Supreme Court dismisses ten appeals against Bank of Ireland due to appellant's abuse of process and oppression.

THE SUPREME COURT

Denham C.J.

O’Donnell J.

Clarke J.

Record Nos. 439/2010, 432/2010, 437/2010, 438/2010, 440/2010, 047/2011, 121/2011

Between/

Angela Farrell

Plaintiff/Appellant

and

The Governor and Company of the Bank of Ireland

Defendant/Respondent

Record Nos. 381/2011, 382/2011 and 383/2011

Between/

Brian Freely/Dermot Freehill/Mark Woodcock

Applicants/Respondents

and

The Judge of the District Court Number 9 District Court Judge Bridget Reilly

Respondents

and

Angela Farrell

Notice Party/Appellant

Judgment of the Court delivered on the 30th day of July, 2015, by Denham C.J.

1. This matter comes before the Court by way of an application in relation to ten appeals, the case numbers of which are set out at

the commencement of the judgment. Angela Farrell, the plaintiff/appellant in the first seven appeals, and the notice party/appellant in

the remaining three appeals, is referred to as “the appellant”. The Governor and Company of the Bank of Ireland is the

defendant/respondent on the first seven appeals and is referred to as “the bank”. Brian Feely, Dermot Freehill and Mark Woodcock,

the applicants/respondents in the last three appeals, are referred to collectively as “the applicants”.

2. The motion before the Court is brought on behalf of the bank and the applicants. The orders sought are:-

(i) An order dismissing, or in the alternative, striking out the notices of appeal bearing the record numbers

432/2010, 437/2010, 438/2010, 439/2010, 440/2010, 047/2011, 381/2011, 382/2011, 383/2011, on the grounds of

abuse of process and/or delay and/or want of prosecution and/or failure of the appellant herein to furnish security

for costs on foot of the order of this Honourable Court dated 10 July 2012.

(ii) An order dismissing, or in the alternative, striking out the notice of appeal bearing the record number 121/2011

on the grounds of abuse of process and/or delay and/or want of prosecution.

(iii) Any further directions or orders that this Court shall deem fit.

(iv) An order providing for costs.

3. The application was grounded on the affidavit of Mark Woodcock sworn on the 20th March, 2015.

4. In substance three separate grounds were relied on by the bank and the applicants for the purposes of seeking a strike out or

dismissal of these appeals. As is apparent from the terms of the notice of motion already cited, it was argued that the conduct of

these appeals by the appellant amounted to a sufficiently serious abuse of process to justify this Court, as a proportionate response

to that alleged abuse of process, to dismiss the appeals. Second, attention was drawn to the fact that this Court had directed that

security for costs be provided in relation to all but one of these appeals. No security has been provided, and neither those appeals

which were stayed pending the provision of security nor, indeed, the one appeal which was not the subject of security, have

progressed in any way. On that basis it is said that the appeal should be dismissed for delay and failure to prosecute. Third, and

finally, attention was drawn to the fact that the appellant was adjudged a bankrupt in the High Court. In that context it should be

noted that the order adjudicating the appellant as a bankrupt is, itself, under appeal to this Court. On the other hand, there is, at

present, no stay in place on the original order of adjudication. It follows that, at present, the appellant is a bankrupt. In those

circumstances both the bank and the applicants raised the issue as to whether the appellant was entitled to pursue these appeals as

a bankrupt.

5. Before going on to consider those issues it should be recorded that, at the beginning of the oral hearing, the appellant suggested

that both Denham C.J. and Clarke J. should recuse themselves from the hearing. The Court heard argument on that point and

indicated that the issue of recusal would be dealt with in the judgment or judgments to be delivered by the Court. On that basis it

was made clear that, in the event that the Court was persuaded that recusal was appropriate, the existing formation of the Court

would not proceed to consider any of the substantive issues raised on these applications but rather would arrange for the applications

of the bank and the applicants to be relisted for hearing before a differently constituted formation. In those circumstances it follows

that it is necessary to deal first with the question of recusal.

Recusal

6. The appellant suggested that Denham C.J. should recuse herself on the basis of her position as Chairperson of the Courts Service

Board. The appellant drew attention to the fact that she has made certain accusations about registrars who were involved in various

applications before the High Court and has raised questions about the contemporary notes taken by registrars during hearings and the

formal court orders made as a result of those hearings. However, none of those accusations relate to any suggestion of an

involvement on the part of either the Courts Service Board, let alone Denham C.J. While the Courts Service Board is, of course,

charged with providing the policy for the management of the courts generally, the issues which the appellant seeks to raise do not

involve any actions of the board itself. In those circumstances, the Court is not satisfied that there could be any reasonable

apprehension of bias in accordance with the well established jurisprudence of the courts including the formulation of the test for

recusal established in cases such as Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412 and Orange Limited v. Director of

Telecoms (No. 2) [2000] I.R. 159.

7. The basis on which the appellant suggested that Clarke J. should recuse himself was that, she asserted, Clarke J. had some time

ago had a business dealing with a barrister who is the brother of a person recently appointed to the board of the bank. A number of

matters need to be recorded concerning that application. It must be recorded that the application was made for the first time at the

beginning of the oral hearing in open court (and, thus, on an occasion of absolute privilege) without having given any prior notice

either to the parties or to the Court of the perceived difficulty. While it is true that, for the purposes of these appeals, the appellant

acts as a litigant in person it must be recalled that the appellant was a qualified solicitor who should be aware of proper procedure.

8. Furthermore, the issue raised concerned a single transaction involving a transfer of shares made approximately ten years previously

between Clarke J. and the barrister concerned. Even on the basis of the appellant’s knowledge of the matter it would have been

abundantly clear that there could be no conceivable basis for suggesting that a single transaction, many years ago, between a judge

and a barrister who is not himself connected with a party (and is simply a sibling of a person recently appointed to the board of a

party) could give rise to a perception of bias. Furthermore, as was pointed out to the appellant and as would be clear from publicly

available documentation, the shares concerned were in a property management company which were transferred, as is normal

practice in this jurisdiction, along with a transfer of a relevant interest in the ownership of the underlying property itself. The property

concerned was the premises from which Clarke J. conducted practice while a senior counsel and the transaction involved no more

than the sale to another member of the bar of the interest held by Clarke J. in that premises which occurred in the ordinary way after

Clarke J. had been appointed to the bench. This was, therefore, a routine transaction of a type that would occur in the case of many

persons appointed to judicial office.

9. Despite this being pointed out to the appellant, she persisted in her objection by making reference to other unspecified business

interests without suggesting any basis on which those interests, if they existed at all, might have any connection with the bank or

any other party to this litigation.

10. The grounds put forward could not, on any conceivable basis, have even provided an arguable ground for recusal. The fact that

they were persisted with in the circumstances outlined is a further example of the manner in which this litigation has been conducted

by the appellant. It will be necessary to return to this question in due course.

11. However, much of the argument under the abuse of process heading derived from previous findings in that regard already made by

this Court in the course of the application brought by the bank and the applicants for security for costs. It is appropriate to turn,

therefore, to the judgment given on those applications.

Judgment of the Supreme Court, Clarke J., 10th July, 2012

12. These ten appeals by the appellant were before this Court previously. On the 10th July, 2012, Clarke J. delivered judgment, with

which the other members of the Court agreed. The bank and the applicants had applied to the Court for security for the costs of the

appeals. The appellant opposed the application. The Court considered the applications. Clarke J. stated at paragraph 6.23, 6.24:-

“6.23 The overall conclusion which it is reasonable to reach is, therefore, that [the appellant] has conducted this

litigation in a significantly oppressive manner and is, despite the best efforts of the courts, likely to continue to do so. It

follows that there is a significant countervailing factor in this case which makes it proportionate for the court to make an

order for security for costs.

6.24 At the level of principle it seems to me that it would be open to this court to consider making an order for security in

respect of all of the appeals. However, as indicated earlier, it is appropriate for the court not only to consider whether

the making of an order for security for costs is a proportionate response to the special circumstances established but also

to consider what precise type of order for security represents such a proportionate response. I, therefore, turn to the

question of the type of order for security for costs that should be made on the facts of this case.”

13. Clarke J. pointed out that there was an underlying dispute between the appellant and the bank arising out of their banking

arrangements, which remained before the High Court in the form of plenary proceedings, which, it was considered, arguably raised

issues relevant to the special summons proceedings which were before this Court on appeal. The underlying dispute, and the

multiplicity of appeals arising in significant part from the oppressive conduct of the appellant in these proceedings, were considered.

14. Consequently, this Court directed security for costs in respect of each of the appeals, with the exception of the appellant’s

appeal against the decision of McGovern J. in relation to the substantive order in the special summons proceedings. Thus, no barrier

would be placed in the appellant’s way in pursuing that appeal.

15. The security of costs ordered was measured, as follows:-

“In acknowledgement of the fact that it is the proliferation of the appeals (as an incidence of the generally oppressive

manner in which these proceedings have been carried on) rather than the fact of the appeals themselves which has

caused concern, it seems to me that, on the facts of this case, a proportionate response will be to require security in

respect of all of the appeals in relation to which security is being ordered amounting to 50% of the sum estimated in the

evidence tendered on behalf of the Bank of Ireland to this Court.”

16. Clarke J. concluded:-

“8.1 In conclusion I am satisfied that the factors analysed in this judgment amount to sufficient countervailing

circumstances as make it proportionate to direct security for costs against [the appellant].

8.2 I am also satisfied that a proportionate response requires that security be given in respect of each of the appeals

with the exception of the appeal against the order of McGovern J. on the substantive special summons hearing and that

the amount of security should be as set out in the table included in this judgment. As the appeals against the various

interlocutory orders made are so closely connected a single order for security in respect of each of those appeals is

appropriate.

8.3 It follows that each of the appeals, with the exception of the appeal against the order of McGovern J., must be

stayed until such time as that security is provided.”

Abuse of Process

17. The Court proposes to deal first with the ground for dismissal or strike out which relied on abuse of process. Reference was made

to the conduct of the appellant in these proceedings, which has delayed the proceedings; which matters were considered in the

judgment of Clarke J. of the 10th July, 2012; and reference was made to the affidavits grounding the application for security for costs

which set out pertinent facts. Mark Woodcock, who deposed the affidavit grounding this application, prepared an updated chronology

of events which he believed was correct and represented an accurate summary of the delay and oppressive manner in which the

appellant has conducted the proceedings to date. The appellant is referred to as “AF” in the chronology, the Governor and Company

of the Bank of Ireland, the respondent, is referred to as “the bank”. The chronology of events is set out in Appendix A to this

judgment.

18. Despite the previous orders of the High Court and this Court in these proceedings the appellant has sought to bring further

proceedings.

19. On the 3rd January, 2014, at a vacation sitting of the High Court, the appellant applied for and got an order for short service of a

motion returnable to a further vacation sitting of the High Court on the 6th January, 2014, in her plenary proceedings 2010/3039P

against the bank. She sought, inter alia, re-entry of the proceedings, Bank of Ireland v. Angela Farrell (2009/1395 SP) and a stay on

the order of possession given by McGovern J. on the 22nd April, 2011, and subsequent orders (2009/1395 SP)

20. On the 6th January, 2014, the High Court (MacEochaidh J.), having heard both parties, refused the reliefs sought in the motion.

This involved significant court time, and time and expense on behalf of the bank.

21. The appellant has made repeated applications for a stay on the order for possession made by McGovern J. in the High Court and

to this Court, which have been refused. The application to the High Court (MacEochaidh J.) in January 2014 is another example of her

behaviour throughout these proceedings, which this Court has determined to be oppressive.

22. In the circumstances the Court is satisfied that the behaviour of the appellant in bringing the motion to the High Court in January,

2014, was an abuse of process.

23. It is clear that the bank has suffered prejudice as a result of the oppressive conduct of the appellant.

24. The Court was informed that the secured property, which was the subject matter of the order for possession, has been sold but

that the sale process had to take account of certain contingencies by virtue of these proceedings.

25. The Court was informed, and accepts, that the Bank has incurred significant costs in respect of the proceedings, and that the

level of costs is connected to the oppressive conduct of the appellant.

26. In addition, very significant court time has been utilised in these and the related proceedings.

27. The Court is satisfied that there has been oppressive conduct by the appellant, as set out by Clarke J. on the 10th July, 2012,

and subsequently as illustrated by the application to the High Court on the 3rd January, 2014. This oppressive behaviour is also an

abuse of process, which is illustrated by the motion of the appellant in January, 2014; the many appeals against procedural

directions; the many failures to comply with procedural directions; the failure to comply with the orders for security of costs; and the

failure to file the books of appeal in the appeal against McGovern J. on the substantive issue.

28. To this long history of abuse of process must be added the conduct of the appellant in the manner already described at the oral

hearing arising from her application for recusal. The cumulative effect not only of those matters, which were already identified in the

previous judgment of this Court on the motions seeking security for costs, but also of the subsequent events identified in this

judgment, confirms the finding previously made by this Court that not only has the appellant conducted her appeals in a manner which

amounted to an abuse of process to the significant detriment of the bank and the orderly conduct of court business both in the High

Court and this Court, but that, as predicted in the previous judgment of this Court, such conduct has continued.

29. In circumstances where, notwithstanding a finding of abuse of process, equally abusive conduct has continued, it can only be

concluded that the appellant has no intention of conducting these appeals in anything resembling the manner required by procedural

law of any party to an appeal before this Court. At a certain point in time the level of actual abuse of process already committed

together with the reasonable apprehension that such conduct will continue creates a sufficient level of prejudice to other parties and

detriment to the proper conduct of court business, that it may become proportionate to respond to that abuse of process not simply

by addressing each specific item of abuse but in bringing the proceedings (or in the case of an appeal to this Court, the appeal) to an

end. It is an action which the courts will not lightly take. It is an action which should only be taken where the level of established

abuse and the reasonable inference of the continuance of that abuse is such that it would be manifestly unfair to the other parties to

the relevant litigation or appeal to require them to be the victim of the continuing misconduct of proceedings. Unfortunately, the

evidence in this case establishes that that point has now been reached. The degree of prejudice caused to the bank and the

applicants by the refusal of the appellant to conduct these proceedings in a manner which even remotely resembles the proper

exercise of the right of access to the courts is such that the bank and the applicants have suffered significant irremediable

oppression. The only reasonable conclusion is that the continuance of these appeals will lead to further and unjustified prejudice to

those parties because the appellant has simply demonstrated a lack of willingness to conduct the process in a proper manner. The

point has been reached where it is proportionate to dismiss each of these appeals on the grounds of abuse of process.

30. For the purposes of clarity the Court does not propose to dismiss these appeals because of the appellant’s bankruptcy. While it is

correct to state that the appellant is currently adjudicated a bankrupt and that there is no stay on that order, nonetheless the

possibility must be taken into account that her appeal against that bankruptcy might be successful. To dismiss these appeals on the

ground of bankruptcy only to find that, at a later stage, the bankruptcy concerned was set aside, would create a potential prejudice.

31. Furthermore, it is important to clarify that, in the circumstances of this case, the Court does not propose that the appeals be

dismissed by virtue of the failure to provide security for costs and the consequent failure to progress the appeals. In passing, it

should be noted that, in the course of her oral submissions, the appellant suggested that she had been required, by the order of this

Court, to provide security in the sum of €110,000. In fact a reading of the judgment of this Court makes clear that the security

required was €55,000. Had the appellant been in any doubt as to the true figure it would have been a simple matter to have it

clarified.

32. Be that as it may, the Court cannot rule out the possibility that her bankruptcy which, as has been pointed out, is under appeal,

may have affected her ability to provide security and in those circumstances the Court would not propose to dismiss or strike out the

proceedings on the basis of either delay or the failure to provide security in accordance with the Court’s previous order. It should be

pointed out that, in other circumstances, a failure to provide security in a timely fashion and, thus, progress an appeal, might, of

itself, be sufficient to warrant the dismissal of the appeal concerned. The different view which the Court takes in this case is as a

result of the unusual circumstances which have been outlined by the Court.

33. The Court determines that on the grounds of the oppressive behaviour and abuse of process by the appellant, the Court dismisses

the ten notices of appeal record numbers 432/2010, 437/2010, 438/2010, 439/2010, 440/2010, 047/2011, 381/2011, 382/2011,

383/2011 and 121/2011.