ACC Loan Management Ltd v Stephens
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 27 July 2017 |
| Neutral Citation | [2017] IECA 229 |
| Date | 27 July 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 229 Record No. 2016/10 High Court Record No. 2008 No. 4753P |
[2017] IECA 229
Irvine J.
Irvine J.
Whelan J.
Barr J.
Neutral Citation Number: [2017] IECA 229
Record No. 2016/10
High Court Record No. 2008 No. 4753P
THE COURT OF APPEAL
Land – Laches – Bias – Appellant seeking to appeal against the judgment and order of the High Court – Whether High Court judge was biased
Facts: The first defendant/appellant, Dr Stephens, appealed to the Court of Appeal against the judgment and order of the High Court (Gilligan J) dated the 11th November, 2015. By his order he declared, inter alia, that the plaintiff/respondent, ACC Loan Management Ltd (ACC), was entitled to a first legal charge over the defendants’ interest in the lands and premises comprised in Folio 11109F for the Register of Freeholders, County Mayo on foot of an agreement (the loan facility) entered into by Dr Stephens and the second defendant, Mrs Stephens, on the 6th February, 2004. By his order the High Court Judge directed that Dr Stephens complete an indenture of mortgage and charge dated the 18th February, 2004 and that, should he default in so doing, an officer of the court be directed to complete same on his behalf. He also made an order that ACC recover as against Dr Stephens the costs of the proceedings, same to be taxed in default of agreement. An indenture of mortgage and charge was already executed on behalf of Mrs Stephens pursuant to the Order of the High Court (Murphy J) dated the 15th February, 2010 made in related proceedings and therefore, Mrs Stephens was not a party to the appeal.
Held by Irvine J that the High Court judge was correct in law when he concluded that the defence of laches as per para. 1 of Dr Stephens’ defence had to fail. The trial judge was, in Irvine J’s view, correct when at para. 39 of his judgment he concluded that the legal rights and obligations of the parties were not determined in any other earlier judgment. Irvine J also rejected the submission made by Dr Stephens based upon his “no transaction defence”; the decision in ACC Bank plc v Johnson [2010] 4 IR 605 was of no relevance to the facts under consideration in these proceedings. Having reviewed the transcript of the High Court hearing, the interventions of the trial judge in the course of the proceedings and the manner of his engagement with Dr Stephens, Irvine J was satisfied that Dr Stephens’ submission that the High Court judge was biased must fail.
Irvine J held that she would dismiss the appeal.
Appeal dismissed.
This is the first named defendant's (‘Dr. Stephens’) appeal against the judgment and order of the High Court (Gilligan J.) dated the 11th November, 2015. By his order he declared, inter alia, that ACC Loan Management Limited (‘ACC’) was entitled to a first legal charge over the defendants' interest in the lands and premises comprised in Folio 11109F for the Register of Freeholders, County Mayo on foot of an agreement (‘the loan facility’) entered into by Dr. Stephens and his wife, Maryanne Stephens (‘Mrs. Stephens’) on the 6th February, 2004.
By his order the High Court Judge directed that Dr. Stephens complete an indenture of mortgage and charge dated the 18th February, 2004 and that, should he default in so doing, an officer of the court be directed to complete same on his behalf. He also made an order that ACC recover as against Dr. Stephens the costs of the proceedings, same to be taxed in default of agreement. An indenture of mortgage and charge was already executed on behalf of Mrs. Stephens pursuant to the Order of the High Court (Murphy J.) dated the 15th February, 2010 made in related proceedings and therefore, Mrs. Stephens is not a party to this appeal.
By proceedings commenced on the 12th June, 2008, ACC sought, inter alia, a declaration that on foot of a loan agreement for the sum of €400,000 made between the parties on the 6th February, 2004 it was entitled to a first legal charge over the defendants' interest in the lands and premises comprised in Folio 11109F of the Register of Freeholders, County Mayo. ACC sought an order for specific performance of that agreement and an order directing Dr. and Mrs. Stephens to complete an indenture of mortgage and charge dated the 18th February, 2004 in respect of the aforementioned lands and premises.
ACC maintained that it was a term and condition of the loan facility that Dr. and Mrs. Stephens provide security to it in the form of a first legal charge in respect of their interests in the lands and dwelling house comprised in the aforementioned folio. ACC claimed that in reliance on the representations of its customers in this regard, it had advanced the sum of €400,000 which Dr. and Mrs. Stephens drew down on 1st March, 2004. ACC further claimed that, in breach of that agreement, they had refused to furnish the security as agreed.
The bank claimed that as a result of the breach of contract and misrepresentation on the part of Dr. and Mrs. Stephens it had suffered loss and damage insofar as it had been left without the security intended to support the aforementioned borrowings, namely the first legal charge over Folio 11109F of the Register of Freeholders, County Mayo.
Apart from the details provided in the preceding paragraphs, the following uncontroverted facts are also material to the appeal.
On the 13th February, 2004, Mr. Philip Clarke, a principal in the firm of Ledwidge Solicitors, executed a solicitor's undertaking on behalf of his clients, Dr. and Mrs. Stephens, to issue, stamp and lodge for registration an indenture of mortgage and charge creating a first legal charge over Folio 11109F of the Register of Freeholders, County Mayo within one month following receipt of the loan cheque. In May 2004, Mr. Clarke paid out to Dr. and Mrs. Stephens the funds which had been drawn down on foot of the loan agreement. At that time, he believed his clients had signed the indenture of mortgage and charge. His retainer was later terminated in October 2004.
On 16th August, 2006, the bank's solicitors, G.J. Moloney and Co. wrote requesting that the deed of mortgage and charge be executed urgently. Mr. Clarke replied stating that the undertaking earlier given would be complied with.
On 15th July, 2007, Dr. Stephens provided reassurance to ACC that he and his wife would execute the deed of mortgage and charge. In early 2009 however, and on the advice of an U.S. attorney, Dr. and Mrs. Stephens indicated that they would not sign the deed of mortgage and charge unless ACC increased the earlier loan facility to 65% of the value of the property, an ultimatum which the bank rejected.
On 2nd December, 2008, Mr. Clarke commenced plenary proceedings against his former clients seeking an order for specific performance directing them to execute the deed of mortgage and charge in favour of ACC. In the High Court, Murphy J. made such an order on 15th February, 2010 and further ordered that, in the event of default by the defendants in the execution of the deed, it should be executed by a named High Court Registrar on their behalf. Only Dr. Stephens appealed that order with the result that when Mrs. Stephens failed to execute the required deed of charge same was executed in her stead by Ms. Paula Healy, High Court registrar, as per the terms of the court order. ACC was not aware that the deed of mortgage and charge had been executed on behalf of Mrs. Stephens when it commenced these proceedings. It only became so aware in the course of the trial and as a result only sought the relief claimed against Dr. Stephens.
In May 2010, the Supreme Court set aside the order of Murphy J. insofar as it concerned Dr. Stephens and remitted Mr. Clarke's claim for specific performance back for hearing in the High Court. Mr. Clarke did not continue further with those proceedings.
The final matter that needs to be mentioned is the fact that Dr. and Mrs. Stephens did not honour their repayment obligations on foot of the loan agreement. As a result of their default, ACC commenced summary summons proceedings against them. In those proceedings (Record No. 2007/2253S) by order of the High Court (Ryan J.) dated 31st May 2012, ACC was granted judgment against Dr. and Mrs. Stephens in the sum of €775,234.57, together with an order providing for its costs of the proceedings when taxed. That decision is under appeal to this court in separate proceedings.
Having regard to the submissions made by Dr. Stephens on this appeal, I have decided to set out in a brief chronology some of the dates that are material to my decision.
17th December 2007: ACC issues summary summons proceedings against Dr. and Mrs. Stephens.
12th June 2008: Plenary summons
2nd December 2008: Mr. Clarke commenced plenary proceedings.
15th February 2010: The High Court granted judgment in default of defence against Dr. and Mrs. Stephens.
May 2010: Supreme Court set aside the order of Murphy J. against Dr. Stephens and remits the matter to the High Court for hearing.
14th August 2012: Dr. and Mrs. Stephens appeal the judgment of Ryan J. to the Supreme Court.
10th December 2012: ACC issued a motion to renew the plenary summons.
10th January 2013: Appearance of first defendant.
18th January 2013: Appearance of second defendant
5th June 2013: Judgment of Laffoy J. on ACC's motion to renew its summons.
16th September 2013: Statement of Claim
2nd December 2013: Defence of first and second defendants
4th April 2014 Reply to defence
24th April 2015: Notice of trial
14th October 2015: Notice to produce
11th November 2015: Judgment...
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...matters that have already been decided conclusively by a court of competent jurisdiction. 13 In ACC Loan Management v. Stephens [2017] IECA 229, Irvine J. explained the doctrine as follows: - ‘ Res judicata is a doctrine that exists for the purposes of precluding the same parties from re-l......
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