Carthy v Ireland & Ors (Approved)

Factual and Procedural Background

This opinion addresses an application by the third, fourth, and sixth named defendants to dismiss the plaintiff's claim on multiple grounds including frivolity, vexatiousness, no cause of action, abuse of process, and scandalousness pursuant to Order 19 Rules 27 and 28 of the Rules of the Superior Courts and the Court's inherent jurisdiction.

The plaintiff initiated proceedings challenging possession orders made by the Circuit Court relating to mortgage charges on lands registered to him and his spouse. The Bank sought possession in the Circuit Court, which was refused dismissal for lack of jurisdiction. An Order for Possession was made with a stay, which was not appealed by the plaintiff but was appealed by the plaintiff's spouse and affirmed by the High Court. The plaintiff subsequently issued these proceedings in the High Court alleging fraud, deceit, and misrepresentation by the Bank and solicitors in obtaining possession orders, particularly focusing on a valuation certificate used to establish Circuit Court jurisdiction.

The plaintiff also purported to transfer property interests to trusts and made various claims regarding constitutional rights and alleged fraudulent conduct by defendants. The defendants seek dismissal of the claim as unsustainable and an abuse of process.

Legal Issues Presented

1. Whether the plaintiff's claim is frivolous, vexatious, discloses no reasonable cause of action, or is bound to fail under Order 19 Rule 28 and the Court's inherent jurisdiction.
2. Whether the claim is scandalous, unnecessary, or tends to embarrass or delay under Order 19 Rule 27.
3. Whether the plaintiff's proceedings constitute an abuse of process, particularly in light of prior final and binding orders and the rule in Henderson v Henderson.
4. Whether the alleged fraud and deceit claims can set aside or invalidate the prior possession orders.
5. Whether the claims against the solicitors (Whitney Moore) have any basis given their professional role and the legal principles governing liability of solicitors for affidavits sworn on client instructions.

Arguments of the Parties

Appellant's Arguments

• The plaintiff alleges that the defendants deliberately misled the Circuit Court by introducing manufactured evidence, deceit, and misrepresentation, especially concerning a valuation certificate used to establish jurisdiction.
• The plaintiff claims breach of constitutional rights under Article 1 Protocol 1 of the European Convention on Human Rights, violation of the Consumer Credit Act, and Directive 93/13/EEC.
• The plaintiff contends that the mortgage was improperly executed and that the debt amount claimed was incorrect.
• The plaintiff asserts that his property was transferred to trusts, including the "Kellymount 1798 Trust" and the "Carthy Trust," which he claims confer equitable interests and rights.
• The plaintiff challenges the Bank's equitable capacity to enforce the mortgage and the jurisdiction of the Circuit Court over constitutional matters.

Defendants' Arguments

• The defendants argue that the plaintiff's claims are frivolous, vexatious, and disclose no reasonable cause of action.
• The defendants contend that the claims constitute an abuse of process as they seek to relitigate matters already decided by final orders of the Circuit and High Courts.
• The defendants emphasize that the alleged fraud was fully ventilated in prior proceedings and no new fraud has been demonstrated.
• The solicitors (Whitney Moore) argue that they acted on client instructions and cannot be held liable for any alleged false affidavits.
• The defendants submit that the trusts purportedly created by the plaintiff have no legal effect to invalidate possession orders or confer immunity from enforcement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Barry v Buckley [1981] IR 306	Principles governing striking out claims under Order 19 Rule 28 and inherent jurisdiction.	Adopted as part of the established legal framework for dismissal of unsustainable claims.
Salthill Properties Limited v Royal Bank of Scotland plc [2009] IEHC 207	Legal principles on abuse of process and striking out.	Referenced to reinforce the standard for dismissal.
Lopes v Minister for Justice, Equality and Law Reform [2014] IESC 21	Threshold for striking out claims and abuse of process.	Used to support the high threshold for dismissal.
Keohane v Hynes [2014] IESC 66	Access to court and striking out principles.	Adopted to emphasize constitutional right to trial.
Clarington Developments Limited v HCC International Insurance Company plc [2019] IEHC 630	Application of Order 19 Rule 28.	Referenced in the context of dismissal procedures.
Kearney v Bank of Scotland [2020] IECA 92	Abuse of process and striking out claims.	Used to illustrate abuse of process principles.
Scotchstone Capital Fund Ltd & anor v Ireland & anor [2022] IECA 23	Recent restatement of striking out and abuse of process principles.	Adopted as current authority on the relevant principles.
McAndrew v Launceston Property Finance DAC & anor [2023] IECA 43	Clarification of striking out and abuse of process standards.	Applied in the court's reasoning.
Henderson v Henderson	Rule against relitigation and abuse of process.	Central to the court's finding that the claim is an abuse of process.
Moffitt v Bank of Ireland (Unreported, Supreme Court, 19 February 1999)	Liability of solicitors for affidavits sworn on client instructions.	Applied to dismiss claims against solicitors.
Gilroy v Callanan [2019] IEHC 480	Reaffirmation of solicitor liability principles from Moffitt.	Supported dismissal of claims against solicitors.
Fox v McDonald [2017] IECA 189	Definition of frivolous and vexatious claims.	Referenced to support dismissal on frivolity grounds.
Meads v Meads [2012] ABQB 571	Identification of pseudo-legal arguments as ground for dismissal.	Referenced to describe features of the plaintiff's submissions.
Freeman v Bank of Scotland [2013] IEHC 371	Handling of vexatious litigant behaviour and pseudo-legal claims.	Used to support dismissal of plaintiff's claims.

Court's Reasoning and Analysis

The court applied well-established principles governing the striking out of claims under Order 19 Rule 28 and the Court's inherent jurisdiction, emphasizing the constitutional right of access to courts and the high threshold for dismissal. The court took the plaintiff's claim at its highest but found it to be frivolous, vexatious, and disclosing no reasonable cause of action.

The court identified that the plaintiff's claims amounted to an impermissible collateral attack on final and binding possession orders made by the Circuit and High Courts, invoking the rule in Henderson v Henderson which bars relitigation of matters that could have been raised previously. The alleged fraud and deceit were fully ventilated in earlier proceedings, and no new fraud had been demonstrated that would justify revisiting the orders.

The court held that the plaintiff was not entitled to maintain claims on behalf of his spouse or children concerning constitutional rights, and the claims against the solicitors were unsupported by particulars and barred by established legal principles governing solicitor liability for affidavits sworn on client instructions.

The court also rejected the plaintiff's attempts to rely on purported trusts and pseudo-legal documents, finding that these have no legal effect to invalidate the orders or confer immunity on the property.

Overall, the court concluded that the plaintiff's claims are an abuse of process, frivolous, vexatious, and bound to fail, warranting dismissal.

Holding and Implications

The court's final decision is to DISMISS the plaintiff's claim against the third, fourth, and sixth named defendants as frivolous, vexatious, disclosing no reasonable cause of action, bound to fail, and an abuse of process.

The claims against the solicitors (Whitney Moore) are also dismissed on the basis of lack of particulars and established legal principles shielding solicitors acting on client instructions.

This dismissal effectively upholds the final and binding possession orders previously made by the Circuit and High Courts and prevents the plaintiff from relitigating matters already adjudicated. No new precedent is established; the decision reinforces the application of the rule against abuse of process and the high threshold for striking out claims.