ACC Bank Plc v Touhy

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 27 July 2023
• Neutral Citation: [2023] IEHC 460
• Court: High Court
• Docket Number: [Record No. 2010/4853S]

Between:-

ACC Bank Plc

Plaintiff

and

Brendan Touhy

Defendant

[2023] IEHC 460

[Record No. 2010/4853S]

THE HIGH COURT

JUDGMENT of Mr. Justice Barr delivered on the 27th day of July, 2023.

Introduction.

1 . This is an application by Pepper Finance Corporation (Ireland) DAC (hereinafter ‘the applicant’) for an order pursuant to O.17, r.4 of the RSC, substituting the applicant for the plaintiff in the proceedings and for an order pursuant to O.42, r.24, granting it liberty to issue execution of a judgment obtained by the plaintiff against the defendant in the Central Office of the High Court on 22 August 2011, pursuant to an order of the Master of the High Court dated 3 March 2011.

2 . The defendant resists these applications on a large number of grounds, which will be outlined later in the judgment.

Chronology of Relevant Dates.

3 . A brief chronology of the most relevant dates, is set out hereunder. Other matters which arose during these dates, will be outlined in more detail in the summary of the evidence.

11 October 2010	Summary summons issued by plaintiff seeking judgment against the defendant on foot of various loans.
8 November 2010	Order of Peart J. allowing for service of the summary summons on the defendant by ordinary prepaid post.
3 March 2011	Order of the Master of the High Court, giving the plaintiff liberty to enter final judgment for €1,350,409.30 against the defendant.
22 August 2011	Plaintiff obtains judgment in the Central Office against the defendant for the said sum, together with costs.
31 October 2018	Sale of loans by plaintiff to Cooperatieve Rabobank UA (hereinafter ‘Rabobank’).
17 December 2018	Deed of transfer from plaintiff to Rabobank.
12 April 2019	Agreement for sale of loans and other matters from Rabobank to Otterham Property Finance DAC (hereafter “Otterham”).
23 August 2019	Transfer date when Rabobank and ACCIL transferred all their rights to the applicant, as nominee for Otterham.
28 November 2022	Notice of motion issued by applicant, returnable to 13 February 2023, seeking to be substituted as plaintiff in the action and seeking liberty to execute on foot of the judgment obtained by the plaintiff against the defendant.
24 April 2023	Order of the High Court allowing the defendant's solicitor to come off record, and allowing Owen Swaine, Solicitors, to come on record for the defendant. Motion adjourned with directions to 15 May 2023.
7 July 2023	Applicant's motion comes on for hearing in the non-jury list.

The Evidence.

4 . As the defendant has raised a large number of objections to the granting of the reliefs sought by the applicant in this motion, it is necessary to set out in some detail, the extensive evidence that was put before the court on the hearing of this application.

5 . The applicant's application was grounded on the affidavit sworn by Ms. Margaret Cafferty on 23 November 2022. She is a portfolio manager in the applicant company. She stated that the applicant's application arose in circumstances where the applicant had acquired all the rights, title and interest in a portfolio of loans, which included the loan facilities the subject matter of the within proceedings.

6 . She referred to the order of the Master of the High Court dated 3 March 2011, in which the plaintiff was granted liberty to enter final judgment against the defendant in the sum of €1,350,409.30. That order provided that having read the summary summons, the notice of motion, and the grounding affidavit sworn by Mr. Gerard Ryan, and having heard the solicitor for the defendant, the Master ordered as follows:

“It is ordered that the plaintiff be at liberty to enter final judgment in this action for the sum of €1,350,409.30 together with the costs of the proceedings herein when taxed and ascertained.”

7 . Ms. Cafferty referred to the judgment which had been obtained by the plaintiff against the defendant in the Central Office of the High Court on 22 August 2011, which provided as follows:

“Pursuant to the Order of the Master of the High Court dated 3 ^rd day of March 2011 whereby it was ordered that the plaintiff be at liberty to enter final judgment in this action for the sum of €1,350,409.30 together with the costs of the proceedings herein when taxed and ascertained. It is this day adjudged that the plaintiff do recover against the defendant, Brendan Touhy, the sum of €1,350,409.30 and costs, when taxed and ascertained.”

8 . Ms. Cafferty stated that on 27 June 2014, the plaintiff reregistered as a private company and changed its name to ACC Loan Management Limited (hereinafter ‘ACCLM’). She exhibited a copy of the certificate of incorporation on reregistration as a private company and the certificate of incorporation on change of name. She went on to state that by resolution dated 13 July 2016, ACCLM converted to a designated activity company, in accordance with ss. 56(1) and 63 of the Companies Act 2014. She exhibited a copy of the certificate of incorporation on conversion to a designated activity company.

9 . Ms. Cafferty stated that on 31 October 2018, ACCLM agreed to sell and Rabobank agreed to buy ACCLM's loan portfolio. By Deed of Transfer dated 17 December 2018 ACCLM unconditionally, irrevocably and absolutely granted, conveyed, assigned, transferred and assured to Rabobank, all their rights, title, interest and benefit in and under each mortgage asset, underlying loan, and finance document thereto. She exhibited a copy of the Deed of Transfer dated 17 December 2018.

10 . By order of Haughton J., dated 28 January 2019, all the residual assets of ACCLM were deemed to be conveyed, assigned and transferred to and vested in ACC Investments Limited (‘ACCIL’) without the need for any other conveyance, assignment or transfer. She exhibited a copy of that order.

11 . Ms. Cafferty stated that on 12 April 2019, Rabobank agreed to sell and Otterham agreed to buy the contractual rights of Rabobank under the finance documents, including those relating to the loan assets the subject matter of the within proceedings. On 23 August 2019, being the ‘transfer date’ pursuant to the terms of a Deed of Transfer between Rabobank and ACCIL as transferors, and the applicant, as transferee, as the nominee of Otterham; Rabobank and ACCIL granted, conveyed, assigned, transferred and assured to the applicant all their right, title, interest, benefit and obligation in and under each of the underlying loans set out in part I of the schedule thereto, each of the finance documents and all other related rights. She exhibited a copy of the Deed of Transfer dated 23 August 2019.

12 . The exhibited Deed of Transfer established the mechanism by which the loan facilities the subject of the proceedings herein, the security, and all other rights connected therewith, were transferred to the applicant. The said loan facilities were identified in the schedule to the Deed of Transfer. Ms. Cafferty went on to state that the copy of the Deed of Transfer, which had been exhibited by her, was a true copy of the original deed (or the relevant extracts thereof); she stated that it had been redacted by reasons of commercial sensitivity, bank and client confidentiality, and on the basis of irrelevance.

13 . Ms. Cafferty stated that by letter issued on 28 August 2019, Rabobank notified the defendant in writing that the said loans, together with the related security, guarantees and other rights, had been transferred to the applicant on the transfer date. She exhibited a copy of that letter. She went on to state that by letters issued on or about 6 September 2019 and 30 September 2019, the applicant notified the defendant that the loans and security documents had been sold and transferred to the applicant. She exhibited copies of those letters.

14 . Ms. Cafferty stated that as a result of the transfers as outlined by her in the affidavit, it had become necessary and expedient that the applicant should be made a party to the within proceedings. She stated that an appropriate means to give effect to the change of interest that had occurred, was by substituting the applicant for the plaintiff in the within proceedings and thereafter the proceedings should carry on as between the defendant, as continuing party, and the applicant, as a new party, in place of the plaintiff. She also asked the court for an order dispensing with the need for reservice of such amended proceedings upon the defendant.

15 . At para. 18 of the affidavit, Ms. Cafferty stated that by reason of the change in ownership effected by the loan sales and transfers, as described in her affidavit, the applicant was now the party entitled to issue execution on foot of the judgment dated 22 August 2011. She stated that it was her belief that there were good grounds for making an order granting leave to the applicant to issue execution on foot of the judgment for the reasons she would outline in the affidavit.

16 . Ms. Cafferty went on to state that the letters previously exhibited by her in the affidavit, had invited the defendant to make payments to the applicant and had warned that the loan would otherwise go into arrears. The letter had informed the defendant that the applicant would need to complete customer due diligence checks for individuals and companies to comply with its obligations under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, as amended. She stated that the applicant then proceeded to carry out its own investigation to verify the identity of the defendant and ensure compliance with the Act. She went on to state that having carried out the due diligence investigations, the applicant made the decision to apply to be substituted as plaintiff in the action and to seek leave to execute on the judgment already obtained by the plaintiff. The applicant invited tenders to carry out the requisite...