The High Court has dismissed Michael and Kevin Corbett’s plenary action against LSREF III Achill Investments Limited and two receivers, finding that it repeated issues already decided in earlier summary proceedings and amounted to an abuse of process. The court also ordered that a lis pendens registered in connection with the action be vacated.
The judgment was delivered by Ms Justice Costello on 8 April 2016. Achill had brought the earlier summary proceedings over loan facilities originally advanced by Ulster Bank Ireland Limited and later transferred to Achill. In October 2015, Barrett J. granted summary judgment against the Corbetts. That judgment was under appeal, and its execution had been stayed pending the appeal.
The Corbetts’ later action sought, among other reliefs, declarations that the loan agreements and mortgages were ineffective, damages, and orders concerning the receivers’ appointments and properties. The defendants asked the court to strike out or dismiss the action and to vacate the lis pendens registered against secured properties.
Costello J. found that the central claims repeated the Corbetts’ earlier arguments that the facilities had lapsed, that no further funds had been advanced, and that the bank had breached its obligations. Barrett J. had rejected those arguments. Costello J. held that they were res judicata and that continuing the action against Achill would be a collateral attack on the earlier judgment. She also held that the stay on execution did not undo that judgment or prevent it from having effect for res judicata purposes.
The court said the pleaded case against the receivers was based on the same rejected premise and identified no separate wrongdoing by them. It found that claim bound to fail. The judgment also addressed the claim for deceit: although the Corbetts sought damages for deceit, the statement of claim did not plead it, and the court found no such claim had been advanced in the proceedings.
A separate issue concerned security over four properties. The evidence that this security had not been assigned to Achill, that Achill asserted no rights over those properties, and that Ulster Bank was prepared to release it was not contested. The court held that this issue did not establish a cause of action against the defendants.
Costello J. dismissed the plenary proceedings as bound to fail and an abuse of process. She ordered the lis pendens vacated because the action had been determined. She expressly made no decision on Achill’s alternative argument that the action was not being prosecuted bona fide.