Court of Appeal dismisses appeal striking out abuse of process proceedings and injunction application.

UNAPPROVED NO REDACTION NEEDED

THE COURT OF APPEAL Record Number: 2025/17 Neutral Citation Number [2025] IECA 154 Costello P Meenan J MacGrath J

BETWEEN/

ANNE BURNS AND GERRY BURNS PLAINTIFFS/APPELLANTS

-AND-

THOMAS BYRNE, BCM GLOBAL ASI LIMITED, PROMONTORIA SNOW DAC, THOMAS MCNULTY, JOSEPH MCNULTY, IPPCOVE LIMITED, TAILTE ÉIREANN, HILARY LARKIN, MAZARS IRELAND

DEFENDANTS/RESPONDENTS

Judgment of Mr Justice Michael MacGrath delivered on the 29th of July 2025

1. This is an appeal by Mr and Mrs Burns, hereafter referred to as the appellants, against the orders of Cregan J made on the 20th November 2024 and perfected on the 8th January 2025, refusing an application for an interlocutory injunction to stay the registration of dealing number D2024LR055800Y on Folio LM16013F pending the trial of the action. The property the subject matter of the dealing is located at 6 Duncarberry Heights, Tullahan, County Leitrim (hereafter referred to as “the property”). The dealing relates to an application by IPPCove Ltd, the sixth respondent, to Tailte Eireann, the seventh respondent, to be registered as owner of the property. Cregan J also struck out the proceedings in their entirety as being an abuse of process and that order is also appealed.

The Parties to These Proceedings

2. The appellants claim to be the owners of the property. The first respondent, Mr Thomas Byrne, is the company secretary of BCM Global ASI Ltd - the second respondent. On the 30th March 2021, the entity, Link ASI Ltd, changed its name to BCM Global ASI Ltd, hereafter referred to as BCM Global. The third respondent, Promontoria Snow DAC, has been joined to the proceedings because of an assertion that issues arise from their alleged involvement in the securitisation of the mortgage in 2019. Thomas McNulty, the fourth respondent, is a director of the sixth respondent, IPPCove Ltd. Joseph McNulty, the fifth respondent, is also a director of IPPCove Ltd. The seventh respondent is the body charged, inter alia, with registration of titles. The eighth respondent, Ms Hilary Larkin, is the receiver of the property who was appointed to sell the property by the ninth respondent, Mazars Ltd. They were appointed as the agents of the second respondent for that purpose.

The Reliefs Sought in the Notice of Motion and Proceedings

3. In their notice of motion issued on the 22nd April 2024, the appellants sought an interim injunction to stay the registration of dealing Number D2024LR055800Y on Folio LM16013F pending the trial of the action and any subsequent appeals.

4. The orders sought in the substantive proceedings are as follows:

(1) A quia timet injunction staying the registration of dealing number 2024LR055800Y pending trial of the within matter and any subsequent appeals.

(2) An order setting aside the transfer between BCM Global and IPPCove Ltd “been a reviewable disposition, fraudulent…and illegally executed and contrary to statutory law, common law and constitutional law”.

(3) Further and other relief, interest, costs and damages.

I should also note that no claim for damages for trespass is pleaded in this case.

5. The appellants claim various declarations, many of which are centred on the contentions that the property is and was a family home and that BCM Global is not a mortgagee, rather a credit servicer. They seek:

(1) A declaration that a “reviewable disposition” under what might collectively be described as the Family Law Acts, was created in relation to the disposal of the property, which is described as a family home within the meaning of the Family Home Protection Act 1976, as amended.

(2) A declaration that the transaction between BCM Global and IPPCove Ltd be set aside as being such a reviewable disposition.

(3) A declaration that the option to purchase existed and was exercised at the time of sale, “assuming that the appellant’s refusal to consent to the option for the sale of her family home and, following the exercise of the option, would further refuse to consent to the subsequent contract for sale, if such was the case then the option could not be legally exercised by the purchaser”.

(4) A declaration that such an option falls within the definition of disposition under the Family Law Act 1995, s. 35, and is therefore reviewable.

(5) A declaration that no enquiry was made in relation to the Family Home Protection Act in respect of the first appellant’s occupation of the property as a non-conveying beneficiary.

(6) A declaration that the mortgagee did not seek a court order for repossession of the property, did not provide evidence to show that the power of sale had arisen, nor provide evidence that the mortgagee was in a position to furnish vacant possession or evidence of compliance with the provisions of the Family Home Protection Act.

(7) A declaration that no deed of assurance from the mortgagee, nor the credit servicer, was provided in accordance with the Registration of Title Act 1964, s.

62 and the power of sale by a mortgagee.

(8) A declaration that BCM Global (a credit servicer) did not have the power to enforce the credit agreement, contrary to the provisions of the Central Bank Act 1997, s. 28, as amended by the Consumer Credit Act 2015.

(9) A declaration that the first appellant entered a notice of marriage under the Family Protection Act 1976, s. 12, on Part 2 of the Folio.

(10) A declaration under the Land and Conveyancing Law Reform Act 2009 (the 2009 Act) , sections 97 and 100, that no court orders for possession and/or sale of the property were obtained by the receiver or credit servicer prior to sale.

(11) A declaration that the sale of the property, being a “housing loan”, by the credit servicer, required a court order or borrower consent in accordance with the provisions of the 2009 Act, s. 100.

(12) A declaration that the Land Registry was not furnished with a solicitor’s certificate to the effect that the charge was not a housing loan mortgage and that the registered owner did not act as a consumer within the meaning of Consumer Credit legislation.

(13) A declaration that the 2009 Act, s. 100 (2) provides that a mortgagee’s power of sale does not become exercisable without a court order granted under subs. (3), unless the mortgagor consents in writing to such exercise not more than seven days prior to such exercise, and that this did not occur.

(14) A declaration that the 2009 Act, s. 100 (3), provides that after the expiration of the 28 days’ notice period required by subs. (1), a mortgagee must apply to the court for an order authorising exercise of the power of sale, and that this did not occur.

(15) A declaration that the 2009 Act, s. 96 (3) states that the provisions relating to the powers and rights conferred by Chapter 3 of the Act apply to any housing loan mortgage, notwithstanding any stipulation to the contrary and notwithstanding any powers and rights expressly conferred under such a mortgage, and that this was completely ignored.

(16) A declaration that no evidence was lodged with the Land Registry that the charge was not a housing loan mortgage within the meaning of the 2009 Act, s.

3 and the Consumer Credit Act 1995, s. 2 (1) and that the mortgagor was not a consumer within the meaning of the Consumer Credit Act 1995, s. 2 (1) for the purposes of the relevant charge/mortgage, and that the provisions of s. 100 (2)

and (3) were contracted out of in the deed of charge.

The Basis for the Relief Claimed

6. In his affidavit grounding the application, the second appellant avers:

(1) The property, which he describes as the family home, was sold by BCM Global to the fourth, fifth and sixth respondents without a court order, without notice and without the knowledge or consent of the appellants.

(2) As a credit servicer, BCM Global did not have the power to enforce a credit agreement but nevertheless they “fraudulently and covertly proceeded with the sale”. It is contended that the arrangement was contrary to the Central Bank Act 1997, s. 28, as amended.

(3) As the mortgage was in respect of a “housing loan”, BCM Global required either consent or a court order under s. 100 of the 2009 Act. Neither was obtained.

(4) As consumers within the meaning of s. 2 (1) of the Consumer Credit Act 1995, the appellants were entitled to apply to court for a proportionality assessment and “also be made subject to an own motion assessment for unfair terms in a contract. [The appellants] were never provided with the opportunity to avail of either”.

(5) The 2009 Act, s. 21 (3) and s. 21 (5) apply and provide that the protection of a purchaser does not avail in a number of specified circumstances, including those of fraud. It is averred that the transfer was fraudulent and therefore the fourth, fifth and sixth respondents are not entitled to statutory or other protection.

(6) The 2009 Act, s. 54, empowers the court to order the refund of monies paid by a purchaser, a matter which must be determined at trial; further, damages

available to the plaintiff are not limited or attenuated, as the rule in Bain v Fothergill is inapplicable by virtue of the provisions of s. 53 of the 2009 Act.

(7) The 2009 Act, s. 74, consolidates the law in relation to fraudulent dispositions and is applicable. It is averred that the entire process engaged in by all of the respondents (although the second appellant was not alleging any form of collusion involving the seventh respondent “at this stage”) was fraudulent and contrary to law and the Constitution.

(8) The 2009 Act, s.97, provides that conditions must exist prior to a mortgagee, not a credit servicer, taking possession of the mortgaged property. The receivership was terminated prior to the appointment of BCM Global, who is merely a credit servicer, and therefore has no legal standing to “do anything other than to service [the appellants’] mortgage”.

(9) The 2009 Act permits a mortgagee to delegate powers which they enjoy under that Act to a receiver and not to a credit servicer, thus further confirming that BCM Global has no legal standing to do anything other than service the mortgage.

(10) Any dealings with the property by a “third party” required that party to have the benefit of a power of attorney, duly attested by the appellants; and therefore “if BCM Global decides that it can enforce the terms of our deed of mortgage (and charge) based on third-party power of attorney... this is merely a bald assertion since it is clearly prohibited under law”.

(11) The property is a family home. No enquiries were made as to the status of the property being a family home and therefore the transaction between the first, second and third respondents ought to be set aside as being a reviewable disposition. The first appellant has also sworn an affidavit in support of this contention. It is claimed that in consequence, the sale should be rescinded.

(12) A deed of assurance was not obtained from the mortgagee, as opposed to a credit servicer, as required by the Registration of Title Act 1964, s. 62, and the power of sale by a mortgagee. An order for possession and/or sale of property was not obtained by the receiver or credit servicer prior to the sale. Tailte Eireann was not furnished with a certificate to the effect that the charge was not a housing loan mortgage, and that the registered owner did not act as a consumer within the meaning of the Consumer Credit Legislation. In the absence of consent by the mortgagor, the mortgagee’s powers of sale were not exercisable without a court order granted in accordance with the 2009 Act, s. 100 (3). The respondents ignored the provisions of s. 96 (3) of the 2009 Act which provides that the powers and rights conferred by the 2009 Act, Chapter 3, including ss. 100 (2)

and (3), apply to housing loan mortgages, notwithstanding any stipulation to the contrary.

(13) No evidence was provided to Tailte Eireann that the charge was “not a housing loan mortgage” within the meaning of the 2009 Act and the Consumer Credit Act 1995.

7. The respondents filed affidavits denying the claims, disputing the contention that the property is a family home and explaining how an error arose in the naming of Everyday Finance DAC as a party to the contract with IPP Cove Ltd. Ms Margaret Hartigan, senior asset manager with BCM Global, in her affidavit sworn on the 14th June 2024, avers that BCM Global is the registered owner of the charge over the property and was not merely acting as service provider for the registered owner. She addresses the chain of title and the appointment of Ms Larkin as receiver. The property was transferred to IPPCove Ltd on the 20th March 2024 and since that time BCM Global has had no beneficial or legal interest in it. A copy of the deed of transfer is exhibited. The chronology is considered below. It is also averred that the Promontoria Snow DAC is not and has never been the registered owner of the charge on the property. Ms Hartigan exhibits proceedings entitled Gerry Burns v Attorney General, the Property Registration Authority, Link ASI Ltd, Mazars and Hilary Larkin, record no. 2021/4009 P (the 2021 proceedings), to which BCM Global - then named Link ASI Ltd - was a party. These proceedings, and the issues raised in respect of them, are discussed in more detail below.

8. Further affidavits were filed by the second named appellant on the 24th September 2024. One such affidavit, for the most part, addresses concerns regarding the operations of Everyday Finance DAC. The second appellant refers to an opinion which he obtained. He could find no evidence of loans or loan portfolios held in their financial statements. He also avers that the majority of the proceedings were prepared while he was in hospital, and references a Family

Home Declaration and notice of marriage which were filed with the Land Registry. He provides details of the complaint which he made to members of An Garda Siochana.

9. The first named appellant also swore an affidavit on the 24th September 2024 in which she avers that the first, second, third, fourth, fifth, seventh and eighth respondents had not raised issue, nor sought clarification as to whether the transaction was a disposition within the meaning of the Family Law Act 1995 or the Judicial Separation and Family Law Reform Act 1989. She is not registered as either a joint tenant or tenant in common of another property in County Cavan property but is registered as a joint tenant of the property which is the subject matter of these proceedings. Both appellants continue to use the County Leitrim property because of its proximity to Cavan hospital and other critical medical care facilities. She maintains that it is their principal private residence.

Chronology - Summary

10. As is evident from the affidavits opened to the trial judge and as summarised by him in his judgment, the chronology of events is as follows. The property was purchased by the appellants in July 2004 with loan facilities provided in November 2003 and February 2004 by the ICS Building Society (ICS). The total amount advanced on foot of those facilities was €274,000. On the 20th July 2004, a mortgage was created in favour of ICS. On the 7th February 2005, the appellants were registered as full owners of the property and, on the same day, a charge was registered on the folio against their interest in the property in favour of ICS. In accordance with the Central Bank Act 1971 (Approval of Scheme of Transfer between ICS Building Society and The Governor and Company of the Bank of Ireland) Order 2014 (S.I No.

257 of 2014), a scheme of transfer was approved by the Minister for Finance whereby ICS transferred its mortgage loans to the Bank of Ireland. On the 6th December 2019, Link ASI Ltd acquired the loans from the Bank of Ireland by global deed of transfer. On the 27th March 2020, Link ASI Ltd was registered as owner of the charge.

11. On the 28th January 2021, a demand was made for repayment of the sum owing, €230,865.68. On the 8th March 2021, Ms Larkin was appointed as receiver. As noted above, on the 30th March 2021, Link ASI Ltd changed its name to BCM Global ASI Ltd.

12. On the 3rd June 2021, the second appellant instituted proceedings against the Attorney General, the Property Registration Authority, Link ASI Ltd, Mazars and Hilary Larkin (record no. 2021/4009 P) in which he sought a declaration that the appointment of the receiver was void. He also sought an order directing Link ASI Ltd (now BCM Global) and Mazars to deliver up possession of the property to him. Appearances were entered. A statement of claim was sought. A motion was brought to compel delivery of the statement of claim. It was delivered on the 20th September 2022. Generalised allegations of breach of duty and constitutional duty were made against the first and second respondents for providing knowing assistance to the other respondents in carrying out what was stated to have been an unlawful and unconstitutional attack on the second appellant’s private property rights. The principal allegation against Link ASI Ltd, Mazars and Ms Larkin was that they carried out an unlawful and unconstitutional attack on his said alleged rights. Allegations were also made regarding the legality and validity of the transfer and the appointment of the receiver. Various declarations were sought, including that Link ASI Ltd enjoyed no contractual entitlement to “exercise their purported rights in relation to the charge from a position of being unable to meet the criteria specified within the constructions of the law”. The second appellant in these proceedings was the sole plaintiff in the 2021 proceedings.

13. On the 31st August 2023, BCM Global appointed Mazars as its agent. They in turn appointed Ms Larkin as receiver. On the 13th September 2023, the property was placed for sale by auction. On the 12th September 2023, the second appellant issued a motion, within the 2021 proceedings, to restrain the sale. This was heard by Bolger J on the 13th September 2023. She refused the application and also refused to stay the auction. This ruling was not appealed.

14. The property did not sell on that day. A second auction took place on the 25th October 2023. Prior to that, by letter of the 18th October 2023, the second appellant served what was described as a Notice of Intent to Sue on Default to Maintain the Status Quo, in which he called on BCM Global to cease and desist all activity relating to the sale of the property. He also sought an undertaking that it would not be sold. In light of his earlier unsuccessful application before Bolger J, BCM Global refused to give that undertaking.

15. Again, the property did not sell at auction. Subsequently, however, a purchaser was found and on the 21st February 2024, BCM Global entered into a contract of sale with IPPCove Ltd. The contract erroneously named Everyday Finance DAC as the vendor. Nevertheless, by deed of transfer dated the 28th March 2024, BCM Global transferred the property to IPPCove Ltd, thus completing the sale.

16. On the 4th April 2024, IPPCove Ltd lodged an application with Tailte Eireann to be registered as owner of the property under dealing number D2024LR055800Y. On the 9th April 2024, these proceedings were instituted. A motion for interlocutory relief was issued on the 22nd April 2024 and made returnable to the 30th April 2024. Tailte Eireann gave an undertaking not to progress the dealing until the dispute was determined.

17. On the 15th November 2024, shortly prior to the date on which the injunction application was due to be heard, the appellants issued a motion, returnable to the 11th December 2024, seeking an order vacating their application for an injunction and for various orders such as discovery and an order “under the GDPR regulations” to restrain the respondents from processing the appellants’ personal data until they could demonstrate a lawful basis under Article 6(1) of those regulations. As Tailte Eireann sought to be released from their undertaking, however, the appellants proceeded with the application.

18. On the 20th November 2024, Cregan J heard and refused the injunction application and struck out the proceedings.

19. By email and letter dated the 28th May 2025, prior to the hearing of this appeal, the court was informed by the solicitor representing IPPCove Ltd, as follows :

“As you know, the High Court Judge rejected the application, released the eighth-named Defendant from its undertaking associated therewith and refused the Plaintiffs’ application for stay on those orders.

Please note that Tailte Éireann has now processed the above-mentioned dealing, registered our client’s interest in the secured property and updated the folio to confirm that our client is now its registered owner. We enclose herewith updated Land Registry folio, for reference”.

IPPCove Ltd was registered as full owner of the property on the 4th April 2025. BCM Global’s charge was also cancelled on that day. Notice of completion issued on the 15th May 2025.

20. In light of these developments, it is now part of the respondents’ contention that this appeal is moot. On the hearing of this appeal, the second appellant accepted that the loan has not disappeared. Nevertheless, no repayments have been made by the appellants to any entity since approximately 2010.

Decision of the Trial Judge

21. Cregan J concluded that the appellants had failed to discharge the onus of proof to satisfy the court of the criteria for the granting of an injunction, namely, as stated by him, that there is a serious issue to be tried, that the balance of justice/convenience lay in favour of granting it and as to whether damages would not be an adequate remedy. He held that the party which was most seriously prejudiced by the injunction was IPPCove Ltd because (1) it had purchased the property, (2) it could not register its ownership because of the Tailte Eireann undertaking, and (3) “most crucially, it [could not] get insurance on the property which it purchased because of the fact that the insurance company want[ed] proof of ownership”, being registration as owner on the folio.

(a) No serious issue to be tried

22. Cregan J stated that the most serious and relevant issue which had been raised was the fact that BCM Global was not the owner of the charge and therefore did not have the authority to sell the property. He was satisfied, nevertheless, that:

(1) The appellants borrowed money from ICS and “never paid a penny on their mortgage loans from 2010 to date, a period of over 14 years”.

(2) He rejected the appellant’s contention that the loan had not been transferred to Link ASI. Bank of Ireland had transferred the loans and charge to Link ASI in November 2019. The global deed of transfer clearly showed that both the loans and mortgage were transferred and sold to Link ASI.

(3) Link ASI registered its charge on the folio. The folio was exhibited and opened to the Court.

(4) Link ASI wrote a letter of demand calling in the loan. He rejected the second appellant’s submission that he did not know to whom the loan should be paid as being “simply absurd”. Cregan J was satisfied that the second appellant knew exactly to whom to pay the loan, that he had just refused to pay it, that he could easily have telephoned Link ASI or Bank of Ireland but that he had declined to

do so and instead “took refuge behind writing letters seeking information and refusing to pay because letters were not answered”.

(5) Link ASI then changed its name to BCM Global.

(6) BCM Global had the right to sell the property to discharge the loan.

23. As noted above, an error had been made in BCM Global’s contract for sale, which the trial judge described as sloppy and significant. On the face of the contract, the vendor was stated to be Everyday Finance DAC. It should have been BCM Global. Cregan J felt that this error had given the second appellant an opening to assail the entire transaction, an assault which might have succeeded were it not for submissions made by counsel on behalf of BCM Global and IPPCove Ltd. While it was careless of BCM Global not to properly review the contract before it was signed, or to ensure in any other way that it was correct, nevertheless, he was satisfied that on a proper construction of the contract, viewing it as a whole in the light of all of the evidence, the correct vendor was, and always was intended to be, BCM Global, not Everyday Finance DAC. Their inclusion was clearly in error. They had nothing to do with the property. They had no title to the loan or the charge. BCM Global purchased it from Bank of Ireland. In the circumstances, he was satisfied that while the appellants had simply thrown “the kitchen sink” into their plenary summons and had alleged all sorts of causes of action, none of the causes of action in the pleadings reached the level of a serious issue to be tried. He refused the injunction on that basis.

(b) The balance of justice/convenience

24. The trial judge was also satisfied that the balance of justice and/or the balance of convenience was not in favour of granting the injunction. It was clear on the evidence that there was now a new owner of the property who was affected by the proceedings. Because the property had already been transferred, damages were an adequate remedy in the event that the appellants were successful in the proceedings. Significant issues arose for consideration in the balance of convenience and/or the balance of justice other than damages being an adequate remedy.

These included the appellants’ refusal to pay the mortgage since 2010, which had given rise to what he described as the “extraordinary situation where the second named plaintiff believes that he can simply refuse to pay a single euro towards his mortgage - not even the interest payments for a period of 14 years - and yet seek equitable relief from this Court . The plaintiffs’ (sic) conduct is, quite simply, a wilful default on their loan obligations”. The trial judge was satisfied that the second appellant knew that in the event of such default the loan would be called in, and he also knew that the charge holder would seek to sell the property.

This was not a case where he had been attempting to pay interest and pleading inability to pay. Rather, it was a simple and wilful default which was to be considered in the assessment of the balance of justice. The second issue was the sale of the property. The property had already been sold. The second appellant had tried to restrain the sale by injunction. He was unsuccessful and he did not appeal that ruling. The second appellant had indicated to the court on the hearing of the application that his decision not to appeal Bolger J’s ruling was a “gamble on his part” and that he hoped that he had done enough to prevent BCM Global from selling the property.

Cregan J described this gamble as a “miscalculation” because BCM Global, “as it was fully entitled to do”, sold the property. Because the property was now sold, IPPCove Ltd was an affected party, a matter to which some weight ought to be attached in considering the balance of justice. Third, the second appellant had asserted that the property constituted a family home and had provided a statutory declaration to that effect. Cregan J was prepared, for the purposes of the application, to assume that the property was the family home, but he was satisfied that this did not alter the analysis.

It did not in and of itself prevent a bank or charge holder from selling that property. He added that if the second appellant was so concerned about the family home, he ought to have attempted to pay the mortgage and to engage with the bank. Further, in the light of the unappealed order of Bolger J, the issue of whether the property was the family home did not persuade Cregan J to give it undue weight in assessing the balance of convenience.

25. The fourth issue was insurance on the house. Cregan J was concerned that “that the purchaser has purchased property in or about March 2024, and this property has been uninsured between March 2024 until… November 2024”. This was “clearly a disastrous situation” for IPPCove Ltd as it could not be insured by them without proof of ownership, something which required registration. It was “potentially catastrophic, in the event of damage to the property” and he described this as “a major issue in the balance of convenience and/or the balance of justice”. The second appellant informed the court that he had insured the property. When asked how he could have done so when it had been sold to another party and therefore that he had no insurable interest in it, he responded that he did not accept that it had been sold. He also accepted, in answer to the trial judge, that he had told the insurance company that there was no mortgage on the property, because he did not believe that there was a mortgage on the property. Cregan J described this as an absurd and unsustainable submission, given the overwhelming evidence to the contrary. He was also of opinion that it was likely that an insurance company would, on the current state of the evidence, refuse to pay in the event of a claim.

26. At the time of delivery of his ruling, Cregan J did not have sight of the insurance policy. It seems that this had been transmitted to the solicitors for IPPCove Ltd on the morning of the hearing. This has been admitted as fresh evidence on this appeal.

27. For the above reasons, Cregan J was satisfied that the balance of justice was overwhelmingly in favour of refusing the injunction. He was not satisfied that the appellants’ undertaking as to damages was anything but wholly illusory. It was without substance and no weight could be placed on it.

(c) Abuse of process

28. Cregan J also refused the application because it was an abuse of process. He described as extraordinary that instead of bringing a second application in the 2021 proceedings, an entirely new set of proceedings was issued and that the appellants, for their own reasons, had decided to join eight respondents; adopting what he described as a scattergun approach. Cregan J agreed with counsel that the proceedings should be struck out as an abuse of process for the following reasons:

(1) The 2021 proceedings concerned “exactly the same property at the heart of this dispute”; the order of Bolger J had not been appealed and no further steps had been taken in those proceedings. These proceedings related to exactly the same property, albeit with some different respondents.

(2) The injunctive relief sought amounted to an attempt to have a “second bite at the cherry”. While the application in the 2021 proceedings was to restrain the sale, and the current application to restrain registration of the transfer, it was, in substance, an attempt to re-litigate the first unsuccessful attempt at seeking an injunction. The only real difference between the applications is that time had moved on. The appellants were now attempting to circumvent Bolger J’s

decision. It was a collateral attack on her unappealed decision. The second appellant’s gamble not to appeal was a miscalculation. The appellants had

decided to institute a second set of proceedings to “mask the true nature of the application”. No convincing reason was given for so doing.

29. Relying on the principle in Henderson v Henderson, Cregan J struck out the proceedings as an abuse of process. Cregan J was also satisfied that the appellants had attempted to “weaponise” the legal process to increase the costs on all of the respondents in what he described as a “vindictive and unmeritorious campaign to interfere with the sale and purchase of their property”.

30. When striking out the proceedings, Cregan J noted that the 2021 proceedings remained. Link ASI (now BCM Global) was a defendant to those proceedings, as were Ms Larkin and Mazars. He noted that there was nothing to prevent the appellants from seeking to join additional respondents if the satisfaction of the court that such parties should be properly joined was established in the normal way. He found it difficult to understand why Mr Byrne, Promontoria Snow DAC, Mr Thomas McNulty, Mr Joseph McNulty and Mazars had been joined.

The Perfected Order of Cregan J

31. Tailte Eireann were released from their undertaking as and from the 20th November 2024. The order of Cregan J was perfected on the 8th January 2025. He directed that the appellants pay the respondents the costs of the motion “together with the costs of the entire proceedings”, to be adjudicated in default of agreement. The proceedings were struck out. The application of the second appellant for a stay on the orders pending appeal was refused. Tailte Eireann were granted liberty to apply in respect of any issue regarding the registration of IPPCove Ltd’s ownership of the property.

Notice of Appeal – Grounds of Appeal

32. A notice of appeal was filed on the 30th January 2025 against the entire of the decision of Cregan J. The grounds of appeal may be summarised as follows:

(1) The evidence of the second appellant was entirely dismissed by the trial judge.

(2) The proceedings were struck out in circumstances where a statement of claim was not required at this stage of the proceedings; and in consequence, the appellants were denied a substantive hearing and are now unable to prepare and issue a statement of claim, seek discovery or serve a notice for particulars, as is normal in plenary matters.

(3) The nature of the case changed quickly during the exchange of submissions and therefore the general endorsement of claim in the plenary summons no longer reflected the true nature of the overall case which the respondents were required to meet. Exceptional circumstances came to light during the exchange and it became clear that the scope of the case had been expanded which merited an application for early discovery prior to the issuing of the statement of claim,

(4) Although the second appellant had filed a notice of motion and grounding affidavit seeking early discovery prior to the hearing, this was denied when the application came on for mention, since at that stage the case was already struck out.

(5) Due to the nature of the securitisation process, each of the respondents remain unable to prove standing, right of audience, valid chain of title, compliance with various financial accounting standards, compliance with the applicable legislative framework, compliance with GDPR, Data Protection legislation and the Charter of Fundamental Freedoms, or to prove compliance with the securitisation and transfer process, or the absence, or otherwise, of any criminal issues arising.

(6) The contract for sale of the property was “deemed invalid and the process in relation to same exhibited characteristics of a criminal nature, as opined by the trial judge on day one of the hearing. However, in a complete about-turn on day two during his summing up, the trial judge ordered Tailte Eireann to process the dealing regardless that the primary instrument of transfer was invalid, thereby directing that the seventh named defendant ‘break the law in order to enforce it’”.

(7) Questions which had been raised in submissions were not considered by the trial judge. It is contended that the trial judge was unaware of the nature of the material because he did not have time to read “the plethora” of affidavits and related submissions.

(8) The trial judge’s knowledge of the securitisation process was scant, which was reflected in his judgment.

33. Reliance is placed on the provisions of the Constitution, the European Convention on Human Rights and decided authority in support of the appellants’ argument that the right to be heard and to cross-examine witnesses was infringed. It is submitted that the trial judge must be unbiased and independent. It is contended, in the notice of appeal, that there was a lack of strict proofs in relation to, and compliance with, mandatory GDPR requirements, securitisation legislation and international accounting standards.

34. The second appellant also submits that the parties to the 2021 proceedings were different to those in these proceedings; his wife is a co-plaintiff in these proceedings but was not named in the 2021 proceedings and of the nine respondents in the instant proceedings, only four were respondents in the 2021 proceedings. He therefore submits that the rule in Henderson v Henderson does not apply.

35. All respondents except IPPCove Ltd oppose the appeal in its entirety. IPPCove Ltd submit that the trial judge was correct in refusing the relief sought, but do not contest the appeal against the order striking out the proceedings as they had not formally sought such order. The other respondents oppose that ground of appeal.

Notice to Admit Additional Evidence on Appeal

36. In an affidavit sworn on the 4th April 2025, Mr James Canny, solicitor on record for IPPCove Ltd, avers that on the morning of the hearing before Cregan J, a copy of the insurance policy was sent to him but, due to its extremely belated receipt, the policy was not before the court. Mr Canny noted that the judgment referred to the policy of insurance and that Cregan J relied on it when determining whether to grant or refuse the application.

37. By order made on the 2nd May 2025, Noonan J who observed that it appeared that leave to adduce the evidence may not be required, and that the motion was issued out of an abundance of caution, directed that the application be granted. He reserved the costs of that motion to the hearing of the appeal.

Discontinuance of the 2021 Proceedings

38. On the day on which this appeal was assigned a hearing date, the second appellant served a notice of discontinuance of the 2021 proceedings. The respondents contend that the appellants cannot avoid the determination of abuse of process, or the striking out of these proceedings, by taking such a step.

Discussion and Analysis

39. It appears to me that the following issues arise for consideration:

(1) Is the appeal against the refusal of the appellants’ application for an injunction moot in light of the subsequent registration and completion of the dealing prior to the hearing of the appeal?

(2) Did the trial judge fall into error in the exercise of his discretion to refuse the injunction?

(3) Did the trial judge fall into error in exercising his discretion to strike out the proceedings as being an abuse of process?

40. On the face of it, if the answer to the first question is yes, then a consideration of the second question would seem to be unnecessary. Nevertheless, for reasons which I explain below, I believe that it is also necessary to address the second question, even if the answer to the first question is yes. The first question is dependent on a consideration of the legal consequences of events which have occurred since the decision of Cregan J. The second involves an analysis of the manner in which the trial judge exercised his discretion when refusing the injunction. The answer to the third depends on whether trial judge was correct in exercising his discretion to strike out these proceedings, because, in substance, the relief now sought was previously sought and refused in the context of the 2021 proceedings and no good reason has been advanced to justify why fresh proceedings have been issued.

Mootness

41. The sole relief sought by appellants in their application is for an injunction to stay the registration of the dealing pending the trial of the action and any subsequent appeals. The trial judge refused these reliefs and he also refused an application for a stay on his order pending this appeal. There was, therefore, no stay on his order pending the hearing of this appeal. He also released Tailte Eireann from its undertaking. In those circumstances, I am satisfied that there was no legal impediment preventing IPPCove Ltd and Tailte Eireann from progressing the dealing and completing the registration. This has now occurred.

42. The approach to the issue of mootness was considered recently by this court in Harte v The Superior Courts Rules Committee [2025] IECA 23 and was comprehensively addressed by Burns J from paras. 19 to 22. Proceedings may be said to be moot where there is no longer any legal dispute between the parties: the eventual decision would be of no practical significance to the parties - Gould v Collins [2005] 1 ILRM 1, per Hardiman J - and where a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. A live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision: Borowski v Canada [1989] 1 SCR 342. The rationale is explained by McKechnie J in Lofinmakin v Minister of Justice, Equality and Law Reform [2013] 4 IR 274, at paras. 59 to 61, as follows:-

“The rule by which a court will decline to hear and determine an issue on the grounds of mootness is firmly based on the deep rooted policy of not giving advisory opinions, or opinions which are purely abstract or hypothetical.

This policy stems from and is directly related to the system of law within which our courts discharge their essential function of administering justice.

Apart from any special jurisdiction conferred by statute, by the Constitution, or resulting from our membership of the European Union, the system in question is fully adversarial. Consequently, there must exist some issue(s), embedded within a factual or evidential framework, the determination of which is/are necessary so as to resolve the conflict or dispute which necessitated the proceedings in the first instance. It has therefore always been recognised that, without such a concrete foundation, the courts typically will decline to intervene.

In addition to this basic justification for the rule, there are a number of other reasons which support its existence, including what has been described as ‘judicial economy’, which can also be termed ‘judicial efficiency’ or ‘judicial effectiveness’. In a time of scarce and declining resources on the one hand and of an ever increasing stream of litigation, much of which is lengthy and complex, on the other, the courts must consciously scrutinise and carefully calculate how best they can fulfil their functions. Consequently, where necessity of resolution is not required, the courts quite correctly will be most reluctant to get involved.

There is another related but broader consideration which must also be kept in mind: it is that the discharge of the judicial function is best performed where the reference point is focussed on resolving defined issues in a concrete legal setting. In that way there is much less danger of inadvertently overstepping the reach of the judicial role as envisaged in Article 34 of the Constitution…”.

43. At para. 82, McKechnie J summarised the applicable principles:-

“(i) a case, or an issue within a case, can be described as moot when a

decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing;

a. therefore, where a legal dispute has ceased to exist, or where the issue has materially lost its character as a lis, or where the essential foundation of the action has disappeared, there will no longer be in existence any discord or conflict capable of being justiciably determined;

b. the rationale for the rule stems from our prevailing system of law which requires an adversarial framework, involving real and definite issues in which the parties retain a legal interest in their outcome. There are other underlying reasons as well, including the issue of resources and the position of the court in the constitutional model;

c. it follows as a direct consequence of this rationale, that the court will not – save pursuant to some special jurisdiction – offer purely advisory opinions or opinions based on hypothetical or abstract questions;

d. that rule is not absolute, with the court retaining a discretion to hear and determine a point, even if otherwise moot. The process therefore has a two step analysis, with the second step involving the exercise of a discretion in deciding whether or not to intervene, even where the primary finding should be one of mootness;

e. in conducting this exercise, the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule, and therefore should only do so reluctantly, even where there is an important point of law involved.

It will be guided in this regard by both the rationale for the rule and by the overriding requirements of justice;

f. matters of a more particular nature which will influence this

decision include:-

(a) the continuing existence of any aspect of an adversarial relationship, which if found to exist may be sufficient, depending on its significance, for the case to retain its essential characteristic of a legal dispute;

(b) the form of the proceedings, the nature of the dispute, the importance of the point and frequency of its occurrence and the particular jurisdiction invoked;

(c) the type of relief claimed and the discretionary nature (if any)

of its granting, for example, certiorari;

(d) the opportunity for further review of the issue(s) in actual cases;

(e) the character or status of the parties to the litigation and in particular whether such be public or private: if the former, or if exercising powers typically of the former, how and in what way any decision might impact on their functions or responsibilities;

(f) the potential benefit and utility of such decision and the application and scope of its remit, in both public and private law;

(g) the impact on judicial policy and on the future direction of such policy;

(h) the general importance to justice and the administration of justice of any such decision, including its value to legal certainty as measured against the social cost of the status quo;

(i) the resource costs involved in determining such issue, as judged against the likely return on that expenditure if applied elsewhere; and the overall appropriateness of a court decision given its role in the legal and, specifically, in the constitutional framework”.

44. As Burns J noted in Harte, at para. 22:

“The question of mootness is therefore determinable by reference to the “two-step analysis” outlined in Lofinmakin, namely a) are the proceedings moot, and if so, b) should the Court nonetheless exercise its discretion to determine the moot legal question”.

45. Adopting and applying the above principles and approach, as the sole relief sought by the appellants in their notice of motion is to restrain a dealing which is now complete, the relief claimed has been overtaken by later events. The injunctive relief claimed by the appellants cannot now be granted. There is no longer a lis between the parties on the issue which is at the heart of the injunction application. The primary finding, therefore, is that the appeal is moot.

46. McKechnie J noted in Lofinmakin that departing from the rule against hearing a moot case (and, I should add, a moot issue) should be the exception and should be embarked upon by a court reluctantly and with caution. On the face of it, the appeal against the refusal of the injunction does not come close to what might be considered a test case, nor to have the attributes of the type of case where exceptional grounds have otherwise been identified in the authorities.

47. Nevertheless, exceptionally and to avoid any perceived injustice, I propose to proceed to address the substantive issue of whether the trial judge was correct in refusing the injunction. I do so for the following reasons:

(a) The late emergence of the supervening fact of the registration,

(b) That substantive issues concerning the trial judge’s exercise of his discretion have been fully argued and ventilated in submissions to the court; and

(c) To assist in the ultimate determination of any issues concerning costs and resources which might otherwise arise following a finding that the case or issue in the case is moot (see para. 82 (f) of the judgment of McKechnie J, above);

and

(d) The interaction between the trial judge’s reasoning for exercising his discretion to refuse the injunction and his determination that the proceedings ought to be struck out.

The Appeal against the Refusal of the Injunction, the Exercise of Discretion by the Trial Judge and the Role of an Appellate Court

48. The role of an appellate court from a decision by a trial judge to grant or refuse an interlocutory application is one of review. As the decision under appeal involves the exercise of discretion, the trial judge must be afforded an appropriate margin of appreciation. This was best summarised by Irvine J in Taite v Beades [2019] IESC 92, para. 38. The role of this court is not to rehear that application of the merits - the trial judge’s decision will only be overturned in exceptional circumstances:

“…such as where the judge at first instance made a fundamental legal error or where the decision was based upon incorrect facts. The reason for the relatively restricted jurisdiction of the appellate court is because in determining whether or not to grant an injunction, the general equitable principles apply and confer on the trial judge a wide discretion as to whether he or she will grant the injunctive relief”.

Irvine J added that the exercise of discretion by a trial judge is one with which an appellate court would not likely interfere.

49. I have outlined above the trial judge’s reasoning for his refusal to grant the injunction. In submissions on this appeal, the appellants raise wide ranging issues including:

(1) Lack of compliance with banking and regulatory standards.

(2) That the manner of securitisation and transfers of the mortgage have broken the chain of title.

(3) The standing of the second to fifth respondents, alleging that they lack legal title and had misrepresented their ownership.

(4) That the terms of the agreement were unfair.

(5) Alleged breaches of GDPR regulations, including what is described as unlawful disclosures of data under the Data Protection Act 2018 and wide-ranging allegations of illegality.

50. The appellants also place emphasis on what was clearly the incorrect inclusion of Everyday Finance DAC as a party to the contract. This issue was more than adequately dealt with by the trial judge. It is evident that the suggested involvement of this entity was an error and, as the trial judge pointed out, a sloppy one. This gave rise to an opening for irrelevant arguments based on the suggested involvement of Everyday Finance DAC, their activities or their audit process, including issues suggested to arise in respect of the Basel Accord.

51. It is argued by the respondents that lack of standing was not raised in the court below and that it ought not be entertained on appeal. Regardless of whether it was previously raised, it is an unstateable proposition. As parties to the proceedings and to a transaction between a registered charge holder and a transferee, they enjoyed standing to resist the reliefs sought and to advance the meaning and effect of the transaction.

52. A potential issue in respect the contract for sale, or the misstatement of the names of the parties thereto, was cured when on the completion of the transaction, the contract merged in the deed of transfer. No specific issue arises in respect of the deed of transfer. There is much merit in the submission of the sixth respondent, IPPCove Ltd, that if an issue arose in respect of the contract or transfer, that was not a concern of the appellants: the purchaser does not raise any such issue. The deed of transfer is dated the 28th March 2024. It was signed by duly authorised officers of BCM Global under a power of attorney dated the 3rd April 2023. As registered owner of the charge on the folio, in exercise of its statutory power of sale and in consideration of the sum of €140,000, BCM Global transferred all the property described in the folio to IPPCove Ltd, freed and discharged from the charge and from all other burdens entered on the folio over which the charge ranked in priority.

53. Link ASI Ltd (now BCM Global), as registered owners of the charge at the time of the transfer, was conclusively to be considered as the owner of that charge in accordance with the provisions of the Registration of Title Act, 1961, s. 31(1) which provides:

“The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just”.

54. We are not here concerned with an application to set aside the registration on specified and permitted grounds. The registered owner of the charge became invested with the rights and powers of a mortgagee, in accordance with the provisions of the Registration of Title Act 1964, s. 62 (6). Unless rectified, this court is obliged to give effect to the register. The appellants, on whom the onus of proof lies, have not demonstrated any defect in the title or, a fortiori, that IPPCove Ltd should be disentitled to the protection afforded to purchasers under the Conveyancing Act 1881, s. 21(1) or the Conveyancing Act 1911, s.5(1), applicable to mortgages created before the 1st December 2009.

55. Therefore, any contention on this appeal that the respondents were unable to prove standing, or interest in the ownership of the charge/lands or that they should not have a right of audience in consequence, are based on a misunderstanding of the factual and legal position. Given the conclusive nature of the register, BCM Global was not otherwise obliged to prove or establish a valid chain of title in respect of the charge. The same reasoning applies, in my view, to the other suggested obligations on the respondents to prove compliance with what are very loosely described in unanchored way in the notice of appeal as GDPR, the Data Protection Act 2018 and the Charter of Fundamental Rights and Freedoms. The criticism of the trial judge’s understanding and knowledge of the securitisation process being scant is completely

irrelevant and, it appears to me, without foundation, and does not advance the appellants’ arguments in any way.

56. The onus of proof was on the appellants to satisfy the trial judge that the conditions for the granting of interlocutory relief were present. This they failed to do. They have not established that the trial judge, in the manner in which he exercised his discretion or in his ruling, made a fundamental legal error or incorrectly interpreted the facts. There is, therefore, no basis on which an appellate court could interfere with his ruling and his exercise of discretion.

57. It would seem from the manner in which Cregan J constructed his judgment that he refused it on the basis that no serious issue to be tried had been demonstrated. I am satisfied that in light of the evidence before him, and for the reasons expressed above, he was correct and did not fall into legal error in so concluding.

58. To the extent that it may be necessary to comment on the trial judge’s assessment of the balance of convenience/balance of justice, I am also satisfied that criticism of the trial judge’s reasoning does not bear scrutiny. The failure of the appellants to make mortgage repayments since 2010, notwithstanding the acknowledged continued existence of the loans (there being no evidence to show that they could not make any payments since 2010), was a relevant factor in the assessment of the manner in which discretion ought to be exercised, as was the involvement of a further party to the transaction and that damages are an adequate remedy in light of the transfer to a new owner. The trial judge also took into consideration the order of Bolger J, which was not appealed. He was prepared for the purposes of the application to assume that the property was a family home. That it may have been did not, in his view, change the analysis. It is difficult to disagree with Cregan J’s conclusion that the appellant’s must have known that their failure to pay over an extended period of 14 years would lead to the calling in of the loan and the sale of the property. The evidence advanced in support of the contention that the premises was a family home was questionable in light of correspondence to and from an address in Cavan, a letter from the second appellant’s general practitioner dated the 31st May 2024 to an address in Cavan and the addresses on other documentation exhibited in affidavits. Further, I am also of the view that it was proper for him to take into consideration the questionable status of any insurance policy over the property.

59. For all of these reasons, I am satisfied that no error has been demonstrated on the part of the trial judge in the exercise of his discretion to refuse the injunction. Therefore, the appellants’ appeal against the refusal of their application for an injunction, even if not moot, must fail and must be dismissed.

Appeal Against the Order Striking Out the Proceedings

60. It is accepted by the appellants that the trial judge enjoyed a discretion to strike out the proceedings as being an abuse of process. Cregan J concluded, inter alia, that the injunctive relief sought in these proceedings was an attempt by the appellants to have a “second bite of the cherry” and that there was no valid reason for issuing the second set of proceedings. He was satisfied that they were the same. The appellants dispute this and contend that Cregan J erred in the manner in which he exercised that discretion. Whether this is so involves an assessment of the issues at the heart of both sets of proceedings.

61. The appellants submit that the instant proceedings are concerned with the prevention of registration, rather than prevention of sale, that they “can be based on new developments” and that the existence of the earlier proceedings does not mean that these proceedings amount to an abuse of process given the focus on registration and potential new grounds. They also reference matters which have since come to their attention including issues relating to GDPR, the named parties to the contract, the alleged absence of an absolute assignment and redactions to the global deed of transfer. They submit that res judicata does not apply because the trial judge did not rule on all causes of action and that there had been no final determination of the issues. They contend that:

(1) The decision on the “interim” injunction did not involve a consideration of the cause of action in what is described as the “statement of claim (subject to discovery)”. While stated to be an appeal from the refusal of an interim injunction, the application was dealt with on an interlocutory basis.

(2) The parties are not identical, the first appellant not being a party to the 2021 proceedings and several respondents in the instant proceedings were not parties to those proceedings.

(3) The causes of action are entirely different. Issues relating the contract of sale were not part of the earlier case.

(4) The relief sought in these proceedings, being an application to stay registration, is distinct from the relief previously sought to restrain the sale. Estoppel does not arise.

(5) They describe and rely on the “possibility of fraud or collusion affecting the original judgment”, citing that the trial judge alluded to the potential criminal character of the contract of sale.

(6) Issues with securitisation protocols and GDPR warrant the case being returned to the High Court for full plenary hearing.

(7) Special circumstances exist which provide a basis for an exception to the rule in Henderson v Henderson, including “that the current legal and factual bases were unknown at the time of the earlier proceedings, the second named appellants serious illness and the raising of discrete constitutional issues related to compliance failures”.

62. Although concerned with an application to restrain the sale of the property, the second appellant’s challenge in the 2021 proceedings to the prospective sale of the property by BCM Global to a then unidentified purchaser at auction centred on their legal entitlement to do so. The fundamental contention was that Link ASI Ltd, now BCM Global, could not sell the property in the manner in which they purported to do, with emphasis being placed on alleged failures of compliance with statutory obligations in relation to the sale of a family home. A declaration was also sought that Link ASI Ltd enjoyed no contractual entitlement to exercise their purported rights. Since the application before Bolger J, and her refusal of the injunction sought, a purchaser has been identified and a contract for sale concluded.

63. While the grounds in these proceedings may be somewhat more nuanced and expanded, the reality is that the cause of action is the same. The basis on which the challenge is mounted is substantially the same. The effect of a successful application for the relief claimed is the same. The matter was well put by counsel for the first, third, eighth and ninth respondents, Ms Ní Dhuagain BL, that in the 2021 proceedings the second appellant attempted to stop the train from leaving the station: in these proceedings, the appellants are attempting to prevent that same train from reaching its final destination. The underlying challenge in both proceedings is to all intents and purposes the same.

64. BCM Global (previously ASI Ltd), Tailte Eireann/ Property Registration Authority (in essence the same party), Ms Larkin and Mazars are common respondents. The only respondent to the 2021 proceeding, not named in these proceedings is the Attorney General. It is entirely unclear why he was joined in the 2021 proceedings. He was never a party to any contract relevant to the property and no title is claimed or suggested to be claimed by him. In my view, that he is not a party to these proceedings is not relevant to the consideration of whether they constitute an abuse of process. In truth, the only new real defendants to the 2024 proceedings are IPPCove Ltd and their directors, Mr Thomas McNulty and Mr Joseph McNulty. The reason for their joinder is directly related to the time at which application for injunctive relief was made in both cases and the stage of the sale process which is challenged. While the first respondent in these proceedings is the company secretary of BCM Global, nothing in the pleadings suggests he is not to be identified with that company. No cause of action is alleged against him personally and none is apparent. Allegations are made in submissions against the third respondent, Promontoria Snow DAC, concerning its tax structure. This entity is not a party to the contract for sale or to the application for registration and I do not see any basis upon which it could be contended that its joinder affects the fundamental and underlying challenge made in both sets of proceedings.

65. As for the contention that the plaintiffs are different, it is difficult to understand why the first appellant was not joined as a party to the 2021 proceedings. As co-owner, she was entitled to be joined, if not a necessary party. No reason is advanced as to why she was not joined.

66. As was explained by Whelan J in Small v The Governor and Company of Bank of Ireland & Ors [2018] IECA 393 and Flanagan v AIB Private Banking [2020] IECA 57 - and as referred to in the respondent’s submissions - the rule in Henderson v Henderson... “is concerned with the raising of litigation points in court proceedings where those points could and should have been raised in previous proceedings. It is a procedural rule which seeks, in the absence of special circumstances, to prevent the court’s processes from being abused by vexing parties for the same reason twice”.

67. Cregan J found, inter alia, that by instituting these proceedings, the applicants were seeking to circumvent the decision of Bolger J and that there was no valid reason for issuing these proceedings. The observations of Irvine J in Ashcoin Ltd v Moriarty Holdings Ltd [2013] IEHC 8, at para. 40, to which this court’s attention was drawn by the respondents in submissions, are apposite:

“Relevant to the exercise of the court’s discretion in applying the rule is whether it can be demonstrated that the party that seeks the relief does so in order to overreach, act oppressively or circumvent unfairly an adverse judicial ruling.”

68. I believe that the appellants’ application falls into this category. To distinguish the principles in Henderson v Henderson on the basis advanced by the appellant’s, in my view, would be to negate the raison d’etre for the rule’s existence. As I have stated above, the substantive cause of action in both proceedings is the same. In each case, a challenge is made to the entitlement of BCM Global to transfer its interest in the property. While the grounds may have been expanded, the relief sought is essentially the same. No good reason has been advanced as to why fresh proceedings were issued and/or why application was not made to amend the 2021 proceedings if that was thought necessary and appropriate. Nor, in my view, has a good reason been proferred as to why any of the reliefs now sought, to the extent that it contended that they are different and which are said to be new, could not have been advanced within the 2021 proceedings by way of application to amend. I am satisfied that for reasons similar to those stated by the trial judge, these proceedings constitute an abuse of process and, in principle, ought to be struck out.

69. The appellants, however, have raised a number of arguments which, in the interests of justice, I ought to address. To the extent that it is contended that the property comprises a family home, this was also an argument made before Bolger J which she took into consideration in refusing the application before her. That ruling remains unappealed. Before Cregan J, the second appellant claimed that while he had not purchased the house as a family home, it became a family home in 2015. For the purposes of his ruling Cregan J was prepared to assume that the property was a family home. That a property is a family home does not prevent its sale. (See Fennell v Creedon [2015] IEHC 711 and ACC Bank v Quinn [2014] IEHC 677). There is no evidence of existing or threatened family law proceedings and therefore no basis for advancing a claim that the provisions of the Family Law Act 1995 relied on apply or that any of the impugned transactions are capable of amounting to reviewable dispositions. No issue arises, or indeed could arise where spouses are joint tenants, regarding the disposition of an interest in the family home such as might attract the protections afforded by the Family Home Protection Act, 1976 as amended.

70. With regard to reliance by the appellant on the provisions of the Land and Conveyancing Law Reform Act 2009 (‘the 2009 Act’): the mortgage was created in 2004 before the coming into operation of that Act. The relevant provisions in chapter 3 are not retrospective and are inapplicable to mortgages created prior to the chapter’s commencement. Section 96 of the 2009 Act provides as follows:

“96.— (1) Subject to this Part, the powers and rights of a mortgagee under sections 97 to 111—

(a) apply to any mortgage created by deed after the commencement of this Chapter…”.

The provisions of ss. 97 and 100 do not therefore apply.

71. Many of the arguments advanced by the appellants have been expanded to include matters which are not pleaded. These include, for example, an alleged breach of the GDPR Regulations. It is nevertheless clear from clause 8.10 of the deed of mortgage dated the 20th July 2004 and signed by the appellants, that they consented to the sharing of personal data and information on any transfer or securitisation scheme. No reason has been advanced why this condition should not apply or bind them. Even had there been a breach or a failure to comply with GDPR in the processing of personal information without the consent of the data subject (a finding which I do not make), the appellants could have made complaint to the Data Protection Commissioner. The existence or the outcome of any such complaint cannot have the effect of disrupting an otherwise good title, which enjoys the benefit of the protection afforded by the Registration of Title Act, 1964, s. 31.

72. I am also satisfied that the securitisation process and related matters or issues concerning bank licences or all matters which cannot be relied upon by the appellants in an attempt to set aside the transfer of the lands to IPPCove Ltd. In essence, this is just another way in which the appellant seeks to invite the court to look behind the register, which is conclusive evidence of title.

73. The appellants rely on the decision of Barniville P in Fannon and O’Brien v Ulster Bank [2024] IECA 51. There, Ulster Bank Ltd argued that s. 28 (6) of the Judicature Act 1877 supported their contention that they were improper parties to the proceedings because they had

assigned their interest in the loan to Promontoria (Oyster) DAC. It was held that there was insufficient evidence of the transfer, Barniville P observing at para. 97:

“Another fundamental difficulty with Ulster's appeal concerns the argument advanced by Ulster in the High Court and, in turn, on appeal to this Court in reliance on the alleged assignment by Ulster to Promontoria of the plaintiff's loan and mortgage under the terms of a deed of transfer apparently made in December 2016 and the provisions of s. 28(6) of the 1877 Act. This argument is undermined to a fatal extent by the failure by Ulster to put in evidence a copy of the deed of transfer itself (even in redacted form) either before the High Court or this Court. This gives rise to fundamental difficulties for Ulster's dismissal application as the authorities demonstrate that in order for the provisions of s. 28(6) of the 1877 Act to apply, a number of conditions must be satisfied. One of those is that the relevant assignment was “absolute”. The plaintiff did not admit the assignment and put Ulster (and the other defendants) on proof of the assignment and its terms”.

74. Here, not only is the global deed of transfer exhibited but so too is the folio which confirms Link ASI Ltd being the owner of the charge following its registration on the 27th March 2020. Further, the deed of transfer between BCM Global and IPPCove Ltd is also exhibited. It is the registration of IPPCove Ltd in pursuance of that deed of transfer that was sought to be prohibited in these proceedings. In my view, there was ample evidence, if it was necessary, of the absolute nature of the assignment to IPPCove Ltd, and for that matter, the earlier assignment to BCM Global. There is no basis to go behind the register and to impugn BCM Global’s title to sell to IPPCove Ltd.

75. Complaint is made about the trial judge's conduct of the proceedings and it is argued that the appellants were deprived of a fair hearing and the right to be heard. I cannot accept that this is the case. I am satisfied that on any analysis, the trial judge considered all relevant matters and exercised his discretion and jurisdiction appropriately. Notices to cross-examine were not served, nor was leave sought to do so. The appellants, therefore, had no right to crossexamine witnesses and no complaint can be made that any such right to be heard was infringed.

76. The claim that the property was a family home, with all the attendant consequences suggested to flow from that, was front and centre of the 2021 proceedings; and substantially the same arguments are sought to be ventilated in these proceedings. I am satisfied that these proceedings constitute a collateral challenge to the decision of Bolger J and seek to circumvent the consequences of that previous adverse judicial ruling.

77. It is submitted that the inherent jurisdiction of the High Court to strike out proceedings is a drastic measure reserved for cases which are frivolous, vexatious or bound to fail, and that such jurisdiction should be exercised sparingly and only in clear cases. It is argued that this case is certainly not bound to fail and/or has a high probability of success and the court must take the appellants’ case at its height. It is also contended that striking out the proceedings at an early stage deprived them of a right to a fair hearing, and reliance is placed on constitutional and Convention rights in this context. I should observe that while in Mitchell v Ireland [2007]

3 IR 283, the jurisdiction to strike out proceedings for failing to disclose a cause of action was described as complementary, nevertheless, and to the extent that it is necessary to make any finding in this context, it is apparent from the above analysis that the reliefs sought by the appellants, and the arguments made in support, were either advanced in the context of the 2021 proceedings or are otherwise unstateable and cannot be saved by amendment.

78. As for the service of the notice of discontinuance between the hearing in the High Corut and this appeal, as an appellate court, this court is tasked with a review of the proceedings before the High Court. In my view, no procedural or substantive advantage can be obtained by the appellants by reason of the subsequent and voluntary discontinuance of the 2021 proceedings before this appeal was heard. Taking that measure does not improve their position on appeal and they must accept the consequences of that discontinuance. On the hearing of this appeal, it was suggested by the second appellant that he was concentrating his efforts on these proceedings, hence his decision to serve a notice of discontinuance in respect of the 2021 proceedings. In my view, this does not alter the position.

79. I see no error in the trial judge’s assessment or the exercise of his discretion in striking out these proceedings as being an abuse of process. The appeal is dismissed.

80. With regard to costs, my provisional view is that, as the respondents have been entirely successful, they are entitled to their costs of the appeal. Should the appellants wish to dispute this they may do so by way of written submissions (not in excess of 1,500 words) to be delivered within 14 days of the delivery of this judgment. The respondents may respond again, by way of written submissions (not to exceed 1,500 words) within 14 days thereafter.

81. As this judgment is being delivered by electronic means, Costello P and Meenan J express their agreement with it.