Scotland (Ireland) Limited
What

The court ruled that a prior Circuit Court possession order could not be challenged through later proceedings. It set aside a restriction on further filings, finding this was Fitzsimons’ first case as a plaintiff.

Where

Places mentioned in the report

  • County Meath
When

Judgment:

Why

Reasons reported in the judgment

Fitzsimons did not appeal the possession order. His later attempts to extend the appeal time and to set aside the order were unsuccessful. In proceedings issued in August 2016, he sought damages and orders that included setting aside the possession order and restraining the defendants from dealing with the property. Tanager applied to dismiss the case. The High Court granted that application in January 2018, finding the proceedings were res judicata, contrary to the rule in Henderson v Henderson, and an abuse of process. It also restricted Fitzsimons from bringing further proceedings concerning the property without permission.

The Court of Appeal upheld the dismissal of Leslie Fitzsimons’ case against Tanager Limited and Bank of Scotland plc, ruling that it was an abuse of process and a collateral challenge to a final Circuit Court possession order. It allowed his appeal in part by setting aside a restriction that required him to obtain permission before bringing further proceedings concerning the property.

The dispute concerned lands in County Meath, including a dwelling house, charged to secure a 2001 loan of IR£116,000. After repayment arrears accrued, Bank of Scotland (Ireland) Limited began possession proceedings in the Circuit Court in 2010. Following a cross-border merger, the loan and charge transferred by operation of law to Bank of Scotland plc. The Circuit Court granted that bank possession in July 2012, with execution stayed for six months. Tanager later acquired the loan and charge and was substituted as plaintiff in those proceedings.

Fitzsimons did not appeal the possession order. His later attempts to extend the appeal time and to set aside the order were unsuccessful. In proceedings issued in August 2016, he sought damages and orders that included setting aside the possession order and restraining the defendants from dealing with the property. Tanager applied to dismiss the case. The High Court granted that application in January 2018, finding the proceedings were res judicata, contrary to the rule in Henderson v Henderson, and an abuse of process. It also restricted Fitzsimons from bringing further proceedings concerning the property without permission.

On appeal, Fitzsimons argued that the original possession order was invalid, including because Bank of Scotland plc had not been registered as owner of the charge. The Court of Appeal said the 2012 order was a final and conclusive determination, unimpeachable in the absence of an appeal, judicial review or an allegation supported by evidence that it had been obtained by fraud. No fraud was alleged. The court also held that the registration issue could have been raised in the original proceedings, where Fitzsimons was legally represented, and that no explanation justified raising it later.

The court rejected the fair procedures complaint, finding that Fitzsimons knew the High Court motion was listed and that the judge was entitled to proceed in his absence after being satisfied about service. It dismissed the remainder of the appeal.

However, it set aside the filing restriction. The Court of Appeal said this was the first set of proceedings Fitzsimons had instituted as a plaintiff, and the required pattern of habitual or persistent abusive litigation had not been established. The restriction was therefore not justified at this stage. The court noted that the position could change if further proceedings sought to relitigate substantially the same issues.

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