High Court dismisses plaintiff's claims as abuse of process and grants limited Isaac Wunder Order.

THE HIGH COURT

[2025] IEHC 363

Record Number 2021/5661 P

Between

Jerry Beades

Plaintiff

-and-

KBC Mortgage Finance Unlimited Company, formerly known as IIB Homeloans Limited and Pepper Finance Corporation (Ireland) DAC

Defendants

THE HIGH COURT

Record Number 2022/729 P

Between

Jerry Beades

Plaintiff

-and-

James Anderson and Pepper Finance Corporation (Ireland) DAC

Defendants

THE HIGH COURT

Record Number 2022/730 P

Between

Jerry Beades

Plaintiff

-and-

James Anderson and Pepper Finance Corporation (Ireland) DAC

Defendant

Judgment of Mr. Justice Conor Dignam delivered on the 27th day of June 2025.

BACKGROUND

1. This judgment is concerned with applications by each of the defendants in the above three sets of proceedings for Orders dismissing the proceedings on the basis that they amount to an abuse of process, are frivolous, vexatious, and are bound to fail. It also deals with an application by Pepper Finance Corporation (Ireland) DAC in the first set of proceedings for what is commonly known as an “Isaac Wunder Order”.

2. There is a very protracted history to these matters, all of which relates to two properties in Dublin: 31 Richmond Avenue and 21 Little Mary Street (together “the Properties”). Indeed, the Properties have been at the centre of several sets of proceedings in which there have been a large number of applications and appeals. It is stated in one of the grounding affidavits that “Mr. Beades has issued no fewer than three sets of High Court plenary proceedings, six appeals in the Court of Appeal and Supreme Court and various applications for stays on High Court Orders…” The background is set out in a number of judgments of this Court, the Court of Appeal and the Supreme Court. I refer to some of these below. I set out some of the background in an earlier judgment on an application by Mr. Beades to cross-examine the deponents of the defendants’ affidavits for these motions (Beades v KBC Mortgage Finance Unlimited Company & Ors [2023] IEHC 127).

3. The procedural starting point of that history, insofar as is relevant to these applications, is that in proceedings entitled “IIB Homeloans Limited v Jerry Beades Record number 2006/623P” (“the Possession Proceedings”) an Order for Possession in respect of the Properties was made by Dunne J on the 23rd June 2008 (“the Possession Order”). This was on foot of a mortgage of the 12th June 2003. Mr. Beades appealed against that Order and the Supreme Court affirmed the Order on the 12th November 2014.

4. Prior to that appeal, on the 30th September 2008, IIB Homeloans Limited converted to an unlimited company, IIB Homeloans. By special resolution of the 2nd October 2008, IIB Homeloans changed its name to KBC Mortgage Bank. The title to the proceedings does not appear to have been amended at that stage.

5. In 2009, KBC Mortgage Bank and KBC Bank Ireland plc agreed to enter into a scheme of transfer. Sections 33, 34, 35 and 41 of the Central Bank Act 1971 applied to this scheme of transfer. The scheme was approved by the Minister for Finance on the 26 th February 2009 pursuant to SI 125 of 2009 (see Costello J in IIB Home Loans Limited v Beades [2018] IEHC 390).

6. On the 18th May 2015, the plaintiff in the Possession Proceedings was granted leave to issue an execution order on foot of the Possession Order and an Order issued to the Sheriff. Possession was not obtained at that stage.

7. In 2017, KBC Bank Ireland plc applied to be substituted into the Possession Proceedings as plaintiff on foot of the transfer in 2009 and for leave to issue an Execution Order pursuant to the Possession Order. This was opposed by Mr. Beades. Costello J delivered a written judgment in respect of that application on the 29th June 2018 (IIB Home Loans Limited v Beades [2018] IEHC 390) and made that Order on the 25th July 2018. Mr. Beades appealed against that Order.

8. Following the lodging of that appeal but before it was heard, KBC Bank Ireland plc’s rights, title, interest and benefit in and to the Loan Facility, the Facility Letter and the Mortgage were transferred, assigned and conveyed to Beltany Property Finance DAC (“Beltany”).

9. By Order of Reynolds J dated the 14th October 2019, Beltany was substituted as plaintiff in the Possession Proceedings and was granted leave to issue execution on foot of the Possession Order. Mr. Beades appealed against Reynolds J’s Order.

10. Both appeals (i.e., against the Orders of Costello J and Reynolds J) were heard on the

25 th September 2020. Following this but before judgment was delivered, Pepper Finance Corporation (Ireland) DAC (“Pepper”) acquired Beltany’s rights, title and interest in the Loan Facility, the Facility Letter and the Mortgage from Beltany. Pepper was substituted into the Possession Proceedings as plaintiff in place of Beltany by Order of Twomey J on the 18 th November 2020. Twomey J also gave liberty to issue execution on foot of the Possession Order. Mr. Beades appealed against Twomey J’s Order.

11. The Court of Appeal dismissed the appeals against Costello J’s decision (of the 29th June 2018) and Reynolds J’s decision (of the 14th October 2019) on the 17th February 2021. Whelan J gave a separate written judgment in respect of each of the appeals (Pepper Finance Corporation (Ireland) DAC v Beades [2021] IECA 40 and Pepper Finance Corporation (Ireland) DAC v Beades [2021] IECA 41 respectively). (These decisions are published on the Courts Service website as KBC Bank plc v Beades and Beltany Property Finance DAC v Beades but the judgments themselves have Pepper as plaintiff. Whelan J explained that Pepper was being referred to as the plaintiff because that was the most up-to-date position in the Central Office

- presumably following Twomey J’s Order - but that it was not a pre-judgment on the substitution of Pepper as plaintiff).

12. In fact, that was dealt with by the Court of Appeal (Whelan, Ní Raifeartaigh and Binchy JJ) when it heard Mr. Beades’ appeal against Twomey J’s Order. Binchy J delivered judgment on behalf of the Court on the 14th October 2021 dismissing Mr. Beades’ appeal (Beltany Property Finance DAC v. Pepper Finance Corporation (Ireland) DAC & Beades [2021] IECA 256).

13. It appears that Mr. Beades rented out the Properties and, in addition to those applications and appeals within the Possession Proceedings, Mr. Beades has also been involved, or sought to be involved, in separate proceedings issued by Pepper against the occupants of the Properties.

14. On the 8th October 2020, Pepper commenced two sets of proceedings (one each in respect of the two Properties) against “Persons Unknown in Occupation of the Property Known as ….” (Record Numbers 2020/6888P and 2020/6889P). Two individuals entered appearances, a Ms. Margaret Hanrahan and Mr. Gabriel Petrut. Pepper also issued a Notice of Motion seeking interlocutory injunctive relief against the occupants requiring them to surrender vacant possession of the Properties. I will refer to these collectively as “the Injunction Proceedings”.

15. Reynolds J granted interlocutory injunctions on the 25th November 2020 with a stay until the 14th January 2021. It seems that none of the occupants attended but that Mr. Beades appeared at the hearing, made oral submissions and handed in two affidavits. Reynolds J held that Mr. Beades had no right of audience. He was not a party to the proceedings or the applications for injunctions.

16. Mr. Beades appealed against Reynolds’ J’s decision. Ms. Hanrahan and Mr. Pertut also appealed the decision. All three sought stays on Reynolds J’s Orders pending determination of the appeals. Noonan J in the Court of Appeal refused those applications for stays on the 15th January 2021, though he granted a short stay to Ms. Hanrahan and Mr. Pertut (but not Mr. Beades) to allow them time to vacate the properties. (There was subsequently an issue about whether this stay was for all of the occupants or just Ms. Hanrahan and Mr. Pertut but that is not relevant to these applications). The other occupants did not appeal the injunctions at that stage.

17. The occupants had not vacated the properties by the relevant dates and Pepper issued motions within the Injunction Proceedings seeking the occupants’ attachment and committal. Sanfey J heard the applications on the 4th and 5th May 2021 and reserved judgment.

18. Very shortly after that hearing (and before judgment was delivered) the occupants who had not previously appealed against Reynolds J’s injunction (i.e., other than Ms. Hanrahan and Mr. Petrut) applied to the Court of Appeal seeking (i) an extension of time within which to appeal against those interlocutory injunctions, (ii) liberty to adduce additional evidence, and

(iii) a stay on the interlocutory injunctions pending the determination of such appeal. This application was heard by the Court of Appeal (Ní Raifeartaigh, Noonan and Donnelly JJ) on 10th June 2021 and judgment was delivered by Donnelly J on the 24th June 2021 refusing the reliefs (Pepper Finance Corporation (Ireland) DAC v Persons Unknown in Occupation of the Property Known as 21 Little Mary Street and Persons Unknown in Occupation of the Property Known as

31 Richmond Avenue [2021] IECA 277).

19. Sanfey J delivered his judgment on the attachment and committal motion on the 13th August 2021 (Pepper Finance Corporation (Ireland) DAC v Persons Unknown in Occupation of the Property Known as 21 Little Mary Street and Persons Unknown in Occupation of the Property Known as 31 Richmond Avenue [2021] IEHC 559). He held that the occupants were in deliberate breach of the injunctions. The matter was adjourned from time to time thereafter. Sanfey J made ‘attachment Orders’ on the 1st October 2021, directing that named occupants and any other adult person who was still in occupation were to be brought before the Court on the 8th October 2021.

20. On the 7th October 2021, Mr. Beades appealed against the attachment Orders made by Sanfey J in the Injunction Proceedings. On the same day, Mr. Beades made an ex parte application to the Court of Appeal for short service of a motion for a stay on the attachment Orders. This was refused by Haughton J in the Court of Appeal. It will be recalled that Mr. Beades was not a party to the Injunction Proceedings in which the attachment Orders were made and was not a subject of the attachment Orders.

21. When the attachment and committal motions came back before Sanfey J on the 8 th October, correspondence from the occupants’ solicitor confirmed that all of the occupants had vacated the properties. I understand that Mr. Beades appeared before Sanfey J on that day and sought to make submissions in respect of the attachment and committal motions. It is recorded in a subsequent judgment of Donnelly J in the Court of Appeal (which I come to in a moment) that Mr. Beades was told by Sanfey J that “...he was not a party to the case, that he had tried to become a party to the application to attach and commit and that he had been told by the judge that he was not a party and had no locus standi. He was told no order was made against him.”

22. On the same date, the 8th October 2021, Mr. Beades issued applications to strike out the Injunction Proceedings on the grounds that Pepper had not delivered a Statement of Claim to him. Mr. Beades was not a defendant to those proceedings. This was refused by Allen J on the 6th December 2021.

23. On the 12th October 2021, the attachment Orders were discharged on consent as against the occupants of the Properties as they had vacated the Properties.

24. The appeals brought by Ms. Hanrahan and Mr. Pertut and by Mr. Beades against Reynolds J’s Orders granting interlocutory injunctions were heard by the Court of Appeal (Whelan, Ní Raifeartaigh and Binchy JJ) on the same date as the appeal against Twomey J’s Order substituting Pepper for Beltany as plaintiff in the Possession Proceedings. Ní Raifeartaigh J delivered judgment in respect of the appeals brought by Mr. Petrut and Ms. Hanrahan (Pepper Finance Corporation (Ireland) DAC v Petrut [2021] IECA 257). She, on behalf of the Court,

dismissed these appeals. Whelan J delivered judgment in respect of Mr. Beades’ appeal and dismissed the appeal ([2021] IECA 258).

25. Mr. Beades’ appeal against Sanfey J’s attachment Orders came before Haughton J on the 10th December 2021 on which occasion Haughton J declined to set the appeals down for hearing as two matters had to be determined first: (i) whether Mr. Beades had locus standi to prosecute the appeals; and (ii) whether the appeals were moot.

26. On the 7th February 2022, the Court of Appeal determined those points against Mr. Beades. Donnelly J delivered a written ex tempore judgment (Pepper Finance Corporation (Ireland) DAC v Persons Unknown in Occupation of the Property Known As 31 Richmond Avenue, Dublin 3 [2022] IECA 38).

27. Mr. Beades sought leave to appeal this decision to the Supreme Court.

28. It is worth noting that the occupants successfully appealed Sanfey J’s decision on the attachment and committal motion to the Court of Appeal (Pepper Finance Corporation (Ireoland) DAC v Persons Unknown [2022] IECA 170). Pepper applied for leave to appeal to the Supreme Court and the Supreme Court acceded to that application, noting that the proposed appeal raised important questions concerning the manner in which the contempt of court jurisdiction is exercised along with the jurisdiction to grant relief against persons unknown (Pepper Finance Corporation (Ireland) DAC v Persons Unknown [2023] IESCDET 20). The Supreme Court delivered its substantive judgment on the 31st July 2023 ([2023] IESC 21) and upheld the Court of Appeal’s decision.

29. It has been necessary to refer to these proceedings, applications and appeals, and it will be necessary to refer to the contents of some of the judgments, in light of (i) the defendants’ reliance in the current motions on the doctrine of res judicata and the rule in Henderson v Henderson, (ii) some of the points made by Mr. Beades at the hearing of this application, and (iii) the application for an Isaac Wunder Order.

30. While some of those applications and appeals were being dealt with by the courts, Mr. Beades also issued the first set of proceedings with which this judgment is directly concerned, i.e., the 2021 proceedings. These were issued on the 4th October 2021 against KBC Mortgage Finance Unlimited Company and Pepper. The reliefs sought are an Order setting aside the Possession Order of the 23rd June 2008, a declaration that he is entitled to possession of the Properties and damages for various wrongs.

31. Also during this period, Pepper appointed a receiver, Mr. James Anderson, over the two Properties on the 8th October 2021.

32. According to the grounding affidavit of Pepper and the receiver, the Properties were sold on the 21st February 2022.

33. On the 23rd February 2022, Mr. Beades issued both the second and third set of proceedings with which this judgment is directly concerned, entitled “Jerry Beades v James Anderson and Pepper Finance (Ireland) Designated Activity Company (Record number 2022/729P)” and “Jerry Beades v James Anderson and Pepper Finance (Ireland) Designated Activity Company (Record number 2022/730P)”. I will refer to these as the “2022/729P proceedings” and “2022/730P proceedings” respectively or the “2022 proceedings” collectively. These two sets of proceedings are almost identical to each other but the first set concerns 31 Richmond Avenue and the second concerns 21 Little Mary Street. The Plenary Summonses in these two sets of proceedings seek a large number of reliefs. In summary, these are reliefs challenging Pepper’s title to the Properties and challenging the appointment of the first-named defendant (“the receiver”) as receiver over the properties, reliefs seeking to prevent the sale or letting of the properties or any dealing in respect of the properties, reliefs seeking to prevent the defendants from entering or interfering with the properties, and orders freezing any bank accounts that might contain the proceeds of any sale of the properties. As in the 2021 proceedings, at the core of these reliefs is a claim that there was no valid mortgage of the 12th June 2003.

34. By Notice of Motion dated the 23rd February 2022, the first-named defendant in the 2021 proceedings (“KBC”) applied to dismiss those proceedings pursuant to the inherent jurisdiction of the Court on the basis that they amount to an abuse of process, are frivolous and vexatious and are bound to fail. This is grounded on an affidavit of Mr. Daragh Langan sworn on the 21st February 2022.

35. By Notice of Motion dated the 7th April 2022, the second-named defendant in the 2021 proceedings, Pepper, applied to strike out or dismiss or place a stay on those proceedings pursuant to Order 19 Rule 28 of the Rules of the Superior Courts or the inherent jurisdiction of the Court on the grounds that the Plenary Summons does not disclose a reasonable cause of action or that the proceedings are frivolous and/or vexatious, constitute an abuse of process, are bound to fail, that their initiation and/or prosecution is prohibited by operation of the doctrine of issue estoppel, the rule in Henderson v Henderson (1843) 3 Hare 100 and/or the doctrine of res judicata, and that the contents of the Plenary Summons are scandalous. They also seek what is commonly known as an “Isaac Wunder Order” prohibiting Mr.Beades from issuing any further proceedings without prior leave of the Court against certain named parties. This motion is grounded on an affidavit of Mr. Gerard McHugh sworn on the 6th April 2022.

36. By two identical motions dated the 7th April and the 20th April 2022, the defendants in the 2022 proceedings, the receiver and Pepper, applied to dismiss, strike out or stay those proceedings on the same bases as the 2021 proceedings. They do not seek an Isaac Wunder Order in these proceedings because that would be decided in the 2021 proceedings. These motions are grounded on an affidavit of Mr. Gerard McHugh sworn on the 6 th April 2022 (which is the same in substance though not in detail as his affidavit in the 2021 proceedings). The applications in the 2022 proceedings are also grounded on an affidavit of Ms. Pamela Keely. Ms. Keely simply adopts the evidence of Mr. McHugh in the aforementioned affidavit as the evidence in support of the applications in the 2022 proceedings.

37. Mr. Beades replied to Mr. Langan’s and Mr. McHugh’s affidavits in the 2021 proceedings by affidavit of the 21st April 2022 and a further affidavit dated the 16th May 2022. The first of these is only stated to be a reply to Mr. Langan’s affidavit (i.e. on behalf of KBC in the 2021 proceedings) but I have taken it as being a reply to both Mr. Langan and Mr. McHugh’s affidavits. Mr. Beades did not specifically swear a replying affidavit to the defendants’ motions in the 2022 proceedings but in a grounding affidavit to his motion for leave to cross-examine the deponents (the subject of my earlier judgment), he referred to having sworn it “for the purpose of my application for the cross-examination of Darragh Langan and Gerard McHugh and in respect of their affidavits sworn in the above matter”. [emphasis added]. I have therefore treated them as such.

38. When these motions were issued, Statements of Claim had not been delivered in any of the proceedings. Mr. Beades exhibited a draft Statement of Claim in the 2021 proceedings to his replying affidavit. He also delivered Statements of Claim in the 2022 proceedings on the 6th May 2022. The Statements of Claim in the 2022 proceedings are largely identical to each other though dealing with the two different properties. While the draft Statement of Claim in the 2021 proceedings has not been formally delivered, it was clearly exhibited by the plaintiff in order to set out his claim at that point in time and I will have regard to it as such.

39. Finally, in circumstances which I explain below, after I had reserved judgment Mr. Beades delivered a further affidavit and KBC’s solicitor swore and delivered a replying affidavit.

THE PLAINTIFF’S CLAIMS

40. In the 2021 proceedings, Mr. Beades seeks an Order setting aside the Possession Order of the 23rd June 2008 on the grounds that it was procured by fraud, and a declaration that he is entitled to possession of the Properties.

41. The basis for his claims can be discerned from his affidavits and his draft Statement of Claim.

42. Mr. Beades’ case in his first affidavit was that he did not sign the mortgage deed and that his name on the document was not his signature. He referred to reports from a documentation examiner who, Mr. Beades claims, “agreed with the opinion that I had formed that I had not signed any of the documents that were used to get the order for possession and that was the reason I sought the examination of documents…which confirmed the opinion I had held.” He clarified in his second affidavit that his case is in fact that the mortgage had not been signed at all and that where it bears his name that seems to have been inserted by someone who was preparing the document for execution (his name and address appear in what look like block capitals on the first page where the parties are identified and on the signature page). The first limb of his case in relation to the mortgage deed is, therefore, that it was not signed by him.

43. However, the signature page is signed by his own solicitor as having witnessed Mr. Beades’ signature. The second limb of his case in relation to the mortgage deed is, therefore, that his own solicitor fraudulently signed the deed as having witnessed Mr. Beades’ signature when he did not in fact do so. This is dealt with at paragraphs 6-8 of Mr. Beades’ replying affidavit.

44. The case that Mr. Beades sets out in his affidavits is that the mortgage was invalid because it was not signed, and that the defendants could not rely on it as it conferred no rights and imposed no duties or obligations. He goes on to say that “As this purported deed dated the 12th June 2003, was fraudulently registered and fraudulently deemed to be “witnessed” it is void, and any order or judgment based on same is void also. Fraud unravels everything.” He submits that this is “new crucial evidence which was not available to the Court when it made the original order for possession in 2008” and that if it had been “then the order for possession would not have been granted.” The fraud that is alleged in the Plenary Summons, in fact and allegation of fraud against Mr. Beades’ former solicitor. He says at paragraph 9 of his affidavit that “[W]here the wrongful, fraudulent and nefarious act took place, was where the solicitor…signed his name as having allegedly witnessed my signature, which it is now blatantly obvious never happened. I never signed this mortgage, I was never asked to sign this mortgage, and it is simply astounding that a solicitor would sign such a solemn document stating he witnessed someone signing such a document.”

45. Mr. Beades also exhibited a draft Statement of Claim in these proceedings. He explained that the only reason why he had not delivered it was because he might have to amend the name of one of the defendants. This is a reference to the correct name of the first-named defendant.

46. In the draft Statement of Claim, Mr. Beades raises a number of points:

(i) The first is the point that the mortgage was not signed and is therefore invalid and anything that flows from that is tainted.

(ii) He claims that as there was no valid mortgage KBC could not appoint a receiver.

(iii) Even if there was a power to appoint a receiver, the appointment of the receiver was not valid because it was not effected by deed.

(iv) Even if the appointment was valid, because it was not effected by deed no legal estate or interest in the property was created or conveyed to the receiver and therefore he had no power of sale.

(v) Even if the mortgage was valid, there was no valid facility letter attached or connected with the mortgage and even if there was, no such letter offers the property as security.

(vi) The defendants breached the Forcible Entry Act 1381.

(vii) The defendants breached Mr. Beades’ constitutional rights and conspired in doing so.

(viii)The defendants aided and abetted and conspired to unlawfully sell the plaintiff’s property.

47. While the receiver is not a party to the 2021 proceedings at this stage, the draft Statement of Claim also contains pleas against the receiver (which are repeated in the 2022 proceedings to which he is a party).

48. As noted above, Mr. Beades delivered Statements of Claim in the 2022 proceedings. He seeks a large number of reliefs. These are summarised at paragraph 33 above and it is not necessary to repeat them. The basis for the reliefs is set out in the Statements of Claim and largely replicates the matters set out in the draft Statement of Claim in the 2021 proceedings which I have just discussed, so, again, I do not propose to repeat them.

49. Almost the entirety, and certainly a very large part, of Mr. Beades’ submissions at the hearing was taken up with points which were not raised by him either in his affidavits or in the Statements of Claim or draft Statement of Claim. Indeed, many of them were based on facts and documents which were not even on affidavit and which were simply stated or produced by Mr. Beades in submissions in court. He did not really engage with the submissions that had been made by the defendants. A central reason why some of these other points were raised by Mr. Beades was to submit that the pleadings can be amended to incorporate these points and therefore the proceedings should not be struck out. I first have to consider the defendants’ applications on the basis of the cases as pleaded and/or as stated in Mr. Beades’ affidavits. If I am satisfied that the claims as set out in the original affidavits and the pleadings or draft pleadings should be struck out, I will then consider these other points raised by Mr. Beades and whether the pleadings can be amended so as to “save” them.

50. After the hearing and before I delivered judgment, Mr. Beades referred the Court to what he submitted was a relevant judgment, Fannon v O’Brien & Ors. [2024] IECA 51. I directed that he deliver written submissions identifying specifically what he said was important about this judgment. He then brought the matter back before me on the basis that, while preparing these submissions, he had read, for the first time, documents which he had obtained from KBC more than a year earlier. On the basis of these documents, he wished to bring a motion in the 2021 proceedings to amend the pleadings by, inter alia, the addition of two new defendants, his own former solicitor and the receiver, Mr. Anderson. The stated purpose for wishing to do so in the context of these motions was to “save” the proceedings by an appropriate amendment if the court might otherwise be satisfied that the proceedings should be dismissed. As this occurred after the hearing had concluded, leave of the Court to issue such a motion was required. Having invited and heard submissions from all parties, I decided, effectively on consent, that it was not necessary to grant leave to issue the motion for liberty to amend the proceedings and instead I would consider the defendants’ applications on the basis of what I had heard at the original hearing and on the basis of Mr. Beades’ proposed amendments, i.e. if I was satisfied that the proceedings as currently pleaded should be dismissed I would then consider whether the proposed amendments save the claim and would then deal with leave to amend. I deal with the detail of this later in the judgment.

APPLICATIONS TO DISMISS

51. As noted above, KBC apply to have the 2021 proceedings dismissed under the Court’s inherent jurisdiction on the basis that they are an abuse of process and/or are frivolous, vexatious, and bound to fail largely on the basis of res judicata and the rule in Henderson v Henderson. The applications by Pepper in the 2021 proceedings and by Pepper and the receiver in both sets of 2022 proceedings rely on both Order 19 Rule 28 of the Rules of the Superior Courts and the court’s inherent jurisdiction on the basis that they do not disclose a reasonable cause of action, are frivolous and vexatious, are an abuse of process and are bound to fail. Both sets of parties specifically rely on the operation of the doctrine of res judicata and the rule in Henderson v Henderson.

Applicable Principles

52. Order 19 Rule 28 of the Rules of the Superior Courts was amended with effect from 22nd September 2023. This was after I had reserved my judgment. The parties had argued the case on the basis of the version of Order 19 Rule 28 that was then in force and, in order to be fair to the parties, I have therefore determined the matter on that basis. In any event, in circumstances where the new version of the rule in fact imports many of the principles relating to the court’s inherent jurisdiction (or as Simons J puts it in Mohan v The Revenue Commissioners [2025] IEHC 63 the new version “has the practical effect of eroding the previous distinction between the jurisdiction to strike out and/or dismiss proceedings” pursuant to the Rules and the court’s inherent jurisdiction) I am satisfied that I would in fact reach the same

conclusion as is set out in this judgment even if I applied the new Rule.

53. The principles governing the exercise of the Court’s jurisdiction to strike out a claim under the previous version of Order 19 Rule 28 or under the Court’s inherent jurisdiction are well-established (see, for example, Barry v Buckley [1981] IR 306, Salthill Properties Limited v Royal Bank of Scotland plc [2009] IEHC 207, Lopes v Minister for Justice, Equality and Law Reform [2014] IESC 21, Keohane v Hynes [2014] IESC 66, Clarington Developments Limited v HCC International Insurance Company plc [2019] IEHC 630, Kearney v Bank of Scotland [2020] IECA 92). The principles, particularly in relation to the exercise of the Court’s inherent jurisdiction, have recently been stated by the Court of Appeal in Scotchstone Capital Fund Ltd & anor v Ireland & anor [2022] IECA 23, and in McAndrew v Launceston Property Finance DAC & anor [2023] IECA 43.

54. In summary, the jurisdiction, whether under Order 19 Rule 28 or the Court’s inherent jurisdiction, is subject to a number of overarching principles: first, the default position is that proceedings should go to trial and that a person should only be deprived of a trial when it is clear that there is no real risk of injustice; second, it is a jurisdiction to be exercised sparingly, given that it relates to the constitutional right of access to the courts; third, the onus is on the moving party to establish that the pleadings do not disclose a reasonable cause of action or that the case is frivolous or vexatious or bound to fail or that it is an abuse of process, and the threshold to be met is a high one; fourth, the Court must take the plaintiff’s claim at its highwater mark; fifth, the Court must be satisfied not just that the plaintiff will not succeed but cannot succeed; and sixth, the Court must be satisfied that the plaintiff’s case would not be improved by an appropriate amendment to the pleadings or through the utilisation of pre-trial procedures such as discovery or by the evidence at trial.

55. It is well-established that there is a difference between the jurisdiction which arises under the previous Order 19 Rule 28 of the Rules and the inherent jurisdiction of the Court (the extent of the difference in light of the new terms of Order 19 Rule 28 remains to be considered in a case where submissions are made on the issue). In an application to dismiss proceedings under Order 19 Rule 28 the Court had to accept the facts as asserted in the plaintiff’s claim and if the facts so asserted were such that they would, if true, give rise to a cause of action then the proceedings did disclose a potentially valid claim and should not be struck out. On an application under Order 19 Rule 28 there was to be no enquiry into, or assessment of, the facts as pleaded. They had to be taken as correct, and the enquiry had to be solely concerned with whether those facts gave rise to a cause of action. On an application under the Court’s inherent jurisdiction, on the other hand, there may be a limited analysis of the facts (see, for example, Lopes v Minister for Justice, Equality and Law Reform [2014] IESC 21, at paragraph 17).

56. The general principles applying to the Court’s inherent jurisdiction to strike out proceedings on the basis that they are frivolous, vexatious, bound to fail, or are an abuse of process are well-established. They were recently stated by the Court of Appeal in Scotchstone Capital Fund Ltd & anor v Ireland & anor [2022] IECA 23, and in McAndrew v Launceston Property Finance DAC & anor [2023] IECA 43. In paragraph 290 of the judgment in Scotchstone, the Court said:

“290. …In essence these are:

a) An application for a strike out of a plaintiff’s claim on the basis of the inherent jurisdiction is not a substitute for summary disposal of a case;

b) The jurisdiction exists, not to prevent hardship to a defendant from defending a case, but to prevent against an abuse of process of the court by the plaintiff, e.g. causing a manifest injustice to the defendant in being asked to defend a case which is bound to fail;

c) The burden of proof is on the defendant;

d) There is a degree of overlap between bound to fail jurisprudence and cases which are held to be frivolous and vexatious. However, the latter are cases which may have a reasonable chance of success but would confer no tangible benefit on a plaintiff or are taken for collateral or improper motives or where a plaintiff is seeking to avail of scarce resources of the courts to hear a claim which has no prospect of success;

e) The standard of proof is on the defendant/respondent to show that the claim is bound to fail or frivolous or vexatious;

f) Bound to fail may be described inter alia, as devoid of merit or a claim that clearly cannot succeed;

g) Frivolous and vexatious must be understood in their legal context as claims which are, inter alia, futile, misconceived, hopeless;

h) The threshold for the plaintiff successfully to defend such a motion is not a prima facie case but a stateable case;

i) It is a jurisdiction only to be used sparingly, in clear cut cases and where there is no basis in law or in fact for the case to succeed;

j) The court must accept that the facts as pleaded by the plaintiff in considering whether an Order pursuant to O.19, r. 28 may be made but in the exercise of its inherent jurisdiction the court can to some extent look at and assess the factual basis of the plaintiff’s claim;

k) Where the legal or documentary issues are clear cut it may be safe for a court to reach a

conclusion on a motion to dismiss;

l) Even where a plaintiff makes a large number of points, each clearly unstateable, it may be still safe to dismiss; and

m) In some cases, even if the factual disputes are clear cut or may be easily resolved, the legal issues or questions concerning the proper interpretation of documentation may be so complex that they are unsuited to resolution within the confines of a motion to dismiss.”

57. This summary broadly reflects the principles set out in AIB v Lannon [2018] IECA 224, paragraphs 35 – 37.

58. Irvine J dealt with the meaning of “frivolous and vexatious” in Fox v McDonald [2017] IECA 189. While Irvine J was writing in respect of Order 19 Rule 28, the same principle applies to the Court’s inherent jurisdiction. She said, inter alia:

“[t]he word ‘frivolous’ when used in the context of O. 19 r.28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

59. White J said in Murray & Air Ambulances Services Ltd v Fitzgerald & Ors [2012] IEHC

20 that in exercising its inherent jurisdiction in assessing whether proceedings are vexatious, the Court is entitled to look at the whole history of the dispute and to look for one or more of a number of indicia of vexatious litigation.

60. It is also well-established that the Court can conclude that proceedings are frivolous and vexatious or fail to disclose a reasonable cause of action under Order 19 Rule 28 or that they are frivolous and vexatious and an abuse of process and are bound to fail under the Court’s inherent jurisdiction where the plaintiff is attempting to re-litigate matters that have already been determined or where they are attempting to litigate matters which could have been raised

in earlier proceedings and were not. Costello J said in Morrissey v Irish Bank Resolution Corporation [2015] IEHC 200 (paragraph 5):

“It is a fundamental principle of law that a party should not be entitled to re-litigate matters or raise issues which have already been determined by a final judgment of a court of competent jurisdiction between the same parties and their privies. This is known as the principle of res judicata. But beyond the strict limitations of res judicata the courts have long recognised that there may be abuse of process outside of the relatively confined limitations of the rule and the courts have always been prepared to balance the rights of parties to have their cases heard and determined by the courts with the rights of the opposing parties to fair procedures in the conduct of litigation and, where necessary, to strike out proceedings if they amount to an abuse of process.”

61. Related to this is that the Court can also dismiss proceedings where they are being used as a mode of collateral attack on a final and binding decision. Indeed, that follows from the description of “frivolous and vexatious” given in Fox v McDonald. It was also stated in Scotchstone that cases which are frivolous and vexatious include “cases which may have a reasonable chance of success but would confer no tangible benefit on a plaintiff or are taken for collateral or improper motives or where a plaintiff is seeking to avail of scarce resources of the courts to hear a claim which has no prospect of success.”

62. The passage from Morrissey refers to three separate, though related, concepts: cause of action estoppel and issue estoppel (res judicata) and the rule in Henderson v Henderson (abuse of process). The defendants specifically rely on these. That these are separate but closely related is clear from the judgment in Henderson v Henderson itself in which Wigram VC said, inter alia, “The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and to pronounce judgment, but to every point...which the parties, exercising reasonable diligence, might have brought forward at the time...”. In Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, Lord Kilbrandon said “...the application of a doctrine of estoppel, namely res judicata. Their Lordships agree with the view expressed by McMullin J that the true doctrine in its narrower sense cannot be discerned in the present series of actions, since there has not been...any formal repudiation of the pleas raised by the appellant...But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.”

63. Senior Counsel for Pepper and the receiver made helpful submissions in respect of these three concepts. He relied on the judgment of Whelan J in Small v Bank of Ireland [2018] IECA 393.

64. At paragraph 58, Whelan J noted the statement by Lord Keith of Kinkel in Arnold v National Westminster Bank PLC [1991] 2 AC 93 at page 104 that:

“Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of [a] new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened.”

65. Lord Keith went on to say:

“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to re-open that issue.”

66. Whelan J also referred to the judgment of Lord Sumption in Virgin Atlantic v Zodiac and Ors [2014] AC 160. He said at paragraph 22:

“Arnold… is accordingly the authority for the following propositions:

1. Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action.

2. Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings if they could with reasonable diligence and should in all the circumstances have been raised.

3. Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.”

67. In Johnson v Gore-Wood [2002] 2 AC 1 Lord Bingham said at page 31:

“Henderson v. Henderson abuse of process, as now understood although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same, that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current

emphasis on efficiency and economy in the conduct of litigation in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive. This is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.

68. Lord Sumption also said at paragraph 25 of Virgin Atlantic:

“The focus in Johnson v. Gore-Wood was inevitably on abuse of process because the parties to the actions were very different, and neither issue nor cause of action estoppel could therefore run… Res judicata and abuse of process are judicially very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both causes of action estoppel where the conduct is not abusive. As Lord Keith put it in Arnold v. National Westminster Bank [1991] 2 AC 93 110G “estoppel per rem judicatam, whether cause of action estoppel or issue estoppel, is essentially concerned with preventing abuse of process.”

69. The rule in Henderson v Henderson does not operate as an absolute bar. Hogan J said in Culkin v Sligo County Council & Ors [2017] IECA 104 (referred to by Whelan J at paragraph

69 of her judgment in Small) that:

“The general approach of the courts to the issue of a multiplicity of proceedings has been, broadly speaking, to adopt a merits-based approach. In other words, doctrines designed to prevent a multiplicity of proceedings and thereby ensuring the administration of justice is not abused – such as the rule in Henderson v Henderson – are applied flexibly and not by reference to some inexorable and unforgiving logic. The courts have generally fought shy of adopting an ex ante, automatic exclusion of any second set of proceedings and much will depend upon whether the second proceedings raise questions which might sensibly and reasonably have been raised in the first proceedings.”

70. I was also referred to Kearns J’s judgment in the Supreme Court in Mitchell v Ireland [2007] IESC 11. Kearns J said at page 19:

“...it is equally clear on the authorities that the rule in Henderson v Henderson must not be applied in a rigid or mechanical manner so as to deprive the court of any discretion to hold otherwise in an appropriate case. Recognising this requirement for a degree of flexibility, Hardiman J stated as follows in A.A. v The Medical Council and the Attorney General [2003] 4 IR 302, at p. 317:-

“Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the courts for the determination of his civil rights or liabilities. This point has a particular resonance in terms of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. In Ashingdane v United Kingdom (1985) 7 EHRR 528 at p. 546, the European Court of Human Rights said:-

“the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals’.”

It follows therefore that a limitation such as that provided for by the rule in Henderson v Henderson should not be blindly or invariably applied, particularly where there are special circumstances in the case which would suggest that the imposition of the limitation would be either unfair, excessive or disproportionate.”

71. Kearns J also said:

“In the case of A.A v Medical Council [2003] 4 IR 302 no reason was ever advanced as to why the point ultimately taken had not been raised in the earlier proceedings.”

72. In Re Vantive Holdings & Ors [2009] IESC 69 Murray CJ referred to the judgment of Bingham LJ in John v Gore Wood & Co. where he said:

“...It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or no.”

73. At paragraph 70 of her judgment in Small, Whelan J went on to say that:

“The making of an order under the rule in Henderson v Henderson is never automatic.

Consideration must be given to all reasons identified for not bringing forward all aspects of the claim in the first litigation. The Henderson doctrine on its true construction is concerned with those points and issues not considered by the court in the first litigation because they were not raised in the said proceedings. Where an issue was not raised in the prior proceedings the Court must exercise considerable restraint and scrutinise the reasons offered for this state of affairs when reaching the conclusion that the appellant ought to be prevented from now raising a point – he having failed to do so on the prior occasion.”

74. Finally, Whelan J stated at paragraph 73:

“...Provided it can be shown that with reasonable diligence the issue could and should have been raised in the prior litigation, the decision in Henderson in its modern formulation provides that, except in special circumstances and where it can be demonstrated that an injustice would be caused, the appellant is precluded from raising in subsequent proceedings point which were not raised in the earlier litigation...”

Discussion

75. I propose to first deal with the claims which are set out in Mr. Beades’ affidavits and in the Statements of Claim and the draft Statement of Claim, as summarised above. I will deal with them in a different order because a number of them are based on the central allegation that the mortgage is invalid. This is in fact acknowledged by Mr. Beades in the draft Statement of Claim in the 2021 proceedings. He states at paragraphs 20 and 21 that he believes from a closer examination of the mortgage deed that he did not sign it and that:

“...anything that flows from this is tainted and cannot or should not be relied upon to grant any of the orders that were granted against the Plaintiff and anyone in occupation of the premises…The Plaintiff believes that Judge Dunne was not aware that the mortgage documents were not signed by him and his defence to the possession order would have been more robust and Judge Dunne may not have granted the order of possession in the circumstance.”

76. Similarly, in the Statement of Claim in the 2022/729P proceedings, Mr. Beades refers to both the Possession Proceedings and the proceedings involving the occupants of the Properties (the Injunction Proceedings including the attachment and committal applications) and pleads at paragraph 7 that “[T]he above proceedings were all founded on the fact that there was no valid mortgage...” The same plea is contained in the 2022/730P proceedings.

Invalid Mortgage Documents

77. It seems to me that a cause of action estoppel applies to Mr. Beades’ claims that the mortgage deed is invalid and that he is entitled to possession and also to any relief grounded on those claims in circumstances where Dunne J determined IIB Homeloans’ entitlement to possession on foot of that mortgage. The defendants in the 2021 proceedings and the secondnamed defendant in the 2022 proceedings seem to me to be IIB’s privies as their successors in title. However, I do not believe it necessary to consider this in detail as I am, in any event, satisfied that the rule in Henderson v Henderson applies.

78. Mr Beades challenges the validity of the mortgage on a number of different grounds. His core ground is that he did not sign the mortgage deed and therefore there was no valid mortgage underlying the Possession Order. He also challenges it on the basis that there was no facility letter attached to the mortgage deed, that no letter offered the Property as security, and that the deed was not signed either by him or the bank. Mr. Beades does not deny receiving the moneys on foot of the loan facility.

Signature

79. As discussed already, part of Mr. Beades’ case in relation to the first of these, i.e. that he did not sign the deed, is that his solicitor fraudulently signed the deed as having witnessed Mr. Beades’ signature and that the plaintiff in the Possession Proceedings relied on this. Initially, Mr. Beades claimed that his signature on the deed was a forgery but on further examination he says that the deed does not even purport to contain his signature. He surmises (probably correctly) that this was inserted by someone preparing the deed for execution.

80. This point was not raised by Mr. Beades in the Possession Proceedings, either before Dunne J who made the Possession Order, or before the Supreme Court which affirmed that Order.

81. Mr. Beades’ entitlement to raise this point has already been considered and determined by Whelan J in Mr. Beades’ appeal against the interlocutory injunctions granted by Reynolds J against the occupants of the Properties. Whelan J’s judgment was delivered on the 14th October 2021 ([2021] IECA 258). She noted that Mr. Beades asserted in submissions prior to the hearing of the appeal that the signature on the 2003 deed was a forgery and that the mortgage deed was never executed by him. Whelan J noted at paragraphs 18 and 19 that Mr. Beades had appealed the Possession Order to the Supreme Court, a number of years had elapsed before the matter was determined in that Court, and that no step whatsoever was taken by Mr. Beades to amend his notice of appeal to the Supreme Court in any way to address any of these matters. Furthermore, she noted that other enquiries that Mr. Beades appeared to have undertaken shortly before the appeal against Reynolds J’s Order could have been undertaken by him while the matter was before the Supreme Court and were not taken by him. (This appears to be a reference to Mr. Beades obtaining the report of the document examiner). Whelan J went on at paragraph 19 to state:

“It is not now open to the appellant to seek to impugn the order for possession by generating novel points and arguments which were not advanced or agitated by him before the Supreme Court in 2014. I am satisfied that here we have a clear “cause of action estoppel” established.

This operates as a form of estoppel which precludes the appellant from challenging the order for possession in any fresh, new or subsequent proceedings.”

82. Whelan J then went on to refer to some of the authorities discussed by her in Small v Bank of Ireland (set out above) in relation to Henderson v Henderson and then stated at paragraph 21:

“None of the allegations now raised by the appellant were advanced before the High Court when the order for possession was made over thirteen years ago, nor did he seek to raise them before the Supreme Court which disposed of the appeal over six and a half years ago.

The order for possession and the right to execute it stand vested in the respondent, subject only to an appeal on a net issue which falls to be dealt with by this court and is the subject of a separate judgment herein. In all the circumstances, it is not now open to the appellant to seek to relitigate the issue of the order for possession or otherwise seek to use the within proceedings to launch a collateral attack on the order of the High Court as affirmed by the order of the Supreme Court made in November 2014 by attaching himself to this litigation.”

83. In Beltany Property Finance DAC v. Pepper Finance Corporation (Ireland) DAC & Beades [2021] IECA 256 (Mr. Beades’ appeal against Twomey J’s Order substituting Pepper for Beltany) Binchy J said at paragraph 12:

“The appellant commenced his submissions with a further attempt to impugn the order of Dunne J. of 23rd June 2008. He asserts that the mortgage exhibited to the affidavit grounding the application for judgment against him was not executed by the borrower, i.e. the appellant himself. It hardly needs to be said that it is not open to the appellant to impugn the order of Dunne J. more than thirteen years after it was granted, and more than seven years after his appeal from that order of Dunne J. was dismissed by the Supreme Court.”

84. In my view these statements are determinative of Mr. Beades’ entitlement to challenge the validity of the mortgage deed (and therefore the Possession Order) on the basis of his nonsignature. However, in light of the fact that Whelan J’s judgment was concerned with an appeal against interlocutory orders and in circumstances where Mr. Beades has sought to bring a

motion to amend his pleadings and has raised additional matters in his grounding affidavit, I propose to consider the point afresh.

85. There is no doubt but that this is a point that could have been raised in the Possession Proceedings. Indeed, this is clear from the draft Statement of Claim in the 2021 proceedings. At paragraph 20, Mr. Beades states that “[T]he Plaintiff on a closer examination of the mortgage documents believes that these were not signed by him and that anything that flows from this is tainted and cannot or should not be relied upon to grant any of the orders that were granted against the Plaintiff and anyone in occupation of the premises.” Of course, ‘a closer examination’ of the mortgage documents could have been conducted at the time.

86. As such, the rule in Henderson v Henderson is engaged. However, it is clear from the authorities discussed above that the engagement of the rule does not lead automatically or inevitably to a bar on the action. The court must adopt a merits-based approach, having regard to all of the circumstances, including any reasons why the points(s) was not raised, and including any special circumstances which might mean that the imposition of the rule would be unfair, excessive or disproportionate, though much depends on whether the point that is raised could sensibly and reasonably have been raised in the earlier proceedings.

87. The point that he had not signed the mortgage deed is a matter within Mr. Beades’ own knowledge but, in any event, arises from the face of the deed itself and therefore could have been raised by him or on his behalf following a simple consideration of the document itself. It is undoubtedly a point which could sensibly and reasonably have been raised at that time. It is also significant that it was not a peripheral point to what Dunne J and the Supreme Court had to consider. The existence and validity of a mortgage over the Properties was central to the

decision which had to be made in the Possession Proceedings. Mr. Beades was represented by solicitor and counsel in the Possession Proceedings.

88. In the initial exchange of affidavits on these motions, Mr. Beades offered no explanation as to why he did not raise this point in the Possession Proceedings other than to suggest that he was somehow disadvantaged in respect of these points by not being legally represented. He says in his replying affidavit to the affidavit of Daragh Langan in the 2021 proceedings that “Numerous parties relied on this unexecuted deed...A purported mortgage deed, that was unsigned and unexecuted, by any of the alleged parties to the purported deed. This is simply shocking as I am a lay litigant and all of these other parties have the benefit of legal counsel and legal advisors.” [emphasis added] What Mr. Beades does not say is that he was legally represented by counsel and solicitor in the Possession Proceedings and in the appeal to the Supreme Court.

89. Mr. Beades does seek to offer a belated explanation of some sort in the recent affidavit dealing with his wish to amend the proceedings. The matters set out in the affidavit must also be seen as being offered as special circumstances which the Court must take into account (if the affidavit is admitted) in deciding whether the proceedings should be struck out even if they do seek to relitigate matters which have already been the subject of proceedings or to litigate matters which could have been raised in earlier proceedings.

90. This affidavit was, of course, produced a significant amount of time after the hearing and, indeed, really only arose after the defendants had asked that the proceedings be listed for mention before the Court. The defendants understandably objected to the admission of this affidavit insofar as it raised new facts or evidence. In circumstances where Mr. Beades is now a litigant-in-person and where the outcome of the applications could be the dismissal of the proceedings and an Isaac Wunder Order I am satisfied that I should consider the contents of the affidavit (and the exhibits thereto).

91. Mr. Beades says in this affidavit that on the 12th May 2025, when preparing submissions (which had been directed by the Court on an entirely different point) he read documents which he had received from KBC in March 2024. This documentation contained letters between IIB/KBC, their solicitors, Mr. Beades’ solicitor and the Law Society from 2003 to August 2006 in relation to Mr. Beades’ solicitor’s failure to return the mortgage deed in compliance with an undertaking which he had given. While Mr. Beades does not expressly say so in the affidavit, the implication in his affidavit is that this was his first time to read this documentation notwithstanding that he had had it for more than a year. He stated in Court that he had not read the documentation before (though this is somewhat inconsistent with other comments by Mr. Beades – see below). Mr. Beades makes a number of points about this correspondence.

92. First, he claims that this shows that “major pressure was placed upon” his solicitor by IIB, their solicitor, and the Law Society. I do not accept this. It is a bare assertion by Mr. Beades and is not supported by the evidence that Mr. Beades himself advances. I certainly do not accept the implicit suggestion that any such pressure was improper. Mr. Beades’ solicitor had given an undertaking, and this correspondence is nothing more than the bank either directly or through its solicitors seeking compliance with that undertaking. The Court is also aware that it is not unusual for a failure to comply with a solicitors’ undertaking to be referred to the Law Society. In any event, in an affidavit filed by KBC’s solicitor in response to this affidavit, it is deposed that where a solicitor fails to return the deeds in accordance with an undertaking one of the avenues open to a lender is to submit a complaint to the Law Society and that a referral to the Law Society or the Legal Services Regulatory Authority is not an unusual occurrence for a lender. Perhaps more importantly for the current discussion, whether or not pressure was brought to bear (and for it to be in any way relevant it would have to be improper pressure), is irrelevant to the question of why he did not raise the point about him not signing the deed in the Possession Proceedings.

93. Second, Mr. Beades avers that this correspondence was not made known to the Court in the Possession Proceedings. This could only be relevant to the current applications if it in some way deprived Mr. Beades of the opportunity to raise the points about him not signing the mortgage deed and the solicitor’s signature as witness therefore being fraudulent in the Possession Proceedings. It in no way deprived him of the opportunity to do so because whether or not he signed it is a matter within his own knowledge and, even if he did not recall, the mortgage deed was available. It is also noteworthy that at the original hearing of these applications, Mr. Beades referred to a “bun fight” between his own solicitor and IIB’s solicitor about his solicitor’s “failure to complete the documentation and some of this came to light in the Supreme Court papers when the box was got to the solicitors...” and that “...for three years there was a bun fight between 2003 and 2006, it was in the paperwork, and they went to the Law Society to report [Mr. Beades’ solicitors]”. This clearly suggests that Mr. Beades was aware of this issue long before the hearing of the applications and not only when he read the documents while preparing his submissions.

94. Third, he makes the point that this documentation should have been provided by IIB/KBC at an earlier stage. He deposes to having made six data requests over the past twenty years and that documents were provided by IIB in the Possession Proceedings, but these documents were not furnished. Again, this can only be relevant to the question of whether Mr. Beades is entitled to raise the point about the validity of the mortgage at this stage in these proceedings if these alleged failures deprived him of the opportunity to raise the point in the Possession Proceedings. They did not. The ability to do so is based on the mortgage deed itself. This was available to Mr. Beades.

95. Fourth, he says that IIB/KBC or their solicitors did not check the mortgage deed when they received it from Mr. Beades. That may or may not be correct, but I do not see how that avails Mr. Beades. Mr. Beades was perfectly entitled to raise the point in the Possession Proceedings and did not do so. The only real conclusion that I can draw from this is that Mr. Beades did not check the mortgage deed either, notwithstanding that he was opposing the Possession Proceedings which were based on that mortgage. This was confirmed by Mr. Beades at the hearing where he informed the Court that he “...never examined a mortgage document at any stage” prior to the Supreme Court and that the “first time that [he] looked at a mortgage document was after the tenants got legal advice”

96. Fifth, Mr. Beades says in his affidavit that he only “found out” about the unsigned mortgage deed through interactions with Ms. Hanrahan and the occupants of the Mary Street property. He says they were being advised by Citizens Advice and the occupants were advised to ask Mr. Beades to compare the mortgage deed which was served on the occupants with Mr. Beades’ documents. He says “When I checked my copy of the Mortgage Deed, I realised the documents did not contain my signature.” The only conclusions that can be drawn from that is that once the documents were considered by Mr. Beades the point became apparent and therefore there was no reason why it could not have been raised much earlier, i.e. in the Possession Proceedings and should have been raised in those proceedings.

97. There is therefore simply no adequate explanation or reason why the point could not have been raised in the Possession Proceedings. Indeed, the contrary is the case. It was a point which could have been sensibly and reasonably raised with a minimum of diligence in the Possession Proceedings.

98. Mr. Beades does allege fraud. This is one of the explicitly recognised special circumstances in the application of cause of action estoppel and the operation of the rule in Henderson v Henderson (see for example Takhar v Gracefield Developments Ltd [2019] UKSC 13). However, the fraud that is alleged by Mr. Beades is fraud on the part of his own solicitor in purporting to have witnessed Mr. Beades signing the mortgage deed. In any event, that alleged fraud, even if the defendants were a party to or aware of it, did not prevent Mr. Beades from being able to raise the signature point in the Possession Proceedings. This is not a case where the alleged fraudulent actions in some way hid or masked the evidence upon which the point might have been made. The mortgage deed was available to Mr. Beades.

99. In the absence of any proper explanation as to why the point was not or could not be raised in the Possession Proceedings and of any special circumstances it seems to me that the attempt to now raise it in these proceedings is a breach of the rule in Henderson v Henderson and is an abuse of process.

100. It is also clearly a collateral attack on the Order made in the Possession Proceedings. Indeed, it is in fact a direct attack. As noted above, Whelan J said at paragraph 21 that “it is not now open to the appellant to seek to relitigate the issue of the order for possession or otherwise seek to use the within proceedings to launch a collateral attack on the order of the High Court as affirmed by the order of the Supreme Court made in November 2014 by attaching himself to this litigation.”

101. It also seems to me that in taking a broad, merits-based approach I am entitled to have regard to the fact that there has been extensive litigation arising from the Possession Order, which itself arises from the mortgage, and this point was not raised at any stage until 2019.

Facility Letter Not Attached to the Mortgage Deed

Mortgage Deed Not Signed by Grantor or Grantee

102. Mr. Beades also pleads in all three sets of proceedings that even if the mortgage deed was valid, there was “no valid facility letter attached or connected with the purported deed of mortgage...” and that even if there was a facility letter attached to the mortgage deed, no such

letter offers the Properties as security. He also pleads that the mortgage is invalid because it was not signed by IIB.

103. All of the points just discussed also apply to Mr. Beades’ claims of invalidity on these three grounds. They could have been raised in the Possession Proceedings and no adequate explanation has been given for them not being raised.

104. In addition, in relation to the point that the mortgage deed was not signed by the bank, I am satisfied that there is no basis for saying that this renders the deed invalid. In Camiveo v Dunnes Stores [2015] IESC 43, Camiveo acquired three shopping centres and claimed to have taken the landlord’s interest in the three centres. Dunnes Stores were tenants. Camiveo sued Dunnes for unpaid rent and service charges. Dunnes Stores argued that Camiveo had not established that they were entitled to the landlord’s interest and therefore entitled to collect the rent and service charges because, while the deed of assurance by which Camiveo had acquired the shopping centres had been executed by the vendor, it had not been executed by Camiveo. Clarke J referred to Norton on Deeds 2nd Ed. (London, 1928) where the author says “Though execution of a deed is necessary to bind the grantor, yet a party who takes the benefit of a deed is bound by it though he does not execute it.” Clarke J went on to say at paragraphs

4.4 and 4.6:

“4.4 For the purposes of this case, there seems to me to be two important aspects to that clear principle. First, in the ordinary way, a deed does not have to be executed by the grantee in order that it take effect in the grantee’s favour. A deed executed by the grantor (the vendor in the case of an ordinary purchase transaction) will transfer the interest of that party once it is executed by the party concerned and irrespective of whether it has been executed by the party to whom that interest is transferred.

...

4.5 However, it is in that context that the second aspect of the principle identified in Norton seems to me to be conclusive. It is clear that a party who purports to take the benefit under a deed will be bound by the terms of that deed even if they have not executed it. That is but an example of the general rule of law which does not permit a party to approbate and reprobate the same transaction. A party cannot have the benefit of a deed while at the same time disavowing its obligations under the same deed.”

105. I am therefore satisfied that these aspects of Mr. Beades’ claims are an abuse of process and in respect of the fact that IIB did not sign the deed, is also bound to fail.

Trespass and Interference with Property Rights and Conspiracy

106. Mr. Beades claims trespass against his property rights and his constitutional right to quiet enjoyment of the property linked with an alleged unlawful conspiracy to sell his property. The case that is pleaded, for example at paragraphs 18 and 20 of the Statement of Claim in the 2022/730P proceedings, is that:

“18. Both Defendants relied upon a defective mortgage deed to unlawfully oust the Plaintiff and his tenants from his property, both Defendants have trespassed on the Plaintiff’s property rights and constitutional rights. They both have egregiously damaged the Plaintiff and his tenants, and his property.

...

20. The Defendants aided and abetted and conspired to unlawfully sell the Plaintiff’s property, they have interfered in the Plaintiff’s property rights and the quiet enjoyment of his property, have interfered in his economic interests and are guilty of, inter alia, trespass and trespass on the case.”

107. The same pleas are made in the Statement of Claim in the 2022/729P proceedings and in 2021 proceedings’ draft Statement of Claim.

108. As is clear from the plea at paragraph 18 and the reference to the defendants relying on a “defective mortgage”, the claim of trespass on Mr. Beades’ constitutional rights and the claim of conspiracy to unlawfully sell the plaintiff’s property is based on the claimed invalidity of the mortgage deed. Thus, the discussion above in relation to Mr. Beades’ entitlement to challenge the validity of the mortgage deed on the stated grounds applies here also and I must, therefore, conclude that this claim is also an abuse of process.

109. It also disregards the repeated statements by the Court of Appeal that Mr. Beades has no entitlement to the properties and has long been a trespasser. For example, Whelan J said in KBC Bank Plc v. Beades [2021] IECA 41 Whelan J. stated at para. 59:-

“... The appellant, as a mortgagor who has resisted the mortgagee’s valid demand for possession in the manner in which he has done, automatically becomes a trespasser as is well established in law having regard to authorities such as Birch v. Wright (1786) 1 Term Rep. 378 at p. 383 and Jolly v. Arbuthnot (1859) 4 De G. & J. 224 at p. 236.”

Appointment of the receiver

110. Mr. Beades claims in the draft Statement of Claim in the 2021 proceedings and the Statements of Claim that have been delivered in the 2022 proceedings that (i) as there was no valid mortgage, KBC could not appoint a receiver and (ii) even if there was a power to appoint a receiver, the appointment was not valid because it was not effected by deed.

111. The first of these is entirely dependent on Mr. Beades’ core case that there is no valid mortgage because the mortgage deed was not signed by him and the other grounds just discussed. Therefore, for the reasons already discussed, this also is an abuse of process and can not succeed.

112. The second point could not have been raised in the earlier proceedings because the receiver was only appointed in October 2021 and, therefore, the above discussion does not apply to this point.

113. It is not claimed by the defendants that the receiver was appointed by deed. He was appointed by Instruments of Appointment dated the 8th October 2021 which stated, inter alia “IN PURSUANCE of the powers contained in the Mortgage and by law, Pepper HEREBY APPOINTS the Receiver to be the Receiver of the assets referred to, comprised in and mortgaged or charged by the Mortgage and more particularly set out in the Schedule hereto, to enter upon and take possession of the same in the manner specified in the Mortgage and by law, and the Receiver shall have and be entitled to exercise the powers conferred upon him by the Mortgage and by law.” Mr. Anderson in each case accepted the appointment on the 8th October 2021 stating under the heading “Confirmation of Acceptance of Appointment as Receiver”, “I, James Anderson, of Deloitte Ireland LLP...hereby acknowledge receipt of this deed of appointment upon the date and time below written and accept the appointment as Receiver thereby notified upon and subject to the terms and conditions above referred to and more particularly contained in the Mortgage.”

114. I am satisfied that there is no basis for the claim that the appointment of the receiver is invalid because it was not effected by deed and it could therefore not succeed.

115. Section 24(1) of the Conveyancing Act 1881 provides that:

“A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by this Act, but may then, by writing under his hand, appoint such person as he thinks fit to be receiver.” [emphasis added]

116. This is reflected in section 108(1) of the Land and Conveyancing Law Reform Act 2009 which provides:

“(1) Where—

(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or

(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or

(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest, the mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt, may appoint, by writing, such person as the mortgagee or that other person thinks fit to be a receiver of—

(i) the income of the mortgaged property, or

(ii) if the mortgaged property comprises an interest in income, or a rent charge or other annual or other periodical sum, that property.” [emphasis added]

117. It was submitted on behalf of Pepper and the receiver that as the mortgage was a 2003 mortgage section 24(1) of the 1881 Act applies. This was not seriously contested by Mr. Beades but, in any event, as the substance of both sections is the same insofar as relevant to this issue, I do not need to determine which section applies.

118. The requirement in section 24(1) of the 1881 Act and section 108(1) of the 2009 Act is that the appointment(s) be made in writing. There is no requirement that it be effected by deed (See Charleton v Scriven [2014] IEHC 415, Fox v McDonald [2017] IECA 121).

119. Indeed, Mr. Beades pointed to no authority supporting the claim that a receiver can only be appointed by deed.

120. Nor is there any provision in the mortgage deed itself requiring that a receiver must be appointed by deed.

121. In those circumstances, no reasonable cause of action is disclosed and/or the claim that the appointment is invalid as it was not effected by deed is bound to fail.

Acceptance of Appointment by Receiver

122. Related to this is Mr. Beades’ claim that Mr. Anderson’s acceptance of his appointment as receiver is invalid because in his acceptance he refers to a ‘deed of appointment’ and the instrument appointing him is not a deed.

123. I am satisfied that Mr. Beades could not succeed in this claim.

124. It is an argument which is entirely based on form over substance. It is absolutely clear what appointment Mr. Anderson was accepting and that the reference to a deed of appointment rather than an instrument of appointment is simply an error.

125. In any event, there is no obligation on a receiver to accept his appointment in writing and Mr. Beades did not point to any authority imposing such an obligation. In those circumstances in particular, Mr. Anderson’s misdescription of the instrument in his written acceptance can not render his acceptance/appointment invalid.

126. Part of the case that is pleaded against the receiver is that even if the appointment was valid, Mr. Anderson “displayed ignorance, incompetence, and unprofessionalism in accepting an appointment which he believed was by deed, when clearly it was not a deed.”

127. In circumstances where I am entirely satisfied that Mr. Anderson’s error has no substantive legal effect, this plea, even if correct, does not disclose any cause of action against Mr. Anderson.

128. Separately, it is claimed that Mr. Anderson showed his ‘ignorance, incompetence and unprofessionalism’ in accepting his appointment in the first place because his appointment was on the basis of the mortgage and this is invalid. This is based directly on Mr. Beades’ claims about the validity of the mortgage deed and the discussion above therefore applies.

129. I am also satisfied that these particular claims against Mr. Anderson must be dismissed as an abuse of process on the separate ground that there is no evidence that Mr. Beades obtained an independent report supporting the plea of unprofessionalism (and negligence and breach of duty) against Mr. Anderson. It was held by Butler J in Scanlan v. Gilligan [2021] IEHC 825, that a claim against lawyers was an abuse of process because the plaintiff had not procured an independent report. While Mr. Beades may not be required to disclose the contents of any such report at this stage, there is no evidence that he has such a report. It is relevant that this point was not raised by the defendants in the exchange of affidavits and therefore Mr. Beades was not required to address it in his affidavits. However, the point was raised at the hearing by Senior Counsel for Pepper and the receiver. It was a simple matter for Mr. Beades to say that in fact he had obtained such a report. He did not do so.

Legal Estate or Interest in the Properties Not Conveyed

130. In the 2022/730P proceedings, Mr. Beades pleads:

“13. Mr. Anderson, then believing his appointment was by deed, must have believed that a legal estate or interest in the property was created or conveyed to him, which did not happen.

14. Mr. Anderson must have also believed that his appointment was by deed and therefore he was empowered to create deeds in relation to the property, which he was not.”

131. The same pleas are contained in the 2022/729P Statement of Claim and in the draft Statement of Claim in the 2021 proceedings.

132. The claim being made by Mr. Beades in these pleas is unclear. This point was expressly made by Senior Counsel for Pepper and the Receiver. Mr. Beades did not engage with this or explain what claim was being made when he was making his submissions. On their face, they are simply pleas that Mr. Anderson held a mistaken belief about something. That is not a cause of action.

Forcible Entry Act 1381

133. Mr. Beades claims that the defendants acted in breach of the Forcible Entry Act 1381 in encouraging others to criminally damage the locks and force entry upon the Properties. It was accepted that this statute remains in force.

134. A translation of the relevant section is given by the English Court of Appeal in Regina v Mountford [1972] 1 QB 28, as follows:

“none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law; and in such case not with strong hand, nor with multitude of people, but only in (peaceable) and easy manner. (2) And if any man from henceforth do to the contrary, and therefore be duly convict, he shall be punished by imprisonment.”

135. I am satisfied that Mr. Beades does not have any entitlement to sue on foot of this Act and that the proceedings, insofar as they are brought on the basis of that Act, do not disclose a cause of action, are an abuse of process and are bound to fail. The Act is a criminal statute which provides for trial on indictment (see Regina v Mountford). The section does not confer a cause of action on Mr. Beades.

136. Furthermore, any entitlement that Mr. Beades may have to rely on the section must be premised on him having an entitlement to the Properties. That was determined by the Possession Order (as is stated by Whelan and Donnelly JJ in their respective judgments ([2021] IECA 258 and [2021] IECA 277). Thus, Mr. Beades does not have standing and the claim is bound to fail.

137. It is also worth noting that Mr. Beades provides no evidence in his affidavits of the defendants causing others to break the locks. He did at the hearing make a number of statements about this but none of them were set out on affidavit. In this regard, it must be

recalled that Sanfey J was informed on the 7th October that all of the occupants had left the Properties.

Authorities referred to by Mr. Beades in his affidavits

138. In his second replying affidavit, Mr. Beades referred to Coyne v Danske Bank A/S Trading as Danske Bank [2017] IEHC 435 and Ennis v Allied Irish Banks PLC [2021] 3 IR 733. However, he made no submissions based on these authorities and in fact did not even refer to them at the hearing. I therefore heard no arguments in relation to these authorities and make no decision in relation to them other than to make the following observations. Noonan J decided in Coyne v Danske Bank that the rule in Henderson v Henderson had no application in the case. The plaintiff had previously been sued in Summary Summons proceedings by Danske Bank. She subsequently sued Danske Bank. She had not raised the matters which grounded her action against the bank as a defence in the Summary Summons proceedings. Noonan J decided that the rule in Henderson v Henderson had no application on the basis that the claim which she was advancing against the bank was “...not one that she was obliged to raise by way of defence to the earlier proceedings. As she chose not to, the court has not determined any of the issues raised in this case in the earlier matter so that it cannot be said that res judicata arises or that this claim is somehow a collateral attack on the earlier judgment. They are in my view separate and distinct and the fact that a set off and counterclaim might have been raised in the first proceedings does not in my view preclude its pursuit now.” This is different to the current case where the Possession Order was grounded on the mortgage and, therefore, if the plaintiff wished to argue that the mortgage was not valid (as he seeks to do now) he was obliged to raise those points at that stage then. Ennis v AIB was concerned with the admission of new evidence and the raising of new issues and arguments at an appeal stage and therefore does not appear to be of direct relevance. Mr. Beades also referred to Takhar v Gracefield Developments Ltd [2019] UKSC 13.

Summary

139. I am therefore satisfied, subject to the following consideration of whether the proceedings can be ‘saved’ by appropriate amendments, that the proceedings should be dismissed on the grounds that they are an abuse of process, are frivolous and vexatious, disclose no reasonable cause of action and are bound to fail.

POSSIBLE AMENDMENTS

140. As noted above, most of Mr. Beades’ submissions at the hearing were focused on matters which were not included in his original affidavits or in the Statements of Claim or draft Statement of Claim. In respect of some of these matters he submitted that as the proceedings could be amended to include these matters, the proceedings should not be struck out. In addition, after I had reserved judgment, Mr. Beades raised further matters which he submitted could be included in the proceedings by the amendment of the pleadings, including by the addition of the receiver and his former solicitor as defendants in the 2021 proceedings.

141. In summary, the matters which Mr. Beades raised at the hearing were as follows:

(i) IIB Homeloans/KBC was not the owner of the loan or the security when they obtained the Possession Order (the 23rd June 2008) because they had sold them on the 11th June 2008. He submitted that this meant that they were not entitled to obtain the Possession Order, were not the owner at the time of the subsequent transfers, and therefore Pepper did not have standing to bring the current motions. Mr. Beades made the submision that they were not the owner by reference to a volume of documentation, including (but not limited to) the “Directors’ Report and Financial Statements of Phoenix 2 Funding Limited” for 2008 and 2009.

(ii) He claimed that KBC had wrongfully included legal fees in his accounts. He said that in 2008, 2013, 2015 and 2016 legal fees were charged to his accounts and that this is against Central Bank Rules.

(iii) Interest was incorrectly calculated.

(iv) He raised the fact that the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 had been enacted.

(v) He also raised points about alleged improper disclosures of data.

(vi) He submitted that there is no evidence that his loans and security were transferred in the scheme of transfer between KBC Mortgage Bank and KBC Bank Ireland. He submitted that this is particularly significant in circumstances where, he claims, IIB/KBC had sold the loans three years earlier.

(vii) He also submitted that the benefit of the Possession Order was not assigned.

(viii) He submitted that IIB was not properly licensed in 2006.

(ix) He submitted that the receiver disregarded Mr. Beades’ interests when dealing with the Properties and that he breached his duty to obtain the best price reasonably obtainable. Mr. Beades referred to a number of authorities including Ruby Property Company Limited v Kilty (Unreported,McKechnie J, delivered 31st January 2003) and Standard Charter v Walker [1982]

1 WLR 1410 a decision of Denning MR, and a case which he simply referred to as Donnellan or Donlon (which he believed was a decision of Allen J) and Scanlan v. Gilligan [2022] IECA 270, a decision of Haughton J (Butler J in the High Court). It is not necessary to refer to any of these cases in any detail as there can be no dispute but that a receiver is under an obligation to obtain the best price reasonably obtainable. Part of Mr. Beades’ case was that the receiver had not obtained any valuation of the Properties. Another part of his case is that the receiver is his agent but that the receiver did not provide any information to him and did not even reply to correspondence from him.

142. There are a number of general points in relation to these submissions.

143. Firstly, the facts and documentation relied upon by Mr. Beades to make these points were not contained in an affidavit. The facts were simply stated by Mr. Beades in his submissions and the documentation was handed in to Court in the form of two bundles. He did not flag in advance that he was going to raise these points. This is not appropriate or acceptable. These motions were not rushed on and Mr. Beades even brought an application to cross-examine the defendants’ deponents. There is no reason why these matters could not have been put on affidavit or, at the very least, notified to the defendants in advance. There was ample time to do so. However, the defendants, having taken instructions overnight, indicated that they were prepared not to object to these matters being put before the Court without being on affidavit. This was on the basis of the defendants not making any admissions in relation to the facts or documents and on the basis that Mr. Beades could make submissions as to what he says they mean, but could not advance further evidence or additional narrative in relation to the documents. I have therefore considered these matters as though they are on affidavit. I have considered all of the documents contained in the two bundles, but it is not necessary for me to refer to them all.

144. Secondly, the matters raised are not at all part of the cases that are pleaded in the Statements of Claim and the draft Statement of Claim. Furthermore, in the affidavits filed by Mr. Beades before the hearing, he does not advert to these points at all.

145. It is long-established that when an appropriate amendment would “save” the action, the Court should not strike out the proceedings (Sun Fat Chan v Osseous Ltd [1992] 1 IR 425; recently Simons J referred to Sun Fat Chan when saying in Mohan v Revenue Commissioners & Ors [2025] IEHC 63 that “[T]he case law makes it clear that a court hearing a strike out application should consider whether the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it; if so, then the action should not be dismissed (Sun Fat Chan v Osseous Ltd [1992] 1 IR 425). This reflects the principle that the jurisdiction to strike out proceedings should be exercised sparingly and as a matter of last resort.”

146. In my view, that principle does not extend to an amendment to make an entirely new case. If that were the case, the whole purpose of pleading would be fundamentally undermined. It would give rise to a situation where a plaintiff would deliver a Statement of Claim, the defendant would bring a motion to strike out the proceedings on the grounds that they do not disclose a cause of action, are bound to fail, and are an abuse of process, and the plaintiff could, if the defendant’s application looked like it was going to be successful, respond at that point by saying that, this may be so, but the proceedings can be saved by the amendment of the pleadings to bring an entirely different case or to raise matters which are not adverted to in any way on the original pleadings. It seems to me that the principle is directed at a situation such as where a claim is sought to be made but has been deficiently pleaded rather than to bring an entirely new claim; to borrow a phrase used by Simons J in Mohan v The Revenue Commissioners & Ors [2025] IEHC 63 “where a deficiency in pleading is masking what would otherwise be a good cause of action.” This is supported by the statement in Sun Fat Chan that if a claim is capable of being “rectified” by amended pleadings then the Court should not strike out the proceedings. If a plaintiff has a different case to make, then that should be made in fresh proceedings.

147. Finally, while Mr. Beades made extensive submissions as to matters which he wished to include in his claims, he did not set out the particular amendments he proposed making to the pleadings. He did so later when seeking to bring the motion for liberty to amend the 2021 proceedings. He exhibited a draft Amended Plenary Summons.

148. Turning to the specific points identified by Mr. Beades, I am not satisfied that they form the basis of an appropriate amendment for the purpose of rectifying or saving the proceedings.

149. The first point raised by Mr. Beades is that IIB did not own the loans at the time of the Possession Order because they had sold them to an entity called Phoenix Funding 2 Limited. There are two specific issues in relation to this. First, the extensive documentation relied upon by Mr. Beades does not in any way identify the loans the subject of the Possession Proceedings as a subject of the sale to Phoenix Funding 2 Limited. Furthermore, as already noted, the manner in which this point was raised was irregular – it being raised for the first time on the day of the hearing on the basis of documentation that was not exhibited to an affidavit.

This meant that the defendants had limited opportunity to deal with the matter and did not have an opportunity of addressing on affidavit the alleged facts underlying the point. Counsel for KBC informed the Court after taking instructions that in fact Mr. Beades’ loans were not part of this sale to Phoenix 2 Funding Limited. In my view, I can have regard to this given the manner in which the point was raised by Mr. Beades. Mr. Beades is not, of course, required to prove his case at this stage and, indeed, the Court must take his case at its height.

However, mere assertions are not sufficient. In the absence of any evidence that the loans were a subject of the sale, this amounts to a mere assertion. Second, and more importantly, in 2018 Costello J, when dealing with the application to substitute KBC with Beltany, dealt at length with the chain of ownership and was satisfied that KBC was the owner of the loans at that time. That is determinative. The argument that Mr. Beades now seeks to make is a collateral attack on that judgment and should therefore not be allowed. I was brought to the affidavits grounding the substitution application before Costello J and it seems that Mr.

Beades did not raise this specific point at that time. That also raises the rule in Henderson v Henderson. Mr. Beades does not explain why the point was not raised at that stage notwithstanding that it relies partly on financial statements from 2008 and 2009. In my view, Mr. Beades is not entitled to raise this point at this stage. I was also referred to the judgment of Peart J in Wellstead v Judge White & Fetherstonhaugh [2011] IEHC 438 in which the applicant in that case sought leave to argue that the relevant bank no longer had any entitlement to benefit from an earlier order for possession because as part of an unspecified securitisation agreement the bank had sold the applicant’s mortgage.

Peart J said, inter alia, that “...there is nothing unusual or mysterious about a securitisation scheme. It happens all the time so that a bank can give itself added liquidity. It is typical of such securitisation schemes that the original lender will retain under the scheme, by agreement with the transferee, the obligation to enforce the security and account to the transferee in due course upon recovery from the mortgagors.”

150. During the course of his submissions, Mr. Beades also referred to issues relating to the charging of interest. In her judgment dealing with Mr. Beades’ appeal from the decision of Costello J to substitute IIB with KBC Bank Ireland, Whelan J considered this at paragraphs 28,

29 and 70. In any event, if this is a complaint about interest prior to the Possession Order it should have been raised at that stage and if it is in relation to interest since the Possession Order and the Supreme Court decision then it is a new case and must be brought by fresh proceedings.

151. Mr. Beades refers to the fact that the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 was enacted. It seems that his point is that Pepper is a credit servicing firm within the meaning of section 28 of the Central Bank Act 1997, as amended by section 1 of the 2015 Act. He relies on an email from KBC of the 10th January 2019 in which a representative of KBC stated that “As per our conversation, I can confirm that your account has been sold to Goldman Sachs and is now managed by Pepper...” His point appears to be, as stated on Day 3 of the hearing, that as “credit servicing” does not include “enforcing a credit agreement”, Pepper has no standing in these proceedings and in particular has no standing to bring these applications. He posed the question “...if Pepper is a servicer only, how can they take me to court?” The point that Pepper has no standing is unstateable. Mr. Beades is the plaintiff and has sued Pepper. Pepper has not taken him to court. Thus, he can not argue that they have no standing in the proceedings. As a defendant at the instance of Mr. Beades, they have standing to apply to have the proceedings against them dismissed. In discussion with the Court, Mr. Beades clarified that he means that Pepper did not have standing to sue the occupants of the Properties. Mr. Beades was not an occupant and was not a party to the proceedings against the occupants and is therefore not entitled to make this argument. Furthermore, the point about Mr. Beades’ entitlement to be involved in the proceedings against the occupants has previously been determined by Reynolds J, Sanfey J and the Court of Appeal. In addition, this point, if it was to be raised, should have been raised in the proceedings concerning the occupants (the Injunction proceedings). It is also worth noting that there appear to have been further changes to the Central Bank Act and the definition of credit servicing and credit servicing firms under the Consumer Protection (Regulation of Credit Servicing Firms) Acts, 2018 and 2022 but I make no finding in relation to these as they were not addressed at the hearing. It is also not necessary to do so in light of the nature of the point made by Mr. Beades.

152. Mr. Beades raises a point about alleged improper disclosure of personal data by IIB to KBC. This was in fact dealt with by Costello J at paragraphs 21 and 22 of her judgment on the application to substitute IIB Homeloans with KBC Bank Ireland plc ([2018] IEHC 390). Costello J, for the reasons set out in those paragraphs, held that the argument was “without merit”. It was also dealt with by Whelan J on behalf of the Court of Appeal at paragraphs 63-82 of her judgment on Mr. Beades’ appeal from Costello J’s decision ([2021] IECA 41). Whelan J held that Mr. Beades had given “clear consent for the purposes of s.8(h) of the Data Protection Act 1998.”

153. Mr. Beades also raised the point that the Possession Order had not been transferred by the scheme of transfer between KBC Mortgage Bank and KBC Bank Ireland Plc. Costello J dealt with this (and an argument that the Possession Order was not assignable) at paragraphs 10-

15 of her judgment and Whelan J dealt with it at paragraphs 30-39 and 72-74 of her judgment. At paragraph 10 Costello J identified Mr. Beades’ argument as being “that the statutory instrument did not transfer the order for possession made in these proceedings in May 2008 and therefore the existing plaintiff, IIB Home Loans Ltd had not proved that the order for possession had been transferred to the intended plaintiff, KBC Bank Ireland Plc.” She held at paragraph 15 that

“The defendant’s argument cannot succeed in the light of the wording of Clause 8(1)(a) of the Order of 2009 approving the scheme of KBC Mortgage Bank and KBC Bank of Ireland Plc when combined with s. 41 of the Central Bank Act, 1971. As of the transfer date KBC Bank Ireland Plc was substituted as plaintiff in the proceedings by operation of law and the proceedings and the proceeds of any claims, awards and judgments and all other rights and benefits whatsoever accruing to the transferor became due and payable by, in this case, the defendant, to the transferee instead of the transferor. The order was affirmed by the Supreme Court in November 2014, long after the transfer date when the KBC Bank Ireland Plc was the plaintiff in the proceedings. There is no question of the order for possession being assigned to KBC Bank Ireland Plc. It was the plaintiff in the proceedings when the final order was made.

Therefore, the defendant's argument simply does not arise on the facts of this case.”

Whelan J held at paragraph 72 that “...S.I. No. 125 of 2009 was effective to vest in the transferee, without more, the benefit of the judgment and orders obtained by the original mortgagee.”

154. Costello J and Whelan J also determined the question of the assignability of the Possession Order. Mr. Beades raised the point at the hearing that the Possession Order had not been transferred because it was not assignable. Costello J considered the assignability of the Possession Order (and whether it had been assigned) at paragraphs 13-15 of her judgment. Whelan J considered it at paragraphs 45-55 and 75-79. She stated at paragraphs 77 - 79:

“77. The decision of Chung Kwok Hotel Co. Ltd. v. Field is not relevant to and does not address the issue of the statutory vesting in the transferee of the benefit of the order for possession in the mortgaged properties effected in this case. The statutory instrument executed by the Minister and effected by the act and operation of the law a statutory vesting of, inter alia, any relevant judgment and order as pertained to the banking business of the transferor in the transferee in accordance with s. 33 of the Central Bank Act 1971. The tenor and clear terms of S.I. No. 125 of 2009 itself makes that clear. There is no suggestion that the appellant’s mortgage was not thereby transferred nor could be. The 2008 judgment and order for possession as appendant rights obtained by virtue of the mortgagee’s title under the mortgage instrument and derived therefrom were encompassed by the terms of when the Supreme Court affirmed the order for possession in November 2024, it did so as a matter of law, by virtue of s. 41 of the Central Bank Act 1071, directly for the benefit of the transferee, KBC Bank Ireland plc.

78. It is beyond question that SI No. 125 of 2009 operated from 26 June 2009 to automatically vest in the transferee the benefit of the judgment and order for possession made by Dunne J in the High Court on 23 June 2008 which was then under appeal to the Supreme Court.

79. Alternatively, there is no requirement at law for a specific and discrete assignment of an order for the rights thereunder to pass to a successor in title of the mortgagee who obtained the order in the first place.”

Thus, this point has already been determined and Mr. Beades is not entitled to relitigate it.

155. Mr. Beades’ point about IIB not having a banking licence is one which could have been raised at the time of the Possession Proceedings, either before the High Court or the Supreme Court and no explanation has been given as to why it was not raised. Furthermore, this has already been considered by Whelan J in her judgment on Mr. Beades’ appeal from Costello J’s

decision. The point had not been raised before Costello J and was raised for the first time in the appeal. Whelan J considered the issue at paragraphs 40-44 of her judgment in the context of Mr. Beades’ argument that the alleged absence of a banking licence from 1999 to 2008 rendered the Possession Order void and rejected the argument. She also held that (at paragraph 84) that Mr. Beades was not entitled to raise this novel point for the first time at the appeal stage. It would be entirely inconsistent with this decision of the Court of Appeal for Mr. Beades to now be allowed to raise the point in these proceedings.

156. As noted above, part of Mr. Beades’ case that the receiver breached his duty to obtain the best price reasonably available is the allegation that he failed to obtain any proper valuation. During the course of submissions, he referred to a letter from Deloitte in response to a data request by Mr. Beades. He submitted that because the documents listed in the appendices to that letter did not include a valuation the receiver must not have obtained one. This point was raised for the first time at the hearing and therefore the defendants did not have a proper opportunity to deal with it. However, my attention was drawn to “Appendix II – Recipients to whom personal data has been disclosed” and to the fact that the appendix listed four entities to whom Mr. Beades’ data was disclosed for the purpose of “Seeking quote to carry out a red book valuation of the Secured Properties.” This undoubtedly suggests that a valuation was ultimately sought. However, it can not be assumed that this is the case. This is the type of factual issue which can not be determined on a motion of this kind and the plaintiff’s case must be taken at its height. However, the fundamental difficulty with Mr. Beades’ point is that there is no evidence that the receiver failed to obtain the best price reasonably available. The question of the best price reasonably obtainable and whether he exercised “reasonable care” to obtain the best price or whether he used “reasonable care to realise the assets to their best advantage” (see Denning LJ in Standard Charter v Walker [1982] 1 WLR 1410) is a matter which has to be determined by reference to all of the circumstances of the case and is a matter for expert evidence having regard to all of those circumstances. That all of the circumstances must be considered is clear from one of the cases to which Mr. Beades referred, Ruby Property Company Limited v. Kilty (Unrep., High Court, 31 January 2003). Mr. Beades has provided no independent evidence. There may be situations where it is not possible to adduce such evidence; for example, where it is necessary to apply for an urgent interim injunction. But that is not the case here. There was ample time to obtain evidence. Of course, Mr. Beades is not required to prove his case at this stage. However, in the absence of any such evidence, Mr. Beades’ claim that the receiver should have obtained a higher price is a mere assertion.

157. Thus, I do not believe that the points raised at the hearing are points which can “save” the proceedings.

158. As noted above, a considerable time after I had reserved judgment and on foot of a request by the defendants that the matter be listed for mention, Mr. Beades referred to a new case, Fannon v O’Brien, & Ors [2024] IECA 51, and separately indicated that he wished to issue a motion for liberty to amend the proceedings.

159. In relation to Fannon, I directed that Mr. Beades deliver written submissions addressing what he submits to be important and relevant arising from the judgment. He did not do so, and it seems to me that he is no longer relying on the judgment. However, it is possible that this was an oversight on the part of Mr. Beades because his focus shifted to his desire to issue the motion to amend the pleadings in the 2021 proceedings. I have, therefore, considered the judgment in Fannon. I have, however, done so in the absence of submissions by Mr. Beades.

160. It seems to me that he is relying on it to support his submission that the Possession Order and the right to rely on or enforce it was not assigned. As discussed above, this point has already been determined. In any event, Mr. Beades’ reliance on Fannon is misplaced. In Fannon, Ulster Bank sought Orders dismissing proceedings against it on the basis that they had absolutely assigned the plaintiff’s loan and mortgage to Promontoria and any cause of action which might have arisen lay against Promontoria and not against Ulster Bank. Ulster Bank relied on section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877. Barniville P on behalf of the Court of Appeal refused this relief on the basis that the plaintiff had not admitted the transfer and had put the defendants on proof of it and Ulster Bank had not exhibited the deed of transfer as part of its application to dismiss the claim. He held at paragraph 102 that “[I]n those circumstances, neither the High Court nor this Court could be satisfied that the deed of transfer did, in fact, give rise to an “absolute assignment” as required by s.28(6). I would, therefore, dismiss Ulster’s appeal, insofar as it relies on s.28(6) based on its failure to put before the High Court and this Court a copy of the deed of transfer.” This case is readily distinguishable. As discussed by Costello J, the transfer in this case is a transfer pursuant a scheme of transfer under the to the Central Bank Act.

161. In relation to his application for leave to issue a motion to amend the proceedings, Mr. Beades produced a draft Notice of Motion and a grounding affidavit seeking liberty to amend the 2021 proceedings only. He also produced a draft Amended Plenary Summons in the 2021 proceedings. I heard submissions from the parties and indicated that rather than giving leave to issue a motion for liberty to amend the claim, I would proceed on the basis that Mr. Beades wishes to do so and would consider whether the amendments which were proposed would save the proceedings. Mr. Beades wishes to amend the Plenary Summons in the 2021 proceedings by the addition of his own former solicitor and the receiver, Mr. Anderson, as defendants and by the addition of claims for damages for breach of duty and breach of statutory duty, misrepresentation, unlawful interference with a Mortgage Deed, and negligent misstatement.

162. Some days after the hearing in relation to Mr. Beades’ desire to bring a motion for leave to amend the proceedings, he served Outline Submissions. He did not have leave to do so. He had been directed to make submissions in relation to the Fannon case but did not do so. Notwithstanding that he had no leave to deliver submissions, I have considered them. He cites a number of authorities in these submissions. I do not believe that it is necessary to deal with all of them individually (for example, the authorities in relation to Order 28 Rule 1). I have also considered replying submissions by KBC and an affidavit of a solicitor in the firm which had acted for KBC.

163. Before turning to the proposed amendments, it bears emphasis that the only reliefs currently sought in the 2021 proceedings (which are the proceedings which the plaintiff wishes to amend) are an Order setting aside the Possession Order and a declaration that the plaintiff is entitled to possession of the Properties. I have previously referred to what the plaintiff claims in the draft Statement of Claim and in his original affidavits. The points which Mr. Beades subsequently raised must be seen in this context.

164. The bases for the proposed amendments are set out in the recent affidavit of Mr. Beades. They are as follows.

165. He claims that his former solicitor purported to witness Mr. Beades’ signature on the mortgage deed when Mr. Beades did not in fact sign it. In relation to the addition of Mr. Anderson and the claims against him, Mr. Beades claims that the receiver did not act in accordance with his appointment. He claims that the receiver was limited to collecting rents and profits and that he went further and evicted the tenants under powers which he did not hold. Mr. Beades also claims that the receiver sold the properties without having any power to do so under the Mortgage Deed. He also makes the argument that the lender and the receiver did not have to seek an Order for Possession because they were entitled under the mortgage itself to enter into possession without the involvement of the Court. He submitted that use of the Court process had the effect of incurring unnecessary costs.

166. Mr. Beades also makes certain submissions and complaints in his affidavit against IIB/KBC and the solicitors who were acting for IIB/KBC. He does not seek any amendment on foot of these matters, and I therefore do not propose to consider them in detail. However, it does bear note that Mr. Beades makes allegations against the banks’ then solicitors on the basis of the letters which he obtained in March 2024 on foot of his data request. These allegations are not borne out by those letters.

167. In relation to the proposed addition of the plaintiff’s former solicitor and the proposed additions to the reliefs, it seems to me that these constitute an entirely new case. I have discussed above that the principle that proceedings should not be struck out if they can be rectified by an appropriate amendment does not extend to making a completely new claim. The proposed amendment is to bring a claim for damages against the plaintiff’s former solicitor for alleged wrongdoing and breach of duty. It is not directed at the reliefs which are sought and in fact is a new cause of action. The amendment is not necessary to determine the real issues between the parties in the proceedings. The plaintiff is perfectly free to sue his former solicitor in separate proceedings, but I fail to see how adding the solicitor to the 2021 proceedings can save these proceedings from the fundamental flaws identified above.

168. I am also not satisfied that the addition of the receiver to the 2021 proceedings along with the proposed amendments to the reliefs would have the effect of saving the claim by an appropriate amendment. Again, these seek to set up an entirely new case claiming damages from the receiver on the basis that he had exceeded his powers. Furthermore, the addition of the receiver to the proceedings does not address the fundamental flaws in the claim as currently pleaded which I addressed above. It is also noteworthy that the receiver is a defendant in the 2022 proceedings yet Mr. Beades has not sought to amend those proceedings to include a claim that the receiver did not have power to evict the tenants or to sell the Properties. Of course, it must also be recalled that the occupants were compelled to move by an Order of this Court in proceedings brought by Pepper, not by the receiver. So, it is not correct to say that he removed or evicted them. Again, if the plaintiff believes that he is entitled to damages against the receiver for exceeding his powers, that is a matter which may be the subject of separate proceedings. It does not relate to whether or not the Possession Order should be set aside and whether or not the plaintiff is entitled to possession of the Properties, which are the reliefs sought in the 2021 proceedings.

169. In relation to the submission that an Order for Possession was not required and simply led to extra costs, this is a point which could have been raised in the Possession Proceedings.

170. In summary, I am not satisfied that the points which Mr. Beades now wishes to include in the proceedings would have the effect of rectifying the flaws in the proceedings other than by bringing an entirely new case and that is not encompassed in the general principle that if proceedings can be improved or rectified they should not be struck out.

ISAAC WUNDER ORDER

171. Pepper seeks an Isaac Wunder Order in the following terms:

“An Order pursuant to the inherent jurisdiction of the High Court prohibiting the Plaintiff from issuing any further proceedings without the leave of the High Court as against any of the following parties:-

(i) The Second Defendant;

(ii) The firm of Deloitte of 29 Earlsfort Terrace, Dublin 2 (“Deloitte”);

(iii) Any of the partners or employees of Deloitte;

(iv) The firm of Maples and Calder (Ireland) LLP of 75 St. Stephens Green, Dublin 2 (“Maples”);

(v) Any of the partners or employees of Maples; and/or

(vi) Any member of the Bar of Ireland who has acted against the Plaintiff.”

172. I am satisfied that an Isaac Wunder Order is warranted, though I am not satisfied that it should be made in the full terms sought.

173. The principles applying to the making of such an Order are well-established.

174. The general principles are that an Isaac Wunder type Order is an interference with the constitutional right of access to the courts and as such is exceptional in nature, and the Order should only be made where it is proportionate and necessary to do so to prevent an abuse of process. The terms of the Order should also be proportionate and necessary. Such Orders should only be made sparingly and when there is a clear case that demonstrates the necessity of such an Order.

175. Butler J in Scanlan v Gilligan & Ors [2021] IEHC 825 referred to the judgment of Noonan J in Fitzsimons v Bank of Scotland [2019] IECA 336 in which he said in relation to the general jurisdiction:

“With the increase in recent years in the amount of litigation pursued in our courts by litigants in person, the making of restraining orders has perhaps become more common. However, by no measure can the making of such orders be regarded as in any sense routine. They are, of course, a serious restriction on the constitutional right of access to the court and, as the authorities make clear, should only be made sparingly and in relatively rare circumstances.

Where the circumstances warrant however, the court has the inherent jurisdiction to make such orders and indeed a duty to do so to protect parties from habitual and costly vexatious litigation. The making of an Isaac Wunder order is not an abrogation of the constitutional right of access to the court, but rather a proportionate filtering mechanism to protect the opposing party from the injustice of having to incur what are often very significant and unrecoverable costs, in meeting oppressive and abusive claims. Quite apart from the interest of the oppressed party, the court must also have regard to protecting its own processes from abuse, which result in scarce court resources being wasted to the detriment of other parties with genuine claims. All the cases recognise that a primary indicator of the necessity for a restraining order is the habitual or persistent institution of frivolous and vexatious proceedings against parties to earlier proceedings.”

176. Butler J said at paragraph 69:

”69. Although an Isaac Wunder order undoubtedly represents a restriction on the otherwise unqualified right of a litigant to bring proceedings before the courts, it does not necessarily prevent a litigant from litigating. The requirement to obtain the leave of the High Court in advance of proceedings being instituted acts as a filter to ensure that unmeritorious proceedings cannot be instituted by a litigant against parties whom or concerning subject matter about which that litigant has already engaged in litigation, usually unsuccessfully. It is rare for an application for an Isaac Wunder order to be made unless the previous litigation has been prolonged, repetitive and unsuccessful. The making of such an order ensures that the opposing party is not subjected to an endless stream of litigation from the same litigant unless a court has determined that there is some objective merit to the proposed proceedings. It also ensures that the time of the courts is not needlessly taken up with either unmeritorious proceedings or applications such as these to strike out unmeritorious proceedings.”

177. Specific factors which the court should have regard to when considering whether to make an Isaac Wunder Order are identified in recent Court of Appeal judgments, including Údarás Eitlíochta na hÉireann & DAA plc v Monks [2019] IECA 309 and Kearney v Bank of

Scotland [2020] IECA 92. More general factors were set out by Ó Caoimh in Riordan v. An Taoiseach [2001] 4 IR 463. The factors set out in these cases should not be treated as an exhaustive checklist or indeed as a list of matters which must all be satisfied before the relief can be granted. They provide a framework containing a non-exhaustive list of relevant factors within which a court may consider the proper balance between the rights of the persons who may be the subject of the Order, persons who may be defendants, and the interests of the common good.

178. I am satisfied that the circumstances warrant such an Order in this case. I am of this view for the following reasons.

179. Firstly, I have held that these three sets of proceedings are an abuse of process or are bound to fail.

180. Secondly, the manner in which Mr. Beades has raised points in these proceedings very strongly suggests that he will continue to seek to challenge the Possession Order and to litigate issues concerning the Properties. Points were raised on a rolling basis rather than his case being clearly stated in the exchange of affidavits or in the Statements of Claim or the draft Statement of Claim. Certain points were made in the affidavits but at the hearing points which were not adverted to in any shape or form in the affidavits or the pleadings or draft pleadings were raised by Mr. Beades on his feet. These were based on extensive documentation which was not exhibited. There was no explanation given as to why these matters were not put on affidavit. More concerningly, Mr. Beades, a considerable period of time after I had reserved judgment, raised additional points (not including Fannon) which could have been raised at or in advance of the hearing. While I have considered the substance of these points notwithstanding that they had not been properly raised, in relation to the current discussion this approach suggests either that Mr. Beades deliberately withheld points in order to delay the

conclusion of the matter or believes that he is entitled to raise points as they occur to him.

181. This is reinforced by the fact that Mr. Beades now seeks to raise points which could have been raised prior to the Possession Order and prior to the decision of the Supreme Court affirming that Order and could certainly have been raised prior to the original hearing of these applications.

182. It is also reinforced by the fact that Mr. Beades sought to re-litigate points which had previously been raised.

183. Mr. Beades previously brought an application to cross-examine the deponents of the affidavits in respect of these motions. I concluded that this application was without any proper basis or merit.

184. The volume of litigation that Mr. Beades has engaged in in respect of these Properties is strongly suggestive that he will continue to seek to do so. Of course, it is important to note that he did not instigate all of the litigation. Indeed, the only proceedings which he instigated are the current cases. However, he did pursue multiple appeals, all of which were unsuccessful. I would not be inclined to make an Isaac Wunder Order purely on the basis that Mr. Beades had pursued multiple unsuccessful appeals. However, the fact that he has done so must be considered along with Mr. Beades’ other interventions in connected litigation. As discussed at length, Mr. Beades has repeatedly sought to participate in the proceedings concerning the occupants of the Properties despite not being a party to those proceedings. His attempts to do so continued even after the Court of Appeal decided that he did not have any entitlement to do so. It seems to me that when these efforts to participate in the Injunction Proceedings are viewed against the background of the large numbers of appeals brought by Mr. Beades and the issuing of the current three sets of proceedings, the conclusion that Mr. Beades is likely to continue pursuing potentially unmeritorious litigation is inevitable.

185. Notwithstanding that Donnelly and Whelan JJ have held that since the Possession Order, Mr. Beades has been a trespasser, it is clear that Mr. Beades intends to continue to challenge the Possession Order on which the conclusions that he is a trespasser is based, and to continue to pursue points which he would only be entitled to pursue if he continued to be entitled to possession.

186. Finally, it is relevant that Mr. Beades does not deny that he received a large amount of money from IIB, that he does not deny that he has not repaid it, and that he does not deny that he has been in receipt of the rents from the occupants of the Properties for a long number of years. While the Properties have now been sold, it seems in that context that it is in Mr. Beades’ interest to continue to litigate issues about these Properties.

187. In all of those circumstances, I am satisfied that an Isaac Wunder Order is appropriate insofar as the Properties themselves are concerned. However, such an Order must be proportionate and may only extend as far as is strictly necessary. I am satisfied that the Order should be made in respect of the Properties and the defendants to these proceedings. However, that Order should be limited to proceedings relating to the Properties. Furthermore, I see no basis at this stage upon which I could make an Order in respect of Maples, its employees, or members of the Bar of Ireland. There is no evidence before me of Mr. Beades suing legal representatives. He did make certain objectionable or derogatory statements about the defendants’ solicitors during the course of the hearing but I do not believe that is sufficient to warrant an Isaac Wunder Order. I will therefore make an Order prohibiting the plaintiff from issuing any further proceedings in respect of 31 Richmond Avenue, Fairview, Dublin 3 and 21 Little Mary Street, Dublin 1 against any of the following: (i) the second named defendant; (ii) the firm of Deloitte; and (iii) any of the partners or employees of Deloitte, without leave of the Court.

CONCLUSION

188. I will make an Order striking out the plaintiff’s claims in the above three sets of proceedings against KBC pursuant to the Court’s inherent jurisdiction on the grounds that those claims are an abuse of process, are frivolous and vexatious and bound to fail, and an Order striking out the claims against Pepper and the receiver pursuant to Order 19 Rule 28 and the Court’s inherent jurisdiction on the grounds that they are an abuse of process, do not disclose a reasonable cause of action are frivolous and vexatious and are bound to fail. I will also make an Order prohibiting the plaintiff from issuing any further proceedings in respect of 31 Richmond Avenue, Fairview, Dublin 3 and 21 Little Mary Street, Dublin 1 against any of the following: (i) Pepper Finance Corporation (Ireland) DAC; (ii) the firm of Deloitte; and (iii) any of the partners or employees of Deloitte, without leave of the Court.