High Court: Claim against Attorney General stayed pending determination of receiver sale dispute

About this case:

• Citation:
  [2024] IEHC 682
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Conor Dignam

Delivering judgment for the High Court in November, Mr Justice Conor Dignam found that he could not conclude “that this claim against the Attorney General discloses no reasonable cause of action, is frivolous or vexatious or is bound to fail”.

Background

The proceedings concerned a receiver sale to the third defendant of lands owned by the first and second plaintiffs. 

Following the completion of the sale was completed, the Property Registration Authority (PRA), being the second defendant, registered the third defendant’s ownership of the lands in 2019. The plaintiffs claimed that the sale was unlawful and constituted an attack on their property rights. 

In respect of the PRA, the plaintiffs alleged inter alia that as custodian of the Registration of Title Act 1964, the PRA acted wrongfully and misapplied statutory law by assisting the other defendants in registering a transfer of title which was on foot of an unlawful sale. The plaintiffs also pleaded that the PRA’s conveyance of the benefit/interest of a legal charge was a statutory fraud pursuant sections 30 and 30(1) of the 1964 Act.

The plaintiffs also appeared to plead that the Attorney General was responsible for supervising the PRA and so was vicariously liable for its alleged wrongdoing and directly liable for failing to supervise it adequately, and that the Attorney General failed to advise the government to put legal provisions in place to protect the plaintiffs and therefore the State has not protected their rights.

The State defendants sought an order striking out the plaintiffs’ Statement of Claim pursuant to O.19, r.28 of the Rules of the Superior Courts insofar as it related to them on the basis that it did not disclose a reasonable cause of action and sought an order pursuant to the court’s inherent jurisdiction striking out the claim on the basis that it was bound to fail or was frivolous and vexatious.

The High Court

Mr Justice Dignam noted that at the hearing of the State defendants’ application, the third plaintiff clarified that the limit of the relief sought as against the PRA was an order directing the rectification of the register and that there was no case in fraud as against the State defendants.

The judge expressed that the reliefs sought as against the Attorney General remained “unclear”, having heard the third plaintiff’s explanation that all the plaintiffs were seeking from the Attorney General was to “undo the wrong done” to the first and second plaintiffs.

In this regard, Mr Justice Dignam considered: “This clearly suggests that the Attorney General is joined in respect of the claim for rectification of the register… I do not believe that it is quite so certain in respect of the second claim as it may be that the plaintiffs are claiming damages for the State’s alleged default in not having sufficient protections in place to properly vindicate their constitutional rights.”

Finding that the claims as against the PRA and the first claim against the Attorney General were to be treated separately from the second claim as against the Attorney General, the court reasoned that an order directing the correction of the register depended entirely on the plaintiffs succeeding in having the transactions between the other defendants set aside.

The court heard submissions from counsel on behalf of the PRA that it had no interest in the identity of the owner(s) of lands other than its statutory responsibility to ensure that the register is properly maintained and that if the register required rectification after the claim was determined, that would be done. 

The High Court also had regard to s.118 of the 1964 Act which provides an immunity to the PRA in respect of the exercise of its powers and further noted that there was no basis for the plaintiffs’ pleas that the act of registration conveyed title in the lands and that the PRA offered “assistance” to the defendants. 

Mr Justice Dignam was also satisfied that the first claim as against the Attorney General was bound to fail in circumstances where there was no basis in law for the plaintiffs’ claim that he is responsible for supervising the PRA, inter alia where s.9(3) of the Registration of Deeds and Title Act 2006 and s.8(6) of the Tailte Éireann Act 2022 expressly provide that the PRA is independent in the performance of its functions.

However, the judge found that the plaintiffs’ second claim as to the failure of the Attorney General to put proper safeguards in place instead appeared to be a case against the State, which would be a difficult case to make in light of s.97 of the 1964 Act providing for the registration of a caution, s.31 of the 1964 Act providing for the correction of the register and s.120 providing for compensation.

The court observed that its task in the application before it was to be satisfied that the plaintiffs’ claim could not succeed and determined: “I can not conclude, having regard to the high bar in question, that this claim against the Attorney General discloses no reasonable cause of action, is frivolous or vexatious or is bound to fail.”

Turning to the issue of whether the court could strike out part of the claim as against the Attorney General, Mr Justice Dignam agreed with the observations in Ballymore Residential Ltd & anor v Roadstone Ltd & Ors. [2021] IECA 167 and Christian v Symantec Ltd [2022] IEHC 397, noting that while the courts should be alert to the adverse impact of permitting the continuation of parts of cases which are bound to fail, the “new” O.19 r.28 now allows the court to strike out parts of a claim.

The judge stated: “The correct balance is that the court should be very slow to embark on such a process and should only contemplate doing so in rare and clear cases and, in particular, only where the claim is made up of separate and distinct elements.”

Conclusion

Accordingly, the High Court decided that there was no benefit to be gained by the maintenance of the proceedings against the PRA or the first claim against the Attorney General and made an order striking those elements of the proceedings out.

As to the second claim as against the Attorney General, the court placed a stay on the claim pending the determination of the claims as against the third to ninth defendants.

Cinnéide & Ors v An tÁrd-Aighne & Ors [2024] IEHC 682