The Court of Appeal has dismissed Martin Tucker’s appeal against the striking out of proceedings in which he sought to establish ownership and possession rights over a Clontarf property. It also affirmed orders vacating two lis pendens registrations and requiring him to obtain leave before issuing further proceedings connected with the property.
In a judgment delivered on 8 February 2023, Ms Justice Butler said Tucker’s claims were barred because the right to possession had already been determined in earlier proceedings. The court found that arguments about the transfer of the mortgage and related security could have been raised then and could not be used to reopen the final orders.
Tucker’s proceedings also relied on a settlement agreement under which he had agreed to pay €310,000. The Court of Appeal upheld the High Court’s conclusion that this claim was bound to fail: the stipulated payment had not been made, the agreement had not been signed by Tucker’s former partner by the relevant date, and it did not require the respondent to withdraw the possession order.
The dispute arose from a 2003 loan secured against the residential property. The loan and security were transferred to the respondent in 2015. A Circuit Court possession order was made in 2018 and affirmed on appeal. The respondent executed the order in March 2019. Tucker later returned to the property, and the respondent obtained an injunction in separate trespass proceedings. Those proceedings were determined against him by January 2020.
Tucker’s 2020 High Court proceedings sought, among other relief, declarations concerning ownership and possession, an injunction, specific performance of the settlement agreement, damages, and a declaration that the loan transfer was void. The High Court dismissed the case as frivolous or vexatious and bound to fail, vacated lis pendens registered in the 2020 case and an earlier discontinued case, and made an Isaac Wunder order.
The Court of Appeal found no basis to disturb those decisions. It said the claims seeking to challenge the respondent’s entitlement to possession were res judicata, and the settlement claim was inconsistent with the agreement and Tucker’s non-payment. The court also found no demonstrated lack of fair procedures in the High Court.
The Isaac Wunder order limits further proceedings relating to the property at 39 Danesfort, Castle Avenue, Clontarf, Dublin 3, unless the President of the High Court grants leave. The appeal court considered the restriction a necessary and proportionate response to the history and likely continuation of litigation concerning the property.
The court’s preliminary view was that the respondent should receive the costs of the appeal. Either party may file written submissions on that proposed order within 21 days, with a reply permitted within a further 14 days.