Fitzsimons v Bank of Scotland plc & Anor [2019] IECA 336 (20 December 2019)

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JUDGMENT of Mr. Justice Noonan delivered on the 20th day of December 2019

1. The finality of litigation is a fundamental precept in our legal system. It was pithily summarised by

Lord Simon of Glaisdale in The Ampthill Peerage [1977] AC 547 at 576: -

“Important though the issues may be, how extensive whatsoever the evidence, whatever the

eagerness for further fray, society says: ‘we have provided courts in which your rival contentions

have been heard. We have provided a code of law by which they have been adjudged. Since

judges and juries are fallible human beings, we have provided appellate courts which do their

own fallible best to correct error. But in the end we must accept what has been decided. Enough

2. These words were cited with approval by Denham J. in Talbot v McCann Fitzgerald [2009] IESC 25.

3. This appeal from the order and judgment of O’Connor J. of 24th January, 2018 raises this, amongst

4. The appellant (Mr. Fitzsimons) is the registered owner of the lands comprised in folios 19055 and

19056 of the Register of Freeholders, County Meath which comprise a dwelling house and lands. In

2001, Mr. Fitzsimons borrowed the sum of IR£116,000 from the Governor and Company of the

Bank of Scotland and executed a deed of charge in respect of the borrowing on the 15th May, 2001

1st July, 2004 - the charge was transferred to Bank of Scotland (Ireland) Limited.

18th May, 2007 - the Governor and Company of the Bank of Scotland were registered as

owners of the charge on both folios coinciding with the registration of Mr. Fitzsimons as full

4th September, 2008 - a demand for possession of the property was made, defaults having

20th August, 2010 - by this date, arrears in the amount €15,566.48 had accumulated

30th September, 2010 - Bank of Scotland (Ireland) Ltd issued proceedings seeking an

31st December, 2010 - by cross-border merger pursuant to the European Communities

(Cross-Border Mergers) Regulations 2008 of Ireland and the Companies (Cross-Border

Mergers) Regulations 2007 of the United Kingdom, approved by the courts of both

jurisdictions, all of the assets and liabilities of Bank of Scotland (Ireland) Limited

transferred to Bank of Scotland Plc. by operation of law at 23.59 hours on that date. The

transfer included the mortgage and charge, the subject of these proceedings.

25th March, 2011 Messrs. Mullan & Associates solicitors, entered an appearance on behalf

of Mr. Fitzsimons. The matter appeared in the court list on a number of subsequent

occasions when Mr. Fitzsimons was represented by both solicitor and counsel.

20th July, 2012 - the Circuit Court (His Honour Judge Griffin) granted an order for

possession to Bank of Scotland Plc. with a stay on execution for six months. Mr. Fitzsimons

6th June, 2013 – an Execution Order issued to Bank of Scotland Plc.

5th December, 2013 - the first respondent (“Tanager”) entered into a deed of purchase in

14th April, 2014 - a deed of assignment of the portfolio was executed which included the

24th April, 2014 - Tanager was registered as owner of the charge on folio 19056.

25th April, 2014 - Tanager was registered in respect of folio 19055.

13th October, 2014 - Tanager was substituted as plaintiff in the proceedings by order of

16th January, 2015 – the Execution Order of 6th June, 2013 was renewed by order of the

25th March, 2015 - Mr. Fitzsimons issued a motion returnable before the Master of the

High Court in which he sought an extension of time within which to appeal the order of the

Circuit Court made over two and a half years earlier. He issued this motion as a litigant in

12th May, 2015 - Mr. Fitzsimons’ motion was refused by the Master and he did not appeal

4th August, 2015 - the property, which was vacant and boarded up, was repossessed by

10th August, 2015 - Melanie Berry, Mr. Fitzsimons’ partner, issued proceedings against him

7th September, 2015 - Ms. Berry registered a lis pendens on foot of her proceedings

thereby preventing any sale of the property. Since that time, Ms. Berry, who resides in the

18th September, 2015 - Mr. Fitzsimons purported to issue a motion in the now concluded

Circuit Court proceedings, seeking to set aside the order for possession.

26th July, 2016 - the application was dismissed by the Circuit Court evidently on the basis

that the court was functus officio and had no jurisdiction to entertain it.

15th August, 2016 - the current proceedings were issued. In his plenary summons, Mr.

Fitzsimons claims damages for breach of contract, breach of duty, negligence, fraudulent

misrepresentation, trespass, and violation of his constitutional rights. He also seeks an

injunction restraining the defendants from taking possession of, or disposing of, the

property and an order vacating the order of the Circuit Court of the 20th July, 2012, over

22nd September, 2016 - Mr. Fitzsimons issued a motion seeking an order setting aside the

order of the Circuit Court and an interlocutory injunction restraining the defendants from

interfering with the property. Again, the summons and motion were issued by the plaintiff

as a litigant in person. The motion was grounded on an affidavit of Mr. Fitzsimons sworn on

22nd September, 2016. The affidavit purports to be a detailed legal submission supporting

Mrs. Fitzsimons’ argument that the order of the Circuit Court was not lawfully granted.

Although I do not propose to set out exhaustively all of the points raised in this affidavit,

(i) Bank of Scotland Plc. never registered the charge on Mr. Fitzsimons’ folios in its own

name and thus was not entitled to exercise the statutory powers contained in s. 62 of

the Registration of Title Act 1964. Consequently, Bank of Scotland Plc. had no

“jurisdiction” to seek possession and the order of the Circuit Court was therefore

(ii) Tanager acquired its title to the charge from Bank of Scotland Plc., but because the

latter was never registered on the folios, Tanager was not entitled to be so registered.

A number of judgments of the Superior Courts is exhibited in support of this

(iii) Tanager never acquired title to the charge from Bank of Scotland Plc., because the

(iv) The letter of demand issued by Bank of Scotland Plc. prior to the institution of

proceedings was invalid, as it only sought the arrears rather than the principal debt.

(v) Tanager did not exist when the original execution order was made and it is therefore

(vi) The loan sale by Bank of Scotland plc to Tanager was invalid as it breached the unfair

contract terms legislation, because the loan sale was from a regulated to an

(vii) The order of the Circuit Court was made in breach of several articles of both the

(viii) Tanager committed various offences under the terms of the Consumer Protection Act

(ix) The Circuit Court had, in any event, no jurisdiction to hear the case based on the

rateable valuation of the property as a result of the decision of the Court of Appeal in

Permanent TBS Plc. v. Langan [2016] IECA 229 (subsequently reversed by the

7th November, 2016 - Mr. Fitzsimons’ motion came on for hearing before Gilligan J. who

25th July, 2017 - Tanager brought the within motion to dismiss Mr. Fitzsimons’ proceedings

on the grounds that they are frivolous and vexatious, disclose no reasonable cause of

action, are bound to fail, are res judicata, offend the Rule in Henderson v. Henderson, are

an abuse of process and constitute a collateral attack on the order of the Circuit Court.

Tanager further seek an “Isaac Wunder” order against Mr. Fitzsimons restraining him from

instituting any further proceedings in this matter without the leave of the President of the

28th September, 2017 – Mr. Fitzsimons delivered a statement of claim.

5. Tanager’s motion came on for hearing before the High Court (O’Connor J.) on 24th January, 2018.

Tanager’s application was grounded upon an affidavit sworn by Ms. Rachael Connolly, solicitor, of

Messrs Sherwin O’Riordan, the solicitors on record for Tanager. No replying affidavit was sworn by

Mr. Fitzsimons. It appears from the transcript of the hearing before O’Connor J. that the motion

originally appeared in a Monday Motion List, but as it was too long for a Monday List, it was

transferred to a Wednesday list and ultimately, the court list for hearing on 24th January, 2018.

6. Mr. Fitzsimons was called at the sitting at the court and there was no appearance. However, on the

previous occasions when the matter appeared before the court in the Monday list, Mr. Fitzsimons

was present and it was put into the subsequent Wednesday when solicitors appeared on behalf of

Mr. Fitzsimons indicating that they intended to come on record. Counsel was also present on behalf

of Mr. Fitzsimons. Consequently, there is no doubt that Mr. Fitzsimons was aware that the matter

was fixed for hearing and the solicitors and counsel who appeared on his behalf were so aware

also. However, as I have said there was no appearance by Mr. Fitzsimons at the hearing of the

7. Indeed, in fairness to Mr. Fitzsimons, he did not at any stage of the hearing before this court

complain that he was unaware of the trial date in the High Court. Rather, he initially submitted a

written submission to this court which largely consisted of complaints about both his own lawyer

and those of Tanager. Mr. Fitzsimons says that he instructed a gentleman called Gabriel Canning,

whom he describes as a legal executive, to assist him in the matter and gave him a sum of money

to retain solicitor and counsel. Mr. Fitzsimons suggests, again, by way of submission rather than

sworn evidence, that a purported appearance was entered by the solicitor who subsequently denied

8. Mr. Fitzsimons appears to suggest that he was present in the Four Courts on the day of the hearing

and was told by his counsel that the matter was listed. Mr. Fitzsimons says it subsequently

transpired that the solicitor he understood to be representing him and to have entered an

appearance, in fact, knew nothing of the matter. Obviously, this Court can express no view on any

of these issues, which are entirely irrelevant to this appeal. It does however, demonstrate that Mr.

Fitzsimons undoubtedly was aware that the matter was listed before the court on that day and for

9. Submissions were made by counsel for Tanager to the learned trial judge that the proceedings are

an abuse of process as an attempt to re-litigate an issue finally determined in an unappealed ruling

of the Circuit Court. Relevant authorities were opened to the court and in particular the judgment

of the High Court (Kelly J. as he then was) in Lynch v. English & Ors [2003] IEHC 24, which held

that an issue, once finally determined by the Circuit Court and not appealed, could not be

relitigated by separate High Court proceedings concerning the same subject matter. The decision of

Kelly J. in that case was affirmed by the Supreme Court [2005] 10 JIC 2002.

10. In his ex tempore judgment, the trial judge referred to the history of the matter as I have set it out

and found the proceedings to be a collateral attack on the order of the Circuit Court. He concluded

that the proceedings should be dismissed as being res judicata and offending the Rule in

Henderson v. Henderson, so as to amount to an abuse of process. He noted that no replying

affidavit had been delivered on behalf of Mr. Fitzsimons to the grounding affidavit of Ms. Connolly.

O’Connor J. cited with approval the judgment of Kelly J. in Lynch v. English & Ors, noting that once

a final and binding determination had been made, such issues should not be reopened save in the

most extraordinary circumstances, such as fraud. The trial judge noted that no fraud was alleged in

11. The trial judge indicated that he was satisfied that Mr. Fitzsimons had brought, and continues to

bring, proceedings which are unnecessary and a deliberate intention to thwart the administration of

justice. He proceeded to make a restraining order against Mr. Fitzsimons in relation to the

institution of any further proceedings concerning the property in question without the leave of the

President of the High Court or such judge as may be nominated by the President.

12. The notice of appeal lists five grounds of appeal which are rather generic and concise: -

(1) The learned trial judge erred in not allowing the appellant appropriate due process, through

(2) The trial judge erred in failing to take cognisance of the constitutional obligations to ensure

(3) The trial judge erred in failing to take cognisance of the guarantees enshrined under the

constructions (sic) of Art. 1, protocol 1 of the European Convention.

(4) The trial judge erred in failing to take cognisance of the guarantees enshrined under the

(5) The trial judge erred in failing to take cognisance of the guarantees enshrined under Art. 8

13. I think it is fair to say that at the hearing of the appeal, Mr. Fitzsimons netted his argument down

to the simple proposition that the order of the Circuit Court could not be allowed to stand as it was

invalid for the reasons identified in his affidavit grounding the injunction application and the

14. Mr. Fitzsimons also referred to the interim ruling given by me in the High Court in the case of

Tanager v. Kane [2017] IEHC 697, in which I stated a case for the opinion of the Court of Appeal

on certain points of law arising in those proceedings. That ruling was delivered shortly before the

hearing before O’Connor J. and Mr. Fitzsimons was of the opinion that this assisted his case.

Whether that is so or not, Mr. Fitzsimons was critical of counsel for Tanager in failing to draw this

decision to the attention of the court in Mr. Fitzsimons’ absence. He claimed that the Kane case

“mirrored” his own. In his written submissions, Mr. Fitzsimons seeks to re-argue all of the points

referred to in the statement of claim and affidavit grounding the injunction application, but does

not engage in any way with the substance of this application and the grounds upon which it is

15. With regard first to Mr. Fitzsimons’ contention that he was not afforded fair procedures in the High

Court, it appears to me that the trial judge properly satisfied himself as to service of the motion on

Mr. Fitzsimons and indeed Mr. Fitzsimons in effect concedes that he was aware that the matter was

listed but blames his putative solicitor and/or counsel and/or legal executive for the fact that there

was no appearance on the day. It is clear however, that the trial judge was correctly satisfied of

the fact that Mr. Fitzsimons was aware that the case was on, and so there could be no conceivable

basis upon which it could be suggested that there was any unfairness arising as a result of the

matter proceeding in the absence of Mr. Fitzsimons. In fairness to him, he did not seriously

advance this argument at the hearing of the appeal, nor do I believe he could do so having regard

16. The order of the Circuit Court of the 20th July, 2012 constituted a final and conclusive order as

between the parties which determined the right of Bank of Scotland Plc. to possession of the

property in issue. Tanager subsequently became entitled to the benefit of that order. Thus, a res

judicata came into effect on the making of that order as between the parties, one of whom was Mr.

Fitzsimons. That order became unimpeachable in the absence of an appeal or an application for

judicial review. Barring either of these remedies being sought, the only other conceivable basis

upon which the order could be challenged would be that it was obtained by fraud. There is no

17. The operation of the res judicata rule was explained by Keane C. J. in Dublin Corporation v.

Building and Allied Trade Union [1996] 1 I.R. 468, at 481, where he referred to: -

“…the interest of all citizens who resort to litigation in obtaining a final and conclusive

determination of their disputes. However severe the stresses of litigation may be for the

parties involved - the anxiety, the delays, the costs, the public and painful nature of the

process - there is at least the comfort that at some stage finality is reached. Save in those

exceptional cases where his opponent can prove that the judgment was procured by fraud,

the successful litigant can sleep easily in the knowledge that he need never return to court

18. One of the complaints ventilated by Mr. Fitzsimons, as I have said, is that counsel for Tanager

failed to alert the court to a relevant precedent and somehow thereby breached his duty to the

court and to Mr. Fitzsimons. I am satisfied that this suggestion is entirely without foundation. It is

true to say that in moving an ex parte application, counsel has a duty of candour towards the court

and must draw to the court’s attention not only matters which assist his case, but those which do

not. Whilst it might be debatable as to the extent of that duty in circumstances where the opposing

party is on notice of the application, but does not participate, that is of no relevance on the facts of

this case. The decision of the High Court in Tanager v. Kane, even if it could be said to be in some

sense supportive of the arguments that Mr. Fitzsimons now advances, which I very much doubt,

was of absolutely no materiality to the application before the High Court to strike out the

proceedings. I am satisfied from perusing the transcript that counsel acted with absolute propriety

and any suggestion to the contrary by Mr. Fitzsimons is groundless.

19. Even in the absence of a res judicata arising, Mr. Fitzsimons had another insurmountable difficulty

in this case. The fundamental issue he now raises is that the Circuit Court never had jurisdiction to

entertain this application for possession because Bank of Scotland Plc. did not become registered

on the Folios as the owner of the charge following the cross-border merger. If that is true now, it

was equally true in July 2012 when the Circuit Court made the order, at a hearing in which Mr.

Fitzsimons was legally represented. The identity of the party seeking the possession was obviously

known to Mr. Fitzsimons and his legal advisors, and the identity of the registered owner of the

20. Since Henderson v. Henderson (1843) 3 Hare 100 was decided, parties to litigation are bound to

bring forward their entire case at the time when it is heard. They cannot be heard subsequently to

raise an issue which could have been raised in the original proceedings. As Lord Bingham said in

“The bringing of a claim or the raising of a defence in later proceedings may, without more,

amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that

the claim or defence should have been raised in the earlier proceedings if it was to be

21. This passage was approved by the Supreme Court in A.A. v. Medical Council [2003] 4 IR 302.

22. While the so-called rule in Henderson v Henderson is discretionary rather than an absolute

preclusion of further claims, nothing that could conceivably amount to an explanation or

justification for the failure to raise the issue now sought to be relied on by Mr. Fitzsimons, was

23. I am satisfied therefore, that these proceedings constitute the clearest abuse of process and the

trial judge was fully justified in dismissing them on this ground.

24. With the increase in recent years in the amount of litigation pursed in our courts by litigants in

person, the making of restraining orders has perhaps become more common. However, by no

measure can the making of such orders be regarded as in any sense routine. They are, of course, a

serious restriction on the constitutional right of access to the court and, as the authorities make

clear, should only be made sparingly and in relatively rare circumstances. Where the circumstances

warrant however, the court has the inherent jurisdiction to make such orders and indeed a duty to

do so to protect parties from habitual and costly vexatious litigation. The making of an Isaac

Wunder order is not an abrogation of the constitutional right of access to the court, but rather a

proportionate filtering mechanism to protect the opposing party from the injustice of having to

incur what are often very significant and unrecoverable costs, in meeting oppressive and abusive

claims. The right of access to the court is not absolute – see O’Reilly v. McCabe v. Minister for

25. Quite apart from the interest of the oppressed party, the court must also have regard to protecting

its own processes from abuse, which result in scarce court resources being wasted to the detriment

of other parties with genuine claims. All the cases recognise that a primary indicator of the

necessity for a restraining order is the habitual or persistent institution of frivolous and vexatious

proceedings against parties to earlier proceedings – see McMahan v. W.J. Law and Co. LLP

26. However, in Gill v. Bank of Ireland [2009] IEHC 210, Feeney J. considered that there could not be

a basis for making an Isaac Wunder order against a party who had not previously instituted

27. In the present case, the original proceedings were not, of course, instituted by Mr. Fitzsimons, as

he was the defendant. As such defendant post the determination of the Circuit Court proceedings,

he made two applications, first, to the Master of the High Court for an extension of time within

which to appeal and second, to the Circuit Court to set aside the earlier order. For valid reasons,

28. The proceedings now before the court are in fact the first proceedings instituted by Mr. Fitzsimons.

While I have held these proceedings to be an abuse of process, viewed from Mr. Fitzsimons’

perspective they represent an attempt to agitate issues which have not previously been considered

by any court. In fairness to Mr. Fitzsimons therefore, I do not think it can reasonably be said that

he is attempting, by the bringing of these proceedings, to re-litigate issues that have previously

been determined, because as far as he is concerned they have never been determined.

29. In my view, the criteria for the making of an Isaac Wunder order have not been met in this case.

As this is in fact the first set of proceedings instituted by Mr. Fitzsimons as plaintiff, at this juncture

at any rate, it cannot be said of him that he has habitually or persistently instituted abusive

proceedings against Tanager. For the same reasons as identified in Gill v. Bank of Ireland

therefore, to my mind, Tanager has not made out a case for the granting of a restraining order

against Mr. Fitzsimons at this stage. Clearly, the position may change were Mr. Fitzsimons to

institute further proceedings seeking to re-litigate substantially the same issues again. For that

reason, I am of the view that Mr. Fitzsimons’ appeal should be allowed in part in relation to the

30. The balance of his appeal will be dismissed.

Result: Dismiss appeal

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