High Court dismisses appeal allowing possession proceedings despite prior litigation history and outstanding costs disputes.

THE HIGH COURT

[2025] IEHC 501

[Record No. 2025 84 CA]

BETWEEN

MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY

PLAINTIFF

AND

SEAN FARRELL AND VERONICA FARRELL

DEFENDANTS

Judgment of Ms. Justice Bolger dated the 17th day of September 2025.

1. This is the defendants’ appeal from the decision of the Circuit Court refusing the defendants’ application to strike out the plaintiff's possession proceedings pursuant to Order 19, Rule 28 of the Rules of the Superior Courts as not disclosing any reasonable cause of action and/or as bound to fail and/or as frivolous and/or vexatious and/or an abuse of process.

2. The plaintiff’s proceedings are for possession over the defendants’ property which the plaintiff says was mortgaged by a deed of mortgage and charge of 15 March 2007 in the amount of €2.2 million. The defendants have acknowledged receipt of those monies but dispute that they were paid pursuant to the 2007 1etter of offer or mortgage on which the plaintiff grounds their proceedings. The defendants have made no mortgage repayments since 2011 and the arrears, with accruing interest, currently stand at approximately €3,700,000.

Background

3. This is the plaintiff’s third set of proceedings seeking possession of this property. The circumstances and reasons for previous proceedings coming to an end is the main basis for the defendants’ application for these proceedings to be struck out.

4. In 2016 the plaintiff brought similar possession proceedings but shortly after they commenced, it emerged that the incorrect mortgage charge had been transferred and as of the date of issue of the demand letters, the plaintiff did not own the security which it sought to enforce. The defendants brought a motion seeking to strike out the proceedings which was listed before Judge Linnane in the Circuit Court on 12 November 2019. Judge Linnane said that the proceedings should be struck out and fresh proceedings should be commenced and adjourned the proceedings on that date to allow the plaintiff to consider the defendant's affidavit. When the matter came back before the Court on 17 December 2019, the plaintiff applied to have the proceedings struck out. Judge Linnane made a partial costs order in favour of the defendants, which the defendants successfully appealed to the High Court where the defendants were awarded their full costs. There is an ongoing dispute between the parties about the discharge of those costs orders. The plaintiff says that all costs have been discharged in full. This is disputed by the defendants, but it seems that this relates to the level of costs due rather than a refusal by the plaintiff to comply with the costs orders made against it.

5. In 2021 the plaintiff started again with fresh proceedings, just as the Circuit Court had said they should, but having issued them, it emerged that the demand letters were in the name of the wrong Mars entity. The plaintiff served a notice of discontinuance on 16 February 2022 which, in accordance with the Rules, required them to pay the defendants’ costs of those proceedings.

Abuse of Process

6. These proceedings represent the third time the plaintiff had sought a possession order. The defendants assert that to be an abuse of process. At para. 35 of the defendants written submissions they stated: “It is submitted that the conduct of both the prior possession proceedings were abuses of process and the bringing of possession proceedings for a third time following those abuses of process is also an abuse of process. The Respondent is not looking for a second bite of the cherry, it is looking to eat the whole cherry.” [the respondent there refers to the plaintiff in the within proceedings].

7. In effect the defendants assert that the earlier proceedings were an abuse of process and that any subsequent proceedings relating to the same issues must also be an abuse of process. However, this assertion is challenged by the fact that no court has ever found the plaintiff's 2016 or 2021 proceedings to have been an abuse of process. They were proceedings grounded on a mistaken view of the facts, which is not, in itself, an abuse of process, albeit the manner in which mistakes are made may ultimately become an abuse of process. Here, the plaintiff sought to address their mistakes soon after they became aware of them. The 2016 proceedings were brought to an end by the Court acceding to the plaintiff’s application to strike out those proceedings, the Court having made its view on that (and the approval of fresh proceedings) very clear, including by awarding costs against the plaintiff. The 2021 proceedings were brought to an end by the plaintiff serving a notice of discontinuance, the rules for which (Order 21 of the Circuit Court Rules) recognise the entitlement of the defendant to costs and recognise the plaintiff's entitlement to bring subsequent proceedings, the progress of which may depend on the plaintiff having complied with their obligations to discharge the defendant's costs. That was done here, albeit there remains some dispute between the parties as to the amount of costs due.

8. The fact that earlier proceedings relating to the same circumstances may have been an abuse of process does not mean that later proceedings are also automatically an abuse of process. The manner in which the earlier proceedings were addressed by the plaintiff, including by the discharge of costs, has not evolved to the point that the current proceedings are also an abuse of process.

9. The within proceedings could hardly be frivolous or vexatious or bound to fail in circumstances where the defendants acknowledge receipt of substantial monies and acknowledge that they have made no mortgage repayments since 2011. The defendants challenge the validity of the 2007 loan agreement on which the plaintiff grounds these proceedings and that will remain a matter for the trial judge. The defendants’ challenge to that loan agreement does not mean that the proceedings are bound to fail.

Res Judicata

10. The plaintiff relies on the decision of Simons J. in McCool Engineering Ltd v. Honeywell Control Systems Ltd [2019] IEHC 695 where, at para. 33, Simons J. found: “(i) there must be a judgment by a court of competent jurisdiction which involves

(ii) a final decision on the merits;

(iii) the earlier judgment must have (necessarily) determined the same issue as arises in the second set of proceedings; and

(iv) the parties to the two proceedings must be the same or their privies.”

The last of those requirements is certainly present here as the parties to these proceedings are the same as the parties to the 2016 and the 2020 proceedings, but neither of the earlier two requirements are present. Neither the 2016 nor the 2021 proceedings gave rise to a judgment or any determination on the merits. The issues are different in these proceedings and are no longer grounded on the mistaken letters of demand.

11. The very approach endorsed by Simons J. in McCool of considering the earlier judgment “to identify the issues determined” (at para. 46 of his judgment) to see if a plaintiff is seeking “to reagitate an issue which has previously been decided against him by the High Court” (at para. 75) does not and could not be applied here as there was neither a judgment nor an issue decided against the plaintiff arising from the 2016 or the 2021 proceedings. There has never been a determination of the plaintiff’s case on its merits.

Costs Orders

12. The costs order arising from the striking out of the 2016 proceedings and the plaintiff’s costs obligations from serving a notice of discontinuance on the 2021 proceedings, are relevant matters to determining this application. In Miranda and Others v. Rosas Construtores S.A. T/A RAC Contractors and /or RAC Eire Partnership and Others [2019] IECA 237 Costello J. in the Court of Appeal struck out the defendants’ appeal as an abuse of process, based in part on Costello J.’s finding (at para. 54) that: “[T]he respondents cannot be compensated by appropriate awards of costs as, to date, not a Euro has been paid to the respondents on foot of orders for costs going back to July, 2015. It is reasonable for the court to infer that this pattern will not change.” She therefore concluded that the proportionate response was to dismiss the proceedings, having observed earlier in her judgment (at para. 7): “The court is concerned with the rights of the litigants in the cause before it, the rights of the public and the rights of other litigants. The court is entitled to have regard to the fact that the resources of the courts are limited and that the courts are there to resolve genuine disputes between parties. The court should have regard to the interests of bona fide litigants who require access to the courts to resolve their disputes and the court also may have regard to the fact that there is a public interest in ensuring finality in litigation.”

Decision

13. For the reasons set out above, I refuse this appeal and affirm the decision of the Circuit Court's refusal of the defendants’ application to strike out the proceedings.

Indicative view on costs

14. As the plaintiff has succeeded in resisting the defendants application to strike out the proceedings, my indicative view on costs is that the plaintiff is entitled to their costs, but with a stay on execution pending the resolution of the proceedings. I will put the matter in at 10am on 17 October 2025 for the making final orders.

The plaintiff was represented by Theo Donnelly BL.

The defendants were represented by Cian Farrell Solicitor.