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2026 IEHC 346

THE HIGH COURT [2026] IEHC 346 Record No. 2021/4163 P Between MARTIN TUCKER Plaintiff and ELIZABETH CURRY Defendant Judgment of Mr. Justice Conor Dignam delivered on the 4th day of June 2026

  1. INTRODUCTION 1.1 This matter originally came before me by two motions: an application by the plaintiff for interlocutory injunctions against the defendant; and an application by the defendant to strike out the plaintiff’s claim pursuant to Order 19 Rule 28 on the grounds that it discloses no reasonable cause of action or is frivolous and vexatious, or pursuant to the Court’s inherent jurisdiction on the grounds that it is an abuse of process or otherwise bound to fail. 1.2 The defendant had also sought an Isaac Wunder Order in her motion to strike out the plaintiff’s claim but did not proceed with that application, instead reserving her rights in this regard. 1.3 The applications for injunctions and to strike out the proceedings remain the primary focus of this judgment, but a number of other applications were made to me and I also deal with these in the course of the judgment. 1 1.4 Central to both of these applications is the question of whether the defendant was under a contractual obligation to put the proceeds of pension policies of which she was the beneficiary towards redemption of a mortgage which the plaintiff and defendant held in respect of a property in Dublin. 1.5 In relation to the original two applications, the parties agreed in advance that the plaintiff’s application for interlocutory injunctions should be dealt with first. They also agreed that the Court could treat the evidence in each motion as evidence in the other. For the reasons set out below, I am of the view that the plaintiff has satisfied the threshold test for an interlocutory injunction. It follows that I do not need to consider the application to strike out the proceedings in any detail.
  2. BACKGROUND 2.1 These proceedings arise from the plaintiff and defendant’s indebtedness to an entity called Havbell Designated Activity Company (“Havbell”) (as successors Permanent TSB (formerly Irish Permanent)) and a mortgage in respect of the property (“the Property”). The case is one of a series of cases which arise either directly or indirectly from this indebtedness and mortgage. In one of those cases, Tucker v Havbell Designated Activity Company [2023] IECA 24, Butler J noted at paragraph 24 that “…between proceedings which have been issued and proceedings in respect of which leave was sought to issue them, to date there have been nine separate sets of proceedings arising out of or involving the appellant’s indebtedness to the respondent and the respondent’s attempts to enforce its security over the appellant’s property...” An Isaac Wunder Order was previously made (on the 1st March 2022) in respect of the plaintiff on the application of Havbell. This restrained the plaintiff from issuing any further proceedings against Havbell relating to the Property without the prior leave of the President of the High Court. 2.2 There is a long factual background but it is not necessary to set that out in detail where much of it has already been set out at length by Allen J in Tucker v Havbell DAC [2022] IEHC 15 and by Butler J, and where much of the substance of it is not directly relevant to the issues to be decided in these applications. 2.3 The plaintiff and the defendant are former life partners. They are now estranged. It is not entirely clear when they separated. 2.4 The key part of the background for the purpose of these applications is as follows. 2 2.5 By “Letter of Approval – Particulars of Mortgage Loan” of the 6th June 2003, Irish Permanent offered the plaintiff and the defendant an Endowment Residential Business Loan in the amount of €260,000 for the Property. This offer was subject to a number of special conditions. These, and in particular Special Condition M, are central to the dispute and I return to them in greater detail below. For present purposes, it is sufficient to note that Special Condition M required the defendant to take out and retain a pension policy. 2.6 The plaintiff and the defendant accepted the loan offer on the 9 th June 2003 and a mortgage over the property was executed by the plaintiff and the defendant on the 18th June
  3. 2.7 In early June 2003, two pension policies were taken out with Eagle Star/Zurich by Major Enterprises Limited (a company of which the plaintiff was a director and the defendant was an employee). It is common case that the defendant was the sole beneficiary of these policies. 2.8 Ultimately, the mortgage transferred to Havbell in 2015 by a deed of transfer. The plaintiff made certain points in relation to this transfer in his affidavits, and does not accept that it is valid, but these issues are not part of the claim in these proceedings. 2.9 It seems the mortgage was in arrears and Havbell secured an Order for Possession from the County Registrar on the 10th May 2018 with a stay of three months. This was affirmed by the Circuit Court on the 25th June
  4. The defendant vacated the Property in August
  5. The plaintiff continued to litigate and there is a long procedural history, including various motions and appeals and separate proceedings brought by the plaintiff, which it is not necessary to recite at this stage, but which is set out in Allen J’s judgment. Ultimately, the Order for Possession was affirmed by the High Court (Eagar J) on the 13th January
  6. 2.10 After the Order for Possession was affirmed by the High Court, the plaintiff and Havbell entered negotiations, and the plaintiff executed a deed of settlement on the 20th February
  7. The defendant executed the deed on the 17th August
  8. However, the solicitors for Havbell informed the defendant’s previous solicitor that the terms of the settlement had not been met. The background to this is explained in detail in Allen J’s judgment. 2.11 On the 23rd November 2020, the plaintiff issued proceedings against Havbell. These are the proceedings in which Allen J in the High Court and Butler J (on behalf of the Court of Appeal) gave the judgments referred to above. 3 2.12 In July 2019, the defendant drew down the monies from the pension policies. The evidence is that she was informed by her financial advisors and by Zurich (originally Eagle Star), that she was entitled to do so. There does not appear to be any dispute but that she retained these moneys. 2.13 On the 7th May 2021, the plaintiff wrote to the defendant under the heading “Endowment Pension Fund Monies” seeking the return of €160,000 which he claimed she had retained “in breach of the terms of the mortgage contract you entered into with the writer as co-mortgagor.” He then issued these proceedings on the 17 th June 2021 and issued his motion seeking interlocutory relief on the 17 th May
  9. 2.14 The Statement of Claim, which I understand was delivered on the 17 th May 2022, is short. It pleads, inter alia: “
  10. The Plaintiff and Defendant did, on or around the 6 th June 2003 enter into a joint 17-year mortgage agreement between the Plaintiff and the Defendant of the first part and Irish Life and Permanent PLC (mortgagee) of the second part;
  11. The Defendant did accept specific terms and conditions of the said agreement.
  12. The Defendant did, on or around the 23rd of December [year illegible but seems to be 2019] breach the specific terms of the mortgage agreement and or contract by failing to pay proceeds from life pensions to the mortgagee as part of the redemption of the mortgage in accordance with the special conditions of the said mortgage and retain same for her benefit exclusively;
  13. The Defendant did receive payment of sums in excess of €100,000 on maturation of the pension policies and failed to disclose the payments to the Plaintiff.
  14. The actions and or negligence and or breach of contract of the Defendant has caused harm, loss and damage to the Plaintiff.
  15. The Plaintiff has been extensively litigated against by the alleged ‘new owner’ of the mortgage Havbell Designated Activity Company despite the Plaintiff undertaking to redeem the mortgage.
  16. The Plaintiff requires the return of the sums retained by the Defendant to the mortgagee Havbell in order to successfully redeem the mortgage on his home.” 4 2.15 The relief sought is: “
  17. An Order for an injunction compelling and or directing the Defendant return the sum in excess of €100,000 to the mortgagee Havbell Designated Activity Company;
  18. An Order for damages for stress, distress caused by the actions and or negligence of the Defendant.” 2.16 The plaintiff’s claim rests on whether the defendant was under a contractual obligation to the plaintiff to put the proceeds of the pension policies towards redeeming the mortgage. 2.17 Many other issues were raised and canvassed during the extensive exchange of affidavits in respect of these motions, but many of them are not part of the pleaded case and are not directly relevant to the issues to be decided in these applications; others were raised or could have been raised in the previous cases. While I have considered all of the issues, I have not thought it necessary to engage with all of them for the purpose of these applications.
  19. PROCEDURAL HISTORY 3.1 As mentioned above, the matter came before me by way of two motions. Thereafter, it had a complex procedural history. 3.2 At the hearing, one of the central documents, “Irish Permanent Mortgage Conditions 1999”, was illegible or very difficult to read and I was told that a more legible copy was not available. I asked the parties to prepare a document setting out what they agreed were the terms of the clauses that had been referred to. This was submitted after the hearing. Subsequently, while preparing my judgment, I was concerned that the agreed note was not fully correct. I asked the parties to address me on this. On that occasion, Counsel for the defendant informed me that there had been a development in the matter. She explained that Havbell had recently written to the defendant, in February 2024, informing her that the Property had been sold, that, after the proceeds and costs were calculated, there remained a loan balance of €88,000, but that Havbell was writing off this balance. It was the defendant’s initial view that this rendered the plaintiff’s proceedings against her moot because there was no longer a debt to which the pension monies should be paid. 5 3.3 However, the plaintiff told me that he had also received a letter from Havbell. This was in similar terms except that it also informed the plaintiff that Havbell had costs orders against him “from the various applications, appeals and related proceedings in the Circuit Court, High Court and Court of Appeal”. It will be recalled that the defendant had surrendered possession on foot of the Order for Possession and therefore these costs orders were not against her. The letter to the plaintiff stated that Havbell remained entitled to enforce all costs orders. The plaintiff submitted that Havbell was treating these costs orders as part of the secured amount and therefore the issue in relation to the pension policies money was still live. I directed that the parties file affidavits in light of these developments in order to put these letters in evidence. These were treated as applications to admit new evidence. The defendant sought to admit the letter to her from Havbell. For his part, the plaintiff sought to admit the letter to him. 3.4 I was not convinced that these involved the admittance of new evidence. They were, rather, concerned with events which occurred after the hearing and after judgment was reserved. The letter to the plaintiff does appear to render the proceedings moot. However, this letter can not be considered without regard also being had to the letter to the plaintiff. If he is correct that Havbell considers itself entitled to treat those costs as part of the secured debt, then there is an argument that the proceedings are not moot. The plaintiff’s argument is that the pension policies are contractually bound to the discharge of the secured debt. Therefore, if the meaning of the letter to him is that Havbell considers itself entitled to recover the costs as part of the secured debt, then there is still an argument that there is a debt to which the pension policies are bound. Of course, this is not a simple issue, because there will undoubtedly be an argument that the plaintiff can not run up a large number of costs orders and then seek to use the pension policies to which, on his case, both the plaintiff and the defendant are jointly beneficially entitled, to pay costs orders against him. Issues such as this will have to be determined at another stage. The only question at present is whether I should have regard to these letters and I am satisfied that I should. There was, in any event, no real dispute between the parties about the need to consider these letters. 3.5 However, the plaintiff also took this opportunity to raise an entirely new issue, and he sought to have evidence admitted in relation to this issue. Up to that point, both parties, including the plaintiff, had operated on the basis that the applicable conditions were the “Irish Permanent Mortgage Conditions 1999”. However, at this stage, the plaintiff sought to adduce evidence that, in fact, these are not the applicable mortgage conditions and instead the applicable conditions are “Permanent TSB Mortgage Conditions 2002”. This, at 6 the very least, involved an application to admit new evidence. In fact, it appeared to amount to a new case. 3.6 The letters of February 2024 also led to the plaintiff bringing an application to join Havbell as a notice party to the proceedings. This was issued on the 3rd April
  20. 3.7 I heard these applications together and indicated that I would determine them as part of this judgment. I therefore deal with these three applications. 3.8 On the 15th July 2024, the defendant issued a motion to admit an affidavit sworn by her solicitor. This was in essence an application to admit further evidence. That evidence consisted of documents relating to the borrowing and the mortgage. The defendant’s solicitor explained that this documentation was potentially relevant, should have been provided earlier, and explained that it only came to light following a review of their files. She also confirmed that it appeared not to have been provided to Counsel previously. I deal with this application to admit evidence shortly, but I should say that solicitor and Counsel acted perfectly correctly in seeking to bring this material to the attention of the plaintiff and the Court once they realised it had not previously been provided. The plaintiff filed a replying affidavit to the defendant’s application complaining about some aspects of this but did not object to the admission of this evidence. Given its contents, which I return to, it is not surprising that he did not object. 3.9 Subsequently, the plaintiff issued a motion seeking leave to admit new evidence and an order that no weight be attached to the letters of February
  21. This was on the basis that the plaintiff had come into possession of documents which he claims shows that the agents who were engaged to sell the Property were not engaged by Havbell. 3.10 I also deal with both of these applications.
  22. APPLICATIONS TO ADDUCE EVIDENCE Applicable Principles 4.1 In Doyle v The Commissioner of An Garda Síochána [2023] IEHC 313, the court reviewed the authorities dealing with applications to adduce new evidence after the hearing has concluded (either before or after judgment has been given) 4.2 At paragraph 14, the court said: 7 “I have therefore decided the case on the basis of the McInerney Homes/Hinde formulation subject to the requirement, in circumstances where the decision is still to be given, to express the test in prospective terms, i.e., would the proposed new evidence probably have an important influence on the result of the case, rather than a consideration of whether it would change the result. The test is therefore whether the evidence would probably have an important influence on the result of the case, though not necessarily decisive, is it credible, and could it have been obtained for the original hearing with reasonable diligence on the part of the plaintiff. Of course, overarching the test are the general principles that the exercise of the Court’s discretion is to serve the interests of justice and that the exercise of that discretion is an exception and is one which should be exercised sparingly.” 4.3 It is important to note that it is not necessary that the proposed new evidence be determinative but rather the test is ”whether the proposed evidence would probably have an important influence on the Court’s consideration or be an important part of those consideration [sic] and therefore be an important influence on the result.” (paragraph 15 of Doyle v The Commissioner of An Garda Síochána). 4.4 Evidence re the applicable mortgage conditions 4.4.1 As noted above, both parties had proceeded on the basis that the relevant mortgage conditions were the Irish Permanent Mortgage Conditions
  23. The hearing ran over the course of two days on the basis that these were the applicable conditions. No doubt or question was expressed by either party about their applicability. 4.4.2 Crucially, the Indenture of Mortgage of the 18 th June 2003 states at clause 7 “This Indenture incorporates the Clauses set out in Irish Permanent Mortgage Conditions 1999 (herein called “the Mortgage Conditions”) and the Mortgagor and Guarantor (if any) ACKNOWLEDGE RECEIPT of the Mortgage Conditions which they have read and understood and they covenant with the Irish Permanent to observe and be bound by the Mortgage Conditions.” 4.4.3 An oddity of the plaintiff’s position is that he repeatedly referred to the defendant as relying on these mortgage conditions. He is the plaintiff and, in seeking the injunction, it was a matter for him to clearly identify what mortgage conditions he was relying upon. He did not do so in the Plenary Summons, Statement of Claim, or his grounding affidavit for the injunction. It fell to the defendant to identify the applicable conditions. She did so in her replying affidavit (in paragraph 5) by exhibiting the Indenture of Mortgage with the Irish Permanent Mortgage Conditions 1999 attached. The plaintiff, in his replying affidavit, 8 expressly agreed with paragraph 5 of the plaintiff’s affidavit, thereby agreeing that the applicable mortgage conditions were the Irish Permanent Mortgage Conditions
  24. Thus, the plaintiff relied on them. 4.4.4 In his application, he now wishes to submit that in fact those conditions are not the applicable conditions, and to adduce evidence to support that submission. He seeks to make the case that the applicable conditions are in fact “Permanent TSB Mortgage Conditions 2002”. 4.4.5 The basis upon which he submits that the Irish Permanent Mortgage Conditions 1999 do not apply is essentially two-fold. He says that he and the defendant entered the mortgage on the 18th June 2003 and this post-dates the merger of Irish Permanent plc and Irish Life in 1999, and the merger of this entity with TSB Bank in 2001, to establish a new bank, Permanent TSB. The plaintiff contended that as their mortgage was taken out in June 2003 i.e., after this, the terms and conditions that governed it were the Permanent TSB Mortgage Conditions 2002, and not the 1999 Irish Permanent terms and conditions, because in June 2003, Irish Permanent no longer existed as a bank. The second basis is his claim that in an email exchange in the context of his personal insolvency process in 2020 it was acknowledged by Havbell that the 2002 Conditions were the applicable ones; for example, in one email of the 8th September 2020, Havbell stated, inter alia, “The 2002 mortgage terms and conditions which govern the mortgage and would draw your attention to clause 12.2 whereby...” 4.4.6 The plaintiff goes so far as to say that the mortgage relied upon by Havbell in the possession proceedings, and by the parties in these proceedings, is not his mortgage. He also says that the first page of the Indenture must be a fabrication. 4.4.7 These points obviously raise issues in relation to collateral attacks on previous court judgments and orders. 4.4.8 I am not satisfied that the plaintiff should be permitted to adduce this evidence or, indeed, to make this entirely new case in respect of the applications currently before me. 4.4.9 In relation to the first limb of the test set out in Doyle, i.e. that the evidence would probably have an important influence on the result of the case, it is not necessary to determine this question. This follows from the parties’ own positions. Towards the conclusion of the hearing of this application, they were asked whether there were any material differences between the 1999 Conditions and the 2002 Conditions. They confirmed that they did not believe so. They were given an opportunity to consider both sets of conditions and they confirmed a month later that there were no differences which 9 are material to the plaintiff’s claim against the defendant, i.e. to the pension policy issue. The reality is that in circumstances where the parties are agreed that there is no material difference between the 1999 Mortgage Conditions and the 2002 Mortgage Conditions, the consideration of the former means a consideration of the latter. Thus, while not formally admitted, I have had regard to the provisions of the 2002 Mortgage Conditions. I should say that the plaintiff made the point to the court that one difference between the two sets of conditions is that the 2002 Mortgage Conditions were also accompanied by General Mortgage Loan Approval Conditions. He submitted that these could not have been in existence in 1999 because they are headed Irish Life & Permanent TSB (hereinafter called “Permanent TSB”) and Permanent TSB only came into existence in
  25. The plaintiff did not rely on this document to support his claim about the existence of a contractual obligation, but rather to support his contention that the applicable mortgage conditions were the 2002 Mortgage Conditions. He advanced a number of reasons for this and referred to Special Condition B, and clause 1.17, 1.21 and 1.23 of this document. In circumstances where I have determined that the question of whether the 1999 Mortgage Conditions or the 2002 Mortgage Conditions would not influence the result, it is not necessary to consider whether the Loan Approval Conditions support the plaintiff’s claim that the applicable mortgage conditions were the 1999 or 2002 Conditions. 4.4.10 Another way of looking at this is that if I had to decide whether the first limb was satisfied, I would not be satisfied that it had been. Because there is no material difference between the two sets of mortgage conditions, the proposed new evidence would not have an important influence on the result of the applications, let alone be in any way decisive. In those circumstances, the 2002 Conditions can not have any influence on the result, and they do not require to be formally admitted. 4.4.11 In relation to the second limb, I am not satisfied that this evidence could not have been obtained for the original hearing with reasonable diligence on the part of the plaintiff. Indeed, I am satisfied that it was in fact available to the plaintiff. In an affidavit of the 23rd June 2023, the plaintiff referred to his insolvency application in 2020 and exhibited an exchange of emails between Havbell and his Personal Insolvency Practitioner during that process. The email quoted above was part of this exchange. Thus, the plaintiff had this material from as long ago as 2020 or, at the latest, when he swore this affidavit in
  26. The plaintiff does not deny this but rather says that he did not notice it or appreciate its significance. That is not a good reason to permit the evidence to be adduced. 4.4.12 I think it is important to note that what is being discussed is whether the evidence should be adduced for the purpose of these two applications. The plaintiff will be free to make whatever use of the material as may be appropriate at the trial of the matter. 10 4.5 Evidence from defendant’s solicitor’s file 4.5.1 As noted above, on the 15th July 2024, the defendant issued a motion to admit an affidavit sworn by her solicitor. This can be easily dealt with in circumstances where the plaintiff did not object to the evidence being adduced and where it is in his interests that it be before the court. 4.5.2 In June 2024, the plaintiff sought documentation from the defendant’s solicitor, including documents relating to “PTSB terms and conditions relating to business”. During the defendant’s solicitor’s review of the files held by her office, they reviewed a copy of documentation received from the defendant’s previous solicitor (which had been given to those solicitors by Permanent TSB). That led to a realisation that some of these documents had not previously been provided to the plaintiff. The defendant then set about asking the court for permission to adduce that evidence. I am fully satisfied that this is relevant and important information and may have an important influence on the outcome for reasons which are discussed below. In particular, it is important to note that the documentation contained an undertaking by the defendant which is directly relevant to the question of whether the pension policies are bound to the repayment of the mortgage. This evidence could have been discovered with reasonable diligence. However, in my view, this can not preclude the evidence being adduced where it is, in fact, potentially adverse to the interests of the party seeking to adduce it. 4.6 Plaintiff’s application to admit new evidence 4.6.1 The plaintiff brought an application to adduce further evidence on the 27 th April
  27. This was an application to adduce a copy of an Agency Agreement appointing an entity called “Crowe Ireland” to market and sell the Property on behalf of the principal. This was dated the 28 th May
  28. On the copy of the Agreement exhibited to the grounding affidavit of the plaintiff, Havbell DAC is described as the “Principal”. However, the agreement is stated to have been executed by an entity called “Seaconview DAC”. The plaintiff claims that this is directly relevant to the letters from Havbell of the 2 nd February 2024, because it deprives them of any legal force because it shows that Havbell did not appoint the selling agents. The plaintiff explains in his grounding affidavit that he came into possession of this documentation in October 2025 on foot of a Data Access Request that he made to Crowe Ireland on the 1st August
  29. 11 4.6.2 The basis on which the plaintiff says this documentation should be admitted is to challenge the assertion made on behalf of the defendant that Havbell’s letter of the 2 nd February 2024 to her renders the proceedings and the applications moot. In circumstances where I have already decided that the applications are not moot, it is not necessary for this evidence to be adduced. 4.6.3 In his grounding affidavit, the plaintiff repeatedly refers to the hearing of these applications as “the plenary hearing”. That, of course, is not correct. The hearing was a hearing of two interlocutory applications. It will remain open to the plaintiff to rely on this evidence at the plenary action in circumstances where I am not striking out the claim on foot of the defendant’s application.
  30. APPLICATION TO JOIN HAVBELL AS NOTICE PARTY 5.1 This application must, of course, be determined by reference to the pleaded case. That case is set out above. The case is solely against the defendant and seeks an Order compelling her to pay the sum of in excess of €100,000 to Havbell on the basis of the alleged contractual obligation, and/or damages for stress and distress caused by her alleged negligence. 5.2 The plaintiff has set out the bases upon which he contends that Havbell should be joined as a notice party in his grounding affidavit, written submissions, and at the hearing of the joinder application. 5.3 He relies on Order 15 Rule 13 of the Rules of the Superior Courts, and BUPA Ireland Ltd v Health Insurance Authority [2006] 1 IR
  31. It was held in BUPA Ireland (and, indeed, in Persona Digital Telephony Ltd v Minister for Public Enterprise [2014] IEHC 78, and Fitzpatrick v FK [2007] 2 IR 406, for example) that the grounds for the joinder of another defendant include where the proposed party’s “proprietary or pecuniary rights are or may be directly affected by the proceedings either legally or financially.” In McDonagh v McDonagh [2015] IEHC 543, Kearns P applied that test to the joinder of a notice party against whom no relief was being sought. In truth, the plaintiff really relies on Order 15 Rule
  32. It provides that the court may order, inter alia, “...that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.” Rule 13 does not refer specifically to the joinder of a notice party, but I will proceed on the basis that it applies to such an application as it is relied upon by the plaintiff. 12 5.4 He states in his affidavit that “it is appropriate and desirable in the interest of the efficient use of court time and resources to have Havbell DAC who have issued these two letters joined as a Notice Party to my proceedings to reconcile the above mentioned conflicts of fact.” He explained that the “conflicts of fact” are whether the 1999 Conditions or the 2002 Conditions are the applicable mortgage conditions. At the hearing, the plaintiff based his application on the need to get Havbell to answer which mortgage conditions were the applicable ones. Furthermore, in response to submissions on behalf of Havbell that this was an attempt to get around the Isaac Wunder Order and was a collateral attack on previous Orders, the plaintiff emphasised on several occasions that the purpose of joining Havbell is to ask them questions. In response to an inquiry from the court whether the sole reason to join Havbell was to ask them questions, the plaintiff confirmed that it was. 5.5 Thus, the plaintiff’s stated purpose for seeking to join Havbell is to get them to answer questions, and he relies on the reference in Rule 13 to the joinder of a party “whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter”. It is not necessary for Havbell to be a party or notice party for the court to effectually and completely adjudicate upon and settle all the questions involved in this cause or matter. The “cause or matter” is the claim against the defendant that she was contractually obliged to the plaintiff to use the pension monies to pay down the mortgage. That turns on the proper interpretation of the contract documents. Havbell do not require to be a party for that question to be determined by the court. Furthermore, as discussed above, there is no difference between the 1999 Mortgage Conditions and the 2002 Mortgage Conditions which is material to the claim in the proceedings against the defendant, and therefore, that question does not in fact have to be answered. There is an additional issue arising on foot of the undertaking that was contained in the additional evidence which was produced by the defendant. That may well raise questions for Havbell and why they did not seek to use the pension monies to have the mortgage paid down. However, that is not part of the claim which is set out in the pleadings. 5.6 I do not accept that this is really the only purpose for which the plaintiff seeks to join Havbell. The plaintiff emphasised that Havbell has relied on the Indenture and the 1999 Conditions in all previous proceedings, but that it now emerges that Havbell is of the view that the 2002 Conditions apply (because of the reference to those conditions in the email chain). This, together with the fact that the mortgage was executed after the establishment of Permanent TSB, leads the plaintiff to assert that the first page of the Indenture is a fabrication. He described the timing of the letters of the 2nd February 2024 13 as “cynical” to hide this fabrication. He explained that he meant that Havbell sent those letters to seek to bring an end to the proceedings so this fabrication would not be disclosed. 5.7 It follows from the plaintiff’s claim that the first page of the Indenture is a fabrication and is therefore not his contract that he is asserting that the Order for Possession was made on foot of an invalid document. Such a claim could obviously not be pursued if Havbell was just a notice party. Even leaving that aside, such a claim against Havbell is entirely separate and distinct from the claim against the defendant in these proceedings. The claim against the defendant is a very narrow claim in relation to the existence or non-existence of a contractual obligation and the meaning of the obligation, if it exists. The complaint that the Indenture is a fabrication introduces an entirely new cause of action against a different party. It should, therefore, be prosecuted in separate proceedings. Secondly, such a claim would amount to a collateral attack on previous orders made by the courts. Thirdly, such a claim would be caught by the Isaac Wunder Order which is in place and the plaintiff would have to obtain the leave of the President of the High Court to bring that claim.
  33. APPLICATION FOR INTERLOCUTORY INJUNCTION 6.1 The interlocutory injunctions sought by the plaintiff are injunctions “directing or compelling the Defendant account for pension monies in excess of €100,000 and a further Order” and “an injunction directing and or compelling the Defendant deposit the said monies into an account nominated by the court.” 6.2 Locus standi 6.2.1 The defendant contended that the plaintiff does not have locus standi because even if the defendant was under the alleged contractual obligation, it was one that was owed to Havbell and not to the plaintiff and should therefore be litigated at the suit of Havbell. 6.2.2 I do not accept that this is correct. While part of the defence will clearly be that there is no privity between the plaintiff and the defendant, it seems to me that the circumstances are such that the plaintiff must have standing to claim that the defendant owes the contractual obligation to him. The merits of a particular claim can not, in general, determine whether the claimant has standing to make the claim. 6.2.3 I should pause at this point to refer to a curious feature of the case and of the position adopted by the plaintiff. He complains about Havbell not enforcing its rights 14 against the defendant to secure the pension monies. He goes so far as to say that Havbell’s decision not to do so was part of a “sweet-heart deal” or collusion between the defendant and Havbell. In fact, he was not able to explain what that sweet-heart deal could have been. More importantly, in making these complaints, he disregards the fact that under the loan offer he was equally under an obligation to have a pension policy. There is, however, no evidence of him having one and there is no evidence of Havbell having enforced that condition against him. 6.3 Interlocutory injunction 6.3.1 The principles applying to interlocutory injunctions are very well-established and have been considered in many recent cases, including by O’Donnell J in Merck Sharp & Dohme Corporation v Clonmel Healthcare Limited [2019] IESC
  34. The generally applicable principles were not disputed between the parties, and it is not necessary to rehearse those principles. 6.3.2 The traditional approach was recalibrated by O’Donnell J in Merck Sharp & Dohme Corporation v Clonmel Healthcare Limited. He set out an eight-step approach. He also emphasised the inherent flexibility of the remedy. The traditional approach is incorporated within those eight steps. An applicant must satisfy a threshold test and must establish that the balance of justice/balance of convenience favours the grant of an injunction. The traditional consideration of whether damages would be an adequate remedy is now to be part of the assessment of the balance of justice. Thus, while the flexibility of the remedy and the need to avoid an overly mechanical approach have been emphasised, it is still the position that an applicant for an interlocutory injunction must satisfy a threshold test before the Court should consider whether the balance of justice favours the grant of an injunction. 6.3.3 The parties were not in agreement as to the appropriate threshold test. The plaintiff submitted that the test is that of a fair case or a serious issue to be tried. It was submitted on behalf of the defendant that the injunction sought is a mandatory injunction and, therefore, the higher standard of a strong case that he is likely to succeed applies. 6.3.4 I am satisfied that the relief sought by the plaintiff is mandatory in nature. The Court must look to the substance of the relief rather than merely the language in which it is framed. In this case, whether one looks at the substance or the language, it is quite clear that the relief sought is mandatory in nature. The plaintiff seeks an Order compelling the defendant to account for monies and to deposit the said monies in an account. As 15 such, the applicable threshold test is the test set out by Fennelly J in Maha Lingam v Health Service Executive [2006] 17 ELR 137 rather than the traditional test for a prohibitory injunction. Fennelly J said at page 140: “…the implication of an application of the present sort is that in substance what the plaintiff/appellant is seeking is a mandatory interlocutory injunction and it is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of an interlocutory injunction where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action. So it is not sufficient for him to simply show a prima facie case, and in particular the courts have been slow to grant interlocutory injunctions to enforce contracts of employment.” 6.3.5 The burden of proof is on the plaintiff. Thus, the burden is on him to establish a strong case that he is likely to succeed at trial i.e., that the defendant was under a contractual obligation to him to use the proceeds of the pension policies to redeem the mortgage and that she is in breach of that obligation. If he establishes that, he must then establish that the balance of justice favours the grant of an injunction. A strong case that he is likely to succeed 6.3.6 I am not satisfied on the basis of the evidence that was before me at the hearing that the plaintiff had established a strong case that he was likely to succeed. However, the evidence subsequently adduced by the defendant from the solicitor’s file is of direct relevance and leads me to conclude that the plaintiff has in fact satisfied the threshold test. 6.3.7 I agree with the comments of Allen and Butler JJ that the case in relation to the pension policies is vague. This is partly because the plaintiff, at various points, refers to the defendant being under an obligation to maintain “an endowment insurance policy”, “an endowment pension policy”, “a pension policy”, and “a life insurance policy.” He uses these interchangeably. 6.3.8 Notwithstanding the vagueness in the claim, the fundamental premise is that the contractual obligation is rooted in Special Condition M of the loan offer. While the Statement of Claim fails to plead precisely what the specific source of the obligation is, at paragraph 19 of the plaintiff’s grounding affidavit for the injunction he expressly identifies 16 Special Condition M where he says that “[T]his sum of money was contractually bound to be paid to the mortgagee as per Special Conditions of the loan which sets out…” and then quotes Special Condition M. In paragraph 5 of his first replying affidavit, he quotes Special Condition M again and then says at paragraph 7: “
  35. As can be seen therefrom the pension policy was to be maintained for the sole purpose of redeeming the mortgage, to date this has not happened as Ms. Curry has retained the proceeds of the pension policy in breach of the contract. It was a prerequisite that the policy be incepted and paid prior to the drawdown of the mortgage.” Special Condition M provides: “A pension policy to be maintained for the term of the loan by the applicant with a pension officer and in a form acceptable to Irish Permanent. The Pension Office agree to notify Irish Permanent in writing within 14 days should premium payments fall into arrears. The applicant agrees to provide Irish Permanent annually with the pension office’s report on the accumulated value and forecast maturity value of the pension policy.” 6.3.9 While Special Condition M undoubtedly imposes an obligation on the defendant to maintain a pension policy for the term of the loan, there is nothing in the express terms of the condition or the letter of offer that imposes an obligation on the defendant to apply the proceeds of such policy to the redemption of the mortgage. Indeed, this Special Condition is not even expressed to be security for the loan. In its express terms, it does nothing more than impose an obligation on the defendant to maintain such a policy. That, of course, begs the question of what the purpose of the obligation might be. In its express terms, it seems to be to afford comfort to the lender that the defendant will have a source of income following retirement/drawdown of the pension. 6.3.10 Over the course of the exchange of affidavits and in his submissions, the plaintiff maintained that the pension was a form of security and was to be used to repay the balance of the loan at the end of the loan period. He argued this by reference to other provisions of the letter of offer and, in particular, other clauses of the Irish Permanent 17 Mortgage Conditions
  36. In particular, he relied on Clauses 3, 14, 16 and
  37. He also referred to “General Mortgage Loan Approval Conditions”, but I do not believe it necessary to deal with these 6.3.11 Clause 3 of the Mortgage Conditions provides, inter alia: “
  38. ENDOWMENT LOANS 3.1 If the Letter of Approval provides for or the Irish Permanent agrees in writing to the taking out of an endowment assurance policy to assist in the repayment of an amount advanced then this condition will apply to that amount for so long as: (a) The policy has been assigned to the Irish Permanent and is comprised in the Permanent’s security; (b) The policy is subsisting; and (c) The Mortgagor’s obligations under the Mortgage and these conditions are being fully observed and performed. ... 3.4 The Irish Permanent shall be under no obligation to see to the adequacy of the Life Assurance Policy to repay the amount advanced or any part of it. 3.5 The Mortgagor shall on his account (or at the request of the Irish Permanent) increase the premiums paid by him to ensure that the projected maturity benefits is sufficient to protect and repay the amount advanced and in particular where such benefit is subject to fluctuation. 3.6 The Irish Permanent may on behalf of the Mortgagor pay only such increase referred to in 3.5 which shall be immediately repayable to the Irish Permanent by the mortgagor and until repaid shall be a charge on the Property.” 6.3.12 Clause 14 provides, inter alia: “
  39. RELATED RIGHTS 1 This was before he sought to argue that the Permanent TSB Mortgage Conditions 2002 were the applicable ones. 2 As noted above, the copy of the terms and conditions which was exhibited was largely illegible and the parties therefore handed in an agreed typed copy of the relevant clauses. I have relied on this agreed typed copy. I will refer to it as the “Agreed Sheet”. 18 14.1 So far as he is able (but subject to redemption) the Mortgagor: (a) Assigns all related rights to Irish Permanent; (b) declares and agrees that he does hold and will hold all Related Rights in trust for the Irish Permanent 14.2 Any payment arising in respect of Related Rights (unless laid out to the satisfaction of the Irish Permanent in restoring or improving the Security)3 may be applied by the Irish Permanent in discharging or reducing the Total Debt.” “Related Rights” are defined in clause 1.23 as meaning and including: “(a) Rights which (under any statute or law or contract and whether as of right or ex gratia or otherwise) may be or become payable in respect of the Property or4 any damage or injury to it or depreciation of it. (b) The benefit of any obligation security right or indemnity affecting or concerning the Property. (c) Without prejudice to the generality of (a) and (b) above, all rights of the Mortgagor to be paid or receive compensation under any Statute by reason of malicious damage of5 any compulsory acquisition or other exercise of compulsory powers in relation to the Property or any refusal, withdrawal or modification of planning permission or approval relative thereto r any control or limitation imposed upon or affecting the use of the Property and so that the production of the Mortgage Deed to the authority or person liable to pay such compensation shall be sufficient to it or him to pay all such monies to the Irish Permanent. (d) The benefit of any Mortgage Protection Insurance.” 6.3.13 Clause 16 is headed “Deposit of Life Assurance Policies” and is stated to apply to “every policy of life and/or endowment assurance from time to time included in security given to Irish Permanent for the Total Debt”. It then sets out a number of covenants and rights. It provides, inter alia: “16.1 Unless and until the policy has been legally assigned to the Irish Permanent the Irish Permanent shall have an equitable charge on the policy. The Mortgagor irrevocably (subject to redemption) appoints the Secretary for the time being of 3 In the Agreed Sheet, the closing parenthesis was absent. From a close examination of the original document, this appears to be immediately after the word “Security”. The clause makes no sense without it. 4 In the Agreed Sheet, this read “of” but it seems to me that it must be “or”. 5 Again, in the Agreed Sheet this reads “on” but it seems to me that it must be “of”. 19 the Irish Permanent to be the attorney of the Mortgagor in his name to assign, transfer, surrender or otherwise deal with the policy and to receive the policy moneys. 16.2 The Mortgagor covenants with the Irish Permanent (a) Punctually to pay all premiums for keeping the policy on time and to deliver within seven days of being requested to do so. (b) That the policy is valid and in force and the Mortgagor will not do or omit to do any act which may cause the policy to become void or voidable; (c) That if the policy6 becomes void or lapses and the Mortgagor will at his own cost effect a new one for a sum not less (and having a surrender value not less) than the sum assured by this earlier policy and the new policy shall be subject in all respects to the Mortgage and all the covenants and provisions of the Mortgage shall apply. 16.3 At any time after the Total Debt has come due the Irish Permanent may sell the policy; or surrender it to the Insurers or exchange it for fully paid policy or make such other arrangements with the insurers as it thinks fit. 16.4 The policy moneys when received may be applied by the Irish Permanent in discharge of reducing the Total Debt 16.5 The Mortgagor waives all rights to compete with the Irish Permanent in claiming any security or money unless or until all the Total Debt has been discharged in full. 16.6 The Irish Permanent shall be entitled at any time to request the Insurance company with which the Policy is written to estimate the sums payable on maturity of the policy on the basis of premiums then paid and on the assumption that the premiums required to keep the policy on foot will continue to be paid. If the sum thus estimated to be payable is less than the sum which on the date of the policy was taken out was estimated to be payable is less than the sum which on the date of the policy was taken out was estimated to be payable on its maturity or less than the Total Debt or part thereof was intended to secure or repay the Mortgagor shall be obliged at the request of Irish Permanent to increase the premiums or effect a new policy with the same or another insurance company approved by the Irish Permanent under which this premiums payable will, if duly paid, be sufficient to 6 In the original Agreed Sheet, this stated “pensions”. I felt that the word was more likely to be “policy”. I asked the parties for their views on this and they agreed that it reads “policy” 20 produce an estimated sum payable on the maturity or least equal to the estimated shortfall under the first policy. The Mortgagor covenants to assign such additional policy to the Irish Permanent by way of additional security for the Total Debt and it shall be subject in all respects to the Mortgage and the provisions of the Mortgage shall apply to it. ” 6.3.14 Clause 18 provides for the irrevocable appointment by the mortgagor of the Secretary of Irish Permanent to be the attorney of the mortgagor to do any act or thing “which may be required in the exercise of any of the Irish Permanent’s rights or powers hereunder or otherwise for any of the purposes of this security…” including: “(g) To claim agree recover and receive any sums or sums payable in respect of any Policy of Insurance or Assurance whether [Illegible word] or by surrender or otherwise whomsoever the benefit of which is assigned by the Mortgagor to Irish Permanent as collateral security for the advance or any additional Advance or other sums due to the Irish Permanent.” 6.3.15 Thus, clause 3 refers to “endowment assurance policy”, clause 16 refers to “life” or “endowment assurance” and clause 18 refers to any “policy of insurance or assurance”. Clause 14 refers to “Related Rights” which are defined in clause 1.
  40. 6.3.16 The plaintiff’s argument appears to be that the pension policy referred to in Special Condition M and the “endowment assurance policy”, or the “life assurance” referred to in clause 3 and 16, the ”Policy of Insurance” or “Assurance” referred to in clause 18, or a “Related Right” within the meaning of clause 14, are the same thing; or at the very least that those clauses apply to the pension policy. At various times he used the terms interchangeably. As a general proposition such instruments are not necessarily the same thing. Furthermore, in my view, the internal evidence within the letter of offer and the accompanying European Standardised Information Sheet does not support the view that these are one and the same thing. Those documents treat the endowment and life assurance policies and a pension policy as separate and distinct. While the European Standardised Information Sheet states that it “does not constitute a legally binding offer”, as it accompanies the letter of offer, it can be of assistance in the interpretation of that letter. 6.3.17 The letter of offer describes the loan as an “Endowment Residential Business Loan”. The amount of the endowment premium was not stated in the letter. The European Standardised Information Sheet stated that the amount of that premium “will be advised 21 on or prior to the date of cheque issue”. Special Condition M requires the maintenance of a pension policy and expressly says that “…at least one pension premium shall be paid prior to the loan drawdown.” The requirement that one pension premium must be paid before loan drawdown is entirely inconsistent with the statement that the amount of the endowment premium might be advised on the date of cheque issue. This is fundamentally inconsistent with the pension policy and endowment policy being the same thing. 6.3.18 Furthermore, the European Standardised Information Sheet specifies “Additional Recurring Costs” as “Life Assurance Endowment Policy Premium”, “Property Insurance Premium” and “Payment Protection Premium” but does not refer to pension policy payments. 6.3.19 It is also important to note that the amount borrowed was €260,
  41. It seems to be common case that the projected value of the pension funds was never going to be worth as much as the capital value of the loan when that became payable. As stated in the European Standardised Information Sheet, the proceeds of the endowment policy were “intended to equal or exceed the amount required to provide the balance required to repay the loan.” Indeed, this is consistent with the normal understanding of endowment mortgages which operate on the basis that there would be a pot of money to pay off the balance remaining on the mortgage loan on a particular date. This strongly suggests that the pension policies and the endowment policy are two different things. 6.3.20 The plaintiff also relies on clauses 14 and 18 to say that the pension policy was assigned to Havbell or that the Secretary of Irish Permanent was appointed as attorney to “claim agree recover any sum or sums payable in respect of any Policy of Insurance or Assurance…which is assigned by the Mortgagor to the Irish Permanent…” respectively. He said for the first time in his replying affidavit to the application to strike out his claim that the defendant “assigned the pension policies to the mortgagees and then in breach of contract retained or drawndown (sic) the monies for her sole use and benefit.” No evidence was adduced upon which I can be satisfied that the pension policies were assigned to Irish Permanent/Havbell other than this assertion in the plaintiff’s replying affidavit. The only basis upon which I was invited to make that finding is clause 14, but in order for me to conclude to the required standard that this applies, I would have to be satisfied that there is a strong case that the pension policies are a “Related Right”. There is no basis upon which I can conclude that there is a strong case to that effect. All of the Related Rights (other than the benefit of Mortgage Protection Insurance) are rights that are directly connected with the Property. A pension policy is not connected with property. 22 6.3.21 In my view, when the documents are read in their entirety, it cannot be concluded that the plaintiff has established a strong case that the life or endowment policies on the one hand, and the pension policy referred to in Special Condition M, are one and the same thing and, in those circumstances, I could not conclude, on the basis of the evidence that was before me at the original hearing, that the plaintiff had established a strong case that he was likely to succeed in showing that the defendant was under a contractual obligation to apply the pension payments to the redemption of the mortgage. 6.3.22 However, as discussed above, further documents were subsequently put into evidence by the defendant. Crucially, these documents contained a document headed “Undertaking” and a fax cover sheet which referred to Eagle Star and the pension policy numbers. The undertaking itself was completed by Ms. Curry, the defendant. It stated, inter alia: “I Elizabeth [Curry] of [Address] in consideration of the Irish Life & Permanent plc making an advance on foot of the above offer advance hereby undertake with the Irish Life & Permanent plc as follows:
  42. To repay all sums outstanding on foot of the said advance to the Irish Life & Permanent plc out of the lump sum available to me from the Pension Company Name: Eagle Star Pension Policy No: 11099702 & 11101767 or any subsequent Policy or Policies on retirement.
  43. Pending the repayment of the said advance, not to assign, create any trust over, or in any manner dispose of any interest in the said Pension Policy or policies or lump sum payable thereunder, not to allow the said Pension Policy or policies or said lump sum to be appropriated by any other person whether by enforcement of judgements or attachment or otherwise
  44. To opt for the maximum or such lump sum as shall be sufficient for the repayment for the advance.
  45. To do all things necessary to ensure that the lump sum to become available to on foot of the said Pension Policy or policies shall be sufficient to redeem the said advance on my retirement or the expiry of the loan whichever is the earlier.” 6.3.23 It is dated the same day as the letter of offer and appears to have been faxed that day. 23 6.3.24 This undertaking is not pleaded as the basis for the plaintiff’s claim that the defendant was under an obligation to use the pension monies to pay down the mortgage. However, it seems to me that it is sufficiently closely connected with the matters that are pleaded that I should consider it subject to the plaintiff amending the pleadings. 6.3.25 In light of the very clear terms of this undertaking there is an undoubtedly strong case that the plaintiff is likely to succeed in establishing that the defendant was under a contractual obligation to use the proceeds of the pension policy to the repayment of the loan. 6.3.26 I am also satisfied that there is a strong case that the plaintiff is likely to succeed in establishing that the obligation was owed to him and not just to Irish Permanent. It seems to me that there is a strong case that the plaintiff will be able to establish that the contract between Irish Permanent and the plaintiff and defendant gives rise to mutually enforceable conditions as between the plaintiff and the defendant. Balance of Justice 6.3.27 However, the plaintiff must also establish that the balance of justice favours the grant of the interlocutory injunction sought. I am not satisfied that he has discharged that burden. 6.3.28 I am of this view for two reasons. 6.3.29 There was very significant delay on the part of the plaintiff in seeking the interlocutory relief. The Plenary Summons was issued on the 17th June 2021 and was served some time on or before the 14th December
  46. The motion seeking interlocutory relief was not issued until the 17 th May
  47. No explanation was offered by the plaintiff for this delay of almost a year. This delay is particularly significant in circumstances where the Plenary Summons is grounded squarely on the alleged breach of contract by the defendant in “failing to pay proceeds from life pensions to the mortgagee as part of the redemption of the mortgage in accordance with the special conditions of the said mortgage…” This is yet more significant in circumstances where in his letter before action dated the 7th May 2021 the plaintiff had demanded the return of the sum of €160,000 within seven days failing which the plaintiff would issue proceedings in the High Court “including a motion seeking injunctive relief to compel” the plaintiff to return those monies. 24 6.3.30 In my view, the plaintiff’s failure to act with any expedition at all is in itself sufficient to find that the balance of justice does not favour the grant of the interlocutory injunction. 6.3.31 I am also satisfied that damages would be an adequate remedy. The plaintiff’s claim is essentially for a sum of money and there is no evidence that damages would not be an adequate remedy. Traditionally, the fact that damages would be an adequate remedy was determinative. O’Donnell J held in Merck Sharp & Dohme that the adequacy of damages was to be part of the assessment of the overall balance of justice and, therefore, was not in itself determinative. However, he also said that the adequacy of damages will generally be the most important component in the assessment of the balance of convenience/justice. 6.3.32 I am therefore satisfied that the balance of justice does not favour the grant of an interlocutory injunction.
  48. MOTION TO STRIKE OUT THE PLAINTIFF’S CLAIM 6.4 The defendant seeks an Order striking out the plaintiff’s claim under Order 19 Rule 28 on the grounds that it discloses no reasonable cause of action and/or is frivolous and vexatious, or under the Court’s inherent jurisdiction on the grounds that it is an abuse of process and/or otherwise bound to fail. 6.5 She does so on six separate bases (five of these are set out in paragraph 50 of the written submissions filed on her behalf, and the sixth was raised at the hearing): (i) that the pleadings disclose no cause of action by the plaintiff against the defendant. It is submitted that any claim that is disclosed (and it is not accepted that any is disclosed) is a claim against Havbell; (ii) that the actions in negligence and breach of contract are so improperly and inadequately pleaded an amendment would not be sufficient to save them and that an entirely new Statement of Claim would be required; (iii) that the proceedings are an attempt to continue to litigate in relation to the property in respect of which final Orders for Possession have been made; (iv) that the arguments which the plaintiff now raises should have been raised at the hearing for the Order for Possession; (v) that the proceedings are a fruitless exercise as there is no indication that Havbell are willing to redeem the mortgage; and (vi) that the documents do not disclose any contractual obligation on the defendant to put the monies towards the redemption of the mortgage. 6.6 It follows from my conclusion that the plaintiff has satisfied the threshold test for an interlocutory injunction, i.e., that the plaintiff has a strong case that he is likely to 25 succeed in the proceedings, that I can not conclude that the claim discloses no reasonable cause of action or that it is bound to fail on grounds (i) or (vi). Some additional consideration must be given to (ii), (iii), (iv) and (v). 6.7 The principles applying to applications to strike out are very well-established and are considered in cases such as Barry v Buckley [1981] IR 306, Jodifern v Fitzgerald [2000] 3 IR 321, Salthill Properties Ltd v Royal Bank of Scotland plc [2009] IEHC 207, Lopes v Minister for Justice, Equality and Law Reform [2014] IESC 21, Keohane v Hynes [2014] IESC 66, and Wilkinson v Ardbrook Homes Ltd [2016] IEHC
  49. 6.8 The burden of proof on such an application is, of course, on the defendant. 6.9 In relation to ground (ii), I accept that the case against the defendant is inadequately pleaded and will have to be amended to provide proper particulars of the claim. This is particularly so in light of the undertaking given by the defendant, which is not pleaded in the original Plenary Summons or Statement of Claim. Notwithstanding this deficiency, there is enough in the pleadings to deduce that a claim of breach of contract against the defendant is being maintained by the plaintiff. It is long-established that if a claim may be saved by an appropriate amendment, then it should not be struck out. 6.10 Grounds (iii) and (iv) can be conveniently taken together. As noted above, this case is one of a series of cases arising directly or indirectly from the plaintiff and defendant’s indebtedness to Havbell and the mortgage over the Property in which final Orders have been made in respect of the Property. This undoubtedly gives rise to a concern about these proceedings amounting to an attempt to litigate about the Property and seeking to make arguments that either have been raised or should have been raised in earlier proceedings, and a concern about the doctrine of res judicata or the rule in Henderson v Henderson. Indeed, part of the basis upon which Allen J struck out earlier proceedings brought by the plaintiff against Havbell (and upheld by the Court of Appeal) was the doctrine of res judicata and the rule in Henderson v Henderson. However, it seems to me that there is a sufficient difference between those earlier proceedings and the claim in the current proceedings to preclude me from finding that these proceedings are bound to fail or are an abuse of process on this basis. The current proceedings concern different parties. Furthermore, in summary, those earlier proceedings essentially concerned Havbell’s entitlement to possession of the Property. These proceedings are a claim against the defendant for the wrongful retention of monies. The Court, when hearing the substantive action, will have to ensure that the plaintiff is not permitted to raise the same issues or to use these proceedings as a collateral attack on those final Orders. That he might seek to do so is evident from the range and nature of the issues which he raised during the 26 exchange of affidavits in this case. However, provided the plaintiff is confined to the claim against the defendant for the wrongful retention of monies, I do not believe that I can conclude that the proceedings are frivolous or vexatious, bound to fail or an abuse of process on the bases of (iii) or (iv). 6.11 Ground (v) has been overtaken by the letters of the 2nd February
  51. CONCLUSION 8.1 For the above reasons, I will refuse the plaintiff’s application for interlocutory injunctions and will refuse the defendant’s application for Orders striking out the plaintiff’s claim. 27

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