Proceedings are res judicata where bank already has an order for possession

Appeal against an order of the President of the Circuit Court made on 19 June 2017 wherein he refused the defendants’ application on the trial of a preliminary issue for an order striking out, dismissing or staying the proceedings in respect of the six issues set out in an issue paper before the court - issue paper outlined whether or not proceedings should be struck out for abuse of process, estopped, stayed until a related costs matter is dealt with before the High Court or struck out on equitable grounds - plaintiff in this action seeks possession from the defendants of their family home - property was purchased by the defendants on 16 November 2006 for the sum of €2,600,000 - money so advanced by the plaintiff to the defendants was secured by a mortgage dated 16 November 2006 over the property - common case that the defendants defaulted in repaying the monies due and owing to the plaintiff - in December 2010 the plaintiff issued a Civil Bill for Possession of the property - on 13 December 2011 the Circuit Court granted an order for possession in respect of the property - defendants appealed this decision to the High Court - High Court stated a case to the Supreme Court - a day prior to the case being stated, the Land and Conveyancing Law Reform Act 2013 (“the 2013 Act”) was enacted to provide relief to lenders whose security was affected by the repeal of certain statutory powers by the Act of 2009 and to close the loophole identified in "Start Mortgages Limited" case - on 29 July 2014, and prior to any determination by the Supreme Court of the case stated to it by the High Court on the 25 July 2013, the plaintiff purported to discontinue the proceedings by issuing a notice of discontinuance in the High Court, dated 29 July 2014 - on 30 July 2014, the plaintiffs’ lawyers, in the presence of the defendants’ solicitor, informed the High Court that the proceedings were being discontinued and that the case stated was being withdrawn - on 17 August 2011 the plaintiff issued a summary summons seeking judgment in the sum of €1,987,213.36 as against the defendants - on 15 July 2015 the plaintiff issued a Civil Bill for Possession of the property to which the defendants entered an Appearance through their solicitor on 4 February 2016 - on 13 June 2016 the first named defendant swore an affidavit in which he raised the preliminary issues set out in the issue paper - no final judgment made in other proceedings - underlying judgment has not been vacated and remains in being - Rules of the Superior Courts do not provide for a mechanism whereby a notice of discontinuance can be served by a party to litigation that is under appeal - notice of discontinuance dated 29 July 2014 was not issued in accordance with the provisions of O. 26, r. 1 of the Rules of the Superior Courts - it follows that the withdrawal of the proceedings on 30 July 2014 is not entitled to the automatic protection that arises under O. 26, r. 1 of Rules of the Superior Courts - failure of the plaintiff to vacate the judgment of the Circuit Court given on 13 December 2011 prior to the commencement of these proceedings does, however, preclude the plaintiff from succeeding before this Court on the preliminary issue - plaintiff already has an order for possession and the matter is therefore res judicata - defendant's appeal allowed until plaintiff vacates Circuit Court order dated 13 December 2011.