High Court: Application to strike out third set of possession proceedings over same property fails

About this case:

• Citation:
  [2025] IEHC 501
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger outlined that the plaintiff’s earlier proceedings were “grounded on a mistaken view of the facts, which is not, in itself, an abuse of process, albeit the manner in which mistakes are made may ultimately become an abuse of process”.

Background

The plaintiff, Mars Capital Finance DAC, initially brought possession proceedings in respect of the defendants’ property in 2016. The property had been mortgaged in the amount of €2.2 million in 2007, with the defendants having made no mortgage repayments since 2011. As at the date of the judgment, the arrears and interest accrued by the defendants stood at €3,700,000.

Those proceedings were struck out by the Circuit Court in 2019 after it emerged that the incorrect mortgage had been transferred to the plaintiff and that the plaintiff did not actually own the security which it sought to enforce, with an order for costs being made against the plaintiff.

In 2021, the plaintiff issued fresh Circuit Court possession proceedings in respect of the property, following which it became clear that the letters of demand sent to the defendants were in the name of the wrong Mars entity. The plaintiff served a notice of discontinuance in respect of those proceedings in February 2022.

The plaintiff then issued a third set of possession proceedings, in respect of which the defendants issued a motion seeking to strike out the proceedings as inter alia constituting an abuse of process. 

Their motion having been refused by the Circuit Court, the defendants appealed to the High Court.

The High Court

Ms Justice Bolger considered that the proceedings before her represented the third time that the plaintiff had sought a possession order in respect of the property and that this was asserted to be an abuse of process by the defendants, in circumstances where they alleged that the earlier proceedings were also abuses of process.

The judge explained that this assertion was challenged by the fact that no court had found the plaintiff’s 2016 or 2021 proceedings to have been an abuse of process, rather that they were “proceedings grounded on a mistaken view of the facts, which is not, in itself, an abuse of process, albeit the manner in which mistakes are made may ultimately become an abuse of process”.

Noting that the plaintiff had sought to address its mistakes as soon as it became aware of them, Ms Justice Bolger highlighted that in 2019, the Circuit Court had stated that the proceedings should be struck out and that fresh proceedings should be commenced. 

The judge emphasised:

The High Court also considered that the proceedings could hardly be frivolous, vexatious or bound to fail, where the defendants acknowledged receipt of the loan monies and acknowledged that they had made no mortgage repayments since 2011, notwithstanding that they disputed the validity of the 2007 loan agreement.

Turning to the judgment of Mr Justice Garrett Simons in McCool Engineering Ltd v. Honeywell Control Systems Ltd [2019] IEHC 695, the court considered that only one of the requirements to ground a finding of res judicata were present in the proceedings before it, and that there was neither a judgment nor an issue decided against the plaintiff arising from the 2016 or 2021 proceedings.

Ms Justice Bolger found that the costs order arising from the striking out of the 2016 proceedings and the plaintiff’s costs obligations from serving a notice of discontinuance on the 2021 proceedings were relevant matters to determining the application, having regard to Miranda and Others v. Rosas Construtores S.A. T/A RAC Contractors and /or RAC Eire Partnership and Others [2019] IECA 237 in which the Court of Appeal struck out the defendant’s appeal as an abuse of process where costs had not been paid on foot of orders made in the proceedings.

Ms Justice Bolger had noted earlier in her judgment that there was an ongoing dispute between the parties about the plaintiff’s discharge of the costs orders, but that this dispute seemed to relate to the level of costs due rather than a refusal by the plaintiff to comply with the orders made against it, and that the plaintiff’s position was that all costs had been discharged in full.

Conclusion

Accordingly, the High Court refused the defendants’ appeal and affirmed the decision of the Circuit Court.

Mars Capital Finance Designated Activity Company v Sean Farrell and Veronica Farrell [2025] IEHC 501