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Judgment | Title: | Allied Irish Banks plc v McQuaid & ors | | Neutral Citation: | [2018] IEHC 516 | | High Court Record Number : | 2016 No. 1920 S | | Date of Delivery: | 10/09/2018 | | Court: | High Court | | Judgment by: | Haughton Robert J. | | Status: | Approved | | | |
[2018] IEHC 516 THE HIGH COURT
COMMERCIAL [2016 No. 1920 S.]
[2016 No. 133 COM.] ALLIED IRISH BANKS, PLC. PLAINTIFF AND
SEAMUS MCQUAID
AND BY ORDER DATED 30TH MAY, 2017
BEN GILROY AND CHARLES MCGUINNESS
AND BY ORDER DATED 1ST JUNE, 2018
SUSAN MCQUAID, PAUL MCQUAID AND GRAINNE MCQUAID
AND BY ORDER DATED BLANK JULY, 2018
SONIA MCQUAID, CONOR MCQUAID DEFENDANT Judgment Concerning Ben Gilroy Judgment of Mr. Justice Robert Haughton delivered on the 10th day of September, 2018.
Paragraph Title
3 Background and Factual Basis for the Applications
6 Summary judgment against Mr. McQuaid
8 Injunctions following property transfers into "Morrigan Trust"
10 Hearing on 19 June, 2017 and Mr. Gilroy's undertakings
13 First criminal contempt, guilty plea and judgment
20 Subsequent events and basis for second criminal contempt
43 Second criminal contempt hearing and judgment
45 Appeals in respect of the Joinder Order
48 Mr. Gilroy's second motion
58 Mr. Gilroy as Litigation Agent from Mr. Seamus McQuaid
63 Criminal Contempt Determination of 3 May, 2018 by O'Connor J.
68 Other Proceedings Involving Mr. Gilroy
70 The Morrigan Private Settlement Trust
71 The Gilroy proceedings
75 Affidavit of Claire Callanan
78 Mr. Gilroy's Defence
88 Final Replying Affidavit of Philip Butler
92 Principles Applicable to Isaac Wunder Orders
100 Application to the Facts
132 Injunction from attending at Bank Centre
135 Injunction Restraining Involvement as a McKenzie Friend - Legal Principles
147 Application to the Facts
158 Summary of Orders
1. This judgment concerns an application seeking various reliefs against the second named defendant, Ben Gilroy ("Mr. Gilroy"). The reliefs sought in the Notice of Motion dated 4 July, 2018, are as follows:-
"1. An order pursuant to the inherent jurisdiction of this Honourable Court restraining the second named defendant from issuing further proceedings against the plaintiff or any director or employee of the plaintiff, save with the prior permission of the President of the High Court;
2. An order pursuant to Order 63A Rule 5 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of this Honourable Court restraining the second named defendant from issuing any further motions in the within proceedings against the plaintiff, its officers, employees, legal representative, servants or agents, save with the prior permission of the judge in charge of the Commercial List;
3. An order restraining the second named defendant from participating in, assisting or otherwise engaging in litigation in a representative capacity on behalf of others, whether in the capacity of "McKenzie Friend" or otherwise;
4. In the alternative, an order restraining the second named defendant from participating in, assisting or otherwise engaging in these proceedings in a representative capacity on behalf of the first named defendant or any other person, whether in the capacity of "McKenzie Friend" or otherwise;
5. An order restraining the second named defendant from attending at or near the plaintiff's office at Bankcentre, Ballsbridge, Dublin 4." 2. As can be seen, the essence of the plaintiff's claim is for "Isaac Wunder" orders against Mr. Gilroy, and further an order restraining him from acting as a "McKenzie Friend" generally, or specifically, in relation to these proceedings.
Background and Factual Basis for the Applications
3. This application is based on a detailed grounding affidavit of 4 July, 2018, sworn by Philip Butler ("Mr. Butler"), a Senior Manager of the plaintiff, and a supporting affidavit sworn on 4 July, 2018, by Claire Callanan ("Ms. Callanan"), a solicitor in Beauchamps Solicitors who are on record for the plaintiff. Mr. Gilroy swore a replying affidavit dated 20 July, 2018, in response to which a further affidavit was sworn by Mr. Butler on 25 July, 2018. The court also had the benefit of written Legal Submissions on behalf of the plaintiff, and heard oral submissions on 30 and 31 July, 2018, by Mr. Lyndon McCann S.C. on behalf of the plaintiff, and by Mr. Gilroy in person.
4. Having regard to the extent of the papers, on the application of Mr. Gilroy at the outset the court permitted the third named defendant, Mr. Charles McGuinness, to sit with him and assist with papers during the course of the hearing.
5. Most of the factual background relates to steps taken in these and other proceedings, affidavits and correspondence of Mr. Gilroy, the transcripts of proceedings, and resulting court orders. Accordingly, the facts are largely uncontested. Where the court has drawn inferences or reached conclusions on the facts this will be stated in this judgment.
Summary judgment against Mr. McQuaid
6. These proceedings were initiated by the plaintiff against the first named defendant Mr. Seamus McQuaid ("Mr. McQuaid") alone, in 2013. The plaintiff sought to recover a sum in excess of €3 million in respect of monies lent by the plaintiff to Mr. McQuaid. The matter came before me on 2 February, 2017, on foot of an application by the plaintiff for summary judgment. Mr. McQuaid was unrepresented, but was accompanied in court by Mr. Gilroy, who acted as "McKenzie Friend" for Mr McQuaid. Not being satisfied that there was any arguable or bona fide defence made out, by order dated 2 February, 2017, and perfected on 6 February, 2017, I ordered that the plaintiff recover from Mr. McQuaid the sum of €3,256,217.49 together with interest pursuant to the Courts Act 1981 from the date of judgment, and costs. I granted a stay on execution of the judgment for a period of twelve months with liberty to the plaintiff to apply. That judgment and order was not appealed.
7. On 28 April, 2017, on the plaintiff's application I lifted the stay in circumstances where, despite being repeatedly invited to do so by the court, Mr. McQuaid refused to give undertakings not to dissipate his assets - undertakings which had previously been sought by the plaintiff in clear terms in correspondence. Again on that date Mr. McQuaid was assisted by Mr. Gilroy as "McKenzie Friend".
Injunctions following property transfers into "Morrigan Trust"
8. Subsequently the plaintiff became aware that on or about 18 May, 2017, a dealing had been lodged with the Property Registration Authority ("the PRA") by Mr. Gilroy on behalf of himself and Mr. McGuinness which purported to give effect to a "voluntary transfer" of lands and properties comprised in four folios in County Monaghan which were the subject of mortgages or charges in favour of the plaintiff or its associated company AIB Mortgage Bank, over which receivers had been appointed.
9. It appeared to the plaintiff that Messrs. Gilroy and McGuinness were central participants in a scheme designed to put assets of Mr. McQuaid beyond the reach of the plaintiff by receiving them into a trust ("the Morrigan Trust") established by Messrs. Gilroy and McGuinness and administered by a company of which Mr. Gilroy was a director, namely "the Morrigan Private Settlement Trust Operations Limited." This prompted the plaintiff to seek urgent injunctive relief against them (and Mr. McQuaid), in aid of executing the primary judgment. On the plaintiff's ex parte application, Messrs. Gilroy and McGuinness were joined to the proceedings as defendants by order of McGovern J. made on 30 May, 2017. They were also required to disclose on affidavit all assets, legal or equitable, in which Mr. McQuaid had any interest, and which they had at any time received, controlled or managed.
10. At the inter partes hearing of the injunction application on 19 June, 2017, Mr. Gilroy denied that the High Court (McGovern J.) had jurisdiction over him, arguing at length that his consent was required for the court to be able to exercise jurisdiction in respect of his actions. Notwithstanding this, Mr. Gilroy undertook to disclose on affidavit property, money or other assets of Mr. McQuaid which he had inter alia intermeddled with or controlled, and this undertaking is recorded in the Order of McGovern J. dated 19 June, 2017, whereby Mr. Gilroy undertook to comply with the earlier order of 30 May, 2017, within ten days.
11. Mr. Gilroy affirmed an affidavit on 27 June, 2017, on foot of his undertaking. In that affidavit Mr. Gilroy affirms as follows:- "This matter came coram non judice and the principle of Nulla poena sine lege should have been observed. The said threats were made in order to compel me to do things and also refrain from doing acts which I am perfectly entitled to do and (sic) same is a criminal offence under s. 9 of the Non-Fatal Offences against the Person Act 1997 which states:-
‘(1) A person who, with a view to compel another to abstain from doing or to do any act which that other has a lawful right to do or to abstain from doing, wrongfully and without lawful authority— (a) uses violence to or intimidates that other person or a member of the family of the other… Because of the criminal intimidation and threats and the fear of kidnapping and being held somewhere against my will, I will give in to the said threats, the same way I would if a thief put a gun to my head and asked for my wallet, I would just hand over my wallet…
All the said threats which are contra legem have come from persons whom (sic) are members of (sic) semi-secretive society normally wearing wigs or black cloaks and normally believing they have some superior position above all others not part of their society. The greatest trick they use to cloak and hide their criminality is they refer to their society as ‘a law society' to give it the appearance of respectability. However, they do not allow any audio or video recordings at the meetings or hearings when the said criminal threats are being made. At such a meeting or hearing I was threatened recently and when I suggested that these members had no jurisdiction over me, the said superiority complex kicked in, from what appears to be one of their leaders because he sat above everybody and without reason, explanation or any proof just proffered that he ‘was satisfied he had jurisdiction over me' (sic) imagine if we all suffered from this superiority complex and then threatened everyone else…
The said threats required me to fully inform their society members of what property was transferred from Seamus McQuaid to an irrevocable private contract trust. Some of the property had charges registered in favour of a banking cartel and there is an undeniable link between banking cartels and this semi-secretive society…
I have given great leeway to all the intimidators in this matter because of their mind-set within their organisation they sometimes cannot see the wood for the trees and are never challenged on these matters. However, it must be remembered ignorantia juris non excusat and I will not be as forthcoming or forgiving if any member of their society ever intimidates or threatens me again. I will pursue anyone who intimidates or threatens me again to the full extent of the law…
In the future it may even by necessary for me to bring private criminal prosecutions against any such intimidator or hostis humani generis because of the close relationship between the Gardaí and this semi-secretive society…
I furthermore state that I am mindful of the wisdom of Thomas Jefferson when he commented, ‘[w]e all know that permanent judges acquire an espirt de corps ; that, being known, that they are liable to be tempted to bribery; that they are misled by favour (sic), by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side'. It is, in part, with that inspiration that I do not and did not surrender to the jurisdiction of the above named administrative process. I was also shocked at how comfortable Mr. McGovern was in breach of his oath of office to allow and take part in the criminal activity in front of his eyes.
(a) The sovereignty of the State resides in the people thereof.
(b) The people of this State do not yield their sovereignty to the agencies which serve them,
(c) Any judge or judicial record may be impeached by evidence of a want of jurisdiction in the court, or of collusion between the parties, or of criminal coercion against a party or of fraud in the party offering the record, in respect to the proceedings.
(d) The State cannot diminish rights of the people.
(e) The assertion of any rights, when plainly and reasonably made, cannot be defeated under the name of local practice or threats of imprisonment.
(f) There can be no sanction or penalty imposed upon one because of one's exercise of his rights…
Ms. Callanan, her counsel and others should take heed that the following acts or omissions in respect to a Court of Justice, or proceedings therein, are contempt's of court:-
(a) misbehaviour in office, or other wilful neglect or violation of duty by a solicitor, counsel, clerk, judge, or other person appointed or elected to perform a judicial, administrative or ministerial service;
(b) abuse of the process or proceedings of the court or falsely pretending to act under authority of an order or process of the court;
(c) to criminally coerce another with a view to compel that another (sic) to abstain from doing or to do any act which that other has a lawful right to do or abstain from doing, wrongfully.
For now I consider the matter at an end." 12. This is not untypical of the sort of material that Mr. Gilroy includes in affidavits and correspondence, and it is reflective of his oral submissions to the court. He appears to subscribe to a theory that the judiciary, court staff, solicitors and counsel who appear in the courts on behalf of banks, the Garda Síochána, and others are in league with and protective of bank interests and willing to threaten and intimidate those such as Mr. Gilroy who seek to assist debtors to secure their rights or redress.
First criminal contempt, guilty plea and judgment
13. In light of the position being adopted by Mr. Gilroy and his co-defendants in relation to the order of 19 June, 2017 and the undertakings given in the terms of the order of 30 May, 2017, a further Notice of Motion was issued by the plaintiff dated 10 July, 2017, seeking, inter alia , attachment and committal of all three defendants. The application was grounded on an affidavit of Mr. Philip Butler sworn on 8 July, 2017.
14. The defendants initially denied that they had failed to comply with the Order or undertakings. Following service of the Notice of Motion in respect of criminal contempt, Mr. Gilroy responded in an email as follows:- "Please provide a copy of the motion and affidavit for the unfounded criminal attachment. Please also provide the insurance of whomever is bringing the application ". [Emphasis added]. The request for insurance details carried an implicit threat of proceedings against the plaintiff's solicitors.
15. At the attachment/committal hearing on 17 July, 2017, the plaintiff submitted that the affidavit sworn by Mr. Gilroy on 27 June, 2017, was, on its face, a criminal contempt of court. The court adjourned the matter to 21 July, 2017, to enable Mr. Gilroy to consider the legal authorities being relied upon by the plaintiff in support of its application. On 21 July, 2017, Mr. Gilroy was granted legal aid by the court in respect of the criminal contempt application on the basis of his sworn statement that he had nil income. This sworn statement is of significance in the light of subsequent inconsistent statements of Mr. Gilroy.
16. On 25 July, 2017, Mr. Gilroy pleaded guilty to criminal contempt arising out of the affidavit sworn by him on 27 June, 2017. McGovern J. subsequently delivered judgment on the contempt application, and having noted that Mr. Gilroy had pleaded guilty, and that credit must be given for that admission and his apology which was offered to the court, McGovern J. stated:-
"Discussion 36. There is no dispute as to the words written by Mr. Gilroy which arise for consideration in this matter. The words are his own and contained in his own affidavit. The words were not part of a spontaneous and intemperate outburst in the pressurised atmosphere of a courtroom; rather, they were the considered words of somebody preparing an affidavit in answer to a motion for attachment and committal for failing to comply with a court order as varied by an undertaking given by him to the court.
37. In his affidavit, Mr. Gilroy accuses the court of "criminal intimidation and threats", including kidnapping, and compares the action of the court to that of a thief putting a gun to his head and robbing him of his wallet. He describes the threats as unlawful and coming from members of a semi-secretive society who believe they are superior to other members of society and who act in a clandestine fashion so to "hide their criminality". He accuses the judge of having a superiority complex on account of being satisfied that the court had jurisdiction over him and refers to threats made to him. Having referred to the judge and the lawyers as being part of a "semi-secret society" he goes on to state at para. 5 of his affidavit that there is "an undeniable link between banking cartels and this semi-secretive society" suggesting some improper connection which would put the court in a position of bias. At paras. 9 and 10 he threatens the court and at para. 11 he quotes from correspondence between Thomas Jefferson and the French cleric Abbé Arnoux in 1789 wherein Thomas Jefferson offered the view that it would be better to leave a cause to be decided by the toss of a coin rather than to a judge biased against one side. Having quoted from that correspondence, he then accuses the judge of being "… in breach of his oath of office" and of taking part in and allowing criminal activity to take place in front of him. His affidavit contains further threats against the judge and the solicitor and counsel for the bank which is to be found in paras. 12 and 13.
Conclusion 38. It is important that people have confidence in the administration of justice. Attempts to deliberately undermine the authority of the courts cannot be permitted if the rule of law is to flourish. The laws on contempt are not there to shield judges from legitimate criticism; they exist to protect the rule of law for the benefit of all.
39. The affidavit of Mr. Gilroy affirmed on 27th June, 2017, was nothing short of a direct attack on the court and the administration of justice and was calculated to bring the administration of justice into disrepute and diminish the authority of the court. These views were set out in an affidavit and not in the heat of the moment and that is an aggravating factor.
40. On the other hand, Mr. Gilroy must be given credit for the fact that he has admitted that he has committed criminal contempt and has unreservedly apologised to the court for the contents of that affidavit and his behaviour. These are factors that I take into account in assessing the appropriate sentence.
41. Without those mitigating circumstances, the correct punishment, in my view, would have been a term of imprisonment of six months. Giving him credit for his admission of liability and his apology to the court and his withdrawal of the offending remarks, I think the appropriate term of imprisonment would be three months.
42. However, I have considered whether or not I should make a community service order in this case pursuant to the provisions of the Criminal Justice (Community Service) Act 1983, as amended by the Criminal Justice (Community Service) (Amendment) Act 2011." McGovern J. adjourned sentencing for a probation officer's report to be obtained.
The plaintiff's motion of 10 July, 2017, was also adjourned because Mr. Gilroy wished to bring a motion to cross-examine Mr. Butler on his grounding affidavit. On 25 July, 2017, liberty to cross-examine Mr. Butler was granted to Mr. Gilroy by McGovern J.
17. It must be pointed out that Mr. Gilroy offered a full apology to McGovern J. He affirmed this in an affidavit of 25 July, 2017, wherein he indicated he wished to withdraw the material that gave rise to the criminal contempt. However, at para. 7 of that affidavit he maintained his contention that the plaintiff's legal representatives had acted otherwise than in accordance with civil law, and at para. 9 he stated:- "9. I therefore pray this Honourable Court to hold that I have not committed contempt or breached an order of this Honourable Court nor acted unlawfully". At the sentencing hearing senior counsel on behalf of Mr. Gilroy confirmed, on instructions, that the reference to "not" being in contempt of court was an error and ought not to have appeared in the affidavit, and confirmed that his client did indeed accept that he was in contempt of court and pleading guilty.
18. On 6 October, 2017, McGovern J. sentenced Mr. Gilroy in respect of the criminal contempt, ordering that in lieu of a sentence of three months imprisonment, he perform 80 hours community service but that in default he be committed to prison for a period of three months. Subsequently on 4 May, 2018, McGovern J. ordered that the community service must be completed by Mr. Gilroy by 10 May, 2019.
19. On 6 October, 2017 McGovern J. also directed that the transcript of the hearing be forwarded to the Revenue Commissioners and the DPP to investigate anomalies as between the information given by Mr. Gilroy in a Statement of Means for the purposes of obtaining legal aid - where he indicated he was without income - and the information which he gave to the Probation Service and which appeared in the Community Service Assessment Report which stated that he was in full-time employment. This inconsistency is relied upon by the plaintiff in the present application, along with other evidence, to suggest that Mr. Gilroy is indeed in receipt of remuneration.
Subsequent events and basis for second criminal contempt
20. During August 2017 Mr. Gilroy assisted Mr. McQuaid in trying to persuade his residential tenants of three properties in London, secured to the plaintiff, to continue paying their rents to Mr. McQuaid's agents rather than to the plaintiff's lawfully appointed receiver.
21. On 26 September, 2017, this court granted an order nisi in respect of Mr. McQuaid's shareholding in the company Quaid Upholstery Ltd (a share charging order), and also in respect of the shares of Paul McQuaid and Grainne McQuaid in the same company.
22. At this point in time it is clear that the plaintiff had presented strong evidence to the court from which it may be deduced that, in addition to acting as a "McKenzie Friend" for Mr. McQuaid, Mr. Gilroy was or had been actively assisting Mr. McQuaid in diverting to the Morrigan Trust assets which should have been available to the plaintiff for satisfying its judgment and mortgage, and advising/assisting in diverting rental income which should have been payable to a receiver appointed by or on behalf of the plaintiff or an associated company.
23. On 5 September, 2017, Mr. Gilroy issued plenary proceedings entitled Ben (otherwise Bernard) Gilroy v. Claire Callanan, AIB, Beauchamps, Philip Butler, Sarah McLoughlin and Robert Bergin Record No. 2017/8012P ("the Gilroy proceedings"). In the Plenary Summons Mr. Gilroy sues Ms. Callanan, Beauchamps, the plaintiff, and various employees of the plaintiff, essentially because of their alleged culpable involvement in having Mr. Gilroy joined as a defendant in the present proceedings. He also claims damages for alleged "trespass" to his rights arising from such joinder. Further reference will be made to the Gilroy proceedings later in this judgment. Suffice to say at this stage that motions to dismiss the Gilroy Proceedings as frivolous, vexatious and scandalous and an abuse of the process were issued by the plaintiff and are listed to be heard in the Non-Jury List on 13 November, 2018.
24. On the same day, 5 September, 2017, after Mr. Gilroy tried to serve the Gilroy Proceedings personally, Mr. Gilroy wrote to Ms. Callanan stating inter alia "you remind me of a Jewish Rodef, perhaps you are" . Mr. Butler at para. 19 of his grounding affidavit avers that this term "means a person who is intent on killing someone and who is, therefore, a legitimate target for legal murder or assault." That letter was part of the material later considered by McGovern J. in a further charge of criminal contempt against Mr. Gilroy heard on 21 February, 2018.
25. In an exchange of affidavits earlier in these proceedings Mr. Gilroy had taken issue with an affidavit sworn by Ms. Callanan in her capacity as solicitor on behalf of the plaintiff. He pointed out that the address given by Ms. Callanan in that affidavit was at Beauchamps offices, and he argued that the affidavit sworn by her was therefore improperly or invalidly sworn. Mr. Gilroy was careful to set out Ms. Callanan's home address which he had managed to obtain. Counsel for the plaintiff pointed out at that time, in open court before McGovern J., that this plainly spurious ground of objection to her affidavit was raised simply and solely in an attempt to intimidate Ms. Callanan rather than being a genuine ground of objection. Mr. Butler avers in his grounding affidavit that Ms. Callanan made a complaint to Detective Inspector Stephen Keane of the Detective Inspector's Unit of An Garda Síochána at the Bridewell Garda Station regarding the contents of that letter and the implicit threat that it contained.
26. Mr. Gilroy failed to appeal the order joining him to these proceedings within the time allowed for making an appeal. He requested the plaintiff's consent to the late filing of an appeal, which consent was refused.
27. In an email sent on 11.. October, 2017, Mr. Gilroy stated to Beauchamps as follows:- "You will remember I was threatened with imprisonment and so any subjection to any jurisdiction was under extreme duress, I just want out of McGovern court/unlawful hearings where I was threatened and if you recall when I asked the judge about the jurisdiction he could only rely upon his statement that he was satisfied he had jurisdiction, which of course does not give him jurisdiction. I intend to bring this matter all the way to Europe if necessary. If a thief puts a gun to your head and asks for your wallet, because you give the wallet, you are somehow suggesting you consented to the thief's jurisdiction because you gave the wallet, that is a preposterous scenario." [Emphasis added]. This was written less than one week after his conviction for criminal contempt. It is disrespectful of the court and appears to resile from the full apology given to the court on 25 July, 2017.
28. In a letter to Beauchamps dated 23rd October, 2017 Mr. Gilroy stated:- "It also appears that you agree with my stance that when I argued with Mr. McGovern for a lengthy period, about him having no jurisdiction over me, jurisdiction was not established at that time either, because I still had not given the undertaking. What you seem to be suggesting is that it was only when I was threatened with loss of liberty and when I succumbed to those threats, that then jurisdiction was established. Let us assume I did not succumb to the threats and I ended up in prison for 6 months would your client then come and get me out of prison and agree that the court had no jurisdiction. In any event, you suggested that I get legal advice and I have done that in relation to your position of when jurisdiction was established. My advice is that if a court lacks jurisdiction it cannot be established by threats and/or coercion. However even if you don't agree with my advice the same will be decided by higher courts and then much higher courts in due course." On the following day, in an email to Beauchamps dated 24 October, 2017, Mr. Gilroy stated:- "Further you say the court accommodated me, in what way? The court has no jurisdiction over me and threats do not establish jurisdiction nor does the succumbing to such threats." That letter ended as follows:- "P.S. please note that anybody and I mean anybody causes me any further harm or makes any attempts to imprison me they had better be very well insured." 29. From the foregoing it is evident that Mr. Gilroy is willing to invoke and indeed threaten to invoke the jurisdiction of the courts when it suits him to do so for the purpose of intimidating the plaintiff and its lawyers and thus attempting to thwart the plaintiff's legal representation in these proceedings. Mr. Butler avers at para. 26 of his affidavit that following receipt of the email of 24 October, 2017, he was provided with personal security advice by the bank's security advisors.
30. Having regard to the contents of Mr. Gilroy's letter of 5 September, 2017, directed at Ms. Callanan, and the contents of his email of 24 October, 2017, in respect of the court's jurisdiction and the threat in the postscript, McGovern J. considered that there may be a further issue of criminal contempt, stating in court on 25 October, 2017:- "What may amount to a criminal contempt in this case or what appear on the face of it to the attempts to threaten a solicitor, namely the solicitor for the Bank to threaten officers of the Bank, to interfere with the receivership over properties in the UK, to threaten the tenants of properties in the UK so that if they do not pay rent lawfully due to the Receiver, if they do not pay to your client that they will be evicted and the furniture will be removed, albeit the furniture of the Landlord will be removed from the apartments and so on. If it is established that these were threats with a view to calling Ms. Callanan, the solicitor, off the case, or to get the Bank to change its attitude in the face of threatened litigation, which has now been issued by Mr. Gilroy, relating to matters which arise here, and if your client and other parties were a party to this it has serious implications". 31. Mr. Gilroy made an affidavit on 20 October, 2017, wherein he was still asserting that the Trust was entitled to assert ownership of the property of Mr. McQuaid.
32. On 17 November, 2017, Mr. Gilroy sent a letter from the Morrigan Private Settlement Trust Operations Limited to the plaintiff, which was delivered personally by Mr. Gilroy to the home of Bernard Byrne, the plaintiff's CEO. The letter asserted a continuing right over the properties transferred to the Morrigan Trust and requested a meeting with the plaintiff, notwithstanding that the plaintiff had previously made it clear that it would not engage with that Trust in respect of Mr. McQuaid or any other borrowers where similar purported transfers had taken place.
33. On 20 November, 2017, Mr. Gilroy applied by motion on affidavit for the digital audio record ("DAR") of court hearings on 31 May, 2017, and 19 June, 2017. On 30 November, 2017, Mr. Gilroy affirmed an affidavit in response to an affidavit of Ms. Callanan sworn on 23 November, 2017. Mr. Gilroy's affidavit is replete with challenges to the status of the deponent, makes allegations that Ms. Callanan misrepresented the terms of the order of 30 May, 2017, and complains that Ms. Callanan personally initiated the application for his joinder, and that of Mr. McGuinness, as defendants.
34. On 30 November, 2017, the matter came before McGovern J., and Mr. Gilroy proceeded with the cross-examination of Mr. Butler, primarily questioning his authority and status. Much of his questioning was considered by McGovern J. to be irrelevant, but it is clear that by the end of the process McGovern J. was satisfied that Mr. Butler was a senior manager in the bank and authorised to take decisions related to the litigation and to swear affidavits on behalf of the plaintiff or companies with the AIB Group. From reading the transcript it is clear that McGovern J. decided that he was entitled to rely on Mr. Butler's affidavit, and other evidence sworn on behalf of the plaintiff, and that Mr. Gilroy's challenge to his authority was unfounded.
35. On 30 November, 2017, there were considerable submissions made by the parties in relation to the issue of the continuing civil contempt by, inter alia , Mr. Gilroy, who continued to contend that the Morrigan Trust was entitled to assert ownership to Mr. McQuaid's properties. McGovern J. noted that the solicitor for Mr. McQuaid indicated that his client was consenting to an order setting aside all instruments of transfer of his properties to the Morrigan Trust, and ordered that:- 36. On 30 November, 2017, McGovern J. enquired of Mr. Gilroy as to whether he wanted to seek legal aid in respect of the possible further contempt charge, noting that on the previous occasion Mr. Gilroy had said that he had zero income but the Probation Office report said that Mr. Gilroy was in full employment. McGovern J. also noted that it had transpired that Mr. Gilroy was, in fact, the holder of a passport, having previously told the court that he was not. McGovern J. therefore advised Mr. Gilroy that if he wanted to apply for legal aid it would be necessary for him to provide an Affidavit of Means, and that matter was adjourned to 7 December, 2017, for Mr. Gilroy to consider his position, while the hearing of the possible criminal contempt was listed for 21 February, 2018.
37. On 7 December, 2017, Mr. Gilroy advised the court that he would defend the criminal contempt issue himself, and was denying any suggestion that he had threatened a solicitor or bank official. Mr. Gilroy sought further time to comply with the order for the transfer back of the properties, and time was extended to 18 December, 2017.
38. Mr. Gilroy did not comply fully with the order that he retransfer property. He swore an affidavit dated 18 December, 2017, with some transfer documents, and on his assurance that he would furnish the balance McGovern J. directed, and Mr. Gilroy agreed, that this would be done by 10 January, 2018. Mr. Gilroy furnished certain further transfer documents by email of 9 January, 2018, and by email of 25 January, 2018, just prior to resumption of the civil contempt application in relation to him (and Mr. McGuinness). On 26 January, 2018, Mr. Gilroy again opened to McGovern J. his email of 24 October, 2017, which asserted that he had complied with McGovern J.'s order of 30 May, 2017, even though at the time all of Mr. McQuaid's properties secured to the plaintiff were still vested in Messrs. Gilroy and McGuinness (as opposed to the Morrigan Trust). Mr. Gilroy also continued to assert that the order of 30 November, 2017, did not require that he produce copies of the documents evidencing the transfers from Mr. McQuaid to the Morrigan Trust. The court's attention was also drawn to the contents of an email from Mr. Gilroy of 25 January, 2018, where he requested information in relation to the mortgages registered against Mr. McQuaid's properties.
39. McGovern J. made it very clear to Mr. Gilroy that he had no legitimate interest in inquiring about Mr. McQuaid's assets, particularly in circumstances where there was an extant injunction restraining him from intermeddling in respect of Mr. McQuaid's properties. Mr. Gilroy's email of 25 January, 2018, requested inter alia "information now as my request from the new Central Bank Register Team will not be able to provide me with this information until late March/early May of this year". It appears this was a reference to the Credit Reporting Act 2013.
40. Notwithstanding the clear terms of the order of 30 November, 2017, and notwithstanding McGovern J.'s clear warning on 26 January, 2018, Mr. Gilroy again sent an email on 7 February, 2018, in similar terms, and again asserting that he had not been ordered to provide the documents of transfer. He also asserted a continuing right to interfere with the assets of Mr. Seamus McQuaid.
41. When the matter was before McGovern J. on 9 February, 2018, the court again made it clear to Mr. Gilroy that he had no right to continue to seek information in relation to assets that he had no right or interest in. Notwithstanding this, the very same request was repeated by Mr. Gilroy in an email to Beauchamps on 14 February, 2018. Further, Mr. Gilroy wrote to the home of the plaintiff's CEO by letter of 12 February, 2018, inquiring as to who gave authority to attach himself and Mr. McGuinness to the present proceedings.
42. The foregoing demonstrate Mr. Gilroy's propensity to continue to act, entirely inappropriately, as an agent for Mr. McQuaid despite the fact that he has no legal qualifications or professional status that would permit this, and in the face of repeated warnings by the court.
Second criminal contempt hearing and judgment
43. On 21 February, 2018, McGovern J. heard and determined the second criminal contempt charge and found Mr. Gilroy guilty of criminal contempt for the second time in these proceedings. In his ex tempore judgment McGovern J. stated:- "I have considered what has happened in this case. I am satisfied that the correspondence between Mr. Gilroy and Ms. Callanan, a solicitor in Beauchamps who has carriage of this case on behalf of the bank, was threatening in its nature and calculated to interfere or prejudice the due administration of justice. I am also satisfied that the correspondence with the CEO of the plaintiff bank, Mr. Bernard Byrne, sent to him at both the bank and also his home address was of a threatening nature, although Mr. Gilroy doesn't see it as such. It was part of a pattern of behaviour and has to be seen in the context of what has happened in this case. I can't ignore the fact that Mr. Justice Ryan some years ago found Mr. Gilroy guilty of contempt and gave him a suspended sentence; that I believe was in April 2014. He has already pleaded guilty to criminal contempt and avoided a prison sentence which I regarded as appropriate if it were to be three months and in lieu of that I gave him a period of community service which has to be served. It is not Mr. Gilroy's fault that it hasn't yet been served because I know there was delay in perfecting the order. Here we are again with further matters that arose in that criminal contempt issue in July last again repeated in correspondence to be considered also against the correspondence with the CEO of the plaintiff and the solicitor that I have already referred to.
It is very important in a democratic state such as we have here that the rule of law is respected by everybody and that nobody is above the law and that decisions are made by judges who are independent and not involving any coercion on the part of a party or an outsider on any of the parties to the proceedings which might tend to influence the course of those proceedings. Particularly it is important that there be respect for the courts and the administration of justice and its processes. That is vital to a healthy democracy and as I say nobody is above the law. Mr. Gilroy has again fallen short of standards that one would expect from any litigant or any citizen of this country in terms of respecting the due process of the courts and ensuring that the administration of justice takes place without threats, intimidation or remarks that would tend to bring the administration of justice into disrepute. He has apologised and I take that into account but the matter is serious. He has also offered as an excuse for his behaviour that he is on medication and has been suffering from depression and other stresses within his family due to the unfortunate ill health of a member of his family. I understand what he is saying, it doesn't excuse what he has done, but he has given undertakings not to correspond with Ms. Callanan or serve any documents on her in connection with this matter except through Beauchamps. I accept that this has been the case up to now. He has also given an undertaking that in respect of Mr. Bernard Byrne and any other officer or employee of AIB that he will not communicate with them at their home addresses during the course of this litigation but will only do so either through the bank's solicitors, Beauchamps, or through the bank itself as the case may be.
I accept those undertakings and those undertakings last until the completion of these proceedings. In my view an appropriate punishment for the contempt of court if there was no apology and these undertakings were not given would be 28 days imprisonment. I am going to receive the apology given in open court to Ms. Callanan in mitigation. I am also going to receive the undertaking which as I say lasts until the conclusion of these proceedings. In the event of any breach of either or both of those undertakings the matter is to be re-entered before me and Mr. Gilroy will have to serve 28 days in prison. I want you to understand what this means, Mr. Gilroy. If you, to use the vernacular, get out of line and act inappropriately towards any other party involved in these proceedings, be it the solicitor on the other side or any of the officers or employees of the bank, you will have to serve 28 days in prison. I am yet again giving you a chance. I don't like to be made a fool of. I gave you a chance the last time. I could have imposed a prison sentence and I didn't do so, I gave you community service. I will be checking that that community service is complied with. You know the terms of that. If that service is not compiled with in one iota you will have to serve the three months in respect of that. But if there is any breach of the undertakings you have given to the court you will have to serve 28 days and the matter can be re-entered on that basis.
I hope that is the end of the matter and that further court time doesn't have to be taken up with this. You may have issues to deal with, Mr. Gilroy, but that doesn't mean that people shouldn't behave in an acceptable way whether they are involved in litigation or otherwise.
Registrar: Do you mind for the purpose of the order that I get those undertakings clarified, the wordings of the undertakings?
Mr. Justice McGovern: The undertakings as I have put them to Mr. Gilroy and which he has given are, the first is an undertaking not to correspond with Ms. Claire Callanan or to serve any documents on her in connection with this case except through Beauchamps solicitors. He has given an undertaking not to correspond with or serve any documents on Mr. Bernard Byrne, the CEO of AIB or any officer or company of AIB except through their solicitors, Beauchamps, or through AIB head office and he has given that undertaking and that undertaking is to last for the duration of these proceedings." 44. In the order as perfected for 21st February, 2018 the second last part reads:- "And IT IS ORDERED in the event of any breach of either or both of those undertakings the matter is to be re-entered before this Court and the second defendant will be committed to prison for a period of 28 days." The undertakings given by Mr. Gilroy in respect of that second contempt hearing remain in being and will continue until the conclusion of the within proceedings.
Appeals in respect of the Joinder Order
45. On 23 October, 2017, Mr. Gilroy (with Mr. McGuinness) made an application to the Court of Appeal for an extension of time to appeal from the decision of McGovern J. of 30 May, 2017, joining them as defendants. The application was heard on 26 February, 2018, and the ex tempore judgment of the court was delivered by Peart J. The application for an extension of time to appeal was refused on the basis that Messrs. Gilroy and McGuinness had failed to make any arguable case for the High Court not having an inherent jurisdiction to join them as parties to the proceedings for the purposes of the enforcement by the court of its own order i.e. the original order granting summary judgment against Mr. McQuaid.
46. Against this determination Messrs. Gilroy and McGuinness applied to the Supreme Court to admit an appeal from the decision of the Court of Appeal. On 29 June, 2018, the Supreme Court refused to grant their application, finding as follows:-
"Decision 11. The jurisdiction of the High Court to make orders, including orders of the Mareva type, on an ex parte basis is well-established and does not contravene the audi alteram partem principle. Where an affected party considers that the order should not have been made, they must be given an opportunity to make that case within a short period of time. That is what happened here.
12. The applicants are correct in arguing that the inherent jurisdiction of a court may be ousted by legislative intervention. However, the jurisdiction to make appropriate post-judgment orders for the purpose of protecting its own processes and (in a case such as this) ensuring that assets required to satisfy a judgment are not dissipated has not been so ousted. Order 15 is not necessarily apt in these circumstances, since the plaintiff does not assert, within the proceedings, a substantive cause of action against the applicants. This has nothing to do with the principle of equality before the law or the rights of the applicants guaranteed by Article 40.3.2°. The applicants have not identified any right of theirs as having been affected by the order. The High Court has not interfered with their property rights but seeks to restrain them from dealing with the property of another in such a fashion as to defeat the original judgment.
13. In the circumstances this Court considers that the Court of Appeal was correct in finding that the applicants had not made out an arguable cause, and were therefore not entitled to an order extending the time within which to appeal. Leave to appeal to this Court will be refused." 47. Accordingly, both the Court of Appeal, and now the Supreme Court, have confirmed the jurisdiction and power of the High Court to join additional parties post-judgment for the purpose of enforcing its own processes and orders, and without any "substantive cause of action" subsisting against them. It is therefore simply not open to this Court to take a different view, and entirely idle for Mr. Gilroy to argue (as he has done) otherwise or seek to persuade this Court that his joinder was invalid, or that there is a substantive cause of action against him that requires further pleading or adjudication.
Mr. Gilroy's second motion
48. By way of preface it should be said that prior to this motion Points of Claim had been delivered by the plaintiff on foot of directions of McGovern J. relating to ongoing issues between the plaintiff on the one hand and Mr. Seamus McQuaid and members of Mr. McQuaid's family and a Mr. McCaigue on the other hand, regarding the transferring to the names of family members and Mr. McCaigue of assets which, the plaintiff contended, belonged to Mr. McQuaid and which were transferred into the names of those other parties with a view to putting them beyond the reach of Mr. McQuaid's creditors. That issue, as McGovern J. made plain to Mr. Gilroy on more than one occasion, had nothing to do with him.
49. Notwithstanding this Mr. Gilroy had sent emails on 4 May, 2018, 8 May, 2018 and 12 May, 2018, insisting on the delivery to him of Points of Claim. In his email of 8 May, 2018, he threatened Ms. Callanan that he would seek the assistance of the Director General of the Law Society if she did not deliver to him the plaintiff's Points of Claim. That letter was replied to on 16 May, 2018, on instructions, which pointed out that the letter appeared to be a further attempt to interfere with the ability of the plaintiff to take legal advice by putting inappropriate pressure on the plaintiff's legal advisors to take steps contrary to their instructions, and contrary to the interests of their client. Mr. Gilroy replied by email of 16 May, 2018, insisting that he had a substantial counterclaim which would alleviate the need to proceed in the Gilroy proceedings. Mr. Gilroy then proceeded to make further allegations in relation to Mr. Butler in respect of his employment, status and authority to swear affidavits, and to give evidence, all of which had previously been addressed at length and was the subject of the cross-examination on 13 November, 2017. Mr. Gilroy concluded his email with the following:- "I was dragged into this dance, now tell your clients i.e. the Board of Directors of Allied Irish Bank, plc. the music is about to start and I have my dancing shoes on, and they must face the music." 50. Mr. Gilroy then issued his Notice of Motion dated 25 June, 2018, returnable to 9 July, 2018, and grounded on an affidavit sworn by him on 25 June, 2018, in which he sought orders that all the defendants (then Mr. Seamus McQuaid, Mr. Gilroy and Mr. McGuinness) be afforded "due process" pursuant to Articles 38.1 and 40.1 of the Constitution, or pursuant to Article 6 of the European Convention on Human Rights, or pursuant to O.15, r.15 of the RSC, and be served "with all appropriate papers including but not limited to any claims, affidavits, motions, and amended summonses and orders." He also sought an order amending the title "to reflect the true name of the plaintiff being ALLIED IRISH BANKS, PUBLIC LIABILITY COMPANY". He also sought:- "5. An order attaching all of the directors and/or secretaries being in situ at all material times during these proceedings of ALLIED IRISH BANKS, PUBLIC LIABILITY COMPANY to these proceedings as noticed [ sic ] parties or in some other capacity as the court deems fit after considering my supporting affidavit. The directors and/or secretaries being in situ at all material times are Bernard Byrne, Carolan Lennon, Catherine Woods, Helen Normoyle, Brendan McDonagh, Jim O'Hara, Mark Bourke, Peter Hagan, Richard Pym, Simon Peter Ball, Thomas Foley, Sarah McLoughlin and Robert Bergen." 51. Before Mr. Gilroy's Motion came on for hearing, he attended court before McGovern J. on 1 June, 2018, when two applications for attachment and committal relating to Mr. McQuaid were listed for mention, together with an application for costs against Mr. McQuaid and an application by the plaintiff to join other members of Mr. McQuaid's family and Mr. McCaigue as parties. The attachment motions were duly listed for hearing on 4 October, 2018, and orders for substituted service were made in relation to the Points of Claim; the motion was then adjourned to 16 July, 2018. At the end of the hearing Mr. Gilroy sought to address the court. McGovern J. pointed out that there was nothing involving Mr. Gilroy before him and he was moving on to the next matter. He told Mr. Gilroy that he (Mr. Gilroy) was not concerned with the motions before the court in relation to Mr. McQuaid. Mr. Gilroy persisted in the position that all papers have to be served on all defendants or that, in the alternative, he should be struck off as a defendant. Mr. Gilroy asked to be struck off as a defendant. McGovern J. told him to bring a motion seeking to be struck out as defendant. Mr. Gilroy then immediately said that he did not mind staying as a defendant but was insisting on being served with all of the papers. McGovern J. stated that he would not direct service of those papers on Mr. Gilroy and repeatedly stated to Mr. Gilroy that he could bring an application on motion to be struck out as defendant. Eventually, McGovern J. stated that he was going to rise and that if Mr. Gilroy was not going to leave the court he would arrange for a Garda to be present to remove him from the court. Mr. Gilroy left court.
I also accept the uncontroverted evidence of Mr. Butler that after leaving court Mr. Gilroy and Mr. Seamus McQuaid then conferred together outside court for some time before leaving the precinct together.
52. In his affidavit sworn on 25 June, 2018, Mr. Gilroy again aired his contention that Mr. Butler, not being an "officer of the Bank" or "a person registered in the COMPANY'S REGISTRATION OFFICE as a person entitled to bind the company", was not therefore authorised to bind the company, instruct solicitors to join Mr. Gilroy (and Mr. McGuinness) as defendants or to make affidavits on behalf of the plaintiff - despite the fact that McGovern J. had considered and rejected all of this at the cross-examination on 30 November, 2017, and patently relied on Mr. Butler's evidence.
53. Further in that affidavit at paras. 16 and 17 Mr. Gilroy repeated previous allegations to the effect that Ms. Callanan prompted Mr. Butler during his cross-examination, notwithstanding that McGovern J. had found that this had not happened. I took the view that such averments were scandalous and abusive, and pursuant to my powers under O. 40, r. 12 directed that most of para. 16 and all of para. 17 be struck out as "scandalous". However, for the purposes of this judgment, which directly concerns the proceedings and motions brought by Mr. Gilroy, and his conduct of such proceedings, it is appropriate to quote the relevant material because it demonstrates the extent to which Mr. Gilroy is prepared to abuse the process. The struck out parts read:- "16. … This also raises a number of questions why the legal team were so vicious and ferocious in these proceedings (especially Ms. Callanan). Why this simple statement was not forthcoming which would have alleviated the need for such abusive proceedings. What did the Board know about the said letter requested by the first named plaintiff? Was there a conspiracy to commit fraud? Was the loss caused to all the defendants caused by ANY deception? Why was no action taken in court when Ms. Callanan was caught prompting Mr. Butler during his cross-examination? If Ms. Callanan or Mr. Butler denied such prompting, why did they not deny it in court when I made the accusation?
17. I say that I recently became aware that Ms. Callanan and the SC Mr. McCann have been "partners" at all material times during this court case and this can be the only explanation why Mr. McCann, being also a court officer, did not bring to the attention the improprieties of Ms. Callanan during the cross-examination. Mr. McCann had a better view of the said prompting by Ms. Callanan than I did, he must have seen this but did not bring it to the attention of the court because of his unprofessional involvement with Ms. Callanan." 54. Having considered the affidavits and heard argument at some length in relation to Mr. Gilroy's motion on 9 July, 2018, I found that it was entirely misconceived and dismissed it with costs against Mr. Gilroy. By the time that motion was heard the Supreme Court's judgment delivered on 29 July, 2018, was to hand. In the light of that judgment it was extraordinary that Mr. Gilroy should have pursued his motion in which effectively he sought the service on him of further pleadings notwithstanding that the plaintiff did not assert a substantive cause of action against him.
55. In Mr. Gilroy's affidavit of 25 June, 2018, he explains that the thirteen people who he sought to have joined as defendants, being directors and/or secretaries of the plaintiff, "must be attached to these proceedings, as it is they who can bring clarity to what securities they held in relation to the judgment obtained". A fuller reading of his affidavit indicates that this is based on two assertions: that the judgment against Mr. McQuaid was fraudulently obtained, and that there was some breach of the Credit Reporting Act, 2013. It was and is quite clear to this Court that the application was misguided and pointless and had no merit, and in particular that Mr. Gilroy had no " locus standi " because the judgment was against Mr. McQuaid and not against Mr. Gilroy.
56. Moreover, at the summary judgment hearing Mr. McQuaid had alleged that the facility letter for one of the loans was not signed by him, although the receipt of the loan monies for his own use was admitted. He alleged that his signature must have been forged by a member of the plaintiff. This was fully addressed in the course of the hearing, and notwithstanding that contention judgment was granted. Mr. McQuaid never appealed that judgment. Neither Mr. McQuaid nor, now, Mr. Gilroy, have adduced any further evidence to advance any allegation of forgery. Furthermore, although Mr. McQuaid made a formal complaint to An Garda Síochána in November 2016, the DPP determined that there was no evidence to support that allegation.
57. With regard to the Credit Reporting Act 2013, while the Act applies to Mr. McQuaid's loans, the date by which information specified in the statutory regime was to be supplied to the Central Bank has not yet passed, and in any event a failure to provide such information does not make a credit agreement unenforceable. Accordingly, there could be no basis for that allegation, and in any event it could not be raised by Mr. Gilroy as it concerns Mr. McQuaid's indebtedness.
Mr. Gilroy as Litigation Agent from Mr. Seamus McQuaid
58. One of the plaintiff's contentions is that Mr. Gilroy has acted, and continues to act (at least until very recently when Mr. Dore came on record for Mr. McQuaid, and members of his family who have been joined as co-defendants) as a "litigation agent" advising Mr. McQuaid and seeking documents on his behalf while Mr. McQuaid persists in not addressing the outstanding judgment and his noncompliance with High Court orders - which is the ongoing subject matter of applications by the plaintiff for attachment and committal of Mr. McQuaid.
59. Mr. McQuaid sent letters dated 18 April, 2018, to all of the plaintiff's directors and to Mr. Butler and another employee, Mr. Mark Bourke, being another manager with responsibilities for litigation. Mr. Butler avers at para. 56 of his grounding affidavit that this "correspondence has all the hallmarks of having been written by, or under the guidance of, Mr. Gilroy (which was pointed out to the High Court during the course of the plaintiff's application on 1 June, 2018, and which was not denied either by Mr. McQuaid or Mr. Gilroy who was present). Accordingly, by letter dated 26 April, 2018, Beauchamps inquired of Mr. McQuaid's solicitor, Mr. Robert Dore as to whether that correspondence had been sent entirely independently by Mr. McQuaid, or whether he had agreed to "front" correspondence from Mr. Gilroy and Mr. McGuinness. In response, Mr. Dore advised that his firm was ceasing to act. By letter of 11 May, 2018, Beauchamps replied to the letter of 18 April, 2018, on the plaintiff's behalf, inter alia stating that the allegations made in the letter and the threats directed to two named managers had no justification, and that it was a matter of concern that the letter appeared to be an attempt to dissuade them from managing the litigation in the interests of the plaintiff bank.
60. Despite the opportunity to do so in the replying affidavit sworn herein by Mr. Gilroy on 20 July, 2017, he has again not denied his involvement in the preparation of the letters of 18 April, 2018. The nature and content of the letters, and the absence of any denial from Mr. Gilroy, leads this Court to conclude that they were written by and under the guidance of Mr. Gilroy who used Mr. McQuaid to "front" the correspondence.
61. A further matter concerned with rental income from Mr. McQuaid's properties is dealt with in paras. 57 and 58 of Mr. Butler's grounding affidavit. During the course of applications seeking to have Mr. McQuaid comply with court orders, Mr. McQuaid swore an affidavit on 17 April, 2018, to resolve a conflict between his assertion that he had received no rent from his son Conor in relation to a particular premise over which the plaintiff has security, and a previous assertion by Mr. Conor McQuaid, in a letter of 17 August, 2017, that "we have a contract with Seamus McQuaid who is my father and I will continue to pay rent to him as per the terms of my contract". In his affidavit sworn on 17 April, 2018, Mr. Seamus McQuaid said of this letter that:- "3. At the time I was receiving advice from the second and third named defendants and it was on foot of their advice that this letter was written." The plaintiff's solicitors wrote to Mr. Gilroy and Mr. McGuinness on 2 May, 2018, requesting the confirmation of the contents of Mr. McQuaid's affidavit, and sent a reminder on 28 May, 2018. No response has been received, and Mr. Gilroy failed to use the opportunity of his replying affidavit sworn on 20 July, 2018, in these proceedings to deny having given such advice to Seamus McQuaid.
62. It is obvious that Mr. Gilroy has given extensive advice to Mr. Seamus McQuaid in relation to these proceedings, and in the light of Mr. Gilroy's failure to respond to correspondence and his silence in the face of Mr. McQuaid's affidavit of 17 April, 2018, it is reasonable to conclude that Mr. Gilroy did indeed give advice to Seamus McQuaid and that it was on foot of that advice that Mr. Conor McQuaid's letter was written. That advice was both dishonest and misguided.
Criminal Contempt Determination of 3 May, 2018 by O'Connor J.
63. This arose in a case of KBC Bank Ireland plc. v Gordon Smith, Linda Hussey, Ben Gilroy and person's unknown occupying the premises at 37 Hamlet Avenue, Chieftans Way, Balbriggan, Co. Dublin Record No. 2008/No. 1814P. The committal charges against Mr. Gilroy related to the publication on-line, on the Tiger Reborn page, which included the following:- "One of the so-called satanic cult members, Judge O'Connor, has broken many issues under the Constitution. He has actually made the Constitution of Ireland redundant."
"… This guy is a genius; he has now vacated his office."
"We should all use the Defence of The Dwelling Act and just wait for anyone coming through the door and blow their head off with a gun, maybe that is the answer." 64. At the hearing before Judge O'Connor on 3 May, 2018, Mr. Gilroy admitted responsibility for placing these statements online and withdrew them. When Judge O'Connor was satisfied that they had been removed from his Facebook, and was satisfied that Mr. Gilroy was pleading guilty to the charges of criminal contempt in uttering the words complained off, O'Connor J. imposed a suspended sentence of one month's imprisonment, subject to two conditions. The first of those was that Mr. Gilroy would desist for a period of 30 calendar months from uttering words or contributing to social media postings which repeat or tended to repeat any of the statements complained of, and which he had retracted and for which he had apologised, and secondly that if he was found guilty of criminal contempt by any court of the State within 30 calendar months then the suspended sentence would become operative.
65. The order of O'Connor J. came to the attention of McGovern J. on 4 May, 2018, when McGovern J. was considering setting the time within which Mr. Gilroy should carry out the 80 hours of community service imposed on him at the first conviction for criminal contempt. Mr. Gilroy had dismissed his legal team on 4 May, 2018, because "somebody should have inquired into my state of mind about mens rea when I was asked to put in an affidavit and it's a matter that I will bring all the way to Europe if I have to". Mr. Gilroy appeared by this statement to be going behind his admission of criminal contempt. McGovern J. used the occasion to remind Mr. Gilroy that if he was in breach of O'Connor J.'s order he would be called upon to serve the suspended sentence, which Mr. Gilroy acknowledged. It was at this hearing that McGovern J. directed that the 80 hours community service should be completed by 10 May, 2019.
66. I have earlier in this judgment referred to emails sent by Mr. Gilroy subsequent to the hearing on 4 May, 2018, and in particular one of 8 May in which he threatened Ms. Callanan that he would seek the assistance of the Director General of Law Society if she did not deliver to him the plaintiff's Points of Claim. I have also referred to Mr. Gilroy's email of 16 May, 2018, in which he concluded that he was "dragged into this dance", and that "the music is about to start and I have my dancing shoes on, and they [directors of the plaintiff] must face the music".
67. While no further contempt charge is before this court, and while this judgment is not one related to a contempt of court per se , in the light of the recent history of contempt convictions these emails from Mr. Gilroy mean that he is sailing perilously close to the wind, and undermining his previous apologies in a manner that again portrays his lack of respect for the courts and the rule of law.
Other Proceedings Involving Mr. Gilroy
68. In support of both the Isaac Wunder order, and the relief relating to Mr. Gilroy's activities as McKenzie Friend, the plaintiff in Mr. Butler's affidavit has referred the court to other proceedings which involve Mr. Gilroy. The list of such proceedings which appears at Exhibit PB15 is not said to be a comprehensive list of cases, but rather only those in which he has been joined as a party. These are as follows:- "(1) Ben Gilroy v. Stephen Manning 2017/507SS. This was an ex parte application for habeas corpus grounded on an affidavit filed on 8 May, 2017 sworn by Mr. Gilroy. It arose out of the detention of Stephen Manning in Castlerea Prison - see Stephen Manning v the Governor of Castlerea Prison [2017] IEHC 348. An order was made refusing the ex parte application, and in the judgment of Binchy J. of 18 May, 2017, the application for habeas corpus was refused.
Note - Although not deposed here on affidavit, Mr. Gilroy informed the court that he had, on behalf of two other prisoners, brought two more habeas corpus applications, which he maintained were successful. If that is true, it is further evidence of Mr. Gilroy's willingness to act as a litigation agent.
(2) Mark Reynolds and Glen Cran v. Eugene McDermott [2014] IEHC 219. This was a case in which Mr. Gilroy was found guilty of contempt of court by Ryan J. in the following circumstances:-
The plaintiffs as joint receivers were in possession of lands through a security firm who were engaged to protect the property. Orders were made on 5 March, 2012, by Murphy J. restraining the defendant "and any person having notice of the order" from interfering with the receivers, taking possession, refusing the plaintiffs access, trespassing or otherwise dealing with the property. On 28 and 31 August, 2013, groups of men came onto the land, erected barriers to prevent access and ejected the security personnel, one of whom was assaulted. The plaintiffs claimed that Mr. Gilroy was a prime mover in the events, and in contempt of the order of 5 March, 2012, by his involvement in organising the invasion of the land on 31 August, 2013, and by his presence there and participation in the events which included addressing the crowd. Mr. Gilroy agreed he was present on the land on both dates but claimed he was there by invitation and as an observer only and not an organiser, and he denied that he was served with the court order containing the penal endorsement.
Ryan J. found that the evidence of service of the order on Mr. Gilroy was "overwhelming". He determined that Mr. Gilroy was directly engaged in organising the attendance of a large number of protestors with the intention of interfering with the lawful activities of the receivers. He found that his behaviour on 31 August, 2013, amounted to breaches of all the injunctions of the court's order of 5 March, 2012. At para. 90 of his judgment Ryan J. states:-
"90. Mr Gilroy submitted that his radio interview should be interpreted as being analogous to how a supporter might speak of his team and use the words "we" and "our" without having any closer connection than being a fan. This, however, is not credible on any objective reading of the text. There is also the other evidence of events on the Wednesday and the Saturday that confirm and themselves establish independently the central role played by Mr. Gilroy in the protest. His previous advisory function with the defendant in dealing with the receivers is relevant. His address to the crowd was consistent with such a role. The fact is that all the evidence before the court on this motion, except that of Mr. Gilroy, demonstrates his central and important role in the breaches of the court's injunctions. Against the background of the evidence of the plaintiff's witnesses and the video material as to the Wednesday 28 August, 2013, events, Mr. Gilroy's radio interview is wholly consistent."
Ryan J. went on, at para. 92, to characterise the contempt of court committed by Mr. Gilroy as "flagrant and serious":-
"… The situation that Mr. Gilroy was instrumental in bringing about on the Saturday was tense and dangerous. Mr. Corr, the security man on duty, was assaulted and he and his colleague were threatened and harassed."
Mr. Gilroy received a suspended sentence.
(3) Ben Gilroy v. Mark Reynolds, Glen Cran, Ian Lackey, Garda Commissioner, Sean Twomey, Damien Maloney and Joseph Moran 2014/3409 P. Although Mr. Gilroy issued this plenary summons, the case was not pursued. He explained to this court, in oral argument, that he issued the proceedings because "Garda Lackey committed perjury on the stand". Mr. Gilroy stated to this court (Transcript Day 2, p. 57, line 5):-
"Mark Reynolds and Glen Cran were receivers. They put on affidavit that I assaulted someone, that was in the newspapers. And then under cross-examination he [Garda Lackey] admitted he made a mistake and that it was not I who assaulted him, it was somebody else in the group. Because, Judge, that would not be my nature. And that is why everybody keeps this act, because that was in the paper. I believe that that was the start of everybody saying "oh, I threatened people" and I am this, that and the other. And I am sick of it."
Mr. Gilroy went on to say that he did not pursue the proceedings because "I thought to myself there is no way that in these courts I was going to get any joy against an inspector garda".
(4) Ben Gilroy and another v. An Taoiseach and the Minister for Finance 2012/3134 P., issued 26 March, 2012. In this case Mr. Gilroy applied for and was refused an ex parte interim injunction on 27 March, 2012. Mr. Gilroy explained to this court (Transcript Day 2, p. 58):-
"The next one is I took it against the Taoiseach and the Minister for Finance in 2012 and it was to stop another payment to gangster banks all over Europe that have destroyed this country … unfortunately I was unsuccessful because they said I had no standing to bring the application and therefore we have people now on hospital trolleys and children going to school hungry and repossession all over the place because of it, no services."
Mr. Gilroy indicated that he was refused the injunction by Laffoy J., on the basis that he had no locus standi .
His description to this court of "gangster banks" and the results of their activities is instructive because it is indicative of his mind-set and his preparedness to use strong generalisations, and it hints at his motivation for acting as a litigation agent/McKenzie Friend for so many debtors and the setting up of the Morrigan Trust. In addition to the above matters in which, other than Reynolds , Mr. Gilroy was a plaintiff, he has been involved in the following further proceedings:- (5) Ken Fennell v. Ben Gilroy, Anderson, Pardo and others 2016/948 P.
Ken Fennell v. Ben Gilroy, Anderson, Pardo and others 2016/949 P. These proceedings both issued on 3 February, 2016. An interlocutory injunction was granted on 22 April, 2016. An affidavit on behalf of the defendants was sworn by Mr. Gilroy and filed on 3 August, 2016.
(6) Morris v. Facebook Ireland Ltd., Ben Gilroy, Byron Jenkins and Ireland Hub 2016/11102. These proceedings were issued on 14 December, 2016.
(7) O'Donoghue v. Patrick Martin, Noel Martin and Ben Gilroy 2016/11154P. These proceedings were issued on 15 December, 2016.
(8) Permanent TSB v. Bill Gilroy and Francis Gilroy 2014/3789 P. An interlocutory injunction was granted against Mr. Gilroy on 3 February, 2015.
(9) Claire Knowles v. Governor of Limerick Prison 2015/2044 S. On 9 December, 2015, Mr. Gilroy, on behalf of the applicant, a litigant in person, applied to Binchy J. for an order under Article 40.4 of the Constitution and under the Habeas Corpus Act 1781 for an inquiry into the legality of Ms. Knowles's detention. The application was transferred to Barrett J. who made an order for an inquiry, which was made returnable for 10 December, 2015, and ultimately was further transferred to Humphreys J. on that date. Humphreys J. decided that Mr. Gilroy, as a lay person, could not represent the applicant in habeas corpus . Mr. Gilroy, and (in his absence Mr. Jerry Beades) was permitted to act as a "McKenzie Friend" to Ms. Knowles.
(10) Paul McCleary v. Paul McPhillips
Paul McPhillips v. ACC Loan Management Ltd., formally ACC Bank plc., Grant Thornton International Ltd. t/a Grant Thornton Ireland, Stephen Tennant, Paul McCleary, Declan Kavanagh and Jack McCann 2014/5970 P. & 2014/5264 P., High Court 31 July, 2015. These proceedings were issued by individuals questioning the validity of the deeds of appointment appointing Stephen Tennant as receiver. In both cases Mr. Gilroy assisted the litigants.
(11) Allied Irish Banks plc. v. James Quinn and Edel Quinn (otherwise Burke) High Court 2010/5013S.
(12) ACC v. John Stanley, Ben Gilroy v. Morrigan Private Settlement Trust, and person or person's unknown in occupation of 3 Ennel Avenue, Artane, Dublin 5 which property is comprised in Folio 52747F Co. Dublin 2017/10497 P. This is another case in which debtor's property was purportedly transferred into the Morrigan Trust. By order dated 12 December, 2017, Costello J. declined an adjournment and made orders against all of the defendants for delivery up of the subject property, an order restraining the defendants themselves or their servants or agents from preventing, impeding and/or obstructing the plaintiffs from taking possession of the property, restraining the defendants from trespassing on or entering upon or attending at or otherwise interfering with the property, for delivery up of the keys of the property, and for providing the plaintiffs its servants or agents with reasonable access to the property for the purpose of marketing it for sale. The defendants were ordered to pay the plaintiffs the cost of the motion.
Mr. Gilroy's involvement in this litigation was not denied by him. His motivation and philosophy further emerged from what he said in argument on Day 2, p. 60:-
"Mr. Gilroy: … judge, the bank got into trouble, not because people were not paying their loans, it was because of dodgy dealings they did, reckless trading that they done. They also had an ALCO committee - at least they were supposed to have an ALCO committee - set up by the Financial Regulator. They didn't do any of that and that put them into trouble. They miscalculated and did misinformation to the Regulator at the time and told him everything was alright until finally it burst. It destroyed the country. They got bailed out. They sold most of their mortgages on, they got paid for them as well. They have manipulated interest rates and sold mortgages."
And at p. 61:-
"Mr. Gilroy: Yes, but it's a product of what happened, judge. That's why I'm saying, I'm not sure you have a full understanding of exactly what happened under the seams because you will see I'm in a position where I would be publically known to be anti-bank corruption and myself and others have groups set up, Friends of Banking and stuff like that. And the issues are, judge, that most people don't know. Like we had top bankers like Jonathan Sugarman give me documents and everything of what they were doing that has never been ventilated before the courts because unfortunately they said I have no standing." 69. It would seem from this that Mr. Gilroy regards himself as a champion of those who succumbed to bank debt following the excessive lending prior to 2008. Mr. Gilroy in argument contended that the litigation that he instigated was not frivolous or vexatious. According to him it was "of national concern" (Day 2, p. 71), and "… it absolutely affects everybody. And sure of course I had l ocus standi." (Day 2, p. 70). He also indicated that he intends to take further litigation - Day 2, p. 70:- "Mr. Gilroy: … And, judge, in fact I intend to take another one against the President stopping him from signing the Abortion Bill into law. Again I think that's for the greater good. And I say in that case it won't be frivolous either because what I'm saying is that you can only delegate a power you have and the people, that referendum should never have been put before the people because the people don't have that right to kill the unborn either collectively or singularly and therefore you couldn't delegate it to the government to do it. I have no problem with the termination of pregnancy if the pregnancy must terminate after nine months, not killing a child. And, therefore, that won't be a frivolous case either, judge, and I don't think in those circumstances that any of my litigation could be deemed frivolous or vexatious in relation to some of the cases that I have seen in these courts.
So, it's a target, judge. And while the courts may not like me and while other legal teams may not like me and why the banks may like me, judge, I'm not a frivolous litigator in any way, shape or form and so therefore they shouldn't get the reliefs they are looking for, judge." The Morrigan Private Settlement Trust 70. The extent to which the Morrigan Trust has been used by Mr. Gilroy deserves some further comment. Mr. Butler mentions the ACC v. Stanley, Gilroy and others case at para. 88 of his principal grounding affidavit. In the preceding two paragraphs he states the following:- "86. I understand and, indeed, it is apparent even from the cases which are dealt with in this affidavit, that Mr. Gilroy conducts his operations on a large scale and, at the very least, with a veneer of professionalism. By way of example, I have been shown what appears to be a business card of The Morrigan Private Settlement Trust with details for Mr. Gilroy included which in turn refers to an address at Oaktree Business Park, Trim, County Meath. As outlined above, referral was made to the Revenue Commissioners by Mr. Justice McGovern in the context of his finding of criminal contempt in respect of Mr. Gilroy having regard to the contradictory information furnished by him as to his employment status and income.
87. The continuing assertion of a right by Mr. Gilroy to interfere in the assets of Mr. Seamus McQuaid is of particular concern having regard to the three other AIB debtors where there was also an attempt to transfer assets to the Morrigan Private Trust. Those dealings are set out in exhibit PB2 to my affidavit of 8 July, 2017. That exhibit, it should be noted, recorded many other dealings then pending in respect of asset transfers to the Morrigan Private Trust where the assets appear to be secured to other financial institutions and/or where judgments had been obtained by creditors. Those other three AIB debtors are the subject of other proceedings brought by AIB where two other firms of solicitors appear for AIB and they will be addressed within the context of those other proceedings as appropriate."
The Gilroy proceedings 71. The Gilroy proceedings were the subject of considerable argument. Only the plenary summons was issued, but it is in a long form with twelve paragraphs followed by reliefs claimed a-j. It is specifically related to the present proceedings, the first named defendant being a solicitor in Beauchamps having carriage of the present proceedings, and acting on behalf of Allied Irish Banks, plc. The plenary summons was issued on 5 September, 2017.
72. The primary complaint is the joinder of Mr. Gilroy as a defendant in the present proceedings, which is said to be a "tortious act", and one that is a "trespass against the plaintiff" and causes him "harm, loss of reputation and good name". The claim is that Ms. Callanan joined him "without any proper authority … months after the trial of "the action"". A similar claim is made against AIB plc. for violation of his rights, and similarly against Beauchamps. The claim against Mr. Butler is that he "did instruct the first and third named defendants to take committal proceedings against the plaintiff in "the action"", and that he did so in the name of the plaintiff bank, without authority - and that in this regard all the defendants knew that the applications were brought against Mr. Gilroy "without any proper authority".
73. The fifth and sixth named defendants are sued as acting company secretaries of AIB plc. at the time, and they are sued as persons who by virtue of their office "knew or in the alternative ought to have known, that the instructions to attach the plaintiff as a defendant to "the action", were not properly approved by the board, if approved at all, but were in fact instituted by rogue employees and/or rogue solicitors." An alternative claim against the company secretaries is that the proceedings to join Mr. Gilroy as a defendant "should have been initiated by registered persons in the Company Registration Office as required by law". Paragraphs 11 and 12 are directed at all defendants and repeat the plea of "a tortious and grossly negligent act which did abuse and flagrantly violated "his rights", and that any such joinder "months after the trial of "the action" was tortious, as was the further application "to jail the plaintiff". Mr. Gilroy was quick to point out that the Plenary Summons was issued before the Court of Appeal and Supreme Court decided that the High Court had an inherent jurisdiction to join him as a defendant, and he indicated that "to that extent I will bring an application to have the summons amended" (Transcript Day 2, p. 101).
74. With reference to his claim that Mr. Butler, to the knowledge of other named defendants, lacked the authority to bring proceedings to join him as a defendant, this has been a recurring theme in his affidavits and argument to the court. He now relies on Directive 2009/101/EC of the European Parliament and of Council of 16th September, 2019, and in particular Article 2 under the heading "Disclosure", which, insofar as it is relevant reads:- Mr. Gilroy also referred the court to s. 39(1) of the Companies Act 2014 which reads:- "Where the board of directors of a company authorises any person as being a person entitled to bind the company (not being an entitlement to bind that is, expressly or impliedly, restricted to a particular transaction or class of transactions), the company may notify the Registrar in the prescribed form of the authorisation and the Registrar shall register the authorisation." Mr. Gilroy contended that as Mr. Butler was not a person authorised to bind the plaintiff, or notified to the Registrar on Form B46 pursuant to s. 39(1), his giving of instructions to join Mr. Gilroy and his swearing of affidavits in support of such joinder and generally was unlawful and tortious, and there was noncompliance with the disclosure requirement in Article 2 of the 2009 Directive.
These legal contentions, and the question of whether there is any cause of action disclosed in the Plenary Summons, at least since judgments were handed down in the Court of Appeal and Supreme Court, will be addressed later.
Affidavit of Claire Callanan
75. A short affidavit was sworn by Ms. Callanan on 4 July, 2018, in response to Mr. Gilroy's continuing assertion that she prompted Mr. Butler when he was cross-examined by Mr. Gilroy on 30 November, 2017, and also dealing with "personalised intimidation".
76. She confirmed her recollection of attending a packed court on 30 November, 2017, when she attended counsel. She states:- "3. … from time to time, as is common practice, I identified/located documents in one or other of the folders for Mr. Butler, Mr. Gilroy or Judge McGovern. I certainly recollect swapping the books to make identification of the documents easier. This was done in open view of everybody in court, including the judge and a member of An Garda Síochána who, I understand, had been asked by the court to be present. On numerous occasions, Mr. Gilroy accused Judge McGovern of helping Mr. Butler and answering questions for him, which is also not true. At no stage in the proceedings did I prompt or suggest any answer whatsoever from Mr. Butler." Ms. Callanan also avers to the fact that on 9 March, 2018, McGovern J. made it clear in court that he was unaware of any prompting of any witness.
77. Ms. Callanan characterises this as "more of the personalised intimidation which would be aimed at whoever in Beauchamps might be acting for the Bank". She avers that it has included personal and professional attacks on her, commencing at the outset with the setting out of her home address by Mr. Gilroy in the affidavit which he swore on 14 June, 2017. At para. 6 she states:- "6. On 9th June, 2017, with the assistance and guidance of Mr. Gilroy and Mr. McGuinness, Mr. McQuaid attended at Monaghan Garda Station and made a criminal complaint against me in respect of two letters written by Beauchamps on 9th May, 2017 and 24th May, 2017 in these proceedings, even though Mr. McQuaid was well aware that these letters were written on the instruction of the Bank. I believe that complaint was made because of the application that had started on 30th May, 2017 to prevent the disposal of assets by Mr. McQuaid to frustrate the Bank's judgment.
7. The attempt to single me out for personal assault contributed to the second conviction of Mr. Gilroy for criminal contempt in these proceedings because of the contents of the letter he wrote on 5th September, 2017. That letter of 5th September, 2017 was sent to me on the same day that Mr. Gilroy issued proceedings against me, my firm, the Bank and three of its employees and attended at these offices to try and personally serve staff." Ms. Callanan goes onto state that it was only in late 2017, following the first adjudication of criminal contempt by Judge McGovern, that Mr. McQuaid's then solicitors withdrew the criminal complaint. Ms. Callanan said that it was she who filed with the court in advance of the 21 February, 2018, contempt hearing "the letter of supposed apology" from Mr. Gilroy of 11 December, 2017. While at the time she was prepared to take the apology at face value and accept it, in the light of Mr. Gilroy's affidavit of 25 June, 2018, she averred to the fact that she did not believe the apology to be genuine - because that affidavit includes allegations of professional misconduct, being party to conspiracy to commit fraud, causing deception, misconduct by the Bank's senior counsel and so forth. Ms. Callanan concludes:- "9. While the above may be considered mild in comparison with the statements made by Mr. Gilroy about the judiciary, they are extraordinarily unpleasant and, in 40 years of professional practice, I have never been subjected to such conduct or intimidation. Similar personalised complaints, albeit in somewhat milder form have emanated throughout from Mr. McQuaid who also seems happy to condone Mr. Gilroy's attacks. I have had to arrange for additional security on my home. I have had to defend the proceedings in being, which deliberately named me as the first Defendant and which also named my firm as a co-defendant. I say and believe that all of this has been done to intimidate me, to embarrass me and my firm and my client and to embarrass and upset me personally."
Mr. Gilroy's Defence 78. Mr. Gilroy's affidavit of 20 July, 2017 runs to 50 paragraphs, but is more notable for what it does not deny or contest, rather than what it does say.
79. Paragraphs 3 to 12 are directed at Mr. Butler and his position and authority within the plaintiff. Notwithstanding that he was cross-examined on the same subject before Judge McGovern, Mr. Gilroy uses the opportunity to repeat allegations that Mr. Butler is employed otherwise than by the plaintiff, and that his true place of abode is otherwise than at Bankcentre, Ballsbridge, Dublin 4, and that he is not registered with the Company's Registration Office as a person who can bind the plaintiff.
80. At paras. 14-19 Mr. Gilroy returns to the "comma" issue, which was raised in his notice of motion dated 9 July, 2018, and in his first grounding affidavit. This is raised notwithstanding that this Court made an order amending the title of the proceedings by insertion of a comma after "Allied Irish Banks" in order to regularise under the "slip rule" what I regarded as a purely technical omission/error.
81. At paras. 21 and 22 Mr. Gilroy challenges Mr. Butler to produce his employment contract to prove that he is employed by the plaintiff, and has authority to initiate legal proceedings. At paras. 24-26 he denies that he threatened Mr. Butler or his legal team or the plaintiff's directors, and avers that he has apologised to Ms. Callanan, saying "I am one of the most peaceful men they will ever encounter". He denies at para. 25 that his statement "time is running out for you all to sort this mess out, do the right thing" could constitute a threat. He goes on to state:- "28. With all the alleged perceived or alleged so called threats and the case well over a year old, this old boring attempt to blacken me is tiresome and does not ring true and is hollow and frankly pathetic.
29. However, if Mr. Butler or any other recipient has felt threatened then I apologies for how they felt if that is a genuine point they make. I however feel it is a silly point scoring exercise with hidden smears and cunning forethought. For the avoidance of any doubt the sentence " time is running out for you all to sort this mess out, do the right thing " is two part, firstly, "time is running out for you all" refers to a criminal case I intend to take against all recipients. Do the right thing is self-explanatory, it means come clean, state you mislead the court in the following issues:- …" 82. Mr. Gilroy then sets out various respects in which he avers that the court was misled, starting with the plaintiff's CRO registration number 24173, and whether that company held the subject mortgages, and moving on to Mr. Butler and his employment status, and then repeating an allegation that the mortgages "allegedly given by Mr. McQuaid were consumers mortgages".
83. At para. 32 Mr. Gilroy then sets out what he asserts to be relevant principles of law, at a.-q, directed against the plaintiff directors "should they remain silent". These cover areas such as fraud, when silence may amount to fraud, and due process. For the most part references are given from case law of the USA, and in particular the State of Arizona. Mr. Gilroy has previously admitted using the internet as a source - for instance in respect of his use of the phrase "Jewish rodef", and it is possible that this section of his affidavit was also sourced on the internet. No Irish law sources are given.
84. At para. 34 Mr. Gilroy again repeats his allegation that Mr. Butler was prompted by Ms. Callanan during Mr. Gilroy's cross-examination of him, and notwithstanding Judge McGovern's different view. At para. 35 he states:- "35. I do not intend in the short time I have been afforded to prepare this affidavit to address every point in Mr. Butler's affidavit but suffice to say that any averment not addressed is denied and any other issues I will address on my feet on the 30th July, 2018." Mr. Gilroy was given ample time in which to prepare a replying affidavit to Mr. Butler's affidavit, and that of Ms. Callanan. It is of course not open to him to deny on his feet facts or inferences that may reasonably and properly be drawn from those facts, or from the averments in those affidavits. Mr. Gilroy has, at this stage, sufficient knowledge and experience of the workings of the court to know that such a general denial on affidavit would generally not be sufficient to contest facts or inferences where countervailing facts are not presented.
85. Mr. Gilroy then states:- "37. It is Mr. Butler who has made the real threats, it is Mr. Butler who sought to deprive the liberty of others on a civil matter. He is a very dangerous man, who will do his utmost to jail innocent people and doing so pretends he is employed by several companies to do so.
38. Mr. Butler should be prevented from taking any cases against anybody without a full Garda investigation or the director of corporate enforcement getting involved to find out exactly what company he is employed by, what his contract of employment actually states about who [his] actual employer is and exactly who if anyone has authorised him to act in such a dangerous way and to further ascertain if he is entitled to act in such a dangerous way, why his alleged authority is not registered anywhere and there exists no resolution of any board or any company he purports to act for giving Mr. Butler such authority." The ensuing paragraphs are in similar terms and at para. 41 Mr. Gilroy invokes his natural rights as "one of the people and not a citizen (whatever that may be)" and as "the man" contemplated in Article 43.1.1 of the Constitution, and in para. 42 he invokes his rights to due process under Articles 38.1 and 40.1, and Article 6 of the European Convention on Human Rights. In the alternative he invokes the right to due process under O.15, r.15 of the RSC in respect of service on him as a defendant of all appropriate papers - notwithstanding that this was a relief sought in his own notice of motion which was refused by this Court.
86. At paras. 45-47 Mr. Gilroy addresses Ms. Callanan's affidavit, and rejects her averments. He refers to "…emails to her from Mr. Dore where he tells her of her attitude and rude and obnoxious behaviour something that he has never witnessed". In para. 46 he says:- "Ms. Callanan can play the victim all she wants, she is not a victim, she is purposely out to get me from day one. Now that she has been caught prompting the witness on the stand she pretends she lives in fear with extra security at her house. She need not have any security concerns at least not in relation to me." He goes on to aver:- The remaining two paragraphs repeat his allegation that Ms. Callanan prompted Mr. Butler under cross-examination, and that the DAR reflects that. He refers to a subsequently hearing before McGovern J. when he brought the incident to his attention and states:- "To my amazement McGovern J. stated that Ms. Callanan might only have been passing him a note or piece of paper." 87. Some of these statements by Mr. Gilroy about Mr. Butler and Ms. Callanan are such as to ground a possible further charge of contempt. I am not inviting that, but they are further examples of Mr. Gilroy's willingness to resile from apologies, to repeat unfounded allegations (for example that Ms.Callanan prompted Mr.Butler when he was cross-examined, which McGovern J found was not the case), and to repeat insults and threatening remarks which, if made outside court could well be regarded as defamatory.
Final Replying Affidavit of Philip Butler
88. A replying affidavit was sworn by Mr. Butler on 25 July, 2018. He deals with his authority, confirming that he is a senior manager of the plaintiff, employed by the plaintiff, and working across "various companies within the AIB Group", and authorised to manage legal proceedings for those companies. He avers that he is authorised to manage the proceedings that he is in charge of and to swear affidavits "because I am a senior manager: it is in the nature of my employment" (para. 2). In para. 4 he notes that he has sworn affidavits on behalf of other companies in the AIB Group, "including EBS which is a subsidiary, and the address provided in the affidavit would usually be the address of the particular company". He deposes to his belief that it is perfectly valid and appropriate that he give as his true place of abode his work address rather than that of his family home, particularly because "… this is perfectly lawful and appropriate and has previously been ruled upon by McGovern J. in these proceedings in circumstances where Mr. Gilroy complained about Ms. Callanan's swearing affidavits in which he gave the address of Beauchamps rather than her home address".
89. At para. 7 Mr. Butler refers to an attempt by Mr. Gilroy to bring another motion for liberty to cross-examine Mr. Butler as to the issue of his authority - pursuant to liberty given by me to Mr. Gilroy on Monday 16 July, 2018 - but "Mr. Gilroy simply did not issue the motion in time".
90. At para. 9 Mr. Butler addresses paras. 24-48 of Mr. Gilroy's affidavit stating:- "Mr. Gilroy denies that he has threatened me, the members of the plaintiff and/or solicitors, explaining that this is really a misunderstanding on the part of myself and those persons in our interpretation of his affidavits and letters. Simultaneously, Mr. Gilroy threatens a criminal case against all recipients at para. 29, repeats his allegation that I have mislead the Court, continues to assert rights in relation to Mr. McQuaid's assets, and alleges criminal fraud against the plaintiff's Board of Directors (Para. 32). The averments certainly look to me like threats and do not make the opening "justification" particularly credible. Mr. Gilroy conveniently overlooks the fact that his involvement in these proceedings was prompted by the actions of himself and Mr. McGuinness in seeking to assist Seamus McQuaid in making assets unavailable to creditors. If he did not engage in this type of activity there would have been no need to join him." At para. 10 Mr. Butler refers to Mr. Gilroy's description of him as a "very dangerous man …" and the related averments, and states of these descriptions that they are:- "… something I personally find very threatening as it is designed to single me out as a personal legitimate target. He threatens criminal action against me designed to interfere with my employment and professional standing. I am astounded that it appears that I must re-iterate that I had to take professional security advice in relation to my own personal security. The advice was obtained as I felt particularly threatened just in advance of the cross-examination which was in the context of the Bank's application for attachment and committal." 91. Mr. Butler points to the threat at para. 43 of Mr. Gilroy's affidavit to give details of all transcripts and documents filed in the case, which he describes as "disgraceful", to Greco, the Group of States against Corruption which is a Council of European's anti-corruption monitoring body with its headquarters in Strasbourg. Mr. Butler comments (at para. 11):- "While Mr. Gilroy does not expressly say so, from a review of the transcript it is clear that Mr. Gilroy is primarily complaining about exchanges between McGovern J. and himself during his cross-examination of me, although he describes the "interruptions" by both the Court and Counsel at para. 7 as being constant, aggressive and despicable." Mr. Butler goes on to state at para. 13:- "I say and believe that it is clear from these averments that he simply has no respect at all for the court, its members or its processes, as well as having a contempt for branches of the legal profession." At para. 15 Mr. Butler refers to the transcript of the hearing before McGovern J. on 9 March, 2018, and says:- "What Judge McGovern in fact said was that he was not aware of the prompting of any witnesses, and inquired whether Mr. Gilroy might be referring to my being handed documents. Judge McGovern then said that the matter was not before him for adjudication. For the record, I might also add that at no stage during my cross-examination was any answer prompted by Ms. Callanan."
Principles Applicable to Isaac Wunder Orders 92. The law on this is well established and was not in dispute. Such orders are so called after Mr. Wunder's case. There the Supreme Court had made an order on 1 April, 1966, in a claim against the Irish Hospital Trust (1940) Ltd, dismissing Mr. Wunder's appeal against several orders made by the High Court. Subsequently an order was made by the Supreme Court against Mr. Isaac Wunder on 24 January, 1967, directing that no further proceedings in the action in the High Court be taken without leave of the court first being obtained, and that if any such proceedings be taken in the action without such leave being first obtained, the defendant was not required to appear or to take any steps in relation thereto and such proceedings so taken were to be treated as void and of no effect.
93. In Riordan v. Ireland (No. 5) [2001] 4 I.R. 463, Ó Caoimh J. was asked to make such an order and stated the test as follows (p. 465):- "The court has to determine whether the proceedings being brought are being brought without any reasonable ground or have been brought habitually and persistently without reasonable ground." 94. Ó Caoimh J. cited with approval the decision of the Ontario High Court, in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685 at p. 691 where the following matters had been indicated as tending to show that a proceeding is vexatious:- "(a) the bringing up on one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;
(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;
(f) where the respondent persistently takes unsuccessful appeals from judicial decisions." 95. Ó Caoimh J., however, was careful to acknowledge that (at p. 466):- "The making of a restriction on the right of access to the courts has to be seen in the context of the constitutional right of access to the courts which has been recognised in this jurisdiction in a number of authorities including Macauley v. Minister for Posts and Telegraphs [1966] I.R. 345 ; The State (McEldowney) v. Kelleher [1983] I.R. 289 and, in the context of the European Convention on Human Rights, the provisions of article 6(1) of the Convention which is in effect a recognition of the same right protected by the terms of the Irish Constitution." 96. More recently this was addressed by the Supreme Court in Tracey v. Burton [2016] IESC 16 where MacMenamin J. observed as follows:- "45. Certain recent incidents which have occurred in other court proceedings make it necessary to reiterate some matters which are fundamental. In all legal proceedings, whether a litigant is legally represented or not, a point may be reached where the conduct of such litigation is so dilatory, or so vexatious, or proceeds in a manner which either breaks or ignores rules of procedure, or where there is such egregious misconduct either before court, or in court itself, as to raise questions as to whether the right of access to the court should be limited, or, in extreme cases, whether a case should actually be struck out. Put simply, the questions are whether there is abuse of process to such a degree that a claim simply should not be allowed to proceed, or whether such a claim should be allowed to proceed only under identified procedural conditions, or in a manner proportionate to the circumstances, while seeking, as far as is practicable, to vindicate that constitutional right to litigate proceedings. If a litigant engages in conduct amounting to contempt of court, either with regard to the court itself, or court officials, that too may have to be addressed in the same way. The time has long past where it is either necessary, or desirable, to permit litigants, or their legal representatives, to read documents or submissions "into the record of the court", or where court time, a scarce public resource, is unnecessarily wasted. Court time is not solely the concern of litigants, or their legal representatives. There is a strong public interest aspect to these issues. Time allotted to the parties may be apportioned by a judge fairly, prior to, or during a hearing. But, such time must be predicated on a realistic appraisal of the time a case, or matter, should, ordinarily and properly, take. As Denham J. pointed out in O'Reilly McCabe v. Minister for Justice, & Patrick Cusack Smith & Co (Agents of Thomas McCabe, Ward of Court & Minor) [2009] IESC 52 at par. 33, the constitutional right of access to the courts, while an important right, is not an absolute one. As a corollary of that right, a court must also protect the rights of opposing parties; the principle of finality of litigation; the resources of the courts; and the right to fair procedures which accrue to each party to litigation, as well as plaintiffs. It is an injustice that defendants or plaintiffs be exposed to repeated and vexatious litigation, in which either party incurs unnecessary legal costs which may not easily be recoverable against an offending party. The public have a right to a court system which operates effectively and expeditiously in the public interest, while ensuring that justice is administered as the Constitution requires. Finality is necessary in the interest of justice. It must be clearly understood that one adverse ruling, or even a series of adverse rulings, by a court is not, without significantly more, to be regarded as grounds for claiming either subjective or objective bias.
46. As to persistent frivolous and vexatious proceedings, useful principles were outlined by Ó Caoimh J. in the High Court in Riordan v. Ireland No. 5 [2001] 4 I.R. 463 at 463, 466 & 471; and see my judgments in the High Court in McMahon & Sharma v. W. J. Law & Company LLP & Ors [2007] IEHC 51 at par. 21, [2007] IEHC 194 at paragraph 29.
47. In addition to the factors outlined in those decisions, however, 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." 97. It is not disputed that the Commercial Court has the same jurisdiction as other judges of the High Court to make Isaac Wunder Orders. This is part of the inherent jurisdiction of the High Court. Moreover, O.63A, r.5 empowers a judge of the Commercial Court to "give such directions and make such orders…for the conduct of proceedings entered in the Commercial List as appears convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings."
98. Court time is, of course, scarce, and is not to be wasted. In Sheehan v. Talos Capital Ltd . [2018] IEHC 361, a Commercial Court case, Twomey J. recently referred to this when considering the general applicability of Isaac Wunder Orders:- "162. In this context it is relevant to refer to the recent judgment of Keane J. in Martins v. Minister for Justice and Equality [2018] IEHC 268 at para 115 et seq where reference is made to the relevance of the scarcity of court resources to the approach of the courts to the abuse of those resources. In that case he quoted from the judgment of the English High Court in R (Akram) v. Secretary of State for the Home Department [2015] EWHC 1359), where Leveson L.J. referred to the obligation on courts to:
‘ensure that the time of the Court (not to say public and private funding of such litigation) is not wasted'
Of particular relevance in Ireland, Leveson J.L. referred to:
‘The need for this warning to be taken seriously increases as the resources available to the Courts to act efficiently and fairly decreases. If the time of the Court and its resources are absorbed dealing with utterly hopeless and/or unprofessionally prepared cases, then other cases, that are properly advanced and properly prepared, risk not having devoted to them the resources they deserve'
Although the Akram case concerned immigration and asylum law in England and Wales, Keane J. determined that the foregoing principles identified by Leveson L.J. were of general application to immigration and asylum law in Ireland.
163. For this Court's part, it is of the view that these principles are of general application to all matters before the Irish courts, since the shortage of judges and the strain on resources is felt across all the courts. Thus, it is the duty of the courts to be alive to such abuses by all litigants, whether impecunious or wealthy, and where appropriate to consider placing a filter on the issue of proceedings by such litigants, namely the requirement for the consent of the President of the High Court, because of the history of the litigant to date." 99. I adopt these observations.
Application to the Facts
100. I am satisfied that Mr. Gilroy has abused his access to the courts in the present proceedings, and has done so repeatedly. Firstly, it should be observed that it was through his own involvement with the Morrigan Trust, and the purported transfer thereto by Mr. McQuaid of properties that should have been available for the plaintiff to satisfy its judgment, that led him to his joinder as a defendant in these proceedings. Thereafter, he gave undertakings to the court with which he failed to comply, necessitating initially extensions of time for the retransfer of the relevant property. His failure to comply with the orders of McGovern J./his undertakings to the court led to the civil contempt proceedings which were only resolved after he had fully complied with his undertakings and given an apology to the court.
101. In the course of representing himself as a defendant in these proceedings, Mr. Gilroy has repeatedly written abusive, disparaging and threatening correspondence, and I am quite satisfied that this has been intended to intimidate the plaintiff, its employees and legal advisors. I am also satisfied from the affidavit of Mr. McQuaid that it was on Mr. Gilroy's dishonest and misguided advice that Mr. McQuaid's son, Conor McQuaid signed the letter dated 17 August, 2017, stating that he had a contract with Seamus McQuaid, his father and that he would continue to pay rent to him as per the terms of his contract. I am also satisfied as a matter of probability that Mr. McQuaid merely fronted the letters sent by him dated 18 April, 2018, and that these were written by or under the guidance of Mr. Gilroy. It is noteworthy that in his replying affidavit, Mr. Gilroy has not denied these matters.
102. Some of the most abusive behaviour has been Mr. Gilroy's utterances in respect of Ms. Callanan, particularly that in his letter of 5 September, 2017, and his setting out of Ms. Callanan's home address on affidavit. The letter of 5 September, 2017, prompted Ms. Callanan to make a complaint to An Garda Síochána in respect of the letter and implicit threat. It is entirely understandable that Ms. Callanan would feel intimidated and threatened by Mr. Gilroy's behaviour, and Mr. Gilroy's attempts to suggest that no one would reasonably regard it as threatening is rejected.
103. Mr. Gilroy has also been highly abusive of Mr. Butler, whom he has personally targeted, and I am equally satisfied that Mr. Butler has felt intimidated and that this led to him receiving security advice. The most recent abuse of Mr. Butler in Mr. Gilroy's replying affidavit, where he calls him "a very dangerous man", is an egregious and a gross misuse of the absolute privilege that attaches to affidavits sworn for the purposes of court proceedings.
104. I am also satisfied that Mr. Gilroy was being dishonest when he indicated that he was without income when completing a statement of means for the purposes of obtaining legal aid to defend the criminal contempt proceedings before McGovern J. That statement conflicted with information which he gave to the Probation Service, to whom he indicated was in full time employment. It is of significance that Mr. Gilroy has not denied in his replying affidavit that he is in receipt of income.
105. Mr. Gilroy has also repeatedly displayed his lack of respect - in common parlance his "contempt" - for the High Court, and its procedures. This now extends to the decisions of the Court of Appeal and Supreme Court upholding the jurisdiction of McGovern J. to join him as a defendant.
106. I am satisfied that the plenary proceedings brought by Mr. Gilroy against Ms. Callanan, the plaintiff and various named employees of the bank ("the Gilroy Proceedings") are vexatious. I am conscious that there is a pending application by the plaintiff to have these dismissed for failing to disclose a cause of action, and it is not for this Court on foot of this application to make any such order. However, having carefully considered the claims made in the Plenary Summons issued on 5 September, 2017, and listened to Mr. Gilroy's arguments, I am satisfied that it discloses no discernible or sustainable cause of action.
107. Insofar as it is concerned with the joinder of Mr. Gilroy as a defendant in the present proceedings, it was misconceived, and cannot proceed any further having regard to the decisions of the Court of Appeal and Supreme Court, confirming the inherent jurisdiction of the High Court.
108. While that may be the beginning and end of the matter, Mr. Gilroy also again raised a point to the effect that Mr. Butler is not a person registered in the Companies Registration Office as a person authorised to bind the plaintiff bank - and he relies on Article 2(d) of the 2009 Directive, and s. 39(1) of the Companies Act 2014 as set out earlier in this judgment. This reliance is misplaced, and exemplifies Mr. Gilroy's lack of real understanding of the relevant provisions.
109. The concept of a "registered person" who is appointed by a company and registered with the Registrar of Companies, and who has authority to enter into transactions on behalf of a company, has existed since it was introduced by Regulation 6 of the European Communities (Companies) Regulations 1973 (S.I. 163/1973). The consequence of this provision was that anybody dealing with the registered person was protected where he or she acted in good faith; its object was clearly to protect third parties in their contractual dealings with a company.
110. This provision is now replaced by s. 39 of the 2014 Act. The person registered is given a general power to bind the company rather than a power restricted to a particular transaction or class of transactions. However, it has limitations. Subsections (4) and (5) state:- 111. Thus, the registered person does not have any power of management of the company that would be exercisable by the board - as opposed to entering into transactions with third parties.
112. It is of fundamental importance to note that s. 39(1) states that where the board authorises any person as being entitled to bind the company, it " may notify the Registrar". There is no requirement for all persons authorised to act on behalf of the company to be registered. In "the Companies Act 2014: an Annotation" (Conroy, Thompson and Reuters, 2015), the following footnote appears on p. 105:- "The scope of the registration procedure is intended to be limited to persons who the company wishes to have general authority to act on its behalf. Even in relation to such persons, the mechanism for registration is not compulsory and it is perfectly possible for a person to be granted general authority by the company to act on its behalf without registration (subs. (1) was amended at Seanad Reports stage so as to read ‘the company may register' rather than ‘shall register' as appeared in earlier iterations).
Company officers remain entitled to act in accordance with their customary authority without registration. At the other end of the scale, the registration procedure will not be applicable to a person whose entitlement to bind the company is expressly or implicitly limited to a class of transactions, for example, a shop assistant. Similarly, a person who is expressly or impliedly authorised only to enter into a particular transaction on behalf of the company, whether by power of attorney or otherwise, will not be registered." 113. Mr. Butler, of course, is not a party to the present proceedings and does not purport to bring them on behalf of the bank. He is acting as a senior manager of the bank in giving instructions to the plaintiff's solicitors and in swearing affidavits on behalf of the bank, all of which is work that he is duly authorised to undertake on the plaintiff's behalf. The extent to which employees such as Mr. Butler may be authorised by a company is emphasised by s. 40 of the Companies Act 2014. Section 40(1) provides:- 114. From this, it will be apparent that the board of directors can authorise a person such as Mr. Butler to carry out transactions on its behalf. It may do so generally, or specifically, and a specific board resolution is not required if the work that Mr. Butler undertakes comes within the scope of his employment - as it clearly does based on his affidavit evidence. This is supported by s.40(1) and by subs. (3):- "Subsection (1) is not to be read as preventing the exercise of a company's powers otherwise than by the board, a registered person or a person authorised by the board or by a registered person, where authority for that exercise exists." 115. Mr. Gilroy referred the court to the First Recital in the 2009 Directive which reads:- "First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community has been substantially amended several times. In the interest of clarity and rationality that Directive should be codified." 116. He also referred the court to the Third Recital which reads:- "The basic documents of the company should be disclosed in order that third parties may be able to ascertain their contents and other information concerning the company, especially particulars of the persons who are authorised to bind the company." 117. Mr. Gilroy contended that these recitals read with Article 2 required the plaintiff to register Mr. Butler with the CRO if he was to be properly authorised to initiate proceedings against him, Mr. Gilroy.
118. It is however absurd to suggest that the effect of the Directive is that every employee authorised to do anything on behalf of a company would have to be "a registered person". Plainly this would be unworkable both from the perspective of the company and the Registrars of Companies across the EC who would be inundated with registration applications.
119. Moreover, this fails to recognise that Directive 2009 is primarily a codification. Ireland had already complied with its obligations by introducing the 1973 Regulations, and in particular Regulation 6, and now by enacting section 39 of the 2014 Act. Apart from this, Article 2 is directed at Member States rather than individuals or individual companies. More particularly, Article 2(a) which requires the disclosure of "the instrument of constitution, and the statutes if they are contained in a separate instrument" is covered by the requirements of Irish law - the obligation to file the constitution of a company with the CRO is now contained in s.21 of the 2014 Act, but existed in early legislation.
120. Moreover, the wording of Article 2(d) would not seem to have application. It refers to disclosure of:- "The appointment, termination of office and particulars of the persons who either as a body constituted pursuant to law or as members of any such body: (i) are authorised to represent the company in dealings with third parties and in legal proceedings; (ii) take part in the administration, supervision or control of the company. It must appear from the disclosure whether the persons authorised to represent the company may do so alone or must act jointly."
121. The present proceedings are not concerned with Mr. Butler representing the plaintiff in "dealings with third parties" - that is clearly intended to refer to contractual dealings. As to "legal proceedings", Mr. Butler is not named as a party in these proceedings and, therefore has not held out as being authorised to represent the company in proceedings in that sense.
122. Accordingly, analysis of Mr. Gilroy's Plenary Summons does not disclose any stateable cause of action against any of the defendants. It is vexatious and intended, I am satisfied, to broaden out the target of Mr. Gilroy's complaints to include employees and legal advisors of the bank with a view to the plaintiff withdrawing or compromising its proceedings against Mr. McQuaid. They are proceedings that are bound to fail and it is notable that in the period since the plenary summons issued on 5 September, 2017, no statement of claim has been delivered.
123. I find that Mr. Gilroy's proceedings are bound to fail. I find that they are scandalous, vexatious and an abuse of the process. Mr. Gilroy's attempt to serve them personally, and in that context his letter of 5 September, 2017, to Ms. Callanan, are part and parcel of this vexatious abuse of the process.
124. The two motions that Mr. Gilroy has issued in the present proceedings have also proved to be unfounded and vexatious. The first was the motion to cross-examine Mr. Butler, which examination McGovern J. permitted to proceed - on the basis that it be confined to Mr. Butler's authority to make averments in para. 20 of an affidavit sworn by him to the effect that Mr. Gilroy was in breach of the court order of 19 June, 2017. From the Transcript of that hearing it is apparent how frustrated McGovern J. became over the slow pace of the cross-examination, the putting of irrelevant questions, and the putting of questions concerning legal propositions. At p. 33 McGovern J. stated to Mr. Gilroy:- "You are cross-examining this witness and a great deal of time has been wasted already. It is now 20 to 12 and all we have established is exactly what is already in his affidavit, that he works for Allied Irish Banks Plc., that he is a senior manager in the bank, that he says he works for other divisions of the bank across the group, and that he was authorised to make the affidavit. Alright? That's as far as we have got and it is 20 to 12." Shortly afterwards McGovern J. was prompted to say (at p. 34 of the Transcript):- "Alright. Do you want to ask him any questions about the matters on which you were given leave? Because if you don't, I'm going to finish this now under the powers I have to control the processes in this Court. I'm not going to allow the court processes to be abused by this sort of nit-picking to the point of nonsense. So either you want to ask him about what's in para. 20 or we will move on and I will move on to the other motions. But I'm not going to allow the court time to be wasted by these matters that seem to be of interest to you but are not relevant to anything I have to deal with." The hearing on that date, which included presentation of material related to both civil and criminal contempt by Mr. Gilroy, took up the entire day of the court's time. Insofar as Mr. Gilroy's cross-examination of Mr. Butler was concerned it failed to undermine Mr. Butler's evidence as to his position within the plaintiff or his authority to act on behalf of the plaintiff or Group companies or swear affidavits in the context of the present proceedings. It was a waste of court time.
125. The second motion issued by Mr. Gilroy on 25 June, 2018, was also, save in one technical respect, misguided and vexatious. It sought, and I granted, an order amending the title to reflect the true name of the plaintiff. From Mr. Gilroy's perspective that was not a matter of any substantive importance. His main claims in relation to being afforded "due process" were entirely without foundation. Equally his attempt to join the directors and/or secretaries of the plaintiff, including those named in para. 5 of that notice of motion, was inappropriate and vexatious and, I am satisfied, intended to put improper pressure on the plaintiff and its directors and employees to resolve the proceedings in a manner favourable to the defendants.
126. It is a feature of Mr. Gilroy's successive written and oral applications to the court that he repeatedly pursues the same arguments that have already failed, and are bound to fail again. He asserted, for example, that the Campus Oil test should have been applied by McGovern J. before granting injunctions restraining the disposal of assets on 30 May, 2017, in respect of which Mr. Gilroy gave undertakings on 19 June, 2017. He pursued the same argument before McGovern J. on 13 November, 2017. He failed to appeal McGovern J.'s order in time. He pursued the same argument before this Court in opening his oral submission in response to the plaintiff's present application even though the Campus Oil test has no relevance to the present application. Ever since Mr. Butler first swore an affidavit to support the application for injunctive relief in aid of execution, Mr. Gilroy has argued that Mr.Butler was not authorised to take the decisions or provide the instructions that lead to the joinder of Mr. Gilroy as a defendant, or to swear affidavits on behalf of the Bank in support of such joinder/injunctive relief. McGovern J. was at all times unimpressed by such arguments, and the cross-examination of Mr. Butler made no difference. This Court is equally unimpressed. This persistent repetition of argument is obstructive and a waste of court time; it is vexatious and an abuse of the court process.
127. Mr. Gilroy's participation in the present proceedings satisfies many of the tests identified by the Ontario High Court in Lang Michener and Fabian as amounting to "vexatious": he persistently pursues issues already determined, and rolls them forward into subsequent applications; he mounts claims that it is obvious cannot succeed; he acts for improper purposes, to obstruct and cause delay, and to harass and oppress the plaintiff, its employees and legal advisors.
128. While Mr. Gilroy has instituted other proceedings - Gilroy v. An Taoiseach 2012/3134 P., Gilroy v. Reynolds and others 2014/3409 P., and Gilroy v. Manning 2017/507 S.S., which were unsuccessful or not pursued, this is not a typical application for an Isaac Wunder order in which one might expect to see a history of very similar repeat litigation. However, the plaintiff has not sought an Isaac Wunder order of general application. Had it done so I tend to the view that there is ample reason, based on Mr. Gilroy's applications in the present proceedings, his initiation of the Gilroy proceedings, and his involvement as the plaintiff or moving party in other unsuccessful proceedings, to grant an Isaac Wunder order of general application. However, I do not need to decide that, because the plaintiff seeks such an order limited only to these proceedings where the plaintiff contends that Mr. Gilroy's right of access to the court has been abused not only once, but repeatedly.
129. I accept that the court exercising its inherent jurisdiction may tailor the Isaac Wunder order in such a manner as is appropriate to meet the requirements of a particular case. In this case it is necessary to protect the integrity of the court and its procedures, and also the rights of the plaintiff, and its employees and legal representatives, not to be harassed through vexatious proceedings or vexatious applications within existing proceedings. This is particularly important where the plaintiff's own right of access to the court to enforce the judgment which it has obtained is jeopardised if Mr. Gilroy is not so restrained. I accept that Mr. Gilroy's threat of further legal proceedings and complaints against the plaintiff's employees and lawyers personally is a further significant attempt to harass and intimidate the plaintiff and those individuals in an effort to dissuade the plaintiff/such individuals from properly protecting and pursuing the plaintiff's rights.
130. In particular I find abhorrent the attack on the plaintiff's legal representatives, which, in an indirect way, is an attack on the court process itself. It is certainly an attempt to interfere with the administration of justice.
131. For these reasons it is appropriate that the court should make an order restraining Mr. Gilroy from issuing further proceedings against the plaintiff or any director or employee of the plaintiff save with the prior permission of the President of the High Court, and a further order restraining him from issuing any further motions in the present proceedings against the plaintiff, its directors, employees, legal representatives, servants or agents save with the prior permission of the judge for the time being in charge of the Commercial Court list.
Injunction from attending at Bank Centre
132. It will be recalled that on 21 February, 2018, when Mr. Gilroy was convicted of criminal contempt for the second time McGovern J. imposed a 28 day prison sentence in default of Mr. Gilroy complying with undertakings not to correspond with Ms. Callanan or serve any documents on her in connection with this case except through Beauchamps solicitors, and further not to correspond with or serve any documents on Mr. Bernard Byrne, the plaintiff's CEO, or any officer or employees of AIB except through their solicitors or through AIB Head Office. This was because of the history of intimidation by Mr. Gilroy of the plaintiff's personnel and legal advisors, and his history of attending at the plaintiff's office at Bankcentre, Ballsbridge, Dublin 4 and serving, delivering or attempting to deliver documents personally on Mr. Butler, Mr. Byrne, and other employees of the plaintiff, and his knowledge and publication of Ms. Callanan's home address.
133. In light of the further abusive and threatening averments concerning Mr. Butler and Ms. Callanan in Mr.Gilroy's replying affidavit sworn on 20 July, 2018, I am not satisfied that the continuation of his undertakings is a sufficient protection for bank personnel or Ms. Callanan. It is appropriate that the court should now make further orders to prevent any further intimidation, and I propose therefore to make the following ancillary orders:- (1) An order restraining Mr. Gilroy from attending at or near the plaintiff's office at Bankcentre, Ballsbridge, Dublin 4.
(2) An order restraining Mr. Gilroy from attending at or near the homes/properties of Claire Callanan, Philip Butler, Sarah McLoughlin, Robert Bergin and Bernard Byrne or any other officer, employee or agent of the Bank whether for the purposes of the service or delivering of documents or otherwise, and whether personally or by his servants or agents.
(3) An order that any further documents that Mr. Gilroy, his servants or agents, may be permitted or required to serve or deliver on the plaintiff or it's legal advisors in these proceedings be served or delivered by registered prepaid post addressed to Beauchamps solicitors for the plaintiff, Riverside Two, Sir John Rogerson's Quay, Dublin 4 (save and to the extent that the same may be delivered electronically to Beauchamps solicitors). 134. As these ancillary orders, other than the order that restrains Mr. Gilroy from attending at the Bankcentre, were not mentioned in the plaintiff's Notice of Motion the court will hear further from the parties as to the precise wording of these orders before they are finalised.
Injunction Restraining Involvement as a McKenzie Friend - Legal Principles
135. It is appropriate first to refer to Practice Direction HC72 of July 2017 which sets out the scope of activities of a McKenzie friend with effect from 1 October, 2017:- "The Court of Appeal
and
The High Court
Re. McKenzie Friends
1. Litigants may obtain reasonable assistance from a lay person, sometimes called a McKenzie friend (MF). Litigants assisted by MFs remain litigants in person. MFs have no independent right to provide assistance. They have no right to act as advocates or to carry out the conduct of litigation. They have no entitlement to payment for their services.
2. In court MFs may:-
(1) Provide moral support for litigants;
(2) Take notes;
(3) Help with case papers, subject to paragraph 6 below:
(4) Quietly give advice on any aspect of the conduct of the case.
3. MFs may not:-
(1) Address the court, make oral submissions or examine witnesses. MFs do not have a right of audience or a right to conduct litigation. In exceptional circumstances a court may permit an MF to address the court. Such circumstances will be rare.
(2) Receive any payment for their services.
(3) Act as the litigants' agent in relation to the proceedings;
(4) Manage litigants' cases outside court, for example, by signing court documents.
4. Whilst litigants may receive reasonable assistance from MFs the court retains the power to refuse to permit such assistance. The court may do so where it is satisfied that the interests of justice and fairness do not require the litigant to receive such assistance. Where the court permits a litigant to receive assistance from a MF, it may regulate the manner in which assistance is provided. It may withdraw the permission if of the opinion that the administration of justice is being impeded by the MF. If requested by the court a MF must provide his or her name, address and contact details.
5. Only one MF may assist a litigant in court.
6. The attention of litigants and proposed MFs is drawn to the provisions of section 58 of the Solicitors Act 1954 as amended which makes it a criminal offence for an unqualified person, as defined in the Act, to draw or prepare a document relating, inter alia , to any legal proceeding either directly or indirectly for or in expectation of any fee, gain or reward.
7. This Practice Direction shall come into force on 1st October, 2017.
Dated 31 July, 2017
Sean Ryan
President of the Court of Appeal
Peter Kelly
President of the High Court" 136. The practice of permitting McKenzie Friends has grown in recent years with the increasing number of litigants in person defending debt collection or security realisation proceedings having their origins in the economic collapse of 2008. While the courts have always given reasonable latitude to personal litigants when conducting or defending their own case, the courts also recognise that in some cases such persons require informal assistance, where they could not afford a solicitor or barrister. However, the objective has always been to assist the litigant and thereby assist the court. In O'Shea v. Butler [2017] IESC 65 MacMenamin J. stated as follows:- "86. The function of a McKenzie friend is to further the interests of justice. It is to achieve, and achieve only, a level playing field, and to ensure a fair hearing. A McKenzie friend cannot be permitted to act in a manner which defeats the interests of justice. Nor can such a person be permitted to act in a manner which creates a situation where the litigation before a court is actually conducted in a manner which is vexatious, or in breach of the rules of procedure which govern the manner in which advocates may act in court. A judge is entitled to rule and make arrangements such that any breach of these rulings may be properly sanctioned.
87. At minimum, this may be done by requesting, and if necessary directing, a McKenzie friend, or other person seeking to act in this way, to desist from interruption. If there are persistent interruptions, contrary to a judge's direction, a judge may properly request persons to remove themselves from a position proximate to the litigant, or take such other measures as are necessary in the interests of fair procedures and justice. This may include disqualifying a person from acting as a McKenzie friend, or asking such person to remove themselves from court altogether. It goes without saying that a judge is entitled to direct any person, persons, or groups of persons, to remove themselves from court, if their presence has the effect of hindering or obstructing the administration of justice under the Constitution. I do not say this has arisen in this case.
88. It is to be remembered that the principles contained in the Constitution and Article 6 of the European Convention are to ensure equality of arms, they are not to defeat the interests of justice. While, of course, a court will facilitate a litigant in person, there comes a point where a court is entitled to "draw the line", and to set out in precise terms the manner in which litigation can properly be conducted." 137. As apparent from para. 87 above, the Supreme Court contemplated the possibility of a court order disqualifying a person from acting as a McKenzie Friend. In that case the McKenzie Friend was Ms. Angela Farrell, and MacMenamin J., commented at para. 84 of his judgment:- "Ms. Farrell formerly practiced as a solicitor, and has now been struck off the role of solicitors. In itself, a question might well arise whether such a person would be appropriate to act as a McKenzie friend." 138. In Smith v. Ireland [2017] IEHC 642 Twomey J. considered whether Mr. William Murphy, who assisted the plaintiff as a McKenzie Friend, should be disqualified from so acting. He identified the basis of the court's jurisdiction to disqualify a person from so acting as the same inherent jurisdiction which Keane C.J. stated was the basis for an Isaac Wunder order in Riordan v. An Taoiseach [2001] 3 IR 365, at 370 : "… This court would be failing in its duty, as would the High Court, if it allowed its processes to be repeatedly invoked in order to reopen issues already determined or to pursue groundless and vexatious litigation" 139. At para. 39 of his decision Twomey J. commented:- "It is clear therefore that the status of McKenzie Friend is a privilege which is conferred by the court in certain instances at the absolute discretion of the court. Critically the operation of the McKenzie Friend system is one which is subject to the court's view that the administration of justice is not being impeded. In this case, there can be no doubt that not only is the administration of justice being impeded, but there is an abuse of process occurring with the active assistance of the McKenzie Friend. For all of these reasons, and in order to seek to ensure that taxpayers' money is not wasted by vexatious litigation brought with the assistance of Mr. Murphy, and that deserving litigants do not have their hearings delayed by never ending frivolous and vexatious litigation, this Court will make [a] Disqualification Order against Mr. Murphy from acting as a McKenzie Friend". It must also be accepted that the court has, in an appropriate case, a duty to disqualify a person from acting as a McKenzie Friend where their actions are aimed at impeding or defeating the interests of justice. As Twomey J. put it at para. 43 of his judgment:- "Indeed, this Court would be failing in its duty if it did not disqualify McKenzie Friends from assisting lay litigants, where those McKenzie Friends have previously assisted lay litigants in an abuse of process, which by its very nature defeats the interests of justice. In doing so, this Court seeks to ensure that other citizens' rights of access to the courts (including other lay litigants who are as entitled as [the plaintiff] to access the courts) are not reduced by the abuse of court resources by others such as Mrs. Smith assisted by Mr. Murphy." I respectfully adopt this reasoning, which balances a litigant's right to make their case in court with the abuse of the process by McKenzie friends which may do harm to the administration of justice.
140. The order made by Twomey J. in that case in respect of the McKenzie Friend was worded as follows:- 141. This raises a number of questions. Of note is that this order was not limited to proceedings involving Mrs. Smith, the plaintiff, but was of general application "in relation to any proceedings in any court or forum". The first question is whether the High Court in the exercise of its inherent jurisdiction can make an order preventing a person acting as a McKenzie Friend for a litigant in the District Court, Circuit Court, Court of Appeal or Supreme Court.
142. Such an order is described as a "disqualification" order, but this is something of a misnomer because no formal qualification is required for a person to act as a McKenzie Friend. It is perhaps more accurate to characterise such an order as an injunction restraining a person from acting as a McKenzie Friend. There would seem in principle no reason why the High Court could not make such an order that would have the effect of preventing a person being appointed or acting as a McKenzie Friend in the District Court, Circuit Court, Court of Appeal or Supreme Court.
143. A second question that arises is whether it is appropriate for such an order to be extended to "any … forum". Would it, for example, extend to proceedings before the Financial Services Ombudsman, a complaint to the Central Bank, or a complaint to GRECO (as Mr. Gilroy has threatened)? There would also be significant issues with enforcement of such a broadly worded order. If such an order is limited to the courts, and the Central Office and the Courts Service are notified, then the making of such order may come to the attention of all constitutionally appointed judges, but it could not reasonably be expected that a more broadly worded order applying to "any…forum" would come to the attention of other persons presiding in other fora. Moreover, other bodies or disciplinary tribunals may have different rules relating to representation, they may even have a statutory basis, and it would be wrong of this court to try to regulate their practice without cause shown and by means of a general order. Further in the present case there is no evidence as to the history of Mr. Gilroy's activities which would suggest that he has acted as a "McKenzie friend" or its equivalent in fora other than the courts.
144. A third issue is whether it is necessary or appropriate to provide in such an order that if the person first obtains the consent of the President of the High Court they may act as a McKenzie Friend. This would place a further non-statutory obligation on the already busy President of the High Court. Such a burden could be significant because on any such application the President would have to familiarise himself or herself with the circumstances in which the person came to be prohibited from acting as a McKenzie Friend, and the circumstances of the litigation in which they now seek to act as a McKenzie Friend. Of course the order could provide that it be "without the consent of the President of the High Court or such judges he/she may nominate for that purpose", but in relieving the President of an unnecessary burden that would simply place it on another judge, and would bring us one step closer to the present situation in which a McKenzie Friend must in any case obtain the permission of the relevant court before being permitted to assist the litigant.
145. Unlike an Isaac Wunder order, which is directed at a repeat litigant, but which must be qualified in order to ensure that such person retains their constitutional right of access to the courts, it is not immediately clear why a person disqualified from acting as a McKenzie Friend should not have the door closed shut and locked rather than left half open. If a litigant is genuinely in need of a McKenzie Friend, there will doubtless be other persons to whom they may be able to turn to seek assistance. As Twomey J. commented, being permitted to be a McKenzie Friend is a privilege, not a right. Furthermore, a McKenzie Friend is not entitled to be remunerated for the assistance that they render to a litigant. As the Practice Direction reminds us, "They have no entitlement to payment for their services" (para. 1), and as para. 6 provides: "… Section 58 of the Solicitors Act 1954 as amended … makes it a criminal offence for an unqualified person, as defined in the Act, to draw or prepare a document relating, inter alia , to any legal proceeding either directly or indirectly for or in expectation of any fee, gain or reward." Accordingly, injuncting a person from acting as a McKenzie Friend cannot have any effect on that person's right to a livelihood, or to pursue a profession.
146. I have come to the view therefore that it is open to the court to permanently injunct a person from acting as a McKenzie Friend, and that there is, in principle, no constitutional or other requirement that the absolute nature of such an order be qualified by reference to "without the consent of the President of the High Court" or a similar proviso. Such a proviso is, in my view, neither necessary nor desirable.
Application to the Facts
147. I am satisfied that by his conduct in and out of court Mr. Gilroy has shown that he is an entirely unsuitable person to act as a McKenzie Friend.
148. A person found guilty of contempt of court is, almost by definition, a person who does not respect the court or court orders and therefore is not a person suitable to assist a personal litigant in relation to court proceedings. Mr. Gilroy has been convicted not once, but twice, of criminal contempt by McGovern J. in the course of these proceedings. He has also been found guilty of civil contempt. Notwithstanding such apologies as Mr. Gilroy has made (and they have tended to be qualified) he has, by his subsequent conduct shown fresh disrespect for the court, for the plaintiff's legal representatives, and for the plaintiff's employees by showing that he is unrepentant in respect of his past acts and willing to pursue the same allegations and arguments that have failed in court and indeed brought about the contempt hearings.
149. In addition, in KBC Bank Ireland plc. v. Smith, Hussey and Gilroy on 3 May, 2018, O'Connor J. found Mr. Gilroy to be guilty of criminal contempt, and imposed a sentence of one months imprisonment, suspended on certain conditions. The statements of Mr. Gilroy which ended up online in that matter were threatening, and were nothing short of scandalous and abusive.
150. Mr. Gilroy was also found guilty of "flagrant and serious" contempt of court by Ryan J. in Reynolds v. McDermott in 2014; whether that was a finding of criminal or civil contempt is not relevant - it demonstrated Mr. Gilroy's disrespect for the court.
151. This leads to Mr. Gilroy's involvement in rendering assistance outside the court. This was certainly something that Ryan J. found occurred in the Reynolds case where he had a "central role" in organising protestors who, together with Mr. Gilroy, breached the court's injunctions.
152. In the present case Mr. Gilroy's activities go far beyond those of a McKenzie Friend. His past interest and involvement in the affairs of Mr. McQuaid (and members of the McQuaid family), and his continuing interest despite Mr. McQuaid now having a solicitor on record, shows that he has intermeddled in Mr. McQuaid's affairs and acted as a "litigation agent". I am satisfied that he has worked for, drafted documents for, and advised Mr. McQuaid at various stages. The nature of the legal work and advice that Mr. Gilroy has rendered to Mr. McQuaid might be compared to that which a solicitor might give - were it not so flawed. Mr. Gilroy has been forthright in declaring his interest in the affairs of Mr. McQuaid, and describes that interest as that of a "trustee" despite the fact that he was ordered by McGovern J. to reverse the transfer of property from Mr. McQuaid to the Morrigan Trust, which he controls with Mr. McGuinness. There can be little doubt but that in respect of these activities Mr. Gilroy has colluded with Mr. McQuaid in an attempt to put Mr. McQuaid's property, or property in which he has or had a beneficial interest, or income to which he is entitled, beyond the reach of the plaintiff with the intent of depriving the plaintiff in whole or in part from executing its judgment against Mr. McQuaid. It is also apparent that the same trust has been utilised by Mr. Gilroy for the transfer/receipt of the property of other debtors.
153. Mr. Gilroy has of course addressed the court on numerous occasions, and at length, since he was joined as a defendant. It is clear from transcripts of the hearings before McGovern J. that his oral submissions, and his cross-examination of Mr. Butler were at times irrelevant, misguided, off the point, and wasteful of court time. On the few occasions that Mr. Gilroy has addressed this Court the experience has been similar; Mr. Gilroy's affidavits and submissions have been unhelpful, at times disrespectful, mistaken or misleading in their references to legal principles, and a further waste of court time. Moreover, his demeanour, while not overtly abusive, has been aggressive, and some of his least relevant comments and contentions seem to be more directed for the consumption of members of the public attending the court (as they are entitled to do) rather than urging any relevant or cogent argument on the court. I am left with the impression that Mr. Gilroy generally has little or no respect for the court or its procedures, or for the members of the solicitors and barristers' professions practicing before the court.
154. I have also come to the view that Mr. Gilroy is probably in receipt of remuneration or benefit in respect of his activities as a McKenzie Friend, or more properly described in this case as a "litigation agent", and in respect of his activities as a trustee, and as one of those controlling the activities and operations of The Morrigan Private Settlement Trust Ltd. Mr. Gilroy has admitted that in setting up the trust, of which he is a trustee, there was an initial payment in of €100.00. That was to set up the trust, before the transfer in of other assets. He informed the court that the trust is operated by The Morrigan Private Settlement Trust Operations Ltd. When asked by McGovern J. how much was paid to that company he responded:- "Nothing like €20,000.00, judge. It was around €4,000.00 or €5,000.00 we think. But again judge that is not held." (See Transcript of the hearing before McGovern J. on 13 November, 2017, at p. 139). The evidence of Mr. Butler is that transfers into the trust were carried out by Mr. Gilroy and Mr. McGuinness in relation to Mr. McQuaid which involved extensive properties "worth over €2 million" in three jurisdictions. Mr. Gilroy has also given conflicting accounts in his Statement of Means (for the purposes of obtaining legal aid) and in his statement to the Probation Service, to whom he indicated he was in full time employment, which prompted McGovern J. to direct that papers be referred to the Revenue Commissioners and the DPP for further investigation.
155. Mr. Butler at para. 90 of his principal grounding affidavit states "it is not credible that Mr. Gilroy is doing this for no remuneration or benefit whilst supposedly receiving no income from any other employment". Mr. Gilroy did not avail of the opportunity to deny that averment.
156. For all of these reasons I consider it probable that Mr. Gilroy has, directly or indirectly, received payment, financial or in kind, in respect of his advice and services as a McKenzie Friend, or "litigation agent", and/or in respect of his activities as a trustee. Mr. Gilroy's denials of this on his feet are unconvincing. While I make this finding on the balance of probabilities, it is not a finding or even a suspicion upon which I need to place any reliance to come to the conclusion that Mr. Gilroy is not a suitable person to act as a McKenzie Friend.
157. Accordingly, I propose to make the following orders preventing Mr. Gilroy acting as a McKenzie Friend both generally and in these proceedings, and in lieu of the orders sought at paras. 3 and 4 of the Notice of Motion:- (a) A permanent injunction restraining the second named defendant Ben Gilroy, whether alone or in concert with any other person, from advising, participating in, assisting or otherwise engaging in litigation in any court in the State in a representative capacity on behalf of others, whether in the capacity of "McKenzie Friend" or otherwise.
(b) An injunction restraining the second named defendant Mr. Gilroy, alone or in concert with any other person, from advising, participating in, assisting or otherwise engaging in the above entitled proceedings or any related litigation in a representative capacity on behalf of the first named defendant or any other defendant or Notice Party whether in the capacity of "McKenzie Friend" or otherwise.
(c) An order directing that notice of the making of this order be given to the Principal Registrar of the High Court and to the Chief Executive Officer of the Courts Service.
Summary of Orders 158. In conclusion, the Court proposes to make the following Orders:- a) An order restraining Mr. Gilroy from issuing further proceedings against the plaintiff or any director or employee of the plaintiff, or any legal representative of the plaintiff, save with the prior permission of the President of the High Court.
b) An order restraining Mr Gilroy from issuing any further motions in the present proceedings against the plaintiff, its directors, employees, legal representatives, servants or agents save with the prior permission of the judge for the time being in charge of the Commercial Court list.
c) An order restraining Mr. Gilroy from attending at or near the plaintiff's office at Bankcentre, Ballsbridge, Dublin 4.
d) An order restraining Mr. Gilroy from attending at or near the homes/properties of Claire Callanan, Philip Butler, Sarah McLoughlin, Robert Bergin and Bernard Byrne or any other officer, employee or agent of the Bank whether for the purposes of the service or delivering of documents or otherwise, and whether personally or by his servants or agents.
e) An order that any further documents that Mr. Gilroy, his servants or agents, may be permitted or required to serve or deliver on the plaintiff or it's legal advisors in these proceedings be served or delivered by registered prepaid post addressed to Beauchamps solicitors for the plaintiff, Riverside Two, Sir John Rogerson's Quay, Dublin 4 (save and to the extent that the same may be delivered electronically to Beauchamps solicitors).
f) A permanent injunction restraining the second named defendant Ben Gilroy, whether alone or in concert with any other person, from advising, participating in, assisting or otherwise engaging in litigation in any court in the State in a representative capacity on behalf of others, whether in the capacity of "McKenzie Friend" or otherwise.
g) An injunction restraining the second named defendant Mr. Gilroy, alone or in concert with any other person, from advising, participating in, assisting or otherwise engaging in the above entitled proceedings or any related litigation in a representative capacity on behalf of the first named defendant or any other defendant or Notice Party whether in the capacity of "McKenzie Friend" or otherwise.
h) An order directing that notice of the making of this order be given to the Principal Registrar of the High Court and to the Chief Executive Officer of the Courts Service. | |
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