High Court dismisses mortgage dispute for want of prosecution and abuse of process after five years of inactivity.

[2025] IEHC 554

THE HIGH COURT

2016 5611 P

BETWEEN

BARRY CULLEN

PLAINTIFF

AND

START MORTGAGES LIMITED, KIERAN WALLACE, MARS CAPITAL

FINANCE IRELAND DAC

DEFENDANTS

JUDGEMENT of Mr Justice Nolan delivered on the 22nd day of October, 2025

Introduction

1. The application before the court is to dismiss the proceedings primarily on the basis of Order 19 Rules 27 and 28 of the Rules of the Superior Courts (“the Rules”), on the grounds that they disclose no reasonable cause of action and are bound to fail. The second ground is for want of prosecution.

2. The Plaintiff in this action is the registered leasehold owner of property at 14 Hayworth Terrace, Ongar Park, Clonsilla in the City of Dublin. He instituted these proceedings in 2016, seeking various declarations and reliefs including damages for trespass, nuisance, breach of privacy, conversion and personal injury and asserting that the First Named Defendant was guilty of overcharging and had breached European consumer protection law. He claimed that the mortgage was securitised without his consent and that he had been subjected to alleged harassment and trespass by the Second Named Defendant.

3. The First Named Defendant is described as a mortgage provider, while the Second Named Defendant was a receiver appointed by the First Named Defendant. The Third Named Defendant was joined to these proceedings by the Defendants’ motion and an Order was made on the 18th of November 2024 by O'Donnell J. joining them in that capacity.

Background

4. In September of 2006 the First Named Defendant advanced the sum of €170,000 to the Plaintiff and his ex-wife, repayable over 35 years. The loan was secured by a mortgage dated the 3rd of October 2006, over the property which is in Folio 90345L. Following repeated defaults in repayment, the First Named Defendant appointed the Second Named Defendant as receiver under the mortgage and at law.

5. In response, the Plaintiff decided to issue these proceedings and register a lis pendens. The effect of the registration of the lis pendens and the continued existence of the proceedings has hampered and restricted the Defendants ability to deal with the property. No doubt that was his intention.

6. On receipt of the Statement of Claim, the Defendants filed a defence in May of 2019. It denied Plaintiffs’ claims in relation to the validity of the loan agreement, the mortgage and the receivers appointment. The defence confirmed that the Plaintiff and his ex-wife applied for and received a loan, executed the mortgage and defaulted in repayment. The receiver was lawfully appointed and entitled to exercise the powers conferred under the charge.

7. That is where matters ended as far as the Plaintiff is concerned. No further steps of any description were taken by him after delivering Replies to Notice for Particulars in June of 2018. That is over seven years ago.

8. In the meantime, the Defendants brought the motion to join the Third Named Defendant and this motion.

9. In his replying affidavit the Plaintiff says, in bold terms, that both the charge which was registered in the Folio and the Family Home Statutory Declaration were forged. He challenges the means of knowledge of the Defendants’ deponent and also seeks discovery. Most importantly however he does not deny that the money was borrowed and not repaid.

Order 19

10. Order 19 of the Rules were changed in September of 2023. The effect is that the jurisdiction to dismiss actions, that are an abuse of process or bound to fail, which previously were to be found in the inherent jurisdiction of the court, are now found in the Rules. To put it another way, claims that proceedings are frivolous and vexatious are no more, and ought to be dealt with under Order 19.

11. That Rule reads as follows: -

“27. The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which is unnecessary or which amounts to an abuse of the process of the Court, or which may unreasonably prejudice or delay the fair trial of the action; and may in any such case, if it thinks fit, order the costs of the application to be paid as between solicitor and client.

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

(i) discloses no reasonable cause of action, or

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

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.

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

(i) discloses no reasonable defence to the action, or

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

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.

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

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

(5) Where the Court makes an order under sub-rule (2), it may make an order giving judgment in such terms as it considers just, and may make an order providing for the costs of the application and the proceedings accordingly.”

12. The purpose of amending Order 19 was to clarify the High Court's power to strike out claims, defences, or pleadings. The amendment makes explicit the Court's authority to strike out any proceedings or parts thereof, to streamline the judicial process.

13. This amendment aims to improve the efficiency of court procedures by clearly outlining the court's authority to eliminate claims or defences that are considered unnecessary or legally deficient.

Discussion

14. The Plaintiff engaged with this motion up until the hearing of this motion. He did not attend this hearing, but I am satisfied that he was on notice of it and an affidavit of service has been produced.

15. I am satisfied that the Plaintiff and his ex-wife entered into a loan agreement and that the loan agreement was secured by a mortgage over the property. The documents are clear. I am satisfied that the property is not their private principal residence or primary residence since they resided in Arklow Co. Wicklow.

16. I am satisfied that the Plaintiff and his ex-wife signed and executed a charge, which is acknowledged in the Folio. It is clear from the documentation and clauses 3.02 and 9.01 that in the event that money remains unpaid it would become due and payable on demand and that the First Named Defendant could exercise its various powers, including statutory powers to appoint a receiver, take possession and sell the property.

17. I am further satisfied that the Plaintiff and his ex-wife defaulted in payment and that demand was made. That was done by letter dated the 18th of August 2015, which is exhibited in the papers.

18. The appointment of the receiver was perfectly in order and was in accordance with clause 8.02 of the mortgage. That appointment was on the 26th of May 2016.

19. I am satisfied that in accordance with the judgement of Peart J. in Wellstead v Judge White & Featherstone [2011] IEHC 438, that there is nothing unusual or mysterious about a securitisation scheme. As Peart J. noted it happens all the time so that a bank can give itself added liquidity. It is not an illegal act, nor, in my opinion, is the issue a valid cause of action.

20. The Plaintiff and his ex-wife agreed that the First Named Defendant could transfer its legal or equitable benefit in the mortgage, including the security, to any third party, as is evidenced in clause 5 of the loan agreement. Again, there is nothing illegal in such a step and the documentation authorised it.

21. His arguments in relation to alleged breach of privacy, conversion and nuisance or personal injury are not particularised, and I see no merit whatsoever in such claims since there is no evidence to support them. Further his allegations of breaches of the criminal law are without merit. I do not believe his allegation of overcharging are supported with any evidence. I must take into consideration that the Plaintiff and his ex-wife have failed to make any repayment since August of 2013.

22. In all the circumstances, I can see nothing wrong with the actions of the Defendants, including the appointment of the receiver and the sale to the Third Named Defendant. There is no evidence whatsoever before the court of any fraud. The only argument which the Plaintiff makes is that the Family Home Statutory Declaration may be incorrectly dated. Crucially he does not say, nor could he, that the property is his family home. It is not; it is a rental property. It seems to me that the proceedings fail to disclose a reasonable cause of action and therefore amount to an abuse of process and are bound to fail. Alternatively, if I am incorrect in relation to that, I see the claim as having no reasonable chance of succeeding. Further I do not believe that any amendment will save the case.

23. The proceedings are in many ways a replica of multiple sets of proceedings which the financial crash of 2008 and the subsequent economic crisis have generated. I am particularly struck by his allegations of fraud. It seems to me that they are unfounded and hopeless and following the decision in Howley v McLean & Anor [2025] IECA 77, I agree with O’ Moore J. that such allegations are inherently abusive, cause serious reputational harm and are a waste of court resources. It is impressible to make a speculative claim of fraud, which is what I believe has happened here.

24. On that basis, the proceedings fall firmly within the parameters of Order 19 Rules 27 and 28 and ought to be dismissed pursuant to that Order.

The Law Relating to Delay and Want of Prosecution

25. The law relating to delay and want of prosecution has been recently summarised and clarified in the Supreme Court's decision in Kirwan v Connors & Ors. [2025] IESC 21. The Court revised the test established in Primor, relating to the dismissal of claims due to inordinate and inexcusable delay. In a significant shift, the Court introduced a new test which reduces the requirement for the Defendant or Plaintiff, as the case may be, to show specific prejudice.

26. O'Donnell CJ. set out the new test to be applied. He stated at paragraphs 26 and 27: - “In my view, the law should recognise the fact that passage of time is important in and of itself, and can justify dismissal of a claim, without more. Greater weight should be given to the factor of the passage of time. This will also have the merit of simplifying the test to be applied. I agree with Hogan J. that two years of inactivity is a critical milestone. I would apply the tests set out in the judgment of Murray J. at paragraphs 53 and 54 and with which I understand Hogan J. agrees. That means that: -

(i) Until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O Domhnaill v Merrick jurisdiction.

(ii) After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal.

(iii) If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.

(iv) Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J. that the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious misconduct by the defendant in the course of the proceedings. I agree with what Murray J. says about such cases at paragraph 54 of his judgment. “27. It should, however, be recognised that the test is not mechanical, and it remains a matter for judgment, and it will remain conceivable that individual judges may take different views in borderline cases. This is an unavoidable and necessary feature of a legal system. The purpose of the jurisprudence should not be to attempt to dictate the outcome of the marginal cases but instead provide sufficient guidance to allow most cases to be resolved without protracted hearings and lengthy appeals. This refinement of the Primor test should permit more applications to be decided speedily and provide a structure for more finely balanced claims to be focused on the key issues. It is important both to recognise the significance of lapse of time in relation to the jurisdiction and highlight that factor in the test to be applied. In any other field of activity, two years is a very long time to do nothing. The administration of justice should not be different.”

27. The Court also considered the conduct of Defendants in these cases, affirming that they are generally not under a duty to advance a Plaintiff's claim. At para. 14, O'Donnell C.J.

said: -

“On the separate question of the relevance of defendant inactivity, I agree with Hogan and Murray JJ. and respectfully disagree with Collins J. The courts must hold the scales equally between the plaintiff and the defendant, but that does not mean that they are to be treated as the same when they are not. In particular, they are not coadventurers in litigation with the same interest in bringing it to conclusion. The essential structure of proceedings involves a plaintiff invoking the jurisdiction of the court to summon the defendant requiring them to answer a claim. In my view, the plaintiff has an interest in, and responsibility for, bringing that claim to trial. The same cannot be said of a defendant who will obtain nothing from success in the proceedings other than being restored to the position they were in prior to the commencement of those proceedings. Furthermore, it is a well-known feature of litigation, that many more actions are commenced than proceeded with. Litigation is an expensive activity, and not just in financial terms. There are many reasons why a plaintiff may commence proceedings but not proceed with them. I think a defendant is not required to spend time, energy and resources on a claim which may never be heard and defendants should not be criticised for doing no more than is required to respond to a claim, and to be ready to meet it if and when it is prosecuted. In this regard I agree with the passage from the judgment of Butler J. in Campbell v Geraghty [2022] IEHC 241 set out at paragraph 51 of the judgment of Murray J.”

Application of the Law to the Case.

28. In this case, as I have noted above, the Plaintiff has taken no steps whatsoever to prosecute the action. Following on from Kirwan, it is clear that this case falls within the parameters of the fourth point which the Chief Justice made, namely a cumulative period of complete inactivity for more than five years, in those circumstances the court has a generous power to dismiss the case, and the court should feel free to do so, unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial.

29. I am satisfied that there is no pressing exigency of justice that requires the case be permitted to go to trial.

30. I am satisfied that by allowing these proceedings to continue, the court would be permitting an abuse of process. While it is the case that the court should exercise its discretion just strike out proceedings in a sparing fashion, given that it relates to the constitutional right of access to the courts and that the threshold to be applied in such applications is very high and that the court should take the Plaintiff’s claim at its high water-mark, nevertheless, it is clear to me that under the two headings that this application has been brought, it is appropriate that the orders be made. I am entirely satisfied that the Plaintiff’s claims against each of the three defendants are doomed to fail and cannot succeed. This is not a situation in which the Plaintiff’s case would be improved by an appropriate amendment to the pleadings or through the utilisation of pre-trial procedures such as discovery. Therefore, for the two reasons that I have set out above I am satisfied to dismiss these proceedings.

31. On that basis therefore since there are now no proceedings in being and on the basis of Section 123 (b)(ii) of the Land and Conveyancing Law Reform Act 2009, I will make the appropriate order to lift the lis pendens so that the Defendants may proceed to exercise their security which the Plaintiff and his ex-wife granted them many years ago.