AIB Mortgage Bank v Thompson No.2

JudgeMs. Justice Baker
Judgment Date20 June 2018
Neutral Citation[2018] IEHC 306
CourtHigh Court
Docket Number[2016 No. 864 S]
Date20 June 2018

[2018] IEHC 306


Baker J.

[2016 No. 864 S]


(NO. 2)

Interbank transfers – Asset Covered Securities Act 2001 s. 58 – Summary judgment – Plaintiff seeking High Court to revisit its judgment – Whether there was a public interest to be gained by the revisiting of the judgment

Facts: The High Court (Baker�J), in a judgment delivered on 31 July 2017, determined that the plaintiff, AIB Mortgage Bank, was entitled to summary judgment against the defendant, Ms Thompson, in the sum of €244,591.69. The plaintiff subsequently applied to the High Court seeking that Baker J would exercise the established jurisdiction to revisit the judgment. The plaintiff argued that the substantive judgment was liable to cast doubt on the legal effect of interbank transfers made pursuant to a scheme under s. 58 of the Asset Covered Securities Act 2001 and, in those circumstances, Baker J was asked to “amplify” her reasoning or clarify the legal position.

Held by Baker�J that the overriding principle must be the constitutional imperative that justice be administered in a way that leads to certainty, and that certainty requires that there be an end to litigation. Baker J considered that in a suitable case, if the provisions of the 2001 Act are opened and fully argued before the court, the matter may be appropriately determined; there was nothing preventing the plaintiff or another credit institution, in those circumstances, from fully ventilating the argument. Accordingly, Baker J considered that there was no public interest to be gained by the revisiting of the judgment.

Baker�J held that she would refuse to accede to the request of the bank that she should revisit her judgment.

Request refused.

JUDGMENT of Ms. Justice Baker delivered on the 20th day of June, 2018

In my written judgment delivered on the 31 July 2017, [2017] IEHC 515 (‘the principal judgment’), a determination was made that the plaintiff was entitled to summary judgment against the defendant in the sum of €244,591.69.


The defence offered by the defendant to the claim for summary judgment was that by reason of an alleged failure to give her express written notice of the assignment, the requirement of s. 28(6) of the Superior Court of Judicature (Ireland) Act 1887 (‘the Supreme Court of Judicature Act’) the plaintiff had failed to show that it had taken a valid transfer from the original creditor, Allied Irish Banks Plc. (‘AIB’).


In my judgment, I determined that sufficient express notice to the debtor of the assignment of the debt had not been served for the reasons therein stated. However, I considered that an assignment of the debt had occurred in equity, that as the debt was actionable in equity, and as there was no argument to be made that any equitable principle was engaged, nor was there any question of priorities, judgment was to be entered against the defendant.


Subsequent to the delivery of the judgment, and before a final order was made, counsel on behalf of the plaintiff sought that I would exercise the established jurisdiction to revisit the judgment. That application proceeded in circumstances where the plaintiff agreed to indemnify the defendant in respect of her costs of defending the application and, following directions, it was agreed that the defendant would be entitled to the costs of instructing solicitor and junior and senior counsel to deal with the application.


The plaintiff does not assert that the decision given in its favour was wrong, and as the plaintiff succeeded in obtaining summary judgment, it would be absurd for it to argue otherwise. However, the plaintiff now seeks that the decision be revisited because it is argued that the plaintiff had a complete answer to the defence proffered derived from the Asset Covered Securities Act 2001 (‘the ACS Act’) and that, by virtue of the provisions of s. 58 of that Act, no notice in writing of an assignment was required in respect of bank assets transferred by AIB to the plaintiff.


The plaintiff's particular concern is that the focus of the judgment on s. 28(6) of the Supreme Court of Judicature Act is liable to be misinterpreted and relied on in other litigation, and result in a degree of litigation chaos and uncertainty in the law.


The plaintiff argues that the substantive judgment is liable to cast doubt on the legal effect of interbank transfers made pursuant to a scheme under s. 58 of the ACS Act and, in those circumstances, I am asked to ‘amplify’ my reasoning or clarify the legal position.


In the course of submissions, counsel for the plaintiff informed me that € 7.8 billion of bank loans had been transferred to it pursuant to the ACS Act, and that the risk of legal uncertainty was such that it is in the public interest that the reasoning be amplified.

Jurisdiction to revisit a judgment

No final order was made in the case, as the judgment was delivered on the last day of the Summer Term, and the matter was adjourned pending a hearing on costs, until October 2017. At that stage, it was indicated that an application to revisit the judgment would be made, and accordingly, the final order entering judgment was not perfected.


In his first judgment in In re McInerney Home Ltd. [2011] IEHC 25, Clarke J. considered the jurisdiction of a court to revisit a decision at any time up to the perfection of the order. Clarke J. reviewed the judgment of the Court of Appeal for England and Wales in Paulin v. Paulin [2009] EWCA Civ 221, [2010] 1 WLR 1057 at para. 3.6, and quoted with approval the lengthy passage of the judgment of Wilson L.J. which he described as ‘detailed and comprehensive account of the history of the jurisprudence’.


The jurisdiction may be exercised before the proceedings have come to a final end by the making of a final order. It can, but does not always have to, involve a reversal of the decision and can amount to what Wilson L.J. called in Paulin v. Paulin, at para. 30, an ‘amplification of the reasons which [a judge] has given’. He described the circumstances on which an amplification could occur as where the decision was ‘allegedly inadequate’ and referred to an earlier judgment in which the ‘inadequate reasons’ were his own.


The courts of England and Wales, initially, did not favour a narrow approach to the circumstances in which it would be proper for a judge to exercise the jurisdiction to revisit a decision prior to the perfection of an order, and had evolved an approach that did not limit such circumstances to cases of manifest error or omission, although there seemed to be a view that a written judgment which has been disseminated as a draft only may be more open to reversal than one formally handed down and, thus, finally delivered. Wilson L.J. referred in this context to the decision in Robinson v. Bird [2003] EWCA Civ 1820, [2004] WTLR 257.


After some evolution in judicial thinking in the courts of England and Wales, the matter seems to have been firmly determined in In re Barrell Enterprises [1973] 1 WLR 19, in which the High Court for England and Wales held that the circumstances in which the jurisdiction to reverse might be exercised should be ‘exceptional’, although the language of ‘strong reasons’ is also used. That is the preferred approach in the Irish jurisprudence.


One particular basis on which the courts of England and Wales have exercised the jurisdiction to revisit a decision is where the court's attention is not drawn to a particular matter, and in the example given by Wilson L.J., in In re Australian Direct Steam Navigation Company (Miller's Case) (1876) 3 Ch D 661, the Articles of Association of a company which had not been drawn to the attention of the court led the court to the opposite conclusion to that which was reached. Another example given was the judgment of the Court of Appeal for England and Wales in In re Harrison's Share [1955] Ch 260, where the House of Lords had made a pronouncement regarding the jurisdiction of the court to vary a trust which rendered a judgment delivered ten days earlier by the lower court wrong in law.


In his first judgment in In re McInerney, Clarke J. adopted the analysis of Wilson L.J. that the jurisdiction to revisit should be sparingly exercised, and summarised the law in this jurisdiction as follows:

‘In those circumstances, it seems to me that, in order for the court to exercise its jurisdiction to revisit a question after the delivery of either an oral or written judgment, it is necessary that there be “strong reasons” for so doing’, at para. 3.7.


Clarke J. noted the range of circumstances in which the jurisdiction could be exercised, including where a material matter was not drawn to the attention of the court or where a judge simply changed his mind following the delivery of judgment, albeit the example was more in regard to the quantum of damages to be awarded than a legal principle. As he said at para. 3.12, a ‘simple error’ of the judge would be more readily amendable to being revisited, such as where a computational error had been made in the assessment of damages.

Respect for finality: the obligation to explain

The jurisdiction to revisit or even reverse a decision must respect the importance of the principles enunciated in Henderson v. Henderson [1843] 3 Hare 100, and this was the approach of the Supreme Court in In re Vantive Holdings [2009] IESC 69, a case involving examinership, where the court placed some emphasis on the fact that additional material sought to be relied on in a second petition could have been included in the first petition and that no acceptable explanation had been given for the failure to do so.


One of the principles protected by Henderson v. Henderson is legal certainty and the avoidance of procedural chaos, and one means by which the court approaches the introduction...

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