High Court orders removal of litigant's caution from property folio to facilitate court sale.

[2017] IEHC 574

THE HIGH COURT

1986 No. 1055 SP

BETWEEN:

ULSTER BANK IRELAND LIMITED

PLAINTIFF

– and –

ROCKROHAN ESTATE LIMITED

DEFENDANT

JUDGMENT of Mr Justice Max Barrett delivered on 10th October, 2017.

I. The Caution

1. Mr Wymes is a veteran litigant. He has been involved in various court proceedings involving, inter alia, Ulster Bank Ireland and

Rockrohan Estate for a period in excess of 30 years. So numerous have been his trips to court that the Supreme Court, on 3rd April,

2009, made a so-called ‘Isaac Wunder order’ restraining Mr Wymes from bringing further proceedings against certain named

defendants without the prior leave of the High Court. Subsequent to that Isaac Wunder order, Mr Wymes brought further

proceedings, not against any of the defendants named in the Supreme Court order, but against one of his co-plaintiffs, Mr Richard

Wood. He was successful in those proceedings, entering judgment against Mr Wood on 8th February, 2010, and registering a

judgment mortgage over certain lands registered on Folio 28285, County Cork (the ‘Folio Lands’). On 2nd May, 2014, Mr Wymes issued

well-charging procredings against Mr Wood and Rockrohan Estate. On 19th May, 2014, he registered a caution against the Folio Lands

restraining any dealing with same, except after notice to him. There is no evidence before the court to suggest that Mr Wood has any

interest in the Folio Lands or any part of them. So on what basis has Mr Wymes registered his caution? In the affidavit in support of

his caution, Mr Wymes avers as follows:

“1. My interest in the property registered in the name of Rockrohan Estate…on Folio 28285 of the Register Co Cork

derives as follows.

(i) The entire issued ordinary share capital of Rockrohan Estate consists of 51,000 shares owned by Richard

Wood…who is also the beneficial owner of 1,000 6% Cumulative Preference Shares held in trust for him by the

Estate of John J Nagle (deceased). The remaining issued share capital consists of a further 1,000 6% Cumulative

Preference shares registered in the name of the executor of J. Wood, Rockrohan…Co Cork.

(ii) On foot of debt obligations incurred by Mr Wood to me as of 1st August 2006, I was by Order of the Master…

dated 16th October 2009 granted liberty by consent to enter judgment against Mr Wood in the sum of [€7m+]…

together with an Order for the costs of the proceedings when taxed and ascertained. Judgment was thereafter

entered in the Central Office on the 8th February 2010. As of the date of swearing hereof, the sum due and owing

under the said judgment including interest pursuant to the Courts Act 1981 as amended is in the order of €11

million.

(iii) On 28th April 2010, a judgment mortgage was registered by me against the interest of Mr Wood in Folio 28285.

(iv) On 3rd February 2014, a conditional Order Nisi was granted to me by the High Court directing that the shares

of Mr Wood in Rockrohan Estate stood charged with the payment of the amount of the judgment then owing

together with interest thereon accruing. The said matter has been adjourned until the 30th June next.

(v) Pursuant to his debt obligations, Mr Wood agreed with me, and it is recorded in letters sent by me to him in the

period 2009 to 2014 inclusive, that any offer for the Folio 28285 lands owned by him through Rockrohan Estate (and

other lands owned by him) would require my prior agreement before acceptance, and that absent my consent, he

would not dispose of any of the said lands.

2. The aforesaid facts are relied on to demonstrate an interest in the property registered in the name of Rockrohan

Estate by virtue of rights in, to and over the registered property or a registered charge”.

2. So, on the strength of (a) letters written by Mr Wymes to Mr Wood and (b) an alleged agreement between Mr Wymes and Mr Wood

concerning, inter alia, the actions of a third party (a company in which Mr Wood is shareholder), Mr Wymes has registered his

caution. As to (a), one person cannot bind another at law or in equity simply by writing letters which make assertions or claims. Were

matters otherwise, the rule of law would quickly succumb to a tyranny of letter-writers. Nor does non-denial of an averment yield the

necessary conclusion that that averment is true. As to (b), the rule in Salomon’s case established the general principle that control of

a company, however extensive, cannot justify the inference that a company and shareholder are to be treated as one legal entity.

There are exceptions to this principle; however, recent case-law in this (and the neighbouring) jurisdiction has demonstrated what

the learned authors of Keane on Company Law, 5th ed., 144, describe as a “decided concern from the judiciary that exceptions to

the principle in Salomon’s case must remain limited and rare”. There is no evidence before the court that exceptional circumstances

present, nothing to suggest, for example – to borrow from the renowned observation of Russell J. in Jones v. Lipman [1962] 1 All ER

442, 445 – that Rockrohan Estate is the creature of Mr Wood, “a device and a sham, a mask which he holds before his face in

attempt to avoid recognition by the eye of equity”. Even if there were some form of charging order in place over Mr Woods’ shares in

Rockrohan Estate (and there is suggestion in Mr Wymes’ affidavit evidence that this may be so) such an order would not and/or does

not transform Mr Wymes into an encumbrancer of any sort over the Folio Lands, let alone an encumbrancer with any priority over

Ulster Bank’s interests therein.

II. The Court-Ordered Sale

3. By a well-charging proceedings order, the High Court (Blayney J.) on 16th February, 1987 (a remarkably long time ago) (i) declared

a sum of IR£1.25m+ to be well-charged on Rockrohan Estate’s interest in the Folio Lands, together with continuing interest and costs,

and (ii) directed the sale of the Folio Lands through the court in default of payment. An appeal to the Supreme Court by Rockrohan

Estate resulted in a stay on the well-charging order until 2nd October, 1990. A notice to proceed with the court-directed sale was

filed on 12th February, 1999, and the court-sale process was then commenced before the Examiner. As part of that court-sale

process, advertisements for incumbrancers were published in the usual way calling on all persons claiming to be incumbrancers to

enter their claims at the Examiner’s office on or before 3rd May, 2005. Matters were delayed when Rockrohan Estate brought a judicial

review application against the Assistant Examiner seeking to prevent him proceeding with the court sale. That application was refused

by the High Court (McGovern J.) on 30th March, 2007. In January, 2009, Ulster Bank sought and, on 22nd January, 2009, obtained

from the High Court (Irvine J.) an order granting it possession of the Folio Lands for the purpose of carrying through the court sale,

which order was amended by a later order of the High Court (Irvine J.) on 2nd July, 2009. Rockrohan Estate appealed the possession

order to the Supreme Court, which appeal was heard on 27th January, 2015 and dismissed by order of that court on 26th February,

2015. Following that Supreme Court order, the court sale-process was re-entered in the Examiner’s Office by Notice of Intention to

Proceed dated 24th April, 2015. The matters has since been progressing within the Examiner’s Office and has been listed there from

time to time. As part of the preparations for the court sale of the Folio Lands a motion for directions was brought before the High

Court (Haughton J.) on 20th March, 2017, when a further order was made directing, inter alia, that Ulster Bank be at liberty to offer

the Folio Lands for sale by private treaty. Following the said directions order, conveyancing counsel to the court was re-briefed and

requested to prepare particulars and conditions of sale and to advise generally. Arising out of her review of title to the Folio Lands,

court counsel has now advised that before she can settle particulars and conditions of sale, steps be taken, inter alia, to remove the

caution registered by Mr Wymes. Among the complaints made by Mr Wymes is that he has not had sight of this advice. He, of course,

has no entitlement to see advice which is clothed by legal professional privilege. However, the court understands from the

submissions at the hearing of the within application that a particular concern presenting with respect to Mr Wymes’s caution

remaining on-record is that he is such a notorious litigant that prospective purchasers finding a caution registered against him would

be loath to proceed for fear of becoming embroiled in litigation with him. Whether that risk is altogether obviated by the court

removing the caution remains to be seen. However, for the reasons stated above, there is, on the evidence before the court, no

reason why the caution should remain.

4. In passing, the court notes Mr Wymes’ contention at hearing that his caution refers to any “dealing by the registered owner” and

thus has no bearing on a court sale. The court has already adverted to the difficulty presenting for the court sale by virtue of Mr

Wymes’ caution. However, it is, in any event, flawed logic to contend that in the absence of any evidence justifying a caution on a

folio, such a caution should or would be allowed by the court to remain extant.

III. The Valuation of the Land.

5. Mr Wymes has alleged that the Folio Lands are being advertised for an amount less than their true value. Mr Wymes has no

standing to make any such comment or to be heard at all in this regard. The court has before it, in any event, a formal letter from

Lisney, the well-known estate agents and valuers, indicating that the guide price settled upon represents a proper valuation and, on

that basis, is satisfied that such is so.

IV. The Order Sought

6. By notice of motion dated 24th May, 2017, Ulster Bank seeking, inter alia, the following orders: (i) an order directing the Property

Registration Authority (the ‘PRA’) to remove the caution registered against Folio 28285, County Cork, on 19th May, 2014, by Mr

Wymes; (ii) if necessary, an order directing the PRA to remove a caution registered against the Folio Lands by an individual by the

name of Mr Thomas McCarthy. For the reasons aforesaid, the court is satisfied to make the order referred to at (i). The affidavit

evidence before the court suggests that the caution referred to at (ii) is in any event going to be removed without any need for

court intervention; should this change, further application can then be made.