High Court dismisses adverse possession and negligence claims as bound to fail and strikes out proceedings.

APPROVED [2025] IEHC 399

THE HIGH COURT

2023 4017 P

BETWEEN

JUERG VON GEITZ

PLAINTIFF

AND

TOM O’BRIEN AND MAZARS

DEFENDANTS

JUDGEMENT of Mr Justice Nolan delivered on the 3rd day of July 2025 Background

1. The first of three applications that comes before the court is the Defendants’ application to dismiss these proceedings on the basis that they are an abuse of process or bound to fail and have no reasonable chance of succeeding pursuant to Order 19 Rule 28 of the Rules of the Superior Courts (“the Rules”), or alternatively, pursuant to the inherent jurisdiction of the court.

2. On the other hand, the Plaintiff seeks judgment in default of defence and an entirely misconceived application to strike out the Defendants’ motion to strike out his proceedings. The reason why that is misconceived is that if the Defendants fail in their application, that is the end of the matter. In reality, therefore, there are only two motions before the court. The first being the motion to dismiss and the second, being the motion for judgment in default.

3. In his proceedings, the Plaintiff seeks an order confirming his alleged adverse possession of a property at 42 Percy Lane (“the property”) in the city of Dublin. Secondly, he seeks an order confirming that a conveyance of the property undertaken by the Defendants, as agents for a disclosed principle, is void and finally he seeks damages for negligence, breach of fiduciary duty, duty of care and negligent misstatement.

4. A Statement of Claim was delivered on the 30th of July 2024. Thereafter, he served, what is described as an amended Statement of Claim on the 24th of September 2024. I think it is important that I quote that document in a fulsome way.

The Amended Statement of Claim

5. The Plaintiff pleads that on the 9th of July 2007, Mr. Ronan Murtagh, who was the owner of the property at Percy Lane, borrowed €1.5 million from Bank of Ireland Private Banking. Sadly, he was unable to service his debts and his long-term mortgages were allegedly transferred into a loan. He alleges that in 2010 Mr. Murtagh abandoned his properties and relocated to the UK. He then sought to declare himself bankrupt in the UK, but the bank objected.

6. The bank then appointed a receiver, Maurice G Lyons, solicitor, and the Plaintiff alleges that the receiver recognised a lease which Mr. Murtagh had granted to a company called Skrambel Ltd, registered in Gibraltar. On foot of this lease, the Plaintiff took up occupation of the property. It transpires that this is a company which he had a very direct relationship with, as will become apparent. The Plaintiff says that Mr. Lyons is still the receiver notwithstanding that he did not do anything in relation to the property. Sadly, that cannot be the case since Mr. Lyons passed away in September of 2023.

7. This is where the first name Defendant (“Mr. O’Brien”) enters the picture, since the Plaintiff pleads that he was purportedly appointed a receiver over Mr. Murtagh’s property at Percy Lane on the 11th of October 2018. Ultimately the bank sold its loan, to what the Plaintiff describes as “a vulture fund”, namely a company called Cerberus, who, on the 23rd of July 2019, decided to put the property up for sale, but more of that anon.

8. One of the things that the Plaintiff complains bitterly about is that he was served with affidavits in 2019, at a time when Mr. O'Brien was considering seeking an injunction in relation to the property against Mr. Murtagh and “persons unknown in occupation of the premises”. That included him. However, he says that those proceedings were not progressed but that he still has Mr. O'Brien's affidavit from that time.

9. Throughout this period, he continued to reside at the property, in circumstances where he says Mr. Murtagh did not object.

10. He alleges that he is now in adverse possession of the property and applied to what was then called the Property Registration Authority and now Tailte Éireann, to be registered as the owner on the basis of his claim of adverse possession.

11. He says that at that stage Mr. O'Brien had sold the property and organised an affidavit from the new owner to be submitted to Tailte Éireann, which gave rise to their failure to register his interests on the basis of a conflict between sworn affidavits. He alleges that Mr. O'Brien has deliberately disregarded the fact that the basis of his appointment has ceased.

12. The Plaintiff’s case is that he is entitled to be registered as the owner of the property on the basis of his alleged adverse possession and that any claim brought by Cerberus is statute barred. While it is not part of the proceedings or reliefs he seeks, it is clear from both the amended Statement of Claim and his affidavits that he challenges the authority of Mr. O'Brien to act as a receiver and clearly states that any sale of the property is void in the face of his claim of adverse possession.

The Affidavits

13. The first named Defendant in his grounding affidavit states that he was duly appointed to act as receiver of the property by Bank of Ireland Private Banking on the 24 th of January 2019. He exhibits his deed of appointment. This is important because the Plaintiff disputes his appointment. The deed of appointment is perfectly clear and valid and has been executed by the bank in the appropriate way. In point of fact, the date on the deed is the 11th of October 2018 and not the date in the affidavit, but nothing turns on that in my view. He refers to the previous appointment of Mr. Lyons, upon which the Plaintiff has placed such emphasis. He says that he was discharged prior to his appointment. Clearly that is the case, otherwise, the bank would not have appointed Mr. O'Brien. He then sent a letter to all the occupants of the property, which of course included the Plaintiff, on the 26th of March 2019. No response was received. He wrote again and said if there was no response he would change the locks.

14. It was at this point, that a solicitor entered the picture. That solicitor was Mr. Benjamin

J. Higgins who said that he acted for Skrambel Ltd and produced a copy of a lease of the property at Percy Lane between Mr. Murtagh on the one part and the company on the other, from the 2nd of May 2011 for a period of 21 years. As it transpires, this lease is quite important.

15. His then solicitors wrote to Mr. Higgins pointing out that they had written to the occupant of the secured property but received no response. That person was the Plaintiff. They noted that no explanation of any nature had been provided for the apparent occupation of the property by an individual, who, they said was entirely uncooperative and even refused to properly identify himself to his agent. There was no response from Mr. Higgins. However, now having the benefit of a lease, the first name Defendant carried out inquiries as to the status of Skrambel Ltd. It transpires it was struck off the register of companies of Gibraltar on the 20th of April 2016. Therefore, at the time that the lease was being produced, the named tenant Skrambel Ltd had not existed for over three years. This is something which the Plaintiff must have known full well, as will become apparent.

16. Thereafter on the 6th of December 2019 the bank sold its interest to Cerberus.

17. Mr. O'Brien then moves to the arguments made by the Plaintiff that Cerberus's claim is statute barred, he points out that the Plaintiff was not a party to the mortgage and has no standing to issue or maintain proceedings insofar as they relate to the contractual rights of the borrower, Mr. Murtagh. In relation to the second claim namely a challenge to the receivership, again the Plaintiff is not a proper party to the mortgage and has no standing to challenge the Defendants actions as they relate to the relationship between Bank of Ireland or BCM global ASI limited, a company that provides loan services or servicing for and the borrower Cerberus.

18. The last issue which Mr. O'Brien deals with the Plaintiff’s claim that he is in adverse possession of the property. Indeed, the Plaintiff says this is the crux of the matter.

Adverse Possession

19. In order to give some more colour to what happened, Mr. O'Brien sets out the chronology of the Defendants’ interaction with the Plaintiff. On the 28th of September 2022, the Plaintiff wrote to him saying that he had lodged a PRA form 5 converting his possessory title with Tailte Éireann. This is a draft document provided by Tailte Éireann to assist applicants to apply for registration where title is based on possession. It is preprinted in the form of an affidavit. In that letter, the Plaintiff referred to his claim that the bank’s or Cerberus’ case against Mr. Murtagh is out of time. In what sounds like very formal language, the Plaintiff said as follows: “The retired liability on which your purported mandate rests is the sole responsibility of the official receiver in bankruptcy in the UK”.

20. Unfortunately for the Plaintiff, it has no meaning in the context of this case. He concluded his letter by saying the following “if your mandate is inclined to a non-adversarial final resolution, an attribute not commonly ubiquitous among us, I am favourable to a prompt ex gratia outlay.”

21. In further correspondence dated the 8th of April 2022 to Eoghan Keyes of the second named Defendant, he attached, what he described as, an amended lease or tenancy agreement. This document is identical to the previous tenancy between Mr. Murtagh and Skrambel Ltd, but with the addition of his name, his address at 42 Percy Lane and his e-mail address typed onto it. He said the amendment was executed soon after the creation of the original lease. He then offered to purchase the freehold of the property for €360,000 and up to €400,000 - cash.

22. He said that if Cerberus are favorable to restoring a portion of the purported debt to a PDH mortgage for Mr. Murtagh, the offer might be increased. He then went into Mr. Murtagh's present income. He then suggested that to avoid litigation he would engage in binding arbitration on the lease. He said that he controlled Skrambel Ltd and had authorized the transfer of all the company's rights and obligations to himself. On the basis of that assertion, it seems clear that the Plaintiff was the moving party of the company. Further, the Plaintiff must have been fully aware that the company had been struck off the Companies Register in Gibraltar, years before.

23. In a further e-mail dated to the 26th of May 2022, the Plaintiff denied access to the property “as per the lease provisions”, thus holding himself out to be a tenant. He went on to say that in the event that the Defendants attempted to gain access unlawfully and without permission, he would notify the Gardaí and issue trespass proceedings. However, he ended his e-mail on a more conciliatory note. He said “nonetheless, I am pleased to cooperate with Mazars and facilitate the sale of 42 Percy Lane within agreed and lawful parameters”. Mazars wrote back saying that the purported lease was not recognised and any occupation was an unlawful trespass.

24. To that e-mail on the 31st of March 2022, he responded refuting any unlawful trespass and in what can only be described as a gratuitous comment said, “as an NUI law graduate you know this is false, and you also know you do not enjoy a right of access”. He said that the Bank of Ireland had “cleverly though unfortunately disposed of its exaggerated and deeply problematic debt to Cerberus”. He then repeated his offer by putting forward four options:- these were that firstly the Defendants dispose of the freehold on the open market with what he describes as “our tenancy in situ as confirmed by Mazars’ property agent”, secondly, binding arbitration and/or the “PRTB”, thirdly, the purchase of what he described as “our leasehold interest” or finally that he (and presumably Mr. Murtagh) purchase “your freehold interest”.

25. That letter is most interesting for two reasons. Firstly, he acknowledged that the freehold interest was not held by Mr. Murtagh but by the bank and now Cerberus. Secondly, he acknowledged that he was a tenant where he referred to “our leasehold interest”. All of that of course was before these proceedings and runs entirely contrary to the arguments that he now makes.

26. It is the case of the Defendants that this e-mail traffic clearly flies in the face of any claim of adverse possession. In response, the Plaintiff says in his replying affidavit, that he was in adverse possession. He says the receivership is statute barred, that the first name Defendant did not proceed with his injunction proceedings in 2019 and that Mr. Murtagh actively encouraged the him to take over the property as his home, thereby enabling his claim of adverse possession. He says that this may sound bizarre to the court, but some wealthy people think and act differently, especially when the bank is “malevolently hounding Mr. Murtagh”.

27. The Plaintiff was quite right to think that this sounds bizarre, because perhaps unwittingly his words make it very clear that he was in occupation of the property with the permission of Mr. Murtagh. He says that he has added to the value of the property and has a constitutional right of access to the courts and complains about the failure on the part of Mr. O'Brien to proceed with his injunction. He does not make any reference to the lease which was produced.

28. In a second supplemental affidavit, he describes Mr. O'Brien's appointment as being ultra vires and invalid because of “the statute of limitations of the implausibility of an alleged debt of €2,000,000 where Mr. Murtagh was declared bankrupt” and what he calls “fabricated proceedings and misrepresentation”. All of this was in the most recent affidavit dated the 20th of May 2025.

Application for an adjournment

29. At the call-over of this case the Plaintiff made an application for an adjournment to the list judge, Ms. Justice O’Regan. He had previously written a letter to the Defendants complaining about the index of the papers he had received. She refused the application but allowed the matter to be raised before this court. To this court, the Plaintiff said that an important affidavit, which he said was dated the 4th of April, was not before the court.

30. The court rose to give the parties time. Matters were not helped by the fact that the case was called on to be heard in person but that the Plaintiff decided to stay in Dublin and joined remotely. He said that he did not understand that the case was to be heard in person. It is hard to accept that argument in circumstances where the judge specifically said that the case would be heard in person in Cork. Either way I gave him time to consider whether the affidavit was before the court. An hour was wasted on this issue. It transpires that the affidavit was before the court and was filed on the 20th of May 2025. The court is not impressed by the misleading impression given by the Plaintiff and the time wasted. It is to this affidavit that I now refer.

31. The Plaintiff continually highlights the fact that he is a litigant in person and feigns a lack of understanding. However, it should be noted that the Plaintiff is a regular litigator and already has an Isaac Wunder order against him, which he is appealing and has been the subject of two High Court judgments. (See Von Geitz v Edmond de Rothschild (Suisse) S.A [2023] IEHC 224 and Von Geitz v Kelly, and others [2025] IEHC 203.)

32. There is one further thing to be said of this affidavit. Not only does it contain various allegations of fraud against the Defendants, but at para. 16, he admits to fraud on his own part. Notwithstanding all the correspondence and the furnishing of what is described as an amended lease, he now says that he never was a tenant but adds that he was simply “stretching his negotiation position and seeking an amicable solution in correspondence with the first named defendant”, by suggesting he was.

33. This is quite a remarkable admission. In a throwaway line, hidden in the affidavit, the Plaintiff has admitted to fraudulently adding his own name, e-mail address and the address of the property, to the original lease, in an attempt to persuade the receiver and the purchaser of the debt that in fact he was a tenant, knowing at all times that this was untrue. This was done deliberately in order to enhance his own position.

34. This brings me then to the submissions. The submissions of the Defendants are straightforward and echo the arguments set out on the affidavits, namely that he has no locus standi and he never was in adverse possession such that he could mount a claim. More particularly, if there was a claim, it is not against these Defendants. He simply can not get the reliefs he is looking for in these proceedings.

35. The Plaintiff’s submissions, which run to over 7,000 words, returns to the issue of the lease. He again asserts that he never had a tenancy notwithstanding the correspondence where he claimed that he was a tenant. Further, he says, again flying entirely in the face of the correspondence, that he had no affiliation to the company Skrambel Ltd and was neither a shareholder nor director. Yet in his correspondence with Defendants, dated the 8th of April 2022, he said the opposite, that he controlled Skrambel Ltd and had authorised the transfer of all the company's rights and obligations to himself.

36. He says that he “mistakenly” submitted a version of a lease bearing his name, and now admits it was a fabrication. In court, he repeated that it was an attempt to stretch his negotiation position. I do not accept his characterisation of the creation of a fraudulent document, as an attempt to stretch his negotiating position. It was in fact fraud. When this was put to him, he literally put his hands up. He says that he has admitted his wrong. But that is simply an untenable proposition where he fraudulently added his name to the lease in the hope that the Defendants may come to the view that this might be more trouble than it was worth to pursue him any further. Not only did he fraudulently furnish a document purporting it to be a lease, but he also referred to it in emails in the same tone. Such behavior cannot go unremarked upon by the court. If the court sees fraud, it should call it out. This was a fraudulent attempt by the Plaintiff to try to improve his negotiations with the receiver for his own ends. The Plaintiff seems to have a disconnect with the truth, so that he believes that it is appropriate to tell lies in order to further his financial goals.

Discussion and Case Law

37. The principles governing adverse possession are thoroughly set out in the seminal judgment of the Supreme Court in the case of Dunne v Iarnród Éireann [2016] IESC 46, [2016]

3 IR I67, para. 36 of the reported judgment outlines the following principles relevant to the current case: “The circumstances constituting possession will inevitably be various, but fundamental is that the new possessor takes occupation of the land or premises, or a defined portion thereof, with a view to the exclusion of all others. Such possession must not be by force, deception or with the permission of the owner of the legal title; nec vi, nec clam, nec precario.”

38. More recently in the case of McLoughlin and McLoughlin v Fennell and others [2024] IEHC 178 the Plaintiffs sought to claim adversely possession over a neighbour’s property where they asserted their trespass onto their property. The Plaintiffs outlined to the court that they had been given permission to take possession of the property as compensation for the trespass. The facts are relevant and in his judgment, Simons J. commented as follows: “27. The second limb is the claim for adverse possession and in relation to that I am not satisfied that a serious issue has been made out. The reason for that is that the entire basis of the claim for adverse possession is undermined by the plaintiffs' own evidence. It is trite law that adverse possession cannot occur if a person has gone into possession or occupation of lands with the consent or permission of the landowner. Here, the point made by Mr. McLoughlin in both of his affidavits is that Mr. Shields, the registered owner of the lands, handed over the keys to him, handed over possession of the property by way of compensation for the trespass arising from the construction of the extension on the plaintiffs' lands. There is nothing in the evidence which suggests that that was time limited. The implication seems to be that Mr. Shields was emigrating permanently to Australia, he was walking away from a property and presumably attempting to walk away from his debts, and that he purported to hand over possession of the property to the plaintiffs. That averment simply cannot be reconciled with a claim for adverse possession. The registered owner has given consent and there is no suggestion that it was time limited, there is no suggestion that there has been any attempt since to revoke that consent.”

39. On the application of these principles to the facts at hand and admissions the made by the Plaintiff, it is clear that a claim for adverse possession is untenable in circumstances where on the Plaintiff’s own words, Mr Murtagh gave him permission to reside in the property. Further, the Plaintiff has not been in occupation of the property since it was sold in 2019, therefore, it is very hard to understand how he can possibly argue that he still is, in some shape or form, in adverse possession.

40. The law relating to strike out applications is straightforward. Order 19 Rule 28 was recently considered in the case of O’Malley v National Standards Authority of Ireland and Anor [2024] IEHC 500 where Simons J. dealt with the current test for strike out applications since the amendment of the Order. He noted that the Order reads as follows: “The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

(i) discloses no reasonable cause of action, or

(ii) amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.”

41. Simons J. at para 4. of his judgment highlights in interpreting the rule “the court may have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application… By analogy with the pre-amendment case law, that the court hearing a strike out application may, to a limited extent, consider the underlying merits of the case. If it can be established that there is no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, then the proceedings can be struck out pursuant to the amended rule.”

42. Simons J. further provides guidance with respect to the hearing of an application pursuant to Order 19 Rule 28 at para.11:“The court hearing the strike out application must be confident that there is no credible basis for suggesting that it may, at trial, be possible for the plaintiff to establish the facts which are asserted in the pleadings, and which are necessary for success in the proceedings.”

43. This analysis has been upheld by Allen J. in the Court of Appeal judgment of Meehan v Ireland [2025 IECA 59 at para. 54.

44. In effect, it is clear the amendment eroded the distinction between the inherent jurisdiction of the court to strike out, and a strike out pursuant to Order 19 Rule 28. The Courts retains jurisdiction to strike out matters in cases where it is clear that the Defendant’s case is bound to fail. But it is a jurisdiction which the court should exercise sparingly.

45. The Plaintiff has levied a series of allegations of fraud against the Defendants. In circumstances where any allegation of fraud is pursued it is necessary to plead such an allegation (see Judith Whelan and Others v Allied Irish Banks p.l.c. and Others [2014] IESC3, [2014] 2 IR 199). The Recent judgment of O’Moore J. in Howley v McClean [2025] IECA 77, warns against the danger and outlines the consequences of maintaining a baseless claim for fraud where such a claim is not properly made. At para. 29 he states “It might be thought that the making of a claim which is doomed to fail can be satisfactorily met by the frequently utilised provisions of the Rules which allow such a claim to be struck out, possibly at quite an early stage in an action. If that happens, the likelihood is that the costs involved in meeting such a case will be awarded against the party which has abused the processes of the court by bringing a claim which is bound to fail.”

46. He went on to say: “Far too frequently over the last number of years litigants, either acting by themselves or represented by lawyers, have resorted to the making of vitriolic but groundless allegations in defending or advancing their position. These allegations have been made against other litigants, against lawyers (whether solicitors or counsel) and against judges. Where possible, pertinent and proportionate steps should be taken to address and deter such activities. In this judgment I have set out some weapons in the armoury of the court which may be deployed where it is appropriate to do so.”

47. On the issue of negligent misstatement, Keane and Keane v Ulster Bank Ireland DAC [2024] IECA 293 is cited by the Defendants. The curial aspect of this judgment is the finding made by Noonan J. that a claim for negligent misstatement cannot succeed in circumstances where no loss is proven or pleaded. This is dealt with by Noonan J. at para 79-80. “79. A further fundamental difficulty which underlies the entirety of the plaintiffs' claim is that for a claim in negligent misrepresentation to succeed, the plaintiffs would have to show that they had suffered a loss. However, in this case, the plaintiffs plead no loss which is unsurprising since they have sustained none….” “80…. The essential point, however, remains, which is that no true loss arises, or is pleaded, and therefore a claim in damages of any kind cannot succeed.” In the current case the Plaintiff cannot and has not established any loss, much less pleaded any loss suffered. In effect the Plaintiff’s case is as outlined in the evidence that he is seeking to adversely take possession of the property.

48. It is necessary and in the interest of covering all bases also to outline the jurisprudence in relation to the court allowing amendments prior to the striking out of applications. A recent iteration of such circumstances was considered in the case of Mohan v Revenue Commissioners [2025] IEHC 63 where the court said that: “The 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.”

Decision

49. The Plaintiff accepts that these proceedings cannot confirm that he has an adversary title to the property. But even if he did not make that concession, it is patently clear from his own correspondence and emails, that at all material times he was in occupation of the premises with the permission of Mr. Murtagh and that he has not occupied the property since 2019.

50. Further, he held himself out as the tenant. I will say no more about the fraudulent lease produced. Suffice to say that the emails themselves show that he was a tenant. However, that does not give him adverse possession. While an attempt was made to get him out of the property in 2019, the fact remains that the property was sold in 2022. He no longer resides in it. Any claim in relation to his alleged adverse possession should be made against those who were involved in the transaction itself, including the new purchaser but not against these Defendants. However, given that the new purchaser purchased the property in the full knowledge of the Plaintiff’s assertions, it is hard to see any case against such parties. His alleged claim of adverse possession is simply a ruse to try to thwart the sale or seek advantage from what he perceives to be a disadvantage of others.

51. What is clear, however, is that the reliefs he seeks in relation to confirming his adverse possession of the property and confirming that the conveyance was void, are unsustainable in these proceedings. No doubt the Plaintiff thinks that he may be able to reconstitute proceedings with the benefit of naming Mr. Murtagh as a plaintiff.

52. Such a step in my view would be profoundly wrong. Mr. Murtagh has shown little or no interest in litigating such matters and it seems to me that time is very much against him. I am cognisant of the fact that an Isaac Wunder order has already been made against the Plaintiff in a different context. It seems to me that if he were to seek to mount proceedings in the name of Mr. Murtagh, he would run the risk of another Isaac Wunder order being imposed upon him. That however may well be for another day, but I would caution him about continuing a lost battle under a different guise.

53. That leaves his claim in damages. In order for a claim in negligence and breach of duty including fiduciary duty to succeed, there has to be a duty of care. There was no duty of care in this case. Mr. O'Brien as receiver and the second named Defendant as the employer of the receiver, have no duty of care whatsoever to the Plaintiff. There is no contractual relationship or indeed any other relationship between the parties. Therefore, his claim for damages under these headings are bound to fail.

54. The last element of his claim is for negligent misstatement. The Plaintiff says that the affidavits of Mr. O'Brien in the proceedings that went nowhere, are such a negligent misstatement. I cannot agree. Nothing has been produced in court which could be categorised as a negligent misstatement. But even if there was some evidence of such a character, he has suffered no loss. The only loss that he can point to is the fact that he had to come back from his holidays and the locks were changed. That arose from his unlawful occupation of the premises. It had nothing to do with any affidavits sworn in a case that did not progress. Therefore, on the authority of the Court of Appeal in Keane and Keane v Ulster Bank Ireland DAC, I see no case whatsoever against the Defendants under the heading of negligent misstatement.

55. The Plaintiff continually invokes the Constitution, saying that he is a constitutional right of access to the court. That is of course correct in circumstances where he is able to demonstrate a legitimate cause of action. These proceedings do not demonstrate a legitimate cause of action. Further his constitutional right of access to the court is not unfettered as is clear from the orders of court which are presently in place.

56. For sake of completeness, I would like to deal with the possibility that the proceedings could be in some way saved by an amendment. In my view, there is no amendment which could possibly save these proceedings. But there are no further averments or amendments which could be added which would create a cause of action where none presently exists.

57. In those circumstances, I am satisfied that these proceedings are doomed to fail and cannot be saved by any amendment. The whole premise of them is mistaken. The relief sought cannot be granted, and the claims and damages are unsustainable. Therefore, I shall make an order striking out the proceedings on the grounds as set out in the notice of motion.