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

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

The appellant's proceedings constitute an abuse of process and are barred by res judicata, as the issues were or could have been determined in the original Circuit Court proceedings, which were not appealed. There was no denial of fair procedures. However, as this is the first set of proceedings instituted by the appellant as plaintiff, the criteria for a restraining (Isaac Wunder) order are not met.

Citation
[2019] IECA 336
Parties
Plaintiff/appellant: Leslie Fitzsimons; Defendant/respondent: Tanager Limited; Defendant/respondent: Bank of Scotland PLC
Jurisdiction
Ireland
Judgment Date
20 December 2019
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Dismissing Proceedings and Granting Restraining Order
Outcome
Appeal dismissed in part and allowed in part
Legal Topics
Res Judicata, Abuse of Process, Mortgage Possession, Restraining Orders (isaac Wunder), Due Process, Collateral Attack on Judgments
Civil Procedure Property Law Banking Law Res Judicata Abuse of Process Mortgage Possession Restraining Orders (isaac Wunder) Due Process +1 more

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Parties

Leslie Fitzsimons

Plaintiff/appellant

Tanager Limited

Defendant/respondent

Bank of Scotland PLC

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment Dismissing Proceedings and Granting Restraining Order

Legal Issues

  1. 1 Whether the High Court erred in dismissing the appellant's proceedings as res judicata and an abuse of process
  2. 2 Whether the High Court erred in granting a restraining (Isaac Wunder) order against the appellant
  3. 3 Whether the appellant was denied fair procedures or due process

Ratio Decidendi

The appellant's proceedings constitute an abuse of process and are barred by res judicata, as the issues were or could have been determined in the original Circuit Court proceedings, which were not appealed. There was no denial of fair procedures. However, as this is the first set of proceedings instituted by the appellant as plaintiff, the criteria for a restraining (Isaac Wunder) order are not met.

Court Disposition

Appeal dismissed in part and allowed in part

Orders

  • Dismissal of the appeal against the striking out of proceedings
  • Rescission of the restraining (Isaac Wunder) order against the appellant