The Court of Appeal has dismissed Eamonn Carthy’s appeal against an order removing notices of pending litigation from two land folios in Tipperary, ruling that his delay in advancing the case was unreasonable under the relevant legislation.
The notices, known as lis pendens, had been registered in proceedings Carthy brought against Jeremiah, Patrick and Maurice Harrington in July 2014. He claimed, among other things, that a property development partnership existed and that he was the sole beneficial owner of lands in Kilsheelan and Fethard. Those claims were not determined in this appeal.
The Harringtons had borrowed from Ulster Bank (Ireland) Ltd, secured against the folios. Promontoria (Aran) Ltd later acquired the bank’s interest in the charges. After the Harringtons defaulted, Tom O’Brien was appointed receiver over assets in the developments. The Court said notices on the parent folios affected the receiver’s ability to convey rights over common areas needed for sales of properties under his control.
The High Court ordered the notices vacated in March 2018. On appeal, Carthy challenged whether the receiver was a person affected by the notices and whether the statutory grounds for removing them had been met. A separate challenge to the receiver’s standing was abandoned at the appeal hearing.
The Court of Appeal found that the receiver was a person affected because the remaining lands in the folios included common areas and access and utility rights relevant to transferring the dwellings and commercial units. It also found unreasonable delay: no appearance had been entered by the Harringtons, Carthy had not delivered a statement of claim, and no step had been taken to progress the proceedings. The court noted that the charges predated the 2014 action and that the chargeholder had not been joined.
The court said the material put forward at the appeal described, at most, a possible claim for payment for work, services or materials. It identified no substantiated basis for a beneficial or proprietary interest in the folios, or for a claim ranking ahead of the charges. The court did not decide whether Carthy was owed money.
The appeal was dismissed and the notices remained vacated. The court stressed that this did not affect Carthy’s entitlement to pursue the underlying litigation. It did not consider the alternative statutory ground that the action was not being prosecuted bona fide.