The Court of Appeal has dismissed Patrick O’Connor’s appeal against the dismissal of proceedings concerning a property at 16 Amberley Heights, Douglas, Co Cork, and upheld an order restricting further litigation against specified parties without court permission.
In a judgment delivered on 15 March 2018, Mr Justice Edwards said the High Court was entitled to dismiss O’Connor’s claims as an abuse of process and under the rule in Henderson v Henderson. The appeal concerned the High Court’s 8 June 2016 decision on a motion brought by Sherry FitzGerald Limited and Ronan Daly Jermyn. Two receivers were later joined as defendants.
O’Connor’s proceedings sought the return of the property and damages for alleged trespass, unlawful appropriation, detinue, slander of title and other claims. He argued that the receivers had not been validly appointed because, among other things, the mortgage charge had not been properly executed or transferred to Bank of Scotland plc. The court noted that the charge had been registered in the Bank’s favour in 2011 and said that, absent a properly pleaded fraud claim and a request for related relief, O’Connor could not look behind that registration in these proceedings.
The Court of Appeal distinguished between issues previously decided and grounds that had not been adjudicated earlier. It said the claim that the mortgage had not been signed or sealed for the mortgagee had already been raised and rejected. Other arguments about registration and transfer of the security had not been decided in earlier proceedings. However, the court held that those arguments could and should have been raised there. It agreed that the new case was a collateral challenge to the receivers’ authority and was brought to frustrate enforcement of the judgment and realisation of the security.
The court also rejected complaints that the High Court hearing was unfair, that it lacked sufficient evidence, or that it should have waited for appeals in related cases. It said the High Court had sufficient evidence to decide the motion and was entitled to hear the dismissal application before O’Connor’s request for an injunction. That injunction request was not decided on its merits; the judgment said it would fall away if the proceedings were dismissed and noted a separate concern that the claim did not seek injunctive relief in its formal endorsement.
The High Court had made an Isaac Wunder order, requiring O’Connor to obtain leave before starting specified further proceedings. The Court of Appeal upheld that order, as well as the dismissal of the proceedings. It did not decide who was entitled to enforce the Bank’s judgment after the debt was sold to Feniton Property Finance Limited; it said that issue was not properly before it.