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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Farrell -v- Bank of Ireland; Freely & ors -v- Reilly [2015] IESC 71 (30 July 2015)
URL: http://www.bailii.org/ie/cases/IESC/2015/S71.html
Cite as: [2015] IESC 71
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Judgment
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THE SUPREME COURT Denham C.J. O’Donnell J. Clarke J. Record Nos. 439/2010, 432/2010, 437/2010, 438/2010, 440/2010, 047/2011, 121/2011
Angela Farrell Plaintiff/Appellant and
The Governor and Company of the Bank of Ireland Defendant/Respondent
Record Nos. 381/2011, 382/2011 and 383/2011
Brian Freely/Dermot Freehill/Mark Woodcock Applicants/Respondents and
The Judge of the District Court Number 9 District Court Judge Bridget Reilly Respondents and
Angela Farrell Notice Party/Appellant Judgment of the Court delivered on the 30th day of July, 2015, by Denham C.J. 1. This matter comes before the Court by way of an application in relation to ten appeals, the case numbers of which are set out at the commencement of the judgment. Angela Farrell, the plaintiff/appellant in the first seven appeals, and the notice party/appellant in the remaining three appeals, is referred to as “the appellant”. The Governor and Company of the Bank of Ireland is the defendant/respondent on the first seven appeals and is referred to as “the bank”. Brian Feely, Dermot Freehill and Mark Woodcock, the applicants/respondents in the last three appeals, are referred to collectively as “the applicants”. 2. The motion before the Court is brought on behalf of the bank and the applicants. The orders sought are:-
(ii) An order dismissing, or in the alternative, striking out the notice of appeal bearing the record number 121/2011 on the grounds of abuse of process and/or delay and/or want of prosecution. (iii) Any further directions or orders that this Court shall deem fit. (iv) An order providing for costs. 4. In substance three separate grounds were relied on by the bank and the applicants for the purposes of seeking a strike out or dismissal of these appeals. As is apparent from the terms of the notice of motion already cited, it was argued that the conduct of these appeals by the appellant amounted to a sufficiently serious abuse of process to justify this Court, as a proportionate response to that alleged abuse of process, to dismiss the appeals. Second, attention was drawn to the fact that this Court had directed that security for costs be provided in relation to all but one of these appeals. No security has been provided, and neither those appeals which were stayed pending the provision of security nor, indeed, the one appeal which was not the subject of security, have progressed in any way. On that basis it is said that the appeal should be dismissed for delay and failure to prosecute. Third, and finally, attention was drawn to the fact that the appellant was adjudged a bankrupt in the High Court. In that context it should be noted that the order adjudicating the appellant as a bankrupt is, itself, under appeal to this Court. On the other hand, there is, at present, no stay in place on the original order of adjudication. It follows that, at present, the appellant is a bankrupt. In those circumstances both the bank and the applicants raised the issue as to whether the appellant was entitled to pursue these appeals as a bankrupt. 5. Before going on to consider those issues it should be recorded that, at the beginning of the oral hearing, the appellant suggested that both Denham C.J. and Clarke J. should recuse themselves from the hearing. The Court heard argument on that point and indicated that the issue of recusal would be dealt with in the judgment or judgments to be delivered by the Court. On that basis it was made clear that, in the event that the Court was persuaded that recusal was appropriate, the existing formation of the Court would not proceed to consider any of the substantive issues raised on these applications but rather would arrange for the applications of the bank and the applicants to be relisted for hearing before a differently constituted formation. In those circumstances it follows that it is necessary to deal first with the question of recusal. Recusal 7. The basis on which the appellant suggested that Clarke J. should recuse himself was that, she asserted, Clarke J. had some time ago had a business dealing with a barrister who is the brother of a person recently appointed to the board of the bank. A number of matters need to be recorded concerning that application. It must be recorded that the application was made for the first time at the beginning of the oral hearing in open court (and, thus, on an occasion of absolute privilege) without having given any prior notice either to the parties or to the Court of the perceived difficulty. While it is true that, for the purposes of these appeals, the appellant acts as a litigant in person it must be recalled that the appellant was a qualified solicitor who should be aware of proper procedure. 8. Furthermore, the issue raised concerned a single transaction involving a transfer of shares made approximately ten years previously between Clarke J. and the barrister concerned. Even on the basis of the appellant’s knowledge of the matter it would have been abundantly clear that there could be no conceivable basis for suggesting that a single transaction, many years ago, between a judge and a barrister who is not himself connected with a party (and is simply a sibling of a person recently appointed to the board of a party) could give rise to a perception of bias. Furthermore, as was pointed out to the appellant and as would be clear from publicly available documentation, the shares concerned were in a property management company which were transferred, as is normal practice in this jurisdiction, along with a transfer of a relevant interest in the ownership of the underlying property itself. The property concerned was the premises from which Clarke J. conducted practice while a senior counsel and the transaction involved no more than the sale to another member of the bar of the interest held by Clarke J. in that premises which occurred in the ordinary way after Clarke J. had been appointed to the bench. This was, therefore, a routine transaction of a type that would occur in the case of many persons appointed to judicial office. 9. Despite this being pointed out to the appellant, she persisted in her objection by making reference to other unspecified business interests without suggesting any basis on which those interests, if they existed at all, might have any connection with the bank or any other party to this litigation. 10. The grounds put forward could not, on any conceivable basis, have even provided an arguable ground for recusal. The fact that they were persisted with in the circumstances outlined is a further example of the manner in which this litigation has been conducted by the appellant. It will be necessary to return to this question in due course. 11. However, much of the argument under the abuse of process heading derived from previous findings in that regard already made by this Court in the course of the application brought by the bank and the applicants for security for costs. It is appropriate to turn, therefore, to the judgment given on those applications. Judgment of the Supreme Court, Clarke J., 10th July, 2012
6.24 At the level of principle it seems to me that it would be open to this court to consider making an order for security in respect of all of the appeals. However, as indicated earlier, it is appropriate for the court not only to consider whether the making of an order for security for costs is a proportionate response to the special circumstances established but also to consider what precise type of order for security represents such a proportionate response. I, therefore, turn to the question of the type of order for security for costs that should be made on the facts of this case.” 14. Consequently, this Court directed security for costs in respect of each of the appeals, with the exception of the appellant’s appeal against the decision of McGovern J. in relation to the substantive order in the special summons proceedings. Thus, no barrier would be placed in the appellant’s way in pursuing that appeal. 15. The security of costs ordered was measured, as follows:-
8.2 I am also satisfied that a proportionate response requires that security be given in respect of each of the appeals with the exception of the appeal against the order of McGovern J. on the substantive special summons hearing and that the amount of security should be as set out in the table included in this judgment. As the appeals against the various interlocutory orders made are so closely connected a single order for security in respect of each of those appeals is appropriate. 8.3 It follows that each of the appeals, with the exception of the appeal against the order of McGovern J., must be stayed until such time as that security is provided.” 17. The Court proposes to deal first with the ground for dismissal or strike out which relied on abuse of process. Reference was made to the conduct of the appellant in these proceedings, which has delayed the proceedings; which matters were considered in the judgment of Clarke J. of the 10th July, 2012; and reference was made to the affidavits grounding the application for security for costs which set out pertinent facts. Mark Woodcock, who deposed the affidavit grounding this application, prepared an updated chronology of events which he believed was correct and represented an accurate summary of the delay and oppressive manner in which the appellant has conducted the proceedings to date. The appellant is referred to as “AF” in the chronology, the Governor and Company of the Bank of Ireland, the respondent, is referred to as “the bank”. The chronology of events is set out in Appendix A to this judgment. 18. Despite the previous orders of the High Court and this Court in these proceedings the appellant has sought to bring further proceedings. 19. On the 3rd January, 2014, at a vacation sitting of the High Court, the appellant applied for and got an order for short service of a motion returnable to a further vacation sitting of the High Court on the 6th January, 2014, in her plenary proceedings 2010/3039P against the bank. She sought, inter alia, re-entry of the proceedings, Bank of Ireland v. Angela Farrell (2009/1395 SP) and a stay on the order of possession given by McGovern J. on the 22nd April, 2011, and subsequent orders (2009/1395 SP) 20. On the 6th January, 2014, the High Court (MacEochaidh J.), having heard both parties, refused the reliefs sought in the motion. This involved significant court time, and time and expense on behalf of the bank. 21. The appellant has made repeated applications for a stay on the order for possession made by McGovern J. in the High Court and to this Court, which have been refused. The application to the High Court (MacEochaidh J.) in January 2014 is another example of her behaviour throughout these proceedings, which this Court has determined to be oppressive. 22. In the circumstances the Court is satisfied that the behaviour of the appellant in bringing the motion to the High Court in January, 2014, was an abuse of process. 23. It is clear that the bank has suffered prejudice as a result of the oppressive conduct of the appellant. 24. The Court was informed that the secured property, which was the subject matter of the order for possession, has been sold but that the sale process had to take account of certain contingencies by virtue of these proceedings. 25. The Court was informed, and accepts, that the Bank has incurred significant costs in respect of the proceedings, and that the level of costs is connected to the oppressive conduct of the appellant. 26. In addition, very significant court time has been utilised in these and the related proceedings. 27. The Court is satisfied that there has been oppressive conduct by the appellant, as set out by Clarke J. on the 10th July, 2012, and subsequently as illustrated by the application to the High Court on the 3rd January, 2014. This oppressive behaviour is also an abuse of process, which is illustrated by the motion of the appellant in January, 2014; the many appeals against procedural directions; the many failures to comply with procedural directions; the failure to comply with the orders for security of costs; and the failure to file the books of appeal in the appeal against McGovern J. on the substantive issue. 28. To this long history of abuse of process must be added the conduct of the appellant in the manner already described at the oral hearing arising from her application for recusal. The cumulative effect not only of those matters, which were already identified in the previous judgment of this Court on the motions seeking security for costs, but also of the subsequent events identified in this judgment, confirms the finding previously made by this Court that not only has the appellant conducted her appeals in a manner which amounted to an abuse of process to the significant detriment of the bank and the orderly conduct of court business both in the High Court and this Court, but that, as predicted in the previous judgment of this Court, such conduct has continued. 29. In circumstances where, notwithstanding a finding of abuse of process, equally abusive conduct has continued, it can only be concluded that the appellant has no intention of conducting these appeals in anything resembling the manner required by procedural law of any party to an appeal before this Court. At a certain point in time the level of actual abuse of process already committed together with the reasonable apprehension that such conduct will continue creates a sufficient level of prejudice to other parties and detriment to the proper conduct of court business, that it may become proportionate to respond to that abuse of process not simply by addressing each specific item of abuse but in bringing the proceedings (or in the case of an appeal to this Court, the appeal) to an end. It is an action which the courts will not lightly take. It is an action which should only be taken where the level of established abuse and the reasonable inference of the continuance of that abuse is such that it would be manifestly unfair to the other parties to the relevant litigation or appeal to require them to be the victim of the continuing misconduct of proceedings. Unfortunately, the evidence in this case establishes that that point has now been reached. The degree of prejudice caused to the bank and the applicants by the refusal of the appellant to conduct these proceedings in a manner which even remotely resembles the proper exercise of the right of access to the courts is such that the bank and the applicants have suffered significant irremediable oppression. The only reasonable conclusion is that the continuance of these appeals will lead to further and unjustified prejudice to those parties because the appellant has simply demonstrated a lack of willingness to conduct the process in a proper manner. The point has been reached where it is proportionate to dismiss each of these appeals on the grounds of abuse of process. 30. For the purposes of clarity the Court does not propose to dismiss these appeals because of the appellant’s bankruptcy. While it is correct to state that the appellant is currently adjudicated a bankrupt and that there is no stay on that order, nonetheless the possibility must be taken into account that her appeal against that bankruptcy might be successful. To dismiss these appeals on the ground of bankruptcy only to find that, at a later stage, the bankruptcy concerned was set aside, would create a potential prejudice. 31. Furthermore, it is important to clarify that, in the circumstances of this case, the Court does not propose that the appeals be dismissed by virtue of the failure to provide security for costs and the consequent failure to progress the appeals. In passing, it should be noted that, in the course of her oral submissions, the appellant suggested that she had been required, by the order of this Court, to provide security in the sum of €110,000. In fact a reading of the judgment of this Court makes clear that the security required was €55,000. Had the appellant been in any doubt as to the true figure it would have been a simple matter to have it clarified. 32. Be that as it may, the Court cannot rule out the possibility that her bankruptcy which, as has been pointed out, is under appeal, may have affected her ability to provide security and in those circumstances the Court would not propose to dismiss or strike out the proceedings on the basis of either delay or the failure to provide security in accordance with the Court’s previous order. It should be pointed out that, in other circumstances, a failure to provide security in a timely fashion and, thus, progress an appeal, might, of itself, be sufficient to warrant the dismissal of the appeal concerned. The different view which the Court takes in this case is as a result of the unusual circumstances which have been outlined by the Court. 33. The Court determines that on the grounds of the oppressive behaviour and abuse of process by the appellant, the Court dismisses the ten notices of appeal record numbers 432/2010, 437/2010, 438/2010, 439/2010, 440/2010, 047/2011, 381/2011, 382/2011, 383/2011 and 121/2011. | ||||||||||||||||||||||||||||||||||||||||