The Court of Appeal has upheld the dismissal of Martin Small’s 2014 proceedings against Bank of Ireland, finding that they substantially repeated claims he had raised, or could have raised, in litigation settled in 2013.
The appeal concerned a High Court order of 2 June 2016 striking out Small’s claim against the bank as an abuse of process. The Court of Appeal dismissed the appeal. It also held that Small’s motion to amend his statement of claim against the bank could not proceed because no maintainable cause of action remained in the proceedings as framed.
Small had brought proceedings in 2012 against the bank and Helen Raftery, the legal personal representative of his late business partner, Fionan Raftery. Those proceedings included claims about partnership property and bank loans, and allegations of misrepresentation, undue influence, collusion and deceit. In May 2013, Small and the bank settled the action and an interlocutory motion by consent. The court ordered the action and motion struck out, with no order as to costs; it did not decide the merits of the claims.
Small issued a fresh action in January 2014, again alleging impropriety by the bank in connection with the partnerships and related property and loan transactions. The bank sought to have the claims struck out. The High Court granted its application, relying on the rule in Henderson v Henderson and the effect that renewed litigation could have on the earlier settlement with Raftery.
On appeal, the court said the earlier consent order did not itself create res judicata because there had been no judicial decision on the merits. But it held that this did not prevent the court from striking out later proceedings as an abuse of process. The court considered the claims substantially similar and found that the fraud allegation in the 2014 action rested on material Small had, or could reasonably have obtained, before the earlier proceedings were compromised. It found no special circumstances justifying a second action.
The court said the repeated claims unfairly exposed the bank to substantially the same litigation and amounted to a collateral attack on the 2013 compromise. It dismissed the appeal and upheld the High Court’s order. The judgment stated that this did not prevent Small from raising issues in separate summary proceedings concerning the November 2007 loan agreement and related drawdown, limited to events after August 2007 and that transaction.