High Court dismisses plaintiff's claim as disclosing no cause of action and constituting an abuse of process due to prior rulings.

Neutral Citation: [2017] IEHC 183

THE HIGH COURT

CHANCERY

[2016 No. 5339P]

BETWEEN:

CORRIGAN

PLAINTIFF/RESPONDENT

-AND-

FENNELL

DEFENDANT/APPLICANT

EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 14th day of March, 2017.

1. This is an application to dismiss the plaintiff’s proceedings, pursuant to Order 19, r. 28 of the Rules of the Superior Courts or

pursuant to the Court’s inherent jurisdiction, on the grounds that they disclose no reasonable cause of action and/or are frivolous or

vexatious and/or are an abuse of process.

2. The primary claim in the plaintiff’s statement of claim is that the defendant acted as a receiver of a supermarket premises at

Oulart, Gorey, County Wexford, (the ‘premises’) pursuant to an invalid Deed of Appointment which was executed by KBC Bank Ireland

plc on the 21st July, 2014, and which also purported to appoint the defendant as a receiver the premises and to three other

properties. All four properties the subject of the Deed of Appointment were owned by the plaintiff’s brother, Mr. Hugh Corrigan.

3. The plaintiff states in his affidavit that he is the tenant of his brother in relation to the premises at Oulart.

No reasonable cause of action

4. For its part, the defendant has provided a sworn affidavit of Shane O’Connor dated 17th January, 2017, which provides compelling

evidence that the Deed of Appointment in this case was in fact validly executed by Kevin Geraghty and Ian Larkin on behalf of KBC

Bank Ireland plc pursuant to Article 84(c) of that Bank’s Articles of Association and in light of a Board Minute of the Bank dated 13th

December, 2013. The defendant has also produced to the Court the original Deed of Appointment duly sealed on the part of the Bank.

5. No evidence has been provided by the plaintiff to controvert this averment of Mr. O’Connor. On this basis, this Court is of the view

that the plaintiff’s claim that the Deed of Appointment is not valid does not have a reasonable prospect of success, were this matter

to go to a plenary hearing.

Abuse of process

6. It is also the case that the issue before this Court, namely the validity of the appointment of the defendant as a receiver under

the Deed of Appointment has already been determined by the Courts.

7. This is because, as already noted, the owner of the supermarket premises in Oulart is the plaintiff’s brother, Mr. Hugh Corrigan and

the defendant was appointed as a receiver to this premises under the said Deed of Appointment, pursuant to a Mortgage dated 28th

May, 2007, between Mr. Hugh Corrigan, as the owner of the premises and the Bank under its previous name IIB Bank plc. In this

regard, by Court order dated 22nd August, 2014, McDermott J. dealt, in the course of interlocutory proceedings with, inter alia, the

validity of the appointment of the defendant as receiver, since in clear reliance on that Deed of Appointment, McDermott J. made an

order restraining Mr. Hugh Corrigan from impeding the defendant from taking possession of the four premises, the subject of the Deed

of Appointment.

8. It is also the case that a Notice of Motion was issued by the plaintiff in the same proceedings before this Court seeking a

declaration that the Deed of Appointment was invalid, which notice of motion the defendant avers was not properly served on him.

Accordingly Binchy J. heard that notice of motion in the absence of the defendant. Nonetheless, on the 21st June, 2016, Binchy J.

refused this application on the part of the plaintiff to have the Deed of Appointment declared invalid.

9. It is clear therefore that the High Court has already ruled on two occasions in relation to the validity of the Deed of Appointment

and found that it was valid.

Locus standi

10. While it is not necessary to decide the issue, it is also to be noted that the plaintiff is not the owner of the premises the subject

of the Deed of Appointment and thus it is questionable, to say the least, whether he has locus standi to bring the proceedings in this

case challenging the validity of a Deed of Appointment of a receiver over premises which he does not own.

Conclusion

11. For all of the foregoing reasons, this Court grants the application of the defendant to dismiss the plaintiff’s proceedings on the

grounds that first they disclose no reasonable cause of action and second that they amount to an abuse of process in that they seek

to litigate a matter in the High Court which has already been determined by the High Court.

12. Finally, the defendant in his affidavit dated 18th January, 2017, makes reference:

• first to the numerous proceedings which have been listed before various judges of the High Court on more than 40

occasions in relation to the appointment of the defendant to Mr. Hugh Corrigan’s premises, and

• second to unsuccessful proceedings by a company of which the plaintiff was a director in which proceedings it was

alleged that the defendant was not entitled to possession of the four properties in receivership (entitled Melphia

Enterprises Limited v. Ken Fennell Rec. No. 8418P of 2014), and

• third to the fact that the plaintiff was found by Binchy J. on 2nd June, 2016, to have acted in contempt of the

previously mentioned Court order of McDermott J. dated 22nd August, 2014, which prohibited Mr. Hugh Corrigan and

others from impeding the defendant from taking possession of the four premises, and of which he was deemed to be on

notice.

13. Since a litigant, in the words of Denham J. in Vantive Holdings [2010] 2 IR 118 at 141 has a right not to ‘be oppressed by

successive suits when one would do’, it may be that the only way for the defendant to prevent further attempts by the palintiff to

challenge the Bank or the receiver in pursuing its legal rights is for there to be an application for an Issac Wunder order, should there

be any further attempts at re-litigating issues which are related to the borrowings and the enforcement of security in this case. The

purpose of an Issac Wunder order is not to prevent a litigant with a bona fide case from litigating, but rather to require a person, with

a history of vexatious or frivolous litigation, to get the permission of the Court before issuing proceedings so as to protect another

party from the oppression of having to constantly defend unwarranted proceedings.