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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Davey v Wallace & Anor (Approved) [2025] IEHC 146 (12 March 2025)
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Cite as: [2025] IEHC 146

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[2025] IEHC 146

harp graphic.

 

 

THE HIGH COURT

 

Record No. 2019/230P

 

 

BETWEEN

 

FRANCIS DAVEY

Plaintiff

-and-

 

KIERAN WALLACE & MARK ETHERINGTON

Defendants

 

 

JUDGMENT of Ms Justice Sara Phelan delivered on the 12th day of March 2025

Introduction

 

1.             This is an application in which the defendants seek to dismiss the plaintiff's claim against them on the grounds that the plaintiff's claim discloses no cause of action, is frivolous and vexatious and is bound to fail.  The matter came before the court by way of the defendants' motion, seeking such relief pursuant to Order 19, rule 28 of the Rules of the Superior Courts 1986 ["RSC"] and/or the inherent jurisdiction of the High Court, and the application history is set out in more detail at §66 hereunder.  The defendants also seek an order pursuant the inherent jurisdiction of the High Court restraining the plaintiff from issuing further proceedings against the defendants, their servants or agents, save with the prior permission of the President of the High Court.  At the hearing of the motion, the defendants were represented by senior counsel and junior counsel, instructed by solicitor, whilst the plaintiff was a litigant in person.

 

2.             For the reasons set out hereunder, the reliefs sought are refused.

 

Background

 

3.             The plaintiff issued a plenary summons on 11 January 2019, bearing the record number 2019/230P.  This plenary summons was directed to the defendants who had previously been appointed as joint receivers ["the receivers"] over certain of the plaintiff's properties ["the properties"].  And whilst the second-named defendant in the within proceedings ["the proceedings"] was one of the original receivers appointed, this second-named defendant subsequently resigned as joint receiver and on the same day a separate joint receiver was appointed, albeit that no application appears to have been made to rectify the title to the proceedings in this regard.

 

4.             The plaintiff, by way of this plenary summons, sought damages for inter alia breach of trust and breach of fiduciary duty, together with various declaratory orders, which can be categorised as encompassing the defendants' alleged failure to appropriately manage and/or maintain the properties.  The plaintiff subsequently delivered a statement of claim on 30 September 2019, in which he sought inter alia an order declaring the defendants incompetent in their duties, causing loss and harm; an order dismissing the defendants from their role as receivers; and an order for damages for dereliction of the defendants' duties.

 

5.             It is of note that whilst the plaintiff appeared to maintain his claim against the defendants in their capacity as receivers, the plaintiff also disputed the validity of their appointment as receivers [and this paradox grounds the defendants' application] and in the statement of claim it was pleaded

"4.    Both defendants claim to have been validly appointed as receivers over certain properties owned by the plaintiff and irrespective of the validity of the appointment of the defendants, the defendants are maintaining they are validly appointed.

5.       Therefore, for the purpose of this case, the assumption is that they are validly appointed, and that's the best it can be for the defendants, it is therefore the claim of the plaintiff that the defendants are guilty of gross negligence in their duty as receivers in relation to the plaintiff and his properties.

.....

9.       The plaintiff did oppose the appointment from the get go and did not believe their appointment was valid nor did he believe they had any power of sale over any of his properties."

The significance of the plaintiff's dispute as to the validity of the defendants' appointment will become apparent in due course.

 

6.             Much of the remainder of the statement of claim was taken up with the plaintiff's complaint that certain of the properties were placed for sale when the defendants did not have power of sale, together with allegations that may be broadly categorised that the defendants allowed the properties go into serious disrepair and did not manage or maintain the properties such that rent was not collected from tenants, and new tenants were not found when existing tenants vacated certain of the properties, including a public house.

 

7.             An appearance was entered on behalf of the defendants on 11 October 2019 and a notice for particulars was served on 17 December 2019.  The notice for particulars was a detailed one, in which [and arising out of the allegations contained in the statement of claim] the defendants sought full and detailed particulars, of/for inter alia:

a.    any alleged invalidity of the appointment of the defendants as receivers over the properties and whether the plaintiff had issued proceedings challenging the appointment of the receivers;

b.   the alleged "gross negligence" of duties by the defendants, including but not limited to:

                                                              i.          the duty of care it was alleged the defendants had breached;

                                                            ii.          the defendants' action/s it was alleged that breached that duty of care;

                                                          iii.          the precise date/s it was alleged the defendants breached that duty of care;

together with a significant number of additional particulars, the details of which are not germane to the application before the court.

 

8.             A reply to the notice for particulars was delivered on 09 June 2020 in which the plaintiff contended that much of what was sought by way of particulars was a matter for the trial and/or not a matter for particulars and/or that the defendants had already been provided with the information and/or that it was a matter for evidence and/or that the particular was repetitive and had been addressed in full earlier and that "particulars were never intended as a weapon of choice to be used by well-resourced defendants with copious legal knowledge to delay a plaintiff's civil right to a Hearing".

 

9.             The defendants did not bring a motion to compel further and better replies to particulars [as they could have done pursuant to the provisions of RSC Order 19, rule 7] and instead, a full defence was delivered on 06 July 2020, in which the defendants pleaded, by way of preliminary objection, that

"1.    The Statement of Claim herein fails to disclose any cause of action against the Defendants which is known to law.  Further or in the alternative, the proceedings are frivolous, vexatious and are bound to fail.  The Defendants reserve the right and intend to apply to this Honourable Court to dismiss the Plaintiff's within action, inter alia, as disclosing no cause of action, being frivolous and vexatious and bound to fail.

2.       The Plaintiff's claim is bad in law as it is based on an allegation that the Defendants, as Joint Receivers, were subject to certain duties of care in favour of the Plaintiff as mortgagor which alleged duties in fact do not arise as a matter of law and to which the Joint Receivers are not subject."

Shortly after the delivery of the defence, the defendants issued the motion as more particularly described in the 'Introduction' above.

 

10.         This motion was grounded on the affidavit of the first-named defendant ["the defendant"] sworn on 19 August 2020 and in this affidavit, the defendant set out the details of three sets of related proceedings, in addition to the proceedings, which related proceedings involved the parties to the within application and other third parties.  Given that the various proceedings are referred to hereunder, and in order to maintain consistency in this judgment, when the words "plaintiff", "defendant" and "defendants" are used, they refer to the individual/s who are the "plaintiff", "defendant" and "defendants" in the proceedings and, where necessary, the individuals in the related proceedings will be referred to by name.

 

11.         The defendant also averred to the fact that the multiple proceedings arose from the plaintiff's financial difficulty with Ulster Bank Ireland Limited ["the bank"], which resulted in the bank obtaining judgment against the plaintiff and consequently appointing receivers over properties which the plaintiff had secured to the bank.  It should be noted however, that in a subsequent affidavit sworn on 21 February 2024, the defendant clarified that the bank had not, in fact, obtained judgment as against the plaintiff, but rather had appointed receivers pursuant to the default of the facilities.  In his clarification the defendant averred that "it was incorrectly stated that [the bank] obtained judgment against [the plaintiff] for the sums due and owing ..... and consequently appointed Joint Receivers.  In fact, [the bank] appointed Joint Receivers pursuant to the default of the facilities ....." but notably, the defendant neither explained why the error had occurred nor apologised for it.

 

12.         The defendant further averred that, as of 26 March 2013, the date of the letters of demand, the sum due and owing was a seven-figure sum [the exact amount of the plaintiff's indebtedness is not relevant to the application before the court].  The defendant then averred that the bank subsequently transferred the plaintiff's loans and securities to Promontoria (Aran) Limited ["PAL"] by transfer dated 12 February 2015 and by deed of novation, of the same date, PAL was substituted for the bank as a party to the receivership agreement.

 

The 2013 proceedings [issued by the plaintiff]

 

13.         Subsequent to the letters of demand, the plaintiff issued the first set of related proceedings by plenary summons dated 13 May 2013, entitled Francis Davey v. Ulster Bank Ireland Limited 2013/4745P ["the 2013 proceedings"], claiming, as against the bank, damages for (i) breach of contract; (ii) libel and slander; (iii) failure to allow him to exercise his right of redemption and (iv) nervous shock.

 

14.         The defendant averred, in his affidavit sworn on 19 August 2020, to the fact that the plaintiff had resisted the defendants from the date of their appointment and that from the outset, the plaintiff called for the defendants to cease communicating with the tenants of the secured properties, asserting that such communications were defamatory and further, the plaintiff threatened the defendants with defamation proceedings.  The plaintiff further claimed that the 2013 proceedings were a bar to the appointment of the defendants and that they were acting in contempt of court and it was alleged that he continued his interference by, inter alia, contacting tenants directly, collecting rent directly from tenants which he failed to remit to the defendants, and failing to provide copies of the leases pertaining to the secured properties.

 

15.         The 2013 proceedings were ultimately struck out by Stack J on 08 December 2023 [neutral citation [2023] IEHC 701], with the court dismissing the plaintiff's claim pursuant to the inherent jurisdiction of the Court for inordinate and inexcusable delay.  The plaintiff appealed from the judgment and order of Stack J, which said appeal was subsequently dismissed by the Court of Appeal on 17 December 2024 [neutral citation [2024] IECA 302].

 

The 2014 proceedings [issued by the defendants]

 

16.         Separately, the defendants commenced proceedings against the plaintiff on 16 June 2014 [Kieran Wallace & anor v. Francis Davey, Record No 2014 5323P, "the 2014 proceedings"], seeking injunctive relief restraining the plaintiff from interfering with and obstructing the defendants in the discharge of their statutory duties.  An application for interlocutory relief was determined in the defendants' favour, with Gilligan J delivering an ex tempore judgment on 15 April 2015.

 

17.         The 2014 proceedings subsequently came before Murphy J by way of substantive hearing, in which she held on 30 May 2017 [Kieran Wallace & anor v. Francis Davey [2017] IEHC 455], that the plaintiff would continue to obstruct the receivership unless he was the subject of a court order and that the defendants were entitled to the reliefs sought, including an order that the plaintiff [and anybody else having notice of the order] be restrained from preventing impeding or obstructing the receivers or their agents from collecting the rents or licence fees associated with the secured properties.  The plaintiff appealed from the judgment and order of Murphy J and his appeal was subsequently dismissed by the Court of Appeal in an ex tempore judgment on 14 December 2020.  The plaintiff then sought leave to appeal to the Supreme Court, but this application was not accepted by the Supreme Court as it was incomplete.

 

18.         Crucially, for present purposes, Murphy J found at §2 of her judgment that "[Mr Davey] has resisted the receivers since the time of their appointment" and at §92, the court accepted that "the evidence is overwhelming that Mr. Davey has at all material times been intent on resisting the receivership of his properties.  The fact that since the appointment of the receivers he has collected and spent at least €77,000 in rent which should have been applied to the discharge of his debt speaks volumes for his attitude."  Murphy J also noted at §9 of her judgment that "[i]n these proceedings, [Mr Davey] has taken no issue with the deeds of appointment or the execution thereof but contends that the appointment is otherwise invalid."

 

19.         Murphy J further held, at §104, that "[the receivers] were duly appointed by the mortgagee of [Mr Davey's] properties and were appointed pursuant to the mortgage contract.  At the time of the transfer to Promontoria (Aran) Limited, the [receivers] were thus lawfully appointed receivers to [Mr Davey's] properties.  By virtue of the deed of novation, they simply continued as lawfully appointed receivers in respect of the rights and entitlements of the new mortgagee, Promontoria (Aran) Limited.  The validity of their appointment did not depend in any respect on the registration of the charge pursuant to s.62(2) of the Registration of Title Act 1964.  The Court can see no grounds for the assertion that there was any duty on the transferee of the mortgages to execute a new deed of appointment in respect of the receivers and to initiate fresh proceedings thereafter."

 

The 2019 proceedings [issued by the defendants]

 

20.         A third set of related proceedings, entitled Kieran Wallace & anor v. Francis Davey, Record No 2019 9833P ["the 2019 proceedings"], remains extant and these proceedings concern the plaintiff's occupation of one of the properties and the defendants' application to inter alia:

-       restrain the plaintiff from interfering with or obstructing them in exercising the powers and functions as receivers over the property;

-       restrain the plaintiff from entering, accessing, occupying and/or trespassing upon the property and from interfering with, damaging, removing, or altering any aspect of the property;

-       restrain the plaintiff from preventing them from exercising their lawful power to enter upon and "re-take possession" of the property;

-       compel the plaintiff to deliver up possession of the property to them, and to provide them with keys, alarm codes, locks and all of the security and access devices and equipment or information necessary to gain possession of the property.

 

21.         An application by the defendants for interlocutory relief in the context of the 2019 proceedings was unsuccessful before Stack J [Kieran Wallace & anor v. Francis Davey [2022] IEHC 120], primarily because the requisite proofs were not before the court, with the court also noting that even had the proofs been in order, the court would have refused the relief on discretionary grounds.

 

22.         One of the issues raised in the application before Stack J was "[w]hether [Mr Davey was] entitled to question the validity of the appointment of the Joint Receivers, and, if so, whether they [had] in fact been validly appointed" and, referring to the 2014 proceedings as heard and determined by Murphy J, the court noted that

"44.  The power to enter and manage the property is dependent on the power of sale having become exercisable, which in turn is dependent on secured monies having become due and owing and demand having been made.

45.    There is no evidence on affidavit of either of these matters.  Counsel for the [receivers] submits that the demand was referred to in the judgment of Murphy J. in the 2014 proceedings, and that therefore the matter is res judicata.  At para. 7 of her judgment of 16 May, 2017, Murphy J. certainly refers to letters of demand dated 26 March, 2013 and 2 May, 2013.  It is not clear whether any issue was raised in relation to the letters of demand (as opposed to a preceding facility letter of 28 May, 2007, which [Mr Davey] says he never signed and which he says was subsequently altered).

46.    Counsel for the [receivers] also submitted that [Mr Davey] had accepted in evidence before Murphy J. that he had borrowed the moneys in question, had signed the relevant deed of mortgage, and that he was indebted to Promontoria to the tune of €5 million.  It was also submitted that [Mr Davey] had accepted that the facility letter of 28 May, 2007, had been superseded by a further facilities letter.  Based on that, Murphy J. had held that the appointment of the [receivers] as Joint Receivers was valid.

47.    It seems to me that the validity of the letters of demand was not questioned in the earlier proceedings, rather than being something which was specifically determined by Murphy J. and therefore it is doubtful that the doctrine of res judicata attaches to it."

 

23.         Stack J then proceeded to discuss the rule in Henderson v. Henderson [§47, §48] in the context of what the plaintiff should have raised in the 2014 proceedings and noted that the "rule is a flexible one designed to prevent abuse of process" and in referring to the decision of the Court of Appeal (per Finlay Geoghegan J) in Vico Ltd v. Bank of Ireland [2016] IECA 273 at §26, Stack J confirmed "there is no automatic rule that just because something could have been raised before, the raising of it in later proceedings constitutes unjust harassment of the other party."

 

24.         Further, at §51, Stack J continued "[i]t would have been a very simple matter for the [receivers] to put the letters of demand on affidavit and to prove that monies were due and owing as of the date of demand.  It is a necessary proof and one which was available to the court in Kavanagh v. Lynch [2011] IEHC 348, on which the [receivers] rely.  In my view, the relevant facility letters and letters of demand should have been exhibited for the purpose of asking the court to grant an order for possession at interlocutory stage.  In their absence, it is not possible to be satisfied to the high standard necessary and the application must fail."

 

25.         Before concluding, at §62, that "[i]n my view, the document showing that the Joint Receivers have been formally appointed in compliance with the relevant Mortgage Deed and/or the relevant statutory provisions in an essential proof where an application of this nature is brought.  I do not think the application of the rule in Henderson v. Henderson can be said, at least at this interlocutory stage, to be so clear in this case as to relieve the [receivers] from meeting the usual requirement to demonstrate to the court their authority as receivers."

 

26.         It is important to note at this juncture that Stack J did not determine that the receivers had not been validly appointed.  Rather, she held that the requisite proofs were not before the court and that, in the 2014 proceedings at §47, "the validity of the letters of demand was not questioned ..... rather than being something which was specifically determined" in those proceedings.  And the validity of the appointment of the receivers is not for this court to determine in the context of the application before it, but, and if remains to be fully determined, it is for another court on another day.

 

27.         Separately, in the proceedings before Stack J, the court noted that

"35.  [Mr Davey] points specifically to a 35-year lease of one of the properties, which is a licensed premises, the subject of a separate mortgage, and which is one of the premises to which the 2014 Proceedings relates.  [Mr Davey] says that this has been vacant since April, 2015 without the Joint Receivers ever attempting to assign the lease to another tenant.  He claims they have allowed the premises to deteriorate and it is rat infested, and that the Joint Receivers took no steps to renew the licence which was due to expire in September, 2019.  He also points to various incidents of what he says are disrepair which the Joint Receivers took no steps to remedy.

36.    The [Joint Receivers] say this is not an issue which is material to the application for possession and can be the subject of a damages claim, which indeed [Mr Davey] has instituted by High Court Record No. 2019/230 P.  [emphasis supplied]

37.    However, even if that is correct, the contention of [Mr Davey] that the [Joint Receivers] have not taken any steps to manage the property or collect rents for the last few years has a larger significance for this application.  I think the averments of [Mr Davey] raise a concern because the Order of Murphy J. was directed towards ensuring that the Joint Receivers collected all the rent and/or licence fees in the secured properties the subject of the 2014 Proceedings and that [Mr Davey] not impede the collection of them.  It therefore seems that the 2014 Proceedings were taken to ensure that the Joint Receivers were in a position to collect income from the property on behalf of Ulster Bank and, subsequently, Promontoria.

38.    The averments of [Mr Davey] in relation to the failure of the Joint Receivers to relet properties after they had become vacant and to keep up the licence in the licenced premises, are uncontradicted by the [Joint Receivers], both of whom have sworn affidavits in this application.  This inaction would appear to be inconsistent with the stated purpose of the [Joint Receivers] in seeking to recover possession of the Property."

 

28.         As of the date of this judgment in the proceedings, the 2019 proceedings remain extant.  The pleadings in the 2019 proceedings are not yet closed and counsel for the defendants informed this court during the hearing that, as regards the 2019 proceedings, a defence is awaited from the plaintiff.

 

Additional proceedings [issued by the plaintiff or a related party]

 

29.         Two further sets of proceedings initiated by the plaintiff [a contempt and stay motion; and an injunction motion], were struck out upon application of the plaintiff on 10 July 2019 with costs to the receivers and a third set of proceedings [judicial review proceedings initiated by the plaintiff's now-deceased son] were dismissed by Noonan J on 17 July 2019, with costs against the applicant in those proceedings.

 

30.         Returning to the affidavit of the defendant sworn on 19 August 2020, at §33 he averred to the fact that the plaintiff asserted [in the plaintiff's replying affidavit, sworn on 27 February 2020, in the context of the interlocutory application in the 2019 proceedings] that:

a.    that the defendants were not entitled to the reliefs sought in the 2019 proceedings;

b.   possession could not be granted under the terms of his mortgage deed;

c.    there was an on-going investigation by An Garda Siochana into undisclosed acts by Ulster Bank, who were not a party to the proceedings; and

d.   "therefore the validity of [the receivers'] alleged appointment cannot be determined until the outcome of this investigation";

and the defendant then averred that, in the context of the 2019 proceedings, the plaintiff repeatedly denied the validity of the appointment of the receivers.

 

31.         At §38, the defendant averred that "..... I am advised and believe that the Statement of Claim does not set out the precise nature of Mr. Davey's claim nor the grounds on which it is sought, nor does it provide any facts which could give rise to a cause of action for the reliefs pleaded.  The legitimate and legal basis for Mr. Davey's complaint is entirely unclear, he does not at any point specify on what grounds he founds his belief that the Joint Receivers have been invalidly appointed, nor does he refer to the fact that an Order of this Honourable Court has already determined that the appointment of the Joint Receivers is valid.  Throughout the Statement of Claim Mr. Davey asserts the Secured Properties are "his properties" and seeks damages for "abusing and violating the rights of [Mr Davey], damages which are continuing and accruing" but does not specify what rights the Joint Receivers are alleged to have abused or violated."

 

32.         The defendant then went on to aver that clarification was sought from the plaintiff in relation to:

-   the alleged deficiency in the appointment of the defendants;

-   each and every alleged act of "gross negligence" and alleged breach of duty by the defendants;

-   the basis for the plaintiff's contention that he has suffered any loss as a result of the actions of the defendants;

and that the reply to notice for particulars provided no further detail but merely re-iterated the baseless allegations that, inter alia, the defendants asserted a power of sale over the secured properties.

 

33.         The defendant stated inter alia that

a.    that the statement of claim disclosed no statements of facts, but made unfounded allegations based entirely on subjective and unevidenced figures, and disclosed no bona fide cause of action, thereby lending itself to the conclusion that the plaintiff's intention was to further hinder in the performance of the duties of the defendants;

b.   he was advised and believed that the within proceedings were only issued with the objective of going behind the order of Murphy J, to relitigate matters that had already been litigated, and in an attempt to disrupt and interfere with the role of the defendants;

c.    the pleadings did not disclose any reasonable cause of action, were unsustainable, frivolous and vexatious and were bound to fail.

 

34.         The plaintiff swore four affidavits in reply, on 14 January 2021, 28 January 2021, 07 March 2023, and 21 June 2023, and these were then followed by affidavits sworn by the defendant on 21 February 2024; the plaintiff on 30 May 2024; and the defendant on 05 July 24.

 

35.         On 17 July 2024, the defendants' motion was set down for hearing and came before the court on 30 January 2025.  Immediately prior to the matter coming on for hearing, the plaintiff sought to file a further affidavit and the defendant objected [albeit not strenuously] to same and on the basis that if something turned on this late affidavit, the defendant would like an opportunity to reply.  The court did not make a formal ruling but directed that the matter proceed on the basis of the affidavits already filed and that should it be necessary for the plaintiff to refer to his late affidavit then the court could revisit the matter and whilst, during the course of the hearing, the plaintiff made references in passing to his late affidavit, the plaintiff did not actually seek to open same to the court.

 

36.         The content of the plaintiff's five affidavits sworn on the dates set out above, and insofar as same are relevant to the application that this court must determine, may be summarised as follows:

 

Affidavit sworn on 21 January 2021

-       at §3, requesting the defendants to consider their positions and withdraw from the "unlawful alleged receivership" on the basis of inter alia criminal investigations being initiated against them [with two Pulse numbers stated] and noting that Murphy J had stated in her judgment above referred to at §62 "should Mr Davey ultimately satisfy a court that the appending of a photocopy signature page from another facility letter resulted from some nefarious motives on the part of Ulster Bank Ireland Limited, then clearly serious consequences will flow for Ulster Bank Ireland Limited";

-       at §4, stating that no judgment had been obtained against him [as to clarification, see §11 above];

-       at §7, raising an issue with the deeds of appointment and that they are "void and of no effect because of the legal effect of the forged document upon which the Bank was relying to appoint receivers.  No proof whatsoever has been provided to me the Plaintiff, that the Deed of Novation purportedly created on the 12th February 2015 substituting Promontoria Aran Ltd for Ulster Bank Ireland Ltd as the party to the receivership agreement was legally executed";

-       at §14, "As per the terms of Plaintiffs mortgage deed it is clear that the role of any validly appointed receiver is one of managing the properties and collecting the rent to reduce a borrower's alleged indebtedness to the appointor".

 

Affidavit sworn on 28 January 2021

-       at §2, "the cause of action in these proceedings is absolutely very clear.  It is the negligence by the defendants Kieran Wallace and Mark Etherington in their failure to implement their roles as receivers.  Their function as receivers is defined as one of managing properties and collection of rent.  They have a duty of care to me as my trustee to collect rent to assist in the reduction of the mortgagor's alleged indebtedness. (see Medforth v Blake QBENF 98/1624/1)";

-       at §3, "they failed to maintain the properties allowing them to fall into rack and ruin.  They failed to re-rent the properties as they became vacant and as rents increased both in the commercial and residential sectors, these actions caused me severe loss and the monies that they should have collected from the empty properties had they attempted to rent them out would have reduced my alleged debt.";

-       at §4, "the bar to have these proceedings struck out is very high and the defendants come nowhere near that bar, as I have a bona fide case.";

-       at §5, "The defendants are less than candid where they state I have no cause of action in circumstances where my summons has several causes of actions such as negligence, breach of trust, breach of contract, breach of statutory duty etc.  Then my statement of claim outlines the details of the causes of action and how the defendants are guilty of same.";

 

Affidavit sworn on 07 March 2023

-       at §7, "directly related proceedings have been before the Court on a number of occasions, most recently before Stack J.  I beg to refer to a copy of the Judgment of Stack J., delivered on 25th February, 2022 ....."

 

37.         The defendant, by way of affidavit sworn on 21 February 2024, sought to bring the court up to date with the various sets of proceedings [and that 'up to date' position is as outlined earlier in this judgment, from §13 to §29] and the defendant then averred at §9 that "the interlocutory stage of the Unit One Injunction Application was determined by Ms Justice Stack by judgment delivered on 25 February 2022, in which the application was refused on discretionary grounds."  This averment is not entirely correct as it is clear from the decision of Stack J, as set out at §24 above [and to which counsel for the defendant quite correctly drew the courts attention at hearing], that the application was refused primarily because the requisite proofs were not before the court and in conclusion, Stack J stated

"72.  I am satisfied that the [receivers] have not made out a strong case that they are likely to succeed at trial.  They have not put the usual proofs on affidavit, but have instead relied on a combination of the doctrine of res judicata and the rule in Henderson v. Henderson in circumstances where it is not at all clear that these doctrines apply.  In an application of this kind, the correct course for the [receivers] to take was to exhibit the necessary documents to show that the mortgagee's power of sale was exercisable, to exhibit the various documents by which the [receivers] were appointed as receivers, so as to show that they had been appointed in accordance with the relevant formalities, and to exhibit the relevant documents of title showing that Promontoria was now, in law, the mortgagor under the Mortgage Deed, such that it had authority to appoint them.  That has not been done.

73.    In any event, the facts deposed to by [Mr Davey] as to the failure by the Joint Receivers (for the time being) to secure and manage lettings in the secured properties, both in Niles House and elsewhere, are not consistent with a desire to go into possession so as to manage the properties.  An issue has been raised as to the reason why possession is being sought, given that there is no right to re-enter for the purposes of selling the Property.  I would therefore, even if the proofs were in order, refuse the application on discretionary grounds."

 

38.         At §11, the defendant went on to aver "Throughout the First Replying Affidavit Mr Davey continues to refer to the Joint Receivers as being "unlawful", "alleged" "void", and "purported".  Diametrically, the within proceedings are Mr Davey's proceedings in which he seeks reliefs against the Joint Receivers for, inter alia, alleged dereliction of their duty as receivers and for an order dismissing the Joint Receivers from their role as receivers."

 

39.         And at §12, the defendant averred that "Mr Davey wilfully ignores the fact that there is a judgment and order of the High Court, which was upheld by the Court of Appeal in December 2020, one month prior to his swearing the First Replying Affidavit, that expressly states that the Joint Receivers have been validly appointed" without dealing with the tension between the decision of Murphy J and Stack J as regards the validity of the appointment of the receivers.  And indeed, counsel for the defendant submitted, at hearing, that the validity of the receivership was for the 2019 proceedings.

 

40.         In this affidavit, at §14, the defendant also clarified that at §6 of his grounding affidavit "it was incorrectly stated that Ulster Bank obtained judgment against Mr Davey for the sums due and owing."

 

41.         The defendant then stated, at §17, that he was not aware of extant proceedings before the criminal courts before, at §18, returning to the plaintiff's position regarding the defendants and he referred to §14 of the plaintiff's first affidavit sworn on 21 January 2021 and averred that "Mr Davey lists how the Joint Receivers have breached their duty to him as Joint Receivers, a position which he denies they hold.  Mr Davey throughout the First Replying Affidavit refuses to recognise the validity of the appointment of the Joint Receivers and openly admits to having obstructed the receivership at every stage, and on the other hand accuses the Joint Receivers of not fulfilling their duties, which he obstructed and continues to obstruct" and at §21, "none of the matters raised in the First Replying Affidavit or the Second Affidavit form the basis of, or support, Mr Davey's case against the Joint Receivers for alleged acts of gross negligence or breach of duty.  Neither the First Replying Affidavit nor the Second Replying Affidavit disclose any statements of facts but make the same baseless assertions and circular logic that does not disclose any bona fide cause of action."

 

42.         The defendant, at §27 and §28, then dealt with the plaintiff's conduct and averred that the defendants and their agents "continue to experience interference in their attempts to manage the Secured Properties" and the defendant referred to two apparently contradictory emails sent by the plaintiff on 28 November 2023 and 29 November 2023, the first of which stated that two of the defendants' agents "purportedly [acting] on your instructions, entered my property at Bridge Street, Kilcock without lawful authority.  While trespassing on my property they opened the meter cabinets and apparently took photographs, they harassed the tenants and gave them paperwork with misleading information ....." and in the second of which the plaintiff sought information in respect of "what steps, if any, you have taken to date in pursuance of your obligations in respect of my properties.  In particular, I would be obliged to know what steps if any, you have taken to insure and maintain my properties.  I would be obliged to know what steps, if any you have taken to ensure that my properties are tenanted."

 

43.         The plaintiff's next affidavit [sworn on 30 May 2024] replied to the defendant's affidavit sworn on 21 February 2024 and in this affidavit the plaintiff referred to the judgment of Stack J in the 2019 proceedings and that it proved that the defendant's "averments regarding the Plaintiff being a trespasser are totally untrue, and the property the defendant believes is under his receivership now depends on the determination of their proceedings 2019/9833P against the Plaintiff.  The judgment already handed down in this case supercedes [sic] the Murphy J judgment in case no 2014/5323P".  Much of the plaintiff's affidavit was taken up refuting that which had been set out in the defendant's affidavit and the plaintiff's averments were based on, to at least some degree, an erroneous understanding of the import and reach of the judgment of Stack J in the 2019 proceedings, such judgment being solely in relation to an interlocutory application.

 

44.         The plaintiff averred, at §14, that it was "the defendants who have continually harassed me by attempting to sell my properties without power of sale to do so, and continuing to illegally break locks and enter the properties without any lawful authority to do so and are still attempting to break locks and unlawfully trespassing as recently as the 15th February 2024 at my property in 335 Blackhorse Avenue" and at §17, "it was their agents who illegally broke into the plaintiff's property (see Stack J's judgment)".

 

45.         And then at §18, the plaintiff referred again to the judgment of Stack J "wherein the Court directed in paragraph 72 of the Judgment that the defendants herein failed to prove to the Court that they were properly appointed as receivers and provide necessary documents showing that Promontoria Aran Ltd was now in law the mortgagee under the mortgage deed, and therefore they had authority to appoint the Defendants as joint receivers until such time as this issue is determined in the ongoing proceedings in the 2019/9833P case, the purported receivers are not validly appointed.  The joint receivers by their actions of contacting the tenants and threatening to secure the properties and now collect the rent."  But it is of note that the plaintiff did not deny the fact of his continuing interference with the properties as had been previously set out on affidavit by the defendant [see §42 above].

 

46.         And at §19, the plaintiff averred that "the defendants, the joint receivers failed to inform the Court that they did not attend to the one order they were granted in Court, to collect rent and manage the properties.  I say they were only interested in selling the properties not collecting rent or re-letting or maintaining the properties from the commencement of the alleged receivership in September 2013" and at §20, the defendant "states that his agents Qualitas attended my house 335 Blackhorse Avenue on the 15th February 2024 to attend to a leak, this is completely misleading evidence.  [The defendant] fails to say that his agents broke the locks on the entrance door and were in the process of changing the locks until I stopped them.  They abandoned this attempt to break the locks, however they returned later that day the 15th February 24 and criminally broke the front and rear door locks and changed them therefore trespassing upon my property."  And finally, at §23, the plaintiff averred that he was "seeking DAMAGES from the joint receivers because of their failure in their duty as receivers to collect rent and manage the properties, thus causing me substantial losses in rent and property values."

 

47.         The final affidavit of the defendant was sworn on 05 July 2024 and at §6 the defendant averred that "the Plaintiff is simply not correct in his averred to understanding of the judgment of the Honourable Ms Justice Stack in [the 2019 proceedings].  As is clear from the judgment delivered on 25 February 2022, the matter for determination before Ms Justice Stack was an application for interlocutory, and not final, relief ..... It does not, for example, as the Plaintiff avers at paragraph 6 of the Fifth Replying Affidavit, "supersede" the judgment of Ms Justice Murphy in [the 2014 proceedings], the Plaintiff's appeal of which was dismissed .....".

 

48.         The defendant at §10, §11 and §12 noted the conflicting positions adopted by the plaintiff and that the plaintiff "in the absence of any apparent irony, accuses the Joint Receivers of failing to collect rent and manage the Secured Properties, which he admits throughout to obstructing their efforts to so do" [at §19 of the plaintiff's affidavit] and the plaintiff "adopts this conflicting position where he accuses the Joint Receivers of failing in their duties, which he admits to obstructing throughout the Fifth Replying Affidavit" [at §23 of the plaintiff's affidavit].

 

49.         The defendant then referred to and exhibited correspondence from his joint receiver to the plaintiff [dated 04 March 2024] which identified a number of actions taken by the plaintiff which obstructed the defendants in the performance of their duties to manage the properties and to collect rent associated with same, and those actions included

-       email correspondence to tenants of one of the properties that directed them to continue paying rent to the plaintiff;

-       changing locks at the same property;

-       receiving rent from the tenants and entering into new leases for some of the properties;

-       failing to comply with the order of Murphy J to pay a specified sum of money to the defendants;

-       failing to provide the defendant with keys and access codes for the properties.

 

50.         The defendant also exhibited the reply from the plaintiff [dated 06 March 2024] which again made the argument that the defendants had "not proven to the Court in ongoing proceedings 2019/9833P that you have been validly appointed, as per the ruling of Stack J February 2022 who determined you failed to prove your validity to the Court among other issues not proven" and that the defendants' "continued actions, including but not limited to, breach of court orders, harassment, criminal damage through the breaking of locks, trespassing and threats of further noncompliance with Court Orders, are duly noted."

 

Applicable Legislation

 

51.         RSC Order 19, rule 28 as amended [by S.I. No. 456/2023 - Rules of the Superior Courts (Order 19) 2023] and effective as of 22 September 2023 states

"(1)   The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

                                                                        i.          discloses no reasonable cause of action, or

                                                                     ii.          amounts to an abuse of the process of the Court, or

                                                                   iii.          is bound to fail, or

                                                                    iv.          has no reasonable chance of succeeding.

.....

(3)     The Court may, in considering an application under sub-rule (1) or (2), have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.

(4)     Where the Court makes an order under sub-rule (1), it may order the action to be stayed or dismissed, as may be just, and may make an order providing for the costs of the application and the proceedings accordingly."

 

52.         The original wording of O.19, r.28 was to the effect that the "Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just".

 

Relevant Authorities

 

Power to strike out or stay proceedings

 

53.         The power of the court to strike out or stay proceedings either pursuant to O.19, r.28 or pursuant to the inherent jurisdiction of the court is a power that, whilst to be exercised sparingly, can be applied to a wide variety of circumstances and in order to ensure that there is not an abuse of the process of the courts.  Simons J considered the amendment to O.19, r.28 in O'Malley v National Standards Authority of Ireland & anor [2024] IEHC 500, holding that "the amendment to Order 19, rule 28 has the practical effect of eroding the previous distinction between the jurisdiction to strike out and/or to dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Courts, and (ii) the court's inherent jurisdiction.  Nevertheless the earlier case law continues to have a relevance" [at §7] and that the effect "of the amendment introduced by the Rules of the Superior Courts (Order 19) 2023 is to codify the existing jurisprudence.  This is apparent from the language used under the amended rule: the phrases "bound to fail" and "no reasonable chance of succeeding" echo the language used in the previous case law to describe the limits of the inherent jurisdiction" [at §9].  Bolger J also considered this amendment in Mulhall v Allergen Limited [2025] IEHC 130, stating that "I do not consider that the amendment serves, or was intended to serve, to significantly dilute the previous jurisdiction" [at §18].

 

54.         The words of McCracken J in Fay v. Tegral Pipes Ltd [2005] 2 IR 261, at §12, are also worth repeating in that

"Firstly, the Courts are entitled to ensure that the privilege of access to the Courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes, and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law.  The second, and equally important, purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed."

 

55.         Counsel for the defendant, in written submissions accepted that the inherent jurisdiction should be exercised sparingly and that the relief sought should only be granted where there is no risk of injustice to the plaintiff [Barry v. Buckley [1981] IR 306].  And that further, the court must be satisfied that it would be manifestly unfair on the defendant to allow the claim to proceed [Kelly v. Allied Irish Banks [2019] IESC 72].

 

56.         And counsel for the defendant referred the court to the decision of Dignam J in Curran & anor v. Ulster Bank Ireland DAC & ors [2023] IEHC 513 where the court, more recently, considered the approach to be adopted by the courts in an application to strike out proceedings, and where the court stated

"28.  [The] approach, starting with Barry v Buckley [1981] IR 306, is well-established and has been considered in very many cases ..... not necessary to review or recite all of these authorities.  It is clear that while the jurisdiction to dismiss proceedings on these grounds is an important and valuable jurisdiction, it is one to be exercised sparingly ..... and one which the Court should be slow to exercise (Sun Fat Chan v Osseous Ltd [1992] 1 IR 425).  It is only to be exercised where the proceedings are clearly an abuse of process or the proceedings are bound to fail rather than where the plaintiff's case is very weak or innovative (Keohane v Hynes, Millstream Recycling Ltd v Tierney [2010] IEHC 55).

.....

33.    An important qualification on the exercise of the jurisdiction was emphasised by Clarke J in Moffitt v Agricultural Credit Corporation, where he said at paragraph 3.1:

"3.1 ..... In addition the court should not judge the matter on a narrow or technical basis referable to the pleadings.  It is well settled that, even if the proceedings as currently drafted might have no chance of success, the proceedings ought not be dismissed if, by an appropriate amendment, the proceedings could be recast in a fashion which would give rise to a prospect of success. ..... [emphasis added]

.....

35.    In ..... Togher Management Company Ltd & Anor v Coolanleen Developments Ltd [2014] IEHC 596, Haughton J said at paragraph 28:

"With regard to the courts inherent jurisdiction to dismiss, the principles are well established in cases such Barry v. Buckley [1981] I.R. 306, Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425 (Supreme Court - McCarthy J), Ennis v. Butterly [1996] I.R. 426, and Salthill Properties Limited & Cunningham v. Royal Bank of Scotland Plc & Ors [2009] IEHC 207.  From this jurisprudence the following principles may be extracted:-

• The jurisdiction exists to ensure than [sic] an abuse of the process of the courts does not take place.

• The jurisdiction should be exercised sparingly and only in clear cases.

• It enables the court to avoid injustice.

• If a statement of claim admits of an amendment which might 'save it' and the action founded on it, then the action should not be dismissed.

• A variety of circumstance [sic] may emerge at the trial of an action which might not be entirely contemplated at earlier stages in proceedings, and what may appear clear and established at an early stage may become less so at trial.

• It is a jurisdiction to dismiss where the proceedings are bound to fail.

• Such an application may be of particular relevance to cases involving the existence or construction of documents - in which it may be possible for a party to persuade the court that no reasonable construction of the document(s) concerned could give rise to a claim on the part of the plaintiff, even if all the facts alleged by the plaintiff were established.

• Where there is at least some potential for material factual dispute between the parties capable of resolution only on oral evidence, it is difficult to envisage circumstances where an application to dismiss on the grounds that the action is bound to fail could succeed.

• The plaintiff should not be required to show a prime facie case at the stage of an application to dismiss.

• The onus lies on the defendant to establish that the plaintiff's case is bound to fail.

• It follows from the foregoing point that the defendant must demonstrate that any factual assertion on the part of the plaintiff that the defendant contests could not be established."

 

57.         Counsel for the defendant also referred to the decision of Haughton J in Beades v. Ireland & ors [2016] IEHC 302, [2016] 2 IR 224 where the court cited the decision of Barron J in Farley v. Ireland [unreported, Supreme Court, 1st May 1997] that "[i]f [a plaintiff] has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.  Similarly it is a hardship on the defendant to have to take steps to defend something that cannot succeed and the law calls that vexatious" and the decision of Irvine J in Fox v. McDonald & ors [2017] IECA 189, where the court stated at §20 that "[p]roceedings which are regularly struck out as 'frivolous' or 'vexatious' are proceedings clearly destined to cause irrevocable damage to a defendant.  Such as where a defendant is asked to defend the same claim for a second time or where a plaintiff seeks to avail of the scarce resources of the courts to hear a claim which has no prospect of success."

 

58.         The defendants further relied on the decision of Twomey J in Duffy v. Permanent TSB and Murphy [2021] IEHC 511, which concerned claims against receivers and in which the court determined, in striking out the plaintiffs proceedings, that where the plaintiff did not put any documentary evidence before the court to substantiate the claims asserted, they were "mere assertions for which no credible evidence was put forward".  The Court categorised the proceedings in that case, at §1, as "an example of what had become a regular feature of certain litigation before the courts, namely wide-ranging and far-reaching vexatious claims designed to frustrate a receivership or the realisation of security following default by the plaintiff in respect of loan facilities."

 

Duties of a Receiver

 

59.         Section 19(1)(iii) of the Conveyancing Act 1881 authorises a mortgagee, subject to any variations or extensions as provided for in the mortgage deed, to appoint a receiver to collect the income arising from the mortgaged property and pursuant to the provisions of s.24 of that Act, the receiver "shall have power to demand and recover all the income of the property of which he is appointed receiver, by action, distress, or otherwise, in the name either of the mortgagor or of the mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of, and to give effectual receipts, accordingly, for the same."

 

60.         In Kavanagh v. Lynch [2011] IEHC 348, Laffoy J held, at §5.2, that receivers who were appointed for the purposes of realising income from the mortgaged property, in distinction to receivers who were appointed for the purposes of selling the mortgaged property, were empowered to occupy and take possession of that property.

 

61.         In Medforth v. Blake & ors [2000] Ch 86, the English Court of Appeal [per Sir Richard Scott V-C] held inter alia that:

-       a receiver managing mortgaged property owed duties to the mortgagor and anyone else with an interest in the equity of redemption;

-       those duties, imposed by equity, included, but were not necessarily confined to, a duty of good faith;

-       the extent and scope of any duty additional to that of good faith depended on the facts and circumstances of the particular case;

-       in exercising his powers of management, the primary duty of the receiver was to try to bring about a situation in which interest on the secured debt could be paid and the debt itself repaid;

-       subject to that primary duty, the receiver owed a duty to manage the property with due diligence;

-       due diligence did not oblige the receiver to continue to carry on a business on the mortgaged premises previously carried on by the mortgagor but, if the receiver did carry on the business, required reasonable steps to be taken in order to try to do so profitably.

 

62.         However, and prior to the decision in Medforth, the Privy Council [on appeal from the Court of Appeal of New Zealand] in Downsview Nominees Ltd & anor v. First City Corporation Ltd & anor [1993] AC 295 had held that

-       a mortgagee and a receiver and manager appointed by him owed no general duty in negligence to subsequent encumbrancers or the mortgagor to use reasonable care in the exercise of their powers and in dealing with the assets of the mortgagor;

-       equity imposed on a mortgagee and a receiver and manager specific duties including the duty to exercise their powers in good faith for the purpose of obtaining repayment although, subject to that duty, the exercise of their powers might cause detrimental consequences to the mortgagor;

-       the equitable duty was owed both to the mortgagor and to any subsequent encumbrancer, whether he was a mortgagee, debenture holder or charge holder.

 

63.         The Court of Appeal, in Medforth, was not bound by the decision in Downsview Nominees, since Downsview Nominees was a Privy Council case.  The position in this jurisdiction was considered by Clarke J [as he then was] in Moorview Developments Ltd v. First Active plc [2009] IEHC 214 and, more recently, by Dignam J in Curran, and given that this court does not have to decide whether the reasoning in Downsview Nominees or Medforth prevails in this jurisdiction, but rather whether the plaintiff, at the height of his case, could avail of Medforth at the hearing of the substantive case [if the court at that time were satisfied to follow Medforth], it is not necessary to delve into the detail of Moorview or Curran, save as to acknowledge that Clarke J in Moorview at §12.14 indicated that he believed that "there are at least arguable grounds for the proposition that [Medforth] does represent the law in this jurisdiction."

 

64.         And in Curran, Dignam J again considered whether or not a receiver had a duty of care to a mortgagor over and above a duty of good faith and to act reasonably and prudently, and in considering the judgment of Clarke J in Moorview, Dignam J held at §204 that "[w]hile Clarke J does cast doubt on whether there is any duty of care over and above a duty of good faith (which is perhaps unsurprising given the authorities), he certainly does not close the door on the existence of such a duty" and, at §205, that "Moorview Developments does not close the door on the plaintiffs' ability to contend for the alleged breaches of duty."

 

Discussion

 

65.         It is clear from the caselaw above referred to inter alia that:

a.    whilst to be exercised sparingly, the power to strike out proceedings as being bound to fail can be applied to a wide variety of circumstances and in order to ensure that there is not an abuse of the process of the courts;

b.   however, whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss proceedings as being bound to fail is not a means for inviting the court to resolve issues on a summary basis [see also, Simons J in Mohan v. Revenue Commissioners & ors [2025] IEHC 63];

c.    the relief sought should only be granted where there is no risk of injustice to the plaintiff [per Costello J in Barry] or, from the defendant's perspective where it would be manifestly unfair on the defendant to allow the claim to proceed [per Irvine J in Kelly];

d.   the power should only be exercised where the proceedings are clearly an abuse of process or the proceedings are bound to fail, rather than where the plaintiff's case is very weak or innovative [per Laffoy J in Millstream Recycling];

e.    when contemplating whether to exercise the power, this court should consider whether it is possible, by way of application to amend, to remedy any deficiency in the plaintiff's pleadings [per Clarke J in Moffitt];

f.     where there is at least some potential for material factual dispute between the parties capable of resolution only on oral evidence, it is difficult to envisage circumstances where an application to dismiss on the grounds that the action is bound to fail could succeed [per Haughton J in Togher];

g.   a strike out application will not be appropriate where the issues of law raised are not straightforward [per Clarke CJ in Jeffrey v. Minister for Justice [2019] IESC 27, [2020] 1 ILRM 67, at § 7.4];

h.   there are at least arguable grounds for the proposition that Medforth does represent the law in this jurisdiction [per Clarke J in Moorview].

 

66.         The defendants originally brought their application by way of notice of motion filed on 25 August 2020.  A motion to re-enter was filed on 16 February 2023, since the application had been adjourned due to the Covid-19 pandemic, and a second motion [seeking reliefs identical to those sought in the original motion] was filed on 19 October 2023.  It should be noted that the amendment to O.19, r.28 was effective as of 22 September 2023 [i.e., prior to the filing of the second motion], but this second motion did not direct itself to the wording as set out in the amendment, and neither was the amendment specifically adverted to during the course of the hearing.  That being so, the court has come to its decision based on the reliefs sought in the original motion but, in any event and relying on the decisions of Simons J in O'Malley and Bolger J in Mulhall, the reliefs envisaged by the original O.19, r.28, combined with the power of the court to strike out pursuant to its inherent jurisdiction [both of which said reliefs were sought by the defendants], are now comparable with the reliefs available under the amended O.19, r.28.

 

67.         Despite the many affidavits before the court, and whether one is proceeding under the amended O.19, r.28 or the original O.19, r.28 and/or the inherent jurisdiction of the court, what this court has to decide is relatively net and may be summarised as;- has the plaintiff pleaded a stateable case against the defendants and is the plaintiff's claim otherwise, not an abuse of process?

 

68.         It is clear from the defendants' submissions through counsel, both written and oral, that it was the defendants' position that §5 and §9 of the statement of claim were fundamentally incapable of being pleaded [i.e., that they were mutually exclusive] and that the plaintiff was estopped from asserting that the defendants had breached unspecified duties to him where the plaintiff had in the past, and continued, to interfere with the defendants in the performance of their duties.  Counsel for the defendants submitted at hearing that the plaintiff could not plead 'presumed facts' and further stressed that the plaintiff had not made any allegations of trespass against the defendants in the proceedings.  Further counsel for the defendant accepted that this court should look at the plaintiff's case as if Medforth were applicable [although not adopted by the Irish courts], whilst submitting at the same time that the plaintiff could not conceivably come within the test set out in Medforth.

 

69.         Much of the plaintiff's submissions dealt with matters that were not before the court in the context of the defendants' application to dismiss the proceedings, but in circumstances where the onus was on the defendants to meet the high threshold for such motion, the plaintiff's submissions were perhaps of lesser relevance, and particularly in circumstances where the court has not found in the defendants' favour.

 

70.         Before even considering the substance of the plaintiff's pleadings, it is clear that the plaintiff has consistently maintained that the defendants were not validly appointed, both in affidavits in the proceedings and in the related proceedings and further, when given an opportunity by this court to clarify his position at hearing, he continued to maintain that the receivers had not been validly appointed, referring to the [alleged] conduct of the original mortgagee stating "to me, they haven't been validly appointed ..... I know they haven't been validly appointed because of Ulster Bank and what they've done".

 

71.         Further, the plaintiff appeared to have put the defendants in an invidious position whereby [in related proceedings], he claimed that the defendants were guilty of trespassing on his properties and yet, he also claimed that the defendants were not managing his properties correctly, which claim had to imply that the defendants had a right to be on the properties in order to manage them.  The defendants, in their written submissions contextualised this by stating that the paradox of the plaintiff's claims cannot be overstated.

 

72.         But that is not the end of the matter and it seems to the court that §9 of the plaintiff's statement of claim may be read in the past tense, and that being so, the court does not agree with the defendants that there is necessarily a paradox inherent in the plaintiff's case.  If I am correct in this regard, and subject to my comments below as regards a conclusive determination as to the validity of the receivers' appointment and further particularisation of the plaintiff's claim, if necessary, then the plaintiff's pleadings disclose a reasonable cause of action [to use the wording of the original O.19, r.28] and the court is not satisfied that the pleadings are frivolous, vexatious or an abuse of process.

 

73.         It seems clear to the court that whilst Stack J did not make a formal finding on the validity of the appointment of the defendants as receivers, she was certainly not satisfied in the context of an interlocutory application to rely on the judgment of Murphy J in the manner as contended for by the defendants.  If ultimately it is held by a court upon further interrogation of the appointment of the defendants as receivers that they were not validly appointed [and that does not fall to be decided by this court], then the plaintiff's claim in the proceedings as currently constituted must necessarily fall away, and the plaintiff may have recourse elsewhere, or the plaintiff may apply to amend his pleadings to, for example, claim damages for trespass.

 

74.         However, if the appointment of the defendants is valid [and this may well be the case when the concerns expressed by Stack J are considered further in due course when full proofs are before the court], then it remains open to the plaintiff to accept that position and prosecute the proceedings to a conclusion [and provide further and better particulars of his claim if he so desires].  Likewise, it remains open to the defendants to seek further and better particulars from the plaintiff, if same are required to fully defend the proceedings, and it is certainly not beyond the realms of possibility that the principles as set forth in Medforth may fall to be considered in the context of a properly particularised claim in these proceedings.

 

75.         As to the correct forum for the determination of the validity of the receivers' appointment, it must be remembered that firstly; it is open to a litigant to plead in the alternative and secondly; it is open to a litigant to apply to amend pleadings.  That being so, this court is of the view that the plaintiff's pleadings, as they stand at the moment, are not incapable of being remedied/amended such that the plaintiff could plead in the alternative and, in the same set of proceedings [i.e., the proceedings to which the defendants' motion relates], have the validity of the appointment of the receivers conclusively determined and then, depending upon the outcome of that determination, the extent of the receivers' duties to the plaintiff may be considered or the plaintiff may, for example, claim damages for trespass, if his pleadings were so amended to support that claim.  Such a plea in the alternative would not, in this court's view, rely on 'alternative facts' [which would clearly be inappropriate] but rather would turn on the legal basis underpinning the receivers' appointment.  Alternatively, it may well be open to the plaintiff to question the validity of the receivers' appointment in the context of the 2019 proceedings, but it is not the function of this court to advise or direct the plaintiff in this regard.

 

76.         This court must also consider the argument that the defendants put forward before Stack J in the context of the interlocutory application in the 2019 proceedings as set out at §27 above [with emphasis supplied] and there is no indication in the judgment of Stack J delivered on 25 February 2022 that the defendants had alerted her to the motion to strike out the proceedings, noting that the motion to strike out issued on 25 August 2020, long before the interlocutory application in the 2019 proceedings came before Stack J.  In the circumstances, it is the view of the court that the defendants are estopped from seeking to have the proceedings dismissed, given the representations as made to Stack J and as set out at §36 of her judgment.

 

Conclusion

 

77.         Thus, and in all the circumstances, this court is of the view that:

a.    the defendants' motion is somewhat precipitous, given that the validity of the appointment of the receivers remains to be fully determined and it remains open to the plaintiff, at his option, to take the steps as set out at §73-§75 above];

b.   a motion to compel further and better replies to particulars may be necessary in the context of the proceedings so that consideration may be given as to whether or not the plaintiff can bring himself within the test at set out in Medforth; and

c.    the representations made to Stack J as set out at §36 of her judgment are predicated upon the plaintiff maintaining the case presently before this court;

and in light of the foregoing, this court is not satisfied to grant the relief sought by the defendants at this point in time.

 

78.         The court is mindful that it could adjourn the defendants' motion [in a similar manner to that of Simons J in Mohan ] to allow the plaintiff time to remedy his position as discussed above, but in circumstances where there are two sets of extant proceedings involving the same parties and only one of those is before the court, the better course of action is to hear the parties, on Thursday 27 March 2025 [see below], regarding the appropriate orders to be made and the consideration of a transfer to the Chancery List with a view to both sets of proceedings being managed together.

 

79.         As regards the second relief sought by the defendants, being an order pursuant the inherent jurisdiction of the High Court restraining the plaintiff from issuing further proceedings against the defendants, their servants or agents, save with the prior permission of the President of the High Court this relief was not pressed by counsel at hearing and indeed counsel for the defendant correctly drew the court's attention to §60 of the judgment of Stack J in the 2019 proceedings wherein Stack J stated "[h]owever, again it seems to me that, for the reasons already set out above, this is not a situation where the defendant is engaged in harassment of the plaintiffs or an abuse of process by engaging in serial litigation where issues are held back until proceedings are determined and then fresh proceedings are issued in order to litigate issues which could have been decided in the first proceedings" and, as such, the court is not prepared to grant such relief at this juncture.

 

Costs

 

80.         In circumstances where the defendants have not been successful in their application, and there is nothing of note concerning the particular nature and circumstances of the case, or the conduct of the proceedings by the plaintiff in the context of this motion, the court is inclined to award the plaintiff, as a litigant in person, his expenses and outlay in respect of the motion, which represents the 'default position' under RSC O.99, rr.2 and 3.  However, it is open to the parties to contend for the making of a different form of costs order and I will hear the parties in relation to the precise form of order to be made.  I propose listing this matter, in person, for 10:30 on Thursday 27 March.

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