Fennell v Collins

Factual and Procedural Background

This judgment concerns an application to vacate a lis pendens registered against certain lands in Co. Galway. The application was brought by a receiver appointed over the lands pursuant to a mortgage and charge originally entered into between the registered owner and Ulster Bank Ltd., whose interest has since been succeeded by another entity. The receiver seeks to exercise the power of sale under the mortgage but is impeded by the lis pendens.

The lis pendens was registered by a nephew of the registered owner, who initiated proceedings in May 2017 claiming an interest in the lands based on an alleged promise by his uncle, the registered owner, made approximately twelve years prior. The alleged promise postdates the mortgage, which thus holds priority over the nephew's claim. The nephew has taken no steps beyond serving the plenary summons, and no statement of claim has been delivered. The receiver initiated separate proceedings seeking to set aside the lis pendens.

Legal Issues Presented

1. Whether the lis pendens registered against the lands should be vacated due to unreasonable delay in prosecuting the underlying proceedings.
2. Whether the nephew’s proceedings are being prosecuted bona fide or are intended merely to frustrate the enforcement of the mortgage.
3. The validity and legal effect of the argument advanced by the nephew claiming immunity from court orders based on unrelated proceedings and constitutional guarantees.

Arguments of the Parties

Receiver's Arguments

• The lis pendens should be vacated because there has been an unreasonable delay in prosecuting the nephew’s proceedings since their institution in May 2017.
• The delay and failure to progress the claim beyond serving the plenary summons indicate that the proceedings are not being prosecuted bona fide.
• The existence of the lis pendens frustrates the receiver’s lawful exercise of the power of sale under the mortgage.

Defendant’s (Nephew’s) Arguments

• The nephew advanced an argument that he is immune from court orders based on a purported failure to punish the Director of Public Prosecutions for contempt in unrelated proceedings and invoked Article 40.1 of the Constitution of Ireland to claim equality-based immunity.
• He did not provide any reasonable explanation for the delay in prosecuting his proceedings, other than a vague reference to his brother emigrating to Australia.
• The nephew maintained his position of immunity from court orders despite judicial prompting.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework under Section 123 of the Land and Conveyancing Law Reform Act 2009, which permits vacation of a lis pendens where there has been unreasonable delay in prosecuting the underlying action or where the action is not prosecuted bona fide.

The court found that the nephew’s proceedings had not progressed beyond service of the plenary summons since May 2017, and no reasonable explanation for this delay had been provided despite opportunity to do so. The vague reference to the brother’s emigration was insufficient.

Furthermore, the court inferred from the delay, the familial relationship between the parties, the nature of the reliefs sought (notably the emphasis on restraining sale of the lands), and the fact that the alleged promise postdated the mortgage, that the proceedings were not being prosecuted bona fide but rather to frustrate enforcement of the mortgage.

The court also thoroughly rejected the nephew’s argument that he was immune from court orders based on unrelated proceedings and constitutional guarantees, finding this to be a misconceived and outlandish submission that misrepresented the law and the constitutional guarantee of equality.

Consequently, the court concluded that both statutory grounds for vacating the lis pendens—unreasonable delay and lack of bona fide prosecution—were satisfied.

Holding and Implications

The court’s final decision was to VACATE THE LIS PENDENS registered against the lands.

This decision removes the procedural obstacle preventing the receiver from exercising the power of sale under the mortgage. It directly affects the parties by permitting the mortgage enforcement to proceed unimpeded. No broader precedent was established beyond the application of existing statutory provisions and case law to the facts of this case.