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Judge says pair consented to a move that saw ‘main, and arguably only’ plank of their claim disappear 
A couple who alleged they were wrongfully removed from their home in Killiney, Co Dublin on foot of a possession order have had their damages actions against a bank dismissed by the Court of Appeal. 
The actions were initiated in May 2012 by Brendan Kelly and Asta O’Kelly against State-owned Irish Bank Resolution Corporation (IBRC) and John Fitzpatrick, the then Sheriff for Co Dublin, after the latter and his staff attended at their home at St Matthias Wood, Church Road, a month earlier to execute a possession order. 
The plaintiffs were in the property at the time and alleged they were forcefully and wrongfully removed from their home and this constituted an assault. 
The action against the Sheriff, who maintained he was at all times acting lawfully under a court order, was dismissed on consent in 2017. 
The possession order had been obtained in June 2010 by Irish Nationwide Building Society (INBS) from the Circuit Court arising from mortgage arrears. It was made by consent of the plaintiffs, who were not at the time legally represented. 
IBRC, having taken over the assets of INBS on its collapse, applied to the High Court in 2017 to dismiss the plaintiffs assault actions against it, plus a third action alleging slander of title. IBRC sought the dismissal order on grounds including delay. 
The High Court, noting the bank had not applied to lift a stay on proceedings against IBRC generally before issuing its application, refused to dismiss the assault actions but dismissed the slander of title claim. 
IBRC appealed that refusal and the three judge Court of Appeal on Wednesday allowed the appeal and dismissed the assault claims. 
Giving the court’s judgment, Mr Justice Séamus Noonan said, before a statement of claim was delivered in the two assault actions, the third set of proceedings was initiated claiming damages for alleged slander of title to goods and property and trespass to the Killiney property. 
That included a claim the possession order was invalid and a lis pendens, a legal claim, was registered by the plaintiffs over the property. 
Not seeking to impugn 
IBRC, which had concluded an agreement to sell the property in August 2012, secured a High Court order the following month vacating the lis pendens. The High Court was told by counsel for the plaintiffs they were not seeking to impugn the possession order but were relaying on alleged unconscionable, unlawful and inequitable conduct of the bank. 
The High Court noted they were unable to suggest any basis for advancing a claim as to an interest in the property and found that was fatal to their claim. 
The effect of that earlier High Court judgment was to strike out the plaintiffs claim that the possession order was invalid, Mr Justice Noonan said. 
In their separate assault proceedings, Mr Kelly claimed, at a time he was not legally represented, he was asked by the bank to consent to a possession order and told it was unnecessary for him or his wife to attend court. He claimed their consent was ill-informed and of no legal effect. 
Mr Justice Noonan said the “main, and arguably only” plank of the plaintiffs claim against IBRC disappeared with the removal of the Sheriff from the equation, which the plaintiffs had consented to. 
Inordinate delay 
He said the High Court had found the delay in advancing all three cases was inordinate and inexcusable, but appeared to have been “unduly influenced” by the bank’s failure to seek to lift a general stay imposed by Ministerial order in February 2013 on proceedings against it. A judge ruled in March 2013 this was not a permanent stay but one capable of being lifted by court order, before seeking dismissal of the assault claims. 
The High Court also failed to take account of the fact a “significant change” in the assault proceedings was brought about with the removal of the Sheriff. 
This left what remained in the case “nebulous at best, and unstateable at worst”, he said. He could not agree that the stay issue tipped the balance of justice in favour of allowing these cases to proceed. 
It was also relevant there was no explanation of “any rational basis” for the surviving claims against the bank, he said. 
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