The High Court refused Paul and Gerard Dormer permission to recast their case against Allied Irish Bank plc and two other defendants, and struck out the proceedings. Mr Justice Brian J. McGovern ruled that the original claim disclosed no reasonable cause of action and that the case was vexatious and an abuse of process.
The judgment, delivered on 5 February 2016, dealt with two motions: the defendants’ application to strike out the claim and the plaintiffs’ later application to amend their statement of claim. The proposed amendment would have introduced a claim for rescission of a January 2014 settlement agreement, damages instead of rescission, and damages for deceit based on alleged fraudulent misrepresentation by the bank.
The proceedings began in December 2014. The Dormers sought, among other relief, to set aside a €17,663,876 judgment delivered by Mr Justice Kelly in March 2014. They initially obtained an interim injunction preventing enforcement of that judgment, but the injunction was refused after a hearing in February 2015. The Dormers appealed that decision, then withdrew the appeal in November 2015. They filed their amendment motion later that month.
Mr Justice McGovern said the documents described by the Dormers as “new evidence” had come to their attention in January 2015 and were available by the time of the injunction hearing. The plaintiffs had then expressly said they were not alleging fraud, and the judge said they gave no satisfactory explanation for not amending their claim earlier. He found that the proposed new case was at odds with their earlier position and would severely prejudice the defendants, who had defended the injunction application on a different basis.
The judge also relied on his earlier ruling at the injunction stage that the issues raised had already been considered in the proceedings before Mr Justice Kelly, and that the Dormers were precluded from seeking to set aside that judgment in the absence of an allegation of fraud. The appeal against that ruling had been withdrawn. While acknowledging that an injunction hearing does not ordinarily finally determine the action, he said the circumstances meant the earlier ruling had to be accepted and the proposed amended claim was bound to fail.
He refused leave to amend. He then struck out the proceedings under Order 19, rule 28 of the Rules of the Superior Courts because they disclosed no reasonable cause of action and were vexatious, and under the court’s inherent jurisdiction because they constituted an abuse of process.