Proceedings against mortgage lender are res judicata save in respect of claim for breach of contract by way of overcharging of interest

By: Damian Byrne

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High Court, in proceedings relating to an order for possession granted over the plaintiff's property, grants the first defendant an Order striking out the proceedings as against it on the grounds that the proceedings are frivolous or vexatious and/or are bound to fail, save in respect of an element of the claim relating to an alleged overcharging of interest, on the grounds that this is the only aspect of the Plaintiff’s claim that is not res judicata or subject to issue estoppel as the amount of interest charged to the Plaintiff was not an issue in 2009 proceedings.

First Defendant seeks an Order striking out the proceedings as against it on the grounds that the proceedings are frivolous or vexatious and/or are bound to fail, either under the Court’s inherent jurisdiction or Order 19 Rule 27 or 28 of the Rules of the Superior Courts - claimed that issues raised are res judicata or cannot be pursued by application of the rule in Henderson v. Henderson [1843] 3 HARE 100, (1843) 67 ER 313 - Order was made by the High Court dismissing the Plaintiff’s proceedings against the Second Defendant - that Order has not been appealed - Plaintiff claims damages and an order removing any liens or charges from the Land Registry Folio - claims that the process which led to the grant of the order for possession on was unfair and breached the Plaintiff’s rights - insofar as the Plaintiff seeks to raise or re-litigate these issues in the current proceedings, he is not entitled to do so - those parts of the Statement of Claim which relate to these issues are unnecessary and would prejudice the fair trial of the action, and would add pointlessly to the length and cost of the proceedings - aspect of the Plaintiff’s claim relating to overcharging of interest is not res judicata or subject to issue estoppel as the amount of interest charged to the Plaintiff was not an issue 2009 proceedings - this element of the Plaintiff’s claim does not amount to a collateral attack on the order for possession, or the orders substituting the First Defendant as plaintiff and granting it liberty to issue execution. 

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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