Anonymized Summary of High Court Opinion

Factual and Procedural Background

This is an appeal by the Defendants from the decision of the Circuit Court refusing the Defendants' application to strike out the Plaintiff's possession proceedings pursuant to Order 19, Rule 28 of the Rules of the Superior Courts. The Plaintiff (hereinafter "Company A") seeks possession of property occupied by the Defendants. Company A alleges that the property was mortgaged by a deed of mortgage and charge dated 15 March 2007 in the amount of €2.2 million. The Defendants acknowledge receipt of substantial monies but dispute that those monies were paid pursuant to the 2007 letter of offer or mortgage relied upon by Company A. The Defendants have made no mortgage repayments since 2011; the arrears, with accruing interest, are stated to be approximately €3,700,000.

This litigation is the third set of possession proceedings brought by Company A concerning the same property. The history of the earlier proceedings is central to the Defendants' strike‑out application:

• 2016 proceedings: After issue, it emerged that the wrong mortgage charge had been transferred such that, as of the date of the demand letters, Company A did not own the security it sought to enforce. The Defendants moved to strike out those proceedings. The application was listed before Judge Linnane on 12 November 2019. Judge Linnane indicated that the proceedings should be struck out and that fresh proceedings should be commenced; he adjourned to allow Company A to consider the Defendants' affidavit. On return (17 December 2019) Company A applied to have the proceedings struck out. Judge Linnane made a partial costs order in favour of the Defendants. The Defendants successfully appealed that costs outcome to the High Court and were awarded full costs. There is an ongoing dispute between the parties about the discharge of the resulting costs orders; Company A says the costs have been discharged in full, which the Defendants dispute (the dispute appears to relate to the level of costs rather than to an asserted refusal to comply).
• 2021 proceedings: Company A issued fresh proceedings as directed, but it later emerged that the demand letters were prepared in the name of the wrong corporate entity associated with the Plaintiff. Company A served a notice of discontinuance on 16 February 2022; under the rules this triggered an entitlement by the Defendants to costs of those proceedings.
• Current proceedings: Company A issued the present (third) possession proceedings. The Defendants applied to strike out these proceedings under Order 19, Rule 28 on various grounds (failure to disclose a reasonable cause of action, bound to fail, frivolous, vexatious, and/or abuse of process). The Circuit Court refused that application. The Defendants appealed that refusal to the High Court.

Judgment was delivered by Judge Bolger dated 17 September 2025. Company A was represented before the High Court by Attorney Donnelly. The Defendants were represented by Attorney Farrell.

Legal Issues Presented

1. Whether the Defendants' application to strike out the Plaintiff's possession proceedings pursuant to Order 19, Rule 28 should be granted on the grounds that the proceedings do not disclose any reasonable cause of action and/or are bound to fail and/or are frivolous and/or vexatious and/or constitute an abuse of process.
2. Whether the Plaintiff's pursuit of a third set of possession proceedings (after the 2016 and 2021 proceedings ended for the reasons set out) amounts to an abuse of process such that the present proceedings must be struck out.
3. Whether the doctrine of res judicata (or related finality principles) bars the present proceedings, having regard to the requirements identified in the authority relied upon by the Plaintiff.
4. Whether outstanding costs orders (or a pattern of non‑payment of costs) borne out in earlier proceedings can justify dismissal or striking out of the present proceedings as an abuse of process.

Arguments of the Parties

Defendants' Arguments

• The Defendants argued that the conduct of both prior possession proceedings amounted to abuses of process and that bringing possession proceedings for a third time following those alleged abuses also constitutes an abuse of process. As the Defendants put it in written submissions, the Plaintiff "is not looking for a second bite of the cherry, it is looking to eat the whole cherry."
• The Defendants sought strike‑out relief under Order 19, Rule 28 on multiple grounds (no reasonable cause of action; bound to fail; frivolous or vexatious; abuse of process).
• The Defendants relied on the history of the previous proceedings and the resulting costs orders (and the parties' ongoing dispute over the discharge/level of those costs) as relevant to whether the present proceedings should be struck out as an abuse.

Plaintiff's Arguments

• The Plaintiff submitted that the earlier proceedings were founded on mistakes (wrong mortgage charge in 2016; demand letters in the name of the wrong corporate entity in 2021) rather than on conduct amounting to abuse. Company A contends it sought to address those mistakes promptly (applying to strike out the 2016 proceedings and serving a notice of discontinuance in 2021) and that the rules permit fresh proceedings once those steps have been taken and costs obligations addressed.
• The Plaintiff relied on the decision of Judge Simons in Company B v. Company C [2019] IEHC 695 for the legal test governing res judicata and argued that the requirements for res judicata are not met here because there was no judgment or final decision on the merits in either the 2016 or 2021 proceedings.
• The Plaintiff argued that the present proceedings were not frivolous or bound to fail because the Defendants acknowledged receipt of substantial monies and acknowledged that repayments had ceased since 2011; the Defendants' challenge to the validity of the 2007 loan agreement is a matter for trial rather than for strike out.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Company B v. Company C [2019] IEHC 695	Sets out the elements for res judicata (as quoted by the court): (i) there must be a judgment by a court of competent jurisdiction; (ii) a final decision on the merits; (iii) the earlier judgment must have necessarily determined the same issue as arises in the second proceedings; and (iv) the parties to the two proceedings must be the same or their privies.	The court applied the test and found that, although the parties to the earlier proceedings are the same (satisfying requirement (iv)), the earlier proceedings (2016 and 2021) did not give rise to any judgment or decision on the merits (requirements (i) and (ii) were therefore not met). Accordingly res judicata did not bar the present proceedings.
Company D v. Company E [2019] IECA 237	Authority addressing dismissal as an abuse of process where a party has not complied with costs orders over an extended period; the Court of Appeal (per Judge Costello) observed that where respondents cannot be compensated by awards of costs because no sums have been paid following orders (over many years), it is reasonable to infer the pattern will not change and dismissal may be proportionate; the court may also have regard to the public interest in finality and the limited resources of the courts.	The High Court considered this authority but distinguished it: the present case did not present the same pattern of non‑payment and the Plaintiff had taken steps to address earlier procedural mistakes and to discharge alleged costs obligations (noting a factual dispute remains on the quantum). As a result the court did not treat dismissal as the proportionate response here.

Court's Reasoning and Analysis

The court's analysis proceeded in a stepwise manner, addressing abuse of process, the strike‑out grounds under Order 19, Rule 28, res judicata, and the relevance of earlier costs orders.

Abuse of process: The Defendants relied principally on the allegation that two prior sets of possession proceedings had been abuses of process and that bringing proceedings a third time was therefore abusive. The court observed that no court had ever found the 2016 or the 2021 proceedings to be abuses of process. Instead, those proceedings had been founded on mistakes (wrong charge in 2016; demand letters in the name of the wrong corporate entity in 2021). The court emphasised the legal distinction that a proceeding founded on a mistaken view of the facts is not, in itself, an abuse of process, although the manner in which mistakes are made could in other circumstances amount to abuse. Here, Company A sought to address the mistakes promptly (applying to strike out the 2016 proceedings and serving a notice of discontinuance in 2021). The court concluded that the manner of Company A's response to the mistakes had not evolved such that the present proceedings should be treated as an abuse of process.

Strike‑out for being frivolous, vexatious or bound to fail: The court noted that the present proceedings could not be regarded as frivolous or vexatious or bound to fail in light of the Defendants' own acknowledgements — namely receipt of substantial funds and the absence of mortgage repayments since 2011 producing significant arrears. The Defendants' substantive challenge to the validity of the 2007 loan agreement was a matter for trial; that challenge did not render the proceedings bound to fail at this stage.

Res judicata: The Plaintiff relied on the test in Company B v. Company C [2019] IEHC 695 (Judge Simons) which enumerates four requirements for res judicata. The court applied that test and found that, while the parties to the earlier proceedings and to the present proceedings were the same (requirement (iv)), the earlier proceedings did not produce a judgment or a final decision on the merits (requirements (i) and (ii)). The earlier matters had been brought to an end by a court order striking out the 2016 proceedings and by a notice of discontinuance in 2021. There had therefore been no determination of Company A's case on its merits and the McCool/Simons approach to identifying previously determined issues could not be applied to bar the current proceedings.

Costs and the authority on dismissal as an abuse: The Court considered the authority in Company D v. Company E [2019] IECA 237 (Judge Costello) in which an appeal was struck out as an abuse of process in part because substantial costs orders had remained unpaid for many years, leading the court reasonably to infer a pattern of non‑payment. That decision was noted for the proposition that the court may conclude dismissal is proportionate when respondents cannot realistically be compensated by awards of costs and there is a broader public interest in finality and proportional use of court resources. The court distinguished that authority on the facts: here Company A had, according to its case, discharged costs obligations arising from earlier steps (though the parties dispute the quantum). The factual matrix in this case did not justify striking out or dismissing the proceedings as an abuse on the basis of unpaid costs.

On the totality of these considerations the court reached the conclusion that the Circuit Court had been correct to refuse the Defendants' strike‑out application.

Holding and Implications

Core ruling: The appeal is refused and the decision of the Circuit Court refusing the Defendants' application to strike out the Plaintiff's possession proceedings is affirmed.

Direct consequences and implications:

• The possession proceedings continue; the Defendants' application to strike out has failed.
• The court gave an indicative view on costs: because the Plaintiff succeeded in resisting the strike‑out application, the Plaintiff is entitled to its costs of the appeal, but the court indicated a stay on execution of any costs order should remain in place pending resolution of the underlying proceedings. The matter was listed at 10:00am on 17 October 2025 for the making of final orders on costs.
• No broader legal rule was created by this decision beyond the court's application of established principles (the court applied and distinguished existing authorities); the decision's immediate effect is to allow the substantive possession proceedings to proceed to trial on their merits.

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