The High Court dismissed Patrick Cronin’s third set of proceedings seeking to prevent enforcement of an order for possession of a Dublin property. The court ruled that his new EU-law arguments could have been raised in earlier proceedings and that allowing the latest case to continue would be an abuse of process.
The judgment, delivered by Ms Justice Ní Raifeartaigh on 17 October 2017, concerned a property the court described as Cronin’s family home. He sought a declaration that the earlier repossession order was unenforceable, an injunction to stop the Dublin City Sheriff enforcing it pending his proceedings or a related appeal, and damages for alleged breaches of his European-law rights.
Cronin had entered into two loan agreements with Bank of Scotland (Ireland) Ltd in November 2008, for €600,000 and €450,000, secured by a mortgage on the property. The court recorded that he defaulted and that arrears stood at €144,120 in March 2013. The Circuit Court made a possession order in January 2014. On appeal, the High Court affirmed it in February 2016, with a three-month stay.
In a second case, Cronin argued that Tanager had agreed not to take possession if he made weekly payments of €600. The High Court dismissed that case in February 2017 as res judicata and an abuse of process, and extended the stay for two months. Cronin appealed that dismissal. In his appeal notice, he raised for the first time arguments under the EU Unfair Terms Directive and the principle of proportionality. That appeal had not been heard when the judge considered the third case.
Cronin’s third case argued that judges in the earlier proceedings should have examined the mortgage terms for fairness and clarity, including on their own initiative. Tanager sought dismissal, saying the claims were barred by finality principles and amounted to an abuse of process. The judge heard submissions on the dismissal motion and on the injunction application; the Sheriff did not participate.
The judge found that the EU-law points could have been raised in the original possession proceedings, where Cronin had an opportunity to make arguments on appeal with legal representation. She held that Irish law’s rule against raising matters that could have been brought in earlier proceedings applied. The European Court of Justice authorities cited did not require an exception to that rule in these circumstances, she concluded.
The court granted Tanager’s application to dismiss the third proceedings. It did not decide the extent of Irish courts’ obligations to assess mortgage terms in house repossession cases that remain live. The judgment’s basis was limited to the conclusion that continuing this case, after the earlier proceedings had concluded, would be an abuse of process.