High Court allows appeal dismissing plaintiff's abuse of process claim as it relitigates settled issues.

THE HIGH COURT

[2026] IEHC 335

Record Nos. HCA 2025/133 & HCA 2025/141

BETWEEN

CONSORTIO LIMITED

PLAINTIFF/RESPONDENT

AND

SLISHWOOD PROPERTY HOLDINGS LIMITED

DEFENDANT/APPELLANT

JUDGMENT of Mr Justice Mark Dunne delivered this 26th day of May 2026

Introduction

1. This matter comes before the Court by way of an appeal by the Defendant/Appellant (hereinafter the Defendant) from the orders of the Circuit Court dated 30th April 2025 and 14th May 2025 wherein the Circuit Court, by the first Order refused its application to strike out the Plaintiff’s proceedings. By its second order it awarded the costs of the motion to the Plaintiff.

2. The appeal before this Court is a de novo rehearing of the Defendants’ Notice of Motion dated 13th February 2024.

Background

3. The Plaintiff herein is a limited company, based in Galway. It is the owner of 22 apartments at a development of 72 student apartments, built for the purpose of providing student accommodation, at St. Angela’s Student Residence, Atlantic Technological University, Clogherrevagh, County Sligo. The development constitutes a multi-unit development within the meaning of the Multi-unit Developments Act, 2011 (hereinafter “the MUD Act).

4. The owners’ management company for the development, being the company established under the MUD Act, for the purposes of becoming the owner and manager of the common areas of the development, is St Angela's Management Company Ltd, a company limited by guarantee (hereinafter “the OMC”).

5. By virtue of its ownership of its 22 units in the development, the Plaintiff is automatically a shareholder in the OMC, by reference to the number of apartments it owns, it is a 30.5% shareholder.

6. The Defendant is a private limited company whose directors are Mr Edward Lynch and Mr Jeremiah Lynch. It is the successor in title to the original developers of the development. Mr. Jeremiah Lynch owns three apartments in the development, with 39 others being owned by a company called Church Ireland Property Holdings Limited, of which the Defendants are directors. Thus, the Plaintiff alleges that the directors of the Defendants own and/or control 42 of the apartments thereby controlling the majority interest in the OMC. The directors of the Defendant are also the directors of the OMC.

7. In June 2005 a religious order of nuns, agreed through its trustees, to sell a portion of its lands at St Angela’s College, Clogherrevagh, Sligo to developers, and the fee simple interest in the said lands was conveyed to those developers by Deed of Conveyance dated 18th December 2005. Thereafter four blocks of student apartments, with ancillary facilities were constructed on those lands. The original developers sold the individual apartments by way of long leases. Ultimately the freehold interest in the development was conveyed to the Defendant subject to the long leases of the individual apartments.

8. By agreement of 1st September 2006, the original developers agreed to convey the common areas of the development to the OMC. Because the OMC had been struck off the Register of Companies, this did not ultimately occur until April 2021, after the OMC was restored to the Register, when Defendant entered into a Deed of Conveyance, dated 9th April 2021, to convey the fee simple interest in the common areas of the development to the OMC (sometimes referred to by the Plaintiff as the “Common Area Transfer”). That is where the dispute the subject matter of the proceedings lies. The Plaintiff claims that only part of the common areas to which the OMC was entitled was transferred by the Defendant. This is disputed by the Defendant who claims that the various contractual and title documents gave it the right to vary the common areas to be transferred to the OMC and that the variations made to the common area transferred was lawful. In this regard it is fair to say that the Plaintiff and the Defendant are very much at odds over the meaning of various clauses in the agreement of 1st September 2006, and the Deed of Conveyance of those commons areas and the long leases entered into by the apartment owners. The Court does not have to resolve this dispute on this application.

9. The within proceedings were issued by way of Equity Civil Bill as against the Defendant on 28th November 2023. In the Indorsement of Claim the Plaintiff sets out its claim that the common areas, as originally envisaged and identified which included inter alia the ancillary building (containing inter alia laundry room, offices and so forth), and the water and sewage treatment plant, should have been transferred to the OMC. It seeks various orders including a declaration that the Defendant holds the

“omitted” parts of the common area, as constructive trustee for the OMC and the apartment owners and an order requiring the Defendant to transfer the “omitted”

common areas to the OMC, together with any necessary remedial orders the court deems appropriate, pursuant to s.24(3) of the MUD Act.

10. By its Notice of Motion dated 13th February 2024, the Defendant seeks various orders pursuant to Order 19, rule 28 of the Rules of Superior Courts as applied by Order 67, rule 16 of the Circuit Court Rules 2021, dismissing the Plaintiff's claim on the basis that it discloses no reasonable cause of action, is frivolous and vexatious and amounts to an abuse of process and is bound to fail. In truth, the application to dismiss is based on the claim that the proceedings are an abuse of process, relying on the rule in Henderson v Henderson. The Defendant's case is that the Plaintiff in these proceedings is seeking to impugn the transfer of the common areas of the development, in circumstances whereby, it has already done this in an earlier set of proceedings between the Plaintiff and the OMC, which action was compromised by a settlement agreement dated 25th April 2022. The Defendant claims that before it brought and compromised the first set of proceedings, the Plaintiff was fully aware of the Defendant’s position on the transfer of the common areas of the development, as this had been set out in correspondence by the solicitors acting for the Defendant and the OMC and it relies on the rule in Henderson v Henderson 3 Hare 100 and the caselaw relating thereto.

11. The Plaintiff for its part, claims that the first set of proceedings merely pertained to governance issues - the OMC’s management of the development generally and the service charges in particular and that, at the time of the settlement, the Plaintiff did not and could not have resolved the issues it had with the transfer of the common areas, as it had not received a copy of the Common Area Transfer (the Deed of Conveyance dated 9th April 2022) until 21st July 2022, three months after the first set of proceedings were settled. In oral submission, it was also suggested that insofar as the proceedings touched upon the common areas, this was solely in relation to access.

12. There is no dispute but that the Court has inherent jurisdiction the strike out proceedings where they amount to an abuse of process. Such a jurisdiction is also now specifically included in Order 19, rule 28 of the Rules of the Superior Courts. This jurisdiction was explained by McMenamin J in Tracey v Burton & Ors [2016] IESC 16 as follows:-

“47. [A] court is entitled to generally have regard to the manner in which proceedings are conducted. While the jurisdiction to strike out proceedings for abuse of process, in one form or another, is to be exercised sparingly, it is a sanction which cannot be ignored. Similarly, while parties have a right to defend proceedings, it may be necessary to identify the manner in which defendants' rights are best vindicated. A court may, under the Constitution, take whatever proportionate steps are necessary to protect the integrity of its own processes and procedures, and the inherent right of courts, themselves, to manage their own procedures in a manner which balances the rights of litigants with the rights of the public, and other litigants.’

13. The rule or principle in Henderson v Henderson derives from the well-known passage from the judgement of Wigram VC in Henderson v Henderson (1843) 3 Hare 100, 114-

115 where he stated:

"In trying this question I believe I state the rule of the Court correctly when I say that where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward the whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident omitted part of their case. 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 pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time".

14. That the rule is flexible in nature was emphasised by Lord Bingham in Johnson v. Gore Wood [2002] 2 AC 1, 31 where he stated:

“But 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, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. 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 not.”

15. The flexible and non-automatic nature of the rule has been referred to by the Irish Courts on many occasions. See AA v The Medical Council [2003] 4 IR 302, Culkin v Sligo County Council [2017] 2 IR 326, Munnelly v Hassett, Cremin & City Learning Ltd [2023] IESC 29 and Criminal Assets Bureau v Routeback Media AB t/a Local Mart [2025] IESC 34.

16. In Munnelly v Hassett, Cremin & City Learning Ltd [2023] IESC 29, the Supreme Court once again considered the test to be applied when considering whether to strike out proceedings as offending against the rule in Henderson v Henderson. In that case the plaintiff worked for the third defendant company. She left the company after an incident or series of incidents involving her and the managing director of the company, the first defendant. One such incident occurred on the 26th March 2015, and resulted in the commencement of two sets of proceedings. On 2nd March 2016, the plaintiff issued proceedings in the Circuit Court against the company alone (the 2016 proceedings). Groarke P. dismissed the proceedings with no order as to costs. On 15th March 2019, the plaintiff issued the second set of proceedings in the Circuit Court, this time against the company, the managing director and another director. All three defendants filed a full defence denying wrongdoing and sought that the proceedings be struck out on the grounds that they were alleged to offend the rule in Henderson v Henderson. The Supreme Court granted leave to appeal on two questions:

(i) whether the rule in Henderson v Henderson applied to the order made by the Court in relation to the matters pleaded, or the manner in which its decision was expressed; and

(ii) whether the rule could be invoked by parties who were not parties to the first

decision.

28. In holding that the Plaintiff’s claim should be dismissed as an abuse of process O’Donnell J. speaking for the Court quoted with approval the two stage test for the application of the rule in Henderson v Henderson, set out by McDonald J. in the George and George v. AVA Trade (EU) Ltd. [2019] IEHC 187, where that Judge stated at paragraph 152 of his judgment :

“While the Irish cases have accepted that a broad approach should be taken and that the rule should not be applied in an automatic or unconsidered fashion, the Irish courts, in practice, have usually addressed the rule in Henderson v.

Henderson by means of a two stage test: -

(a) asking, in the first instance, whether an issue could and should have been raised in previous proceedings; and

(b) secondly, if the issue could and should have been raised in previous proceedings, whether this is excused or justified by special circumstances”.

29. O’Donnell J. concluded that the adjudication of an application to dismiss proceedings by reference to the rule in Henderson v Henderson, should proceed in two phases: -

“51. ……. In the first place, the Court should, in my view, conduct as forensic an exercise as possible to determine what was pleaded and determined in the first set of proceedings, what could have been raised in those proceedings, and what has been raised in the subsequent proceedings. This should involve a precise, and if necessary rigorous analysis of the pleadings and order of the Court. Thereafter, however, the Court should consider whether, even if the circumstances fall within the scope of the rule, the Court should proceed to dismiss the subsequent set of proceedings, which ex hypothesi have never been determined on their merits, and where in some cases, no litigation whatsoever may have previously advanced against the particular party. The Court hearing such an application has, in my view, a degree of latitude in that regard, and there are many circumstances which may lead that court to conclude that notwithstanding the fact that on an analysis the claim is one which falls within the scope of the rule, nevertheless the proceedings should not be dismissed.”

30. In relation to the first phase analysis O’Donnell J. noted that the pleadings in the first set of proceedings will determine what was raised and what was not raised, and he cautioned that it was important to distinguish between the pleading of fact on the one hand and the cause(s) of action advanced and the relief(s) claimed on the other. (para 38). He also cautioned that “a subsequent court should be reluctant to accept an invitation to go behind what the documents show.” (para 39)

31. O’ Donnell J. also emphasised that a court is entitled to seek precision and clarity from all parties, as that is essential if it is to be in a position to best perform its function and administer justice between the parties and that revisiting old disputes or seeking to advance new grounds, in an attempt to avoid the consequences of a past failure, by way of new proceedings, was precisely the conduct which the allied rules of Henderson v Henderson and res judicata were designed to guard against.

32. Having reviewed a number of English authorities and considered the decision of the Court of Appeal in Vico Limited & Ors v Bank of Ireland [2016] IECA 273 O’ Donnell

J. was satisfied that the rule in Henderson v Henderson could be invoked by new parties, who were not party to the first set of proceedings. This was provided, having regard to the subject matter of the dispute, there was a sufficient degree of identity or privity of interest between the defendant in the first set of proceedings and the new party, to make it just to hold that the decision to which one was party, should be binding in proceedings to which the other is party. (paras 44 – 50) Thus I am satisfied that the degree of identity or proximity of interest between the parties must relate to the subject matter of the dispute.

33. While Munnelly concerned an earlier set of proceedings that had resulted in a court order dismissing the Plaintiff’s claim, it is clear that the rule in Henderson v Henderson can apply with equal force where earlier proceedings were pursued and then compromised. Thus, in Carroll v Ryan [2003] 1 IR 309, 319 the Supreme Court held that the rule in Henderson v Henderson applies not only where earlier proceedings were pursued to judgment but also where they were compromised. Thus, it may be an abuse of process to issue fresh proceedings in relation to the matters that could and should properly have been raised in earlier proceedings that were compromised. In Carroll Hardiman J. writing for the court stated:

“I agree with what was said by Lord Bingham in Johnson v. Gore Wood & Co. [2002] 2 A.C. 1 at p. 32 when, speaking of the rule in Henderson v.

Henderson (1843) Hare 100, he said "an important purpose of the rule is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter". This harassment, in my view, may arise whether or not a set of proceedings is pursued to judgment or settlement.”

34. Therefore, in the present case, the Court must carry out the following analysis:

(i) determine:

(a) what was pleaded in the first set of proceedings and what was settled by way of the settlement,

(b) what could have been raised in those proceedings,

(c) and what has been raised in the subsequent proceedings.

(ii) consider whether, even if the circumstances fall within the scope of the rule in Henderson v Henderson, the Court should proceed to dismiss the subsequent set of proceedings, and in this regard consider whether there are special circumstances which lead the Court to conclude that nevertheless the proceedings should not be dismissed. In doing so the Court must bear in mind the flexible nature of the rule.

(iii) in carry out the analysis, at (i) above, the Court must also consider whether having regard to the subject matter of the dispute, there was a sufficient degree of identity or privity of interest between the defendant in the first set of proceedings and the Defendant in these proceedings.

35. It also appears to me that since the application before the Court is a summary strike out application, the Court must be mindful that it is a jurisdiction to be used sparingly and with caution, but one which the Court should not resile from in the appropriate case.

The first set of proceedings and events leading up to them

36. In 2020, at a time when the OMC was struck off the Register of Companies, the Defendant brought an application before the High Court by way of Special Summons, pursuant to the Trustee Act 1893 (hereinafter “the Trustee Act proceedings”), the objective of which was to have the common areas and freehold reversion in the development vested in a third party company called St Angela's Breffni Owners’ Management Company Limited by Guarantee which had been established by the directors of the Defendant, to act as the management company. This application was brought to ensure compliance with the requirement of the MUD Act, that is, to have the common areas of the development vested in a management company.

37. In the course of the filing of affidavits in those Trustee Act proceedings, the Defendant did not hide the fact that, as far as it was concerned, it had an entitlement, as a result of the relevant clauses in the various deeds to vary the common areas of the development and that it had determined to exercise that right. In his third affidavit in those proceedings, the Defendant’s director, Mr. Lynch, referred to what he described as “the clear entitlement” of the Defendant to vary the common areas. He also explained why the variation to the common areas was necessary and made reference to a letter which was sent by the Defendant’s solicitors to all apartment owners dated 16th September 2020. In that letter it was stated that the Defendant “has determined that it would be appropriate for it to exercise its entitlement to revise the scope of the Common Areas of the Development as currently constituted. The letter referred to the fact that “this entitlement” was granted pursuant to inter alia the Agreement of 1st September 2006 between the original developers and the management company and was recorded in the long leases with the apartment owners. A revised map was enclosed showing the proposed revised common area for the development. I should say that the area of the revised common area shown on that map was greater than the area ultimately transferred to the OMC.

38. The Trustee Act proceedings were resisted by the Plaintiff herein and one of its directors, Ms. O’Kane, swore an affidavit pointing out that there was an application before the High Court to restore the OMC to the Companies Register. She also referred to the 21 apartments which were, at that time, being sold to the Plaintiff. She referred to the fact that she was aware that the Defendant was going to vary the common areas and keep the shop and gym facilities in the development within its ownership. She stated: -

“It appears that Slishwood intends to have the shop and gym facilities in the development remain with it as opposed to being transferred to Breffni OMC. …... The precise area to be retained by Slishwood and the impact of this for the unit holders have not been fully identified. I say that this application seeks to limit the unit owners’ rights including by the proposed retention of some of the common areas.

I further say that the applicant herein appears to be varying the extent of the common areas which it was intended would be transferred to [the OMC].”

39. In his fourth affidavit in the Trustee Act proceedings, the Defendant’s director, Mr.

Lynch, once again refers to the entitlement of the Defendant to vary the common areas of the development and avers to his belief that the variation of the Common Areas was manifestly appropriate. He also set out that in light of the affidavits that had been filed, he was willing to consent to the OMC being restored to the Registers of Companies in lieu of the relief he was seeking in the Trustee Act proceedings subject to a number of conditions.

40. Ultimately an Order was made by the High Court in the Trustee Proceedings on 15th January 2021 noting that the Special Summons was not proceeding and striking out the proceedings and awarding costs to various parties including the Plaintiff herein against the Defendant herein. By Order of 15th January 2021 the OMC was restored to the Register of Companies.

41. On 6th May 2021, the Plaintiff’s solicitors wrote to the OMC and its directors in relation to various matters including seeking copy of the transfer of the common areas to the OMC stating: -

“Please provide a copy of the transfer of the common areas in order that we can advise our client as to what exactly has been transferred. As you are aware the extent of the common areas was a matter of some controversy in the Trustee Act proceedings. The administrative building was in all or part intended to form a part of the common areas and is an extensive and income generating building. It is clear that [the directors of the OMC ] are connected to the owner of the reversionary interest Slishwood Holdings Limited this on the face of it is a clear conflict for the Management Company and its current directors.”

42. Further on in the letter, reference is made to the draft budget proposal and what was described as “the conflicts which are clear on the face of the same for the following [but not limited] to reasons.” Thereafter one of the reasons is identified as :-

“The common areas in the development include a very substantial building which includes offices, launderette, shop, gymnasium, meeting rooms and a student common room. These were contracted to be transferred to [the OMC] yet Slishwood may have taken ownership of them.”

43. On 20th May 2021, the Plaintiff issued Circuit Court proceedings in the Midlands Circuit, Co. Sligo by way of Equity Civil Bill as against the OMC [herein after “the first set of proceedings”].

44. By motion dated 31st August 2021, the Plaintiff sought various injunctions in those proceedings including inter alia

(i) “An injunction restraining the Defendant [the OMC] its servants or agents and all other persons having notice of the making of the Order, from refusing access to the blocks and plant rooms in the Building in which the Property is situate as defined in the Leases and/or refusing access to the occupants of the blocks to the gymnasium, common-room, launderette and car-park provided for the occupants of the blocks, pending the determination of the proceedings”.

45. In the affidavit grounding the motion sworn the 1st August 2021 on behalf of the Plaintiff, its director, Mr. McCarthy, set out that the Plaintiff had purchased 21 apartments in the development from a financial institutions with the completion of the sale being on 6th May 2021 and he made various averments in relation to the application for interlocutory relief. In relation to the issue of the common areas, and referring to Mr. Lynch the Defendant’s director, Mr McCarthy swore as follows: -

“It is clear that Mr Lynch has grown accustomed to being in full control of all the units and exerting a degree of control and security over all the units which is neither justified or required. The reasons given by the Defendant company to refuse access to the [Plaintiff’s] Apartments is not credible, as the ability of [the Plaintiff] to let its property is important to its ability to generate income and to meet future outgoings to the Defendant for service charges properly levied. I say that Mr Lynch exerts control of the access doors to the apartment blocks, the launderette, the Gymnasium, the car parking permits, the plant room and the common room, the Defendant is, I believe, trying to fetter the ability to the free, uninterrupted and peaceful use of the [Plaintiff’s] apartments. I strongly believe that the aim of the Defendant is to make the lettings of the [Plaintiff’s] apartments as difficult as possible, despite the fact that there is a constant shortage of student accommodation and indeed accommodation generally to let in the Country at this time.”

46. In the Indorsement of Claim of the Equity Civil Bill, in the first proceedings the Plaintiff sets out various claims against the OMC. Therein it is specifically pleaded:

(i) that by an agreement of 1st September 2006, the original developers agreed to convey the common areas of the development to the OMC and that between March and April 2021 there had been a purported transfer of the common areas “purportedly pursuant to the MUD act, of this alleged interest from Slishwood Property Holdings Ltd, to the OMC.”

(ii) “The Plaintiff has the right to use the Commons Areas as should have been correctly transferred to the OMC under the terms of its ownership of the Consortio Apartments, the MUD Act, and in law.”

47. In the reliefs sought the Plaintiff then seeks inter alia the following reliefs:

(c) An Order directing the Defendant, by itself, its servants and/or agents, to comply with its obligations pursuant to section 31 of the MUD Act as set out in Schedule 3 of the MUD Act,

(d) If necessary, a Declaration as to the extent of the Common Areas transferred to the OMC,

(e) If necessary, an order pursuant to Section 24 (5) (f) of the MUD Act, varying the extent of the Common Areas of ST. Angela’s Student Development.

(f) If necessary, an Order pursuant to Section 24 of the MUD Act,

(m) If necessary, an Order pursuant to Section 24(7) and/or (8) of the MUD Act”

48. It is noted that section 24(5)(f) of the MUD Act 2011 grants the Circuit Court the power to make an order “determining the extent to which a part of the common areas of a multi-unit development forms part of the relevant parts of the common areas of the development.” Section 24(7) of the Act grants the Circuit Court the power to direct the registration of any deed required by the court to be executed in compliance with any remedial order made under section 24(3) of the Act. Section 24(8) of the Act gives each apartment owner the entitlement to be furnished, without charge, with a certified copy of that Deed. An order if made directing compliance with section 31(2) and schedule

3 of the MUD Act would entitled the Plaintiff to be furnished with inter alia the “[t]itle documents relating to the development including, as respects the common areas and the reversion, the original stamped deeds.” (s.11 Sch 3)

49. It should also be said that the Indorsement of Claim also contains other causes of action. Thus, it is pleaded:

(i) that the OMC had caused a notice of an EGM to issue to members of the OMC including the Plaintiff’s predecessor in title, in order to pass resolutions approving a new service charge budget and incorporating new house rules,

(ii) that the Plaintiff was entitled “to vote on the said motions and to seek correct an [sic] proper account of the budgets and draft rules submitted”

(iii) that the Plaintiff was entitled to have motions presented to the EGM which comply with the terms of the MUD Act

(iv) that “in breach of the duties (at law, by virtue of statute and/or fiduciary duty)

owed by the Defendant, its servants or agents, to the Plaintiff, its servants or agents,” the Defendant, its servants or agents had failed to have a service charge budget prepared properly, failed to vouch costs which it proposed to impose, failed to supply adequate information about the resolutions before the EGM, failed to prepare a resolution on house rules which was compliance with the MUD Act and failed to allow the Plaintiff vote at the EGM alleging that service charges were outstanding.

50. The related reliefs sought included orders pursuant to sections 23 and 24 of the MUD Act, an order directing the Defendant (the OMC), to comply with its obligations pursuant to section 31 and schedule 3 of the MUD Act, (which would have entitled the Plaintiff to the financial and management accounts of the OMC and records relating to service charges), damages and an order for restitution of all sums expended by the Plaintiff and an order restraining the Defendant (the OMC), its servants or agents from holding the EGM until further order of the Court or the determination of the proceedings.

51. The first set of proceedings were ultimately settled together with High Court Summary Summons proceedings brought against the Plaintiff by the OMC. The settlement agreement is dated 25th April 2022. Pursuant to that settlement agreement, the Plaintiff agreed to pay to the OMC the sum of €500,000 in respect of outstanding service charges for the years 2015 to 2022 “and in full and final settlement of all claims made by [the Plaintiff] as against the OMC under the proceedings bearing the title Consortio Ltd - v- St Angela's Management CLG - Circuit Court Record No. 2021/000071” – that is the first set of proceedings. As part of the settlement, the Plaintiff waived its entitlement to the costs order made in its favour in the Trustee Act proceedings as against the

Defendant herein, even though it was neither a party to the first set of proceedings or the settlement agreement. It was agreed that the tenants of the Plaintiff's apartments, “shall be entitled to access the launderette facility provided by the OMC.” The Settlement Agreement also contained an entire agreement clause.

52. The Plaintiff says that the first set of proceedings were not about the common areas but rather were about governance issues. The Plaintiff’s director, Mr McCarthy, avers in his Affidavit that it is not accurate to say that the first set of proceedings sought to impugn the scope of the transfer of the common areas. He avers as follows:

“The assertion that the earlier proceedings sought to impugn the scope of the transfer of the Common Areas is not accurate. The proceedings raised governance issues and arose from the way in which the Development was being managed by the OMC. In particular what was at issue was an EGM scheduled for April 2021, called to approve a specific Service Charge Budget and House Rules. As appears from the Civil Bill, the Plaintiff took issue with the impending EGM and the issues for consideration thereat in particular the proposed Service Charge Budget and the House Rules. These issues were the subject matter of the claims against the OMC referred to in the Settlement Agreement made on the 25th April 2022 which also resolved historic claims for service charges for the Consortio Units for the period 2015 to 2022. Insofar as the extent of the Common Areas was raised this was in the context of the inadequacy of the information being furnished to underpin the Service Charge Budget being proposed. The Plaintiff had not had sight of the Common Area Transfer, did not know what had been transferred to the OMC by the Defendant and as aforesaid did not become aware of the contents of the Common Area transfer until 16 months after the proceedings had commenced and 3 months after they had been compromised.”

53. Mr. McCarthy also averred in his affidavit that the settlement agreement also settled the High Court Summary proceedings taken by the OMC against the Plaintiff for historic service charges and that the service charges sought to be recovered by the OMC at the direction of the directors of the Defendants herein, comprised service charges arising from the common area shown on the map attached to the Special Summons in the Trustee Act proceedings, rather than from the reduced common area, that was ultimately transferred to the OMC. In oral submissions it was also submitted on behalf of the Plaintiff that in so far as the common area was touched upon in the first set of proceedings, that related only to access to facilities not the ownership of the disputed common area.

54. I cannot and do not accept the Plaintiff’s assertion that the first set of proceedings did not include a claim in relation to the disputed common area of the development.

Conducting as I must, as forensic an exercise as possible in relation to what was pleaded in the first set of proceedings whilst being mindful of what O’Donnell J. described in Munnelly, as the reluctance the Court should have to accept an invitation to go behind the pleaded case, I am satisfied that the first set of proceedings clearly impugned the transfer of the common area by the Defendant herein to the OMC and included a claim in relation to the disputed common areas within the development and the extent of the same, which it was alleged should have been transferred to the OMC. That is obvious from what is specifically pleaded and the reliefs sought as outlined above. This is also evident from the relief sought in the interlocutory injunction motion brought by the Plaintiff and from the affidavit sworn by Mr. McCarthy grounding that motion.

55. In addition, that the extent of the common area that should have been transferred by the Defendant to the OMC was hotly in dispute and that there was little trust between the Plaintiff, the Defendant herein and its directors, is clearly evident from the Plaintiff’s pre-action letter of the 6th May 2021, and the correspondence from the Plaintiff’s solicitors in relation to discovery. By letter of 8th December 2021, the Plaintiff sought voluntary discovery in the first set of proceedings, as against the OMC, including discovery of documentation relating to “the transfer of the legal and beneficial interest in the common areas within the Development …… which was assigned and/or transferred by Slishwood Property Holdings Limited to the [OMC] in or around 9th of

April 2021” and “the extent of the Common Areas to be transferred to the [OMC] and/or any other corporate vehicles in the control of the officers of the [OMC].

56. The reasons given by the Plaintiff for seeking this discovery were set out as follows: -

“It is alleged inter alia that the Defendant [the OMC] failed to transfer all or sufficient parts of the Common Areas as was intended by a contract dated 1st day of September 2006 made between [the original developers] on one part and the defendant [the OMC] on the other part.

It is pleaded the Plaintiff has a right to use all the Common Areas as should have been correctly transferred to the Defendant [the OMC] under the terms of its ownership of the [Plaintiff’s] apartments (as defined in the pleadings), the MUD Act and in law.

The efficacy and extent of this transfer and the validity of the transaction carried out is in issue and discovery is relevant to such matters and are [sic] necessary for the fair disposal of the action and to save the costs associated therewith.”

57. Ultimately, the OMC agreed by letter of 22nd December 2021 to make discovery of “All documents giving effect to the transfer of the legal and beneficial interest in the Common Areas of the Development by Slishwood Property Holdings Limited to the Defendant.” The Plaintiff was unhappy with this, and its solicitors wrote by letter of 3rd January 2022, stating that: -

“The proceedings arise from a number of matters which ultimately fall to be dealt with at the hearing of the action, these issues have been extensively canvassed in correspondence, in the exchange of pleadings and affidavits to date. The substance of the proceedings can come as no surprise to the defendant in the matter.

………

For the avoidance of doubt the key issues which have been clearly indicated as the substantive issued [sic] to be heard in this matter are broadly (but not limited to) :

2. The scope of the transfer of the Common Areas in the development is clearly in dispute as what appears to have now happened is to exclude areas from the common areas within the Development situate at St Angela’s Student Apartments, St Angela’s College, Clogherevagh, Lough Gill, Co Sligo (“the Common Areas) which was assigned and or transferred by Slishwood Property Holdings Limited (“Slishwood”) to the Defendant [the OMC] in and around 9th of April, 2021. This is an issue for the hearing of the trial and the reliefs sought includes the right of the Plaintiff and the Apartment owners in the development to use of the Common Areas, as should have been correctly transferred to the OMC by Slishwood under the terms of the agreement to transfer and the rights of the apartment owners, the MUD Act, in law and the reliefs sought.”

58. The letter went on to reiterate that the issue of the scope of the assignment of the common areas was very much part of the pleaded case and stated:

“It is pleaded the Plaintiff has a right to use all of the Common Areas as should have been correctly transferred to the Defendant under the terms of its ownership of the Consortio Apartments [as defined in the pleadings], the MUD Act and in law.

…… The efficacy and extent of this transfer and the validity of the transaction carried out is in issue and discovery is relevant to such matters and are [sic] necessary for the fair disposal of the action and to save the costs associated therewith.”

59. It is of course the case, that in the first set of proceedings only the OMC was sued as the defendant and not the Defendant herein. However, it could have easily joined the Defendant to those proceedings. Indeed, in those proceedings it specifically relies upon the agreement of 1st September 2006 made between the Defendants’ predecessor in title and the OMC for the transfer of the common areas and specifically pleads that sometime between March and April 2021 the Defendant herein purported to transfer the common areas to the OMC. Indeed, it is hard to see how the Plaintiff could have obtained from the Circuit Court, the order which it sought, pursuant to section 24(5)(f) of the MUD Act, varying the extent of the common areas transferred to the OMC, without the presence of the Defendant in the proceedings. The issue of the need to join the Defendant to the first set of proceedings was something that the Plaintiff considered and for whatever reason, decided against. That is evident from the correspondence. In a letter of 30th September 2021 some six months before the settlement agreement was entered into, the Plaintiff's solicitors wrote to the solicitors for the OMC and referring to the Plaintiff’s injunction application stated: -

“In the course of the application your client through Mr [ ] Lynch confirmed to the Court that the ancillary block comprising the Launderette, Common room, Gym and offices (“the Ancillary Block”) was not in the ownership of the OMC but rather was owned by a separate company presumably Slishwood Property Holdings Limited (“Slishwood”).

We note your firm acts for Slishwood and you might confirm this to be correct.

As you are aware we have on a number of occasions sought a copy of the transfer of the common areas to clarify the position of the extent of the transfer, as it may be the case that it will be necessary to join Slishwood to the proceedings in light of the reliefs sought as to the declaration of the extent of the Common Areas transferred and if necessary an order varying the extent of the common areas.

It would seem from your client's statement that Slishwood has retained all or part of the Ancillary Block we now call on you to clarify on your clients behalf the extent of the transfer of the Ancillary Block and furnish a copy of the transfer. This will ultimately lead to saving in costs and court time in dealing with the matter.

In the event that this confirmation is not forthcoming our client will have no alternative but to seek to join Slishwood to the proceedings and should this become necessary our client will rely on the content of this letter for an indemnity as to costs, should it transpire that Slishwood was not the appropriate party to join, with the consequential of costs which may flow from that.”

60. In a further letter of 15th November 2021, the Plaintiff's solicitors wrote stating inter alia: -

“We note your confirmation that Slishwood Property Holdings Limited is the owner of the areas and does not intend to transfer same to the OMC. We note your statement that practical completion of the development only took place on 9th of April 2021.

In light of the above confirmation our client may need to join Slishwood Property Holdings Limited to the proceedings and we will revert shortly in that regard.

61. It is also the case that the claim in respect of the impugned common area transfer is more thoroughly pleaded in the within proceedings, nonetheless the claim is there in the first set of proceedings, and the corresponding reliefs are sought. In the first set of proceedings, it was open to the Plaintiff to set out its cause of action in respect of the disputed common areas transfer, in the more fulsome manner, it did in these proceedings.

62. Since the first set of proceedings included a claim impugning the transfer of the common areas of the development, by the Defendants herein to the OMC, I am also satisfied that when the Plaintiff settled those proceedings by way of “full and final settlement of all claims” it settled its claim in relation to the disputed transfer of the common areas which it had brought against the OMC.

The present proceedings

63. That the first set of proceedings included the same challenge to the disputed transfer of the common areas by the Defendants as in the present proceeding is also evident from a forensic comparison between what was pleaded in the Equity Civil Bill in the first set of proceedings and what is pleaded in the Equity Civil Bill in these proceedings.

64. The Indorsement of Claim in these proceedings sets out the Plaintiff’s claim that the common areas, as originally envisaged and identified in the individual long leases by including inter alia an ancillary building, parking spaces and the water and sewage treatment plant, should have been transferred to the OMC. It is pleaded that purchasers of the various apartments entered into their long leases relying on the various documents of title to this effect. It says that the Defendant upon acquiring the original developers’ interest in the development became a trustee of the legal interest in the common areas which it holds in trust for the OMC and apartment owners. The Plaintiff pleads that wrongfully and in breach of trust, the transfer of the common areas by the Defendant to the OMC omitted significant portions of the common areas and in particular the ancillary block, the roadway serving the blocks, the parking spaces and the wastewater treatment plant. The Plaintiff also claims that the Defendant is in breach of the obligations imposed by the MUD Act to transfer ownership of the common areas in the development to the OMC. It pleads that by way of a services agreement dated 9th April 2021 between the Defendant and the OMC the Defendant agreed, for profit, to provide potable water and wastewater treatment services to the development. It pleads that the arrangements established by both the common area transfer and the services agreement are manifestly improvident from the perspective of the OMC and the Plaintiff, and apartment owners and that the combined effect of the common area transfer and services agreement is to unjustly enrich the Defendant at the expense of the OMC and the owners of the apartments, including the Plaintiff. It pleads that in acting as aforesaid the Defendant is in breach of its fiduciary duty to the OMC and the owners of the apartments. It is pleaded that therefore the Defendant retains the omitted common areas, as trustees for the OMC and is obliged to transfer the omitted common areas to the OMC.

65. By way of reliefs the Plaintiff seeks: -

(a) A declaration that the Defendant holds the omitted common areas as constructive trustees for the OMC and the apartment owners.

(b) An order requiring the Defendant to transfer the omitted common areas to the OMC,

(c) An account of profits made by the Defendant from its wrongful retention of the common areas.

(d) Such remedial orders as the court deems appropriate, pursuant to s. 24(3) of the MUD Act and

(e) An order pursuant to s. 24(5)(f) of the MUD Act in relation to the scope of the common areas of the development.

66. What is striking is that the reliefs sought at (a) and (b) above are similar to and would have the same practical effect as the reliefs sought at (d) and (e) and (m) in the Equity Civil Bill in the first set of proceedings and that reliefs (d) and (e) above are practically identical to reliefs (e) and (f) in the Equity Civil Bill in the first set of proceedings.

67. The Plaintiff argues that the first set of proceedings and indeed the settlement agreement was only between the Plaintiff and the OMC and that the Defendant herein was not a party to either and therefore nothing was determined or settled as against the Defendant herein, in the first set of proceedings and the settlement of the same.

68. It is of course the case that the Defendant herein was not a party to the first set of proceedings nor was it a party to the settlement, which was “in full and final settlement of all claims made by [the Plaintiff] as against the OMC”. However, I am satisfied that having regard to the subject matter of the dispute, namely, the extent and transfer of the common areas by this Defendant to the OMC, there is a sufficient degree of identity or privity of interest between the defendant in the first set of proceedings (the OMC) and the Defendant herein so as not to preclude this Defendant’s reliance upon the rule in Henderson v Henderson. In both sets of proceedings, the Plaintiff relies upon the agreement of 1st September 2006 made between the Defendants’ predecessor in title and the OMC for the transfer of the common areas. In both sets of proceedings, it is claimed that the Defendant herein purported to transfer less of the common areas to the OMC than that agreement had provided for. In other words, in both sets of proceedings the transfer of the common areas by the Defendant herein to the OMC by the Deed of Conveyance dated 9th April 2021 is impugned. As set out above, it is hard to see how the Plaintiff could have obtained from the Circuit Court the order which it sought, in the first set of proceedings, pursuant to section 24(5)(f) of the MUD Act, varying the extent of the common areas transferred to the OMC without the presence of the Defendant herein in those proceedings. Thus, it was clear that the claim being made in the first set of proceedings was in part, one directed to the alleged conduct or misconduct of the Defendant, in not transferring the full extent of the common areas to which the OMC and the apartments owners were, it was alleged, entitled. Furthermore, the directors of both the OMC and the Defendant are the same and the Plaintiff maintains that those directors use their control of their majority shareholding in the OMC to control it for the benefit of the Defendant. Indeed, it is noteworthy that despite the fact that the Defendant herein was not a party to the first set of proceedings or their settlement, as part of that settlement the Plaintiff agreed to waive its entitlement to the costs order made in its favour in the Trustee Act proceedings as against the Defendant herein. Therefore, I am satisfied, having regard to the subject matter of the dispute,

that the rule in Henderson v Henderson can be invoked by the Defendant herein despite the fact it was not a party to the first set of proceedings.

69. Since I have found that the circumstances fall within the scope of the rule in Henderson v Henderson, and the Defendant is entitled to invoke the rule, I must now consider whether there are any special circumstances which should lead the Court to nonetheless decline to dismiss the proceedings as an abuse of process. In so doing, I must be mindful of the flexible, non-automatic nature of the rule.

70. The Plaintiff says that even if, the rule applies, there are special features or circumstances that mean that the proceedings should not be dismissed but should be allowed go to trial. Firstly, the Plaintiff says that it did not and could not have resolved the issue it had with the transfer of the common areas in the first set of proceedings and the settlement thereof, because despite repeated requests it did not receive a copy of the Deed of Conveyance of the common areas dated 9th April 2021 until 21st July 2022, some 3 months after the first set of proceedings were settled. In this regard the Plaintiff’s director, Mr. McCarthy, avers in his affidavit that:

“However, the transfer left out very significant portions of the Common Areas which remain in the ownership of the Defendant these areas include the wastewater treatment plant, the entire block of ancillary facilities housing the laundry, a seminar room, the administrative offices, a gym and a shop as well as much of the accessways paths and car parks in the development. As aforesaid this did not come to light until 21st July, 2022.”

71. Regrettably the averment that the Plaintiff was unaware that the common areas transferred to the OMC did not include these areas, until the Deed of Conveyance of the transfer of the common areas was provided on the 21st July, 2022, is simply not credible. By letter of 9th September 2021, during the course of the first set of proceedings, the OMC’s solicitors wrote to the Plaintiff setting out inter alia that: -

“The gymnasium and common room are contained in the ancillary buildings which are owned by Slishwood Property Holdings Ltd. Slishwood is not a Defendant to the proceedings. The launderette is also contained in the ancillary buildings, owned by the Slishwood. Slishwood has granted a licence to the OMC to permit occupants of the development to use the launderette. In relation to the carpark, there is simply no evidence whatsoever that your client has been blocked from using the available spaces in the carpark or indeed the overflow carpark.”

72. In a letter from the Plaintiff’s solicitors to the OMC’s solicitors dated 15th September 2021, it was stated on behalf of the Plaintiff: -

“As you are aware we have on behalf of our client repeatedly sought a copy of the common areas transfer including in our letter of 9 September last, to no avail to date. This request was in order to ascertain what part of the ancillary building was transferred and/or reserved as this was a matter of concern to our clients [sic]. Our clients[sic], have sought a declaration as to the extent of the common areas transferred and if necessary an order pursuant to Section 24(5)(f) of the Multi Unit Development Act, 2011, varying the extent of the common areas.”

73. The letter continued by stating: -

“The lease contains clear reference to the laundry room and it is a matter of concern that it would appear that this either has not been transferred as part of the common areas or is not to be transferred as part of the common areas.

However more worryingly for our clients [sic] is the statement that the laundry, convenience store and gymnasium and common room are owned by Slishwood with an implication that they do not form part of the common areas or that access would not be afforded thereto the Apartments in a development generally. This concern is not without foundation, it is based on the position that the original developers clearly intended, that being that portion of the ancillary block [in particular the gymnasium and the recreation room] was part of the common areas and that of the purpose of the ancillary block was to serve the apartments in the development. This is a position that has in fact been robustly confirmed by Mr Lynch [the Director of the Defendant] in previous litigation affecting the Development, but alarming for our client Mr Lynch seems to have abandoned his position entirely to suit his current purpose.”

74. In a letter of 30th September 2021 some six months before the settlement agreement was entered into, the Plaintiff's solicitors wrote to the solicitors for the OMC and referring to the Plaintiff’s injunction application stated: -

“In the course of the application your client through Mr [ ] Lynch confirmed to the Court that the ancillary block comprising the Launderette, Common room, Gym and offices (“the Ancillary Block”) was not in the ownership of the OMC but rather was owned by a separate company presumably Slishwood Property Holdings Limited (“Slishwood”).

We note your firm acts for Slishwood and you might confirm this to be correct.

As you are aware we have on a number of occasions sought a copy of the transfer of the common areas to clarify the position of the extent of the transfer, as it may be the case that it will be necessary to join Slishwood to the proceedings in light of the reliefs sought as to the declaration of the extent of the Common Areas transferred and if necessary an order varying the extent of the common areas.

It would seem from your client's statement that Slishwood has retained all or part of the Ancillary Block we now call on you to clarify on your client’s behalf the extent of the transfer of the Ancillary Block and furnish a copy of the transfer. This will ultimately lead to saving in costs and court time in dealing with the matter.

In the event that this confirmation is not forthcoming our client will have no alternative but to seek to join Slishwood to the proceedings and should this become necessary our client will rely on the content of this letter for an indemnity as to costs, should it transpire that Slishwood was not the appropriate party to join, with the consequential of costs which may flow from that.”

75. By letter of 12th October 2021, the Plaintiff's solicitors wrote again to the OMC solicitors claiming that the laundrette, gymnasium and recreational area were part of the common areas of the development. By letter of 5th November 2021, the OMC solicitors replied over the course of 10 pages to various matters raised and stated inter alia under the heading “Gymnasium and Recreational Area”:

“As has been indicated on several occasions during the course of within proceedings and in open correspondence, the gymnasium and recreational areas are owned by Slishwood Property Holdings Limited under Deed of Transfer dated 9 April 2021.

…….

Both the gymnasium and recreational area are in the ownership of Slishwood Property Holdings Limited, and residents of the [Plaintiff’s] Units do not have an entitlement to access these facilities as of right.”

76. In reply the Plaintiff's solicitors wrote on 15th November 2021 stating inter alia:-

“We note your confirmation that Slishwood Property Holdings Limited is the owner of the areas and does not intend to transfer same to the OMC.”

77. By letter dated 3rd January 2022, the Plaintiff’s solicitors wrote to the OMC solicitors concerning the first set of proceedings and stated inter alia that: -

“For the avoidance of doubt the key issues which have been clearly indicated as the substantive issued [sic] to be heard in this matter are broadly (but not limited to) :

………

2. The scope of the transfer of the Common Areas in the development is clearly in dispute as what appears to have now happened is to exclude areas from the common areas within the Development situate at St Angela’s Student Apartments, St Angela’s College, Clogherevagh, Lough Gill, Co Sligo (“the Common Areas) which was assigned and or transferred by Slishwood Property Holdings Limited (“Slishwood”) to the Defendant [the OMC] in and around 9th of April, 2021. This is an issue for the hearing of the trial and the reliefs sought includes the right of the Plaintiff and the Apartment owners in the development to use of the Common Areas, as should have been correctly transferred to the OMC by Slishwood under the terms of the agreement to transfer and the rights of the apartment owners, the MUD Act, in law and the reliefs sought.”

78. The letter went on to reiterate that the issue of the scope of the assignment of the Common Areas was very much part of the pleaded case and stated:

“It is pleaded the Plaintiff has a right to use all of the Common Areas as should have been correctly transferred to the Defendant under the terms of its ownership of the Consortio Apartments [as defined in the pleadings], the MUD Act and in law.

…… The efficacy and extent of this transfer and the validity of the transaction carried out is in issue and discovery is relevant to such matters and are [sic] necessary for the fair disposal of the action and to save the costs associated therewith.”

79. Therefore, while it is the case, that the Plaintiff was not provided with the Deed of Conveyance transferring the commons areas from the Defendant to the OMC, until 21st July 2022, it cannot be said that prior to the receipt of this Deed, the Plaintiff was unaware of the fact that, what it considered to be significant portions of the area which it believed should have been transferred to the OMC as part of the common area transfer, had been kept in the ownership of the Defendant herein. Nor can it be said that it lacked sufficient information to prosecute its claim as pleaded in the first set of proceedings, impugning the common area transfer. Disputes over documents and the handing over of documents in litigation, is not novel, it is sometimes part of the litigation process. It is noteworthy that the Plaintiff had sought in the first set of proceedings, discovery of documentation relating to “the transfer of the legal and beneficial interest in the common areas within the Development …… which was assigned and/or transferred by Slishwood Property Holdings Limited to the [OMC] in or around 9th of April 2021” and “the extent of the Common Areas to be transferred to the [OMC] and/or any other corporate vehicles in the control of the officers of the [OMC]. The Plaintiff could have waited to compromise the first set of proceedings until it obtained this discovery, if it truly believed that not having sight of the actual Deed of Conveyance dated 9th April 2021 was in some way inhibiting it, in either the prosecution or settlement of the first set of proceedings. For whatever reason, it chose not to do so.

80. The Plaintiff also argues that it was not aware of the precise variation made to the common areas until it received the Deed of Conveyance dated 9th April 2021 in July 2022 and that various different versions of the variation to the common areas and various different assurances were given, as to the extent of the variations and indeed various reasons were given for the variations. This it says amounts to a special circumstance that should move the Court to refuse the application to dismiss. In this regard the Plaintiff relies upon a number of documents. The first is the map that was exhibited to the Trustee Act proceedings, which the Plaintiff says showed the area that, at the time, the Defendant was claiming it held in trust for the management company, which included the disputed common areas housing the water and waste treatment plan, gymnasium and so forth. The second is the map that was attached to the Deed of Conveyance dated 9th April 2021 and shows the extent of what the Plaintiff says is the portion of the common areas wrongfully kept by the Defendant, which map, the Plaintiff did not get until July 2022. The Plaintiff also relies upon a passage from the Defendant’s solicitors’ letter of 16th September 2020 to the apartment owners wherein it was stated that “the proposed reduction in the Common Areas would see our client retaining the disputed areas and to cover all legal costs and, if necessary, damages arising from those legal proceedings. The costs associated with these proceedings would be a significant drain on the resources of the New Management Company, particularly given that the areas involved constitute a small portion of the overall

Development.” In addition, it relies upon the averment of the Defendant’s director, Mr.

Lynch, in his third Affidavit in the Trustee Act proceedings sworn 30th day of October 2020 where he averred that “The proposed variation to the Common Areas will ensure, in particular, that the owners of the Units retain full use and benefit of the facilities and amenities contained within the Development, while also insulating the owners of the Units from significant layers of costs.” Thus, in effect it says it was justified in not prosecuting or settling any claim in relation to the disputed common area transfer, at that time, because of the lack and inaccuracy of the information that was available. It says that it should not now be prevented from challenging the consequences of the actual impugned transfer, which was in the teeth of assurances given, in circumstances where the Defendant, it is alleged, in effect misled it about the precise scope of the variation.

81. Unfortunately, an examination of the documentation before the Court does not support the Plaintiff’s contention in this regard. As can be seem from the correspondence referred to above, as far back as the letter of 9th September 2021, (written some 4 months after the first set of proceeding issued and over 6 months before they were settled) the OMC’s solicitors wrote to the Plaintiff setting out inter alia that: -

“The gymnasium and common room are contained in the ancillary buildings which are owned by Slishwood Property Holdings Ltd. Slishwood is not a Defendant to the proceedings. The launderette is also contained in the ancillary buildings, owned by the Slishwood. Slishwood has granted a licence to the OMC to permit occupants of the development to use the launderette. In relation to the carpark, there is simply no evidence whatsoever that your client has been blocked from using the available spaces in the carpark or indeed the overflow carpark.”

82. In a letter of 30th September 2021, the Plaintiff's solicitors referring to the Plaintiff’s injunction application noted that: -

“In the course of the application your client through Mr [ ] Lynch confirmed to the Court that the ancillary block comprising the Launderette, Common room, Gym and offices (“the Ancillary Block”) was not in the ownership of the OMC but rather was owned by a separate company presumably Slishwood Property Holdings Limited (“Slishwood”).

83. The Plaintiff also argues that the issue of whether the Plaintiff was justified in bringing the within proceedings to prosecute its grievance about the impugned common area transfer and the issue of whether the proceedings amount to an abuse of process, should not be determined on this motion, but only at the full trial of the action. I do not accept this argument. Clearly a Court can determine before the full trial of an action, whether the proceedings should be struck out as an abuse of process and indeed this is envisaged by Order 19 Rule 28 of the Rules of the Superior Courts as it provides that this can be done “on an application by motion on notice” and that in considering the application the Court can have regard to “to evidence in any affidavit filed in support of, or in opposition to, the application.” Indeed, it would be difficult to see how the courts could effectively protect against such an abuse of process, if the issue of whether proceedings amounted to an abuse of process could only be determined at the full trial of the action.

84. The Plaintiff further says that the Court cannot on this motion determine contested facts, as to what the Plaintiff knew about the variations to the common areas but, must for the purposes of the motion accept the Plaintiff’s averments, in that regard. While the Court must exercise its jurisdiction to strike out proceedings as an abuse of process, sparingly and with great caution, and must take the Plaintiff’s case at its height and assume that everything it has pleaded, can be proven at trial, that does not mean that on an application under the rule in Henderson v Henderson it must blindly accept a position adopted or an averment made by a plaintiff, that is clearly contrary to, or flies in the face of, the documentary evidence available to the Court, when assessing if there are circumstances that would lead the Court to conclude that it should refuse to dismiss the proceedings.

85. Therefore, having carefully considered all of the evidence and submissions made, and mindful of the flexibility that the application of the rule requires, I am satisfied that there are no circumstances leading the Court to conclude, that notwithstanding the fact that the claim is one that falls within the rule in Henderson v Henderson, it should decline to dismiss the proceedings. The reality of the situation was that the extent of the common area in the development transferred by the Defendant to the OMC and the extent of the area being retained by it was in issue between the parties before, and in the first set of proceedings. That it was in issue was well known to the Plaintiff. It formed part of the claim made by the Plaintiff in the first set of proceedings and could have been prosecuted in those proceedings. The Plaintiff for whatever reason, perhaps related to the opportunity that arose in the settlement, to settle the summary summons proceedings brought by the OMC for the arrears of service charges, made the decision to settle those proceedings on the terms it did. Thus, it chose not to pursue the claim it had made, and the reliefs it had sought, in respect of the impugned transfer of the common areas, in the first set of proceedings. Having adopted this approach and in the absence of circumstances that would lead me to refuse the reliefs sought, the proceedings will be dismissed as an abuse of process.

86. I am satisfied therefore that these proceedings are an abuse of process and should be dismissed. Therefore, I will make an order allowing the appeal, together with an order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts as applied by Order 67, rule 16 of the Circuit Court Rules and pursuant to the inherent jurisdiction of the Court, dismissing the proceedings as an abuse of process.

87. As this judgment has been delivered electronically, the matter will be listed for mention at 10.30 am on 16th June 2026 for the purpose of making final orders and dealing with costs.