Allied Irish Bank Mortgage Bank UC and Another v Burke

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 09 July 2025
• Neutral Citation: [2025] IECA 139
• Docket Number: Court of Appeal Record Number: 2024/231

Between/

Allied Irish Mortgage Bank UC and Allied Irish Bank Plc

Plaintiffs/Respondents

and

Justin Burke

Defendant/Appellant

[2025] IECA 139

Whelan J.

Faherty J.

Pilkington J.

Court of Appeal Record Number: 2024/231

THE COURT OF APPEAL

CIVIL

Possession orders – Sale of property – Adjournment – Appellant appealing against orders for possession and sale of property – Whether an adjournment ought to have been granted

Facts: The respondents, Allied Irish Bank Mortgage Bank UC and Allied Irish Bank Plc, sought orders for possession and sale of identified property pursuant to proceedings Record No. 2023/338SP. Same came on for hearing in the High Court on 29 July 2024 before Mulcahy J. The appellant, Mr Burke, appealed to the Court of Appeal against orders made by Mulcahy J on 29 July 2024 where, the appellant having failed to attend the hearing, the judge granted judgment in favour of the respondents. The appellant contended that an adjournment ought to have been granted. In essence the substance of the appeal distilled down to a number of net points: (1) Was Mr Burke duly served with the proceedings such that he was aware that the application was before the High Court on 29 July 2024? (2) Did the lawyers for the respondents fail to “make the court aware” that they were in possession of an affidavit from Mr Burke’s doctor? (3) If aware of the medical evidence, was the judge entitled in the exercise of his undoubted discretion to proceed with the hearing in the absence of Mr Burke? (4) Did the granting of a stay by the judge indicate that he knew and accepted “that there was something wrong” as asserted?

Held by Whelan J that it was demonstrable that there was no valid application for an adjournment by or on behalf of Mr Burke before Mulcahy J on 29 July 2024; neither was the material before the court in any sense sufficient to warrant the granting of an adjournment of the proceedings. Whelan J held that Mr Burke’s proofs in respect of any medical condition were inadequate, noting that there was no appropriate prognosis, no explanation for the fact that notwithstanding a recommendation to attend a psychiatrist he had elected not to do so and what relevance if any his own chosen course of action might have on his indisposition; neither was there any identification of any date by which the appellant expected to be in a position to attend court. Whelan J noted that the appellant did not identify any stateable basis on which he anticipated defending the claim. She found that there was force in the respondents’ argument that Mr Burke had repeatedly adopted a strategy of attempting to frustrate the progress of the litigation together with the related plenary proceedings brought by the respondents to enforce their security and recover sums of money due and owing to them by the approach of repeatedly producing inadequate letters from his GP to justify non-attendance in court. Whelan J noted that he had never identified any evidence or put forward any submission by way of defence to the claim; nor did he identify any date when he expected that he would be in a position to attend court in the future. She noted that in his notice of appeal wherein he sought orders setting aside the entirety of the orders made on 29 July 2024 by Mulcahy J, he based that application not on any issue going to the merits of the claim but rather on grounds of alleged bias and prejudice and failure to give weight or regard to the fact that he had been “certified ill by his Doctor”; those were serious allegations not supported by any evidence.

Whelan J dismissed the appeal.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 9th day of July 2025

Introduction

1 . This is an appeal by Mr. Justin Burke (the appellant) against orders made by Mulcahy J. in the High Court on 29 ^th June 2024 where, the appellant having failed to attend the hearing, the judge granted judgment in favour of AIB Mortgage Bank and Allied Irish Banks Plc (the respondents). The appellant contends that an adjournment ought to have been granted.

Background

The 2014 proceedings

2 . In High Court proceedings (Record Number 2014/2737S) brought by the respondents by way of summary summons, against, inter alia, the appellant on 3 ^rd July 2015, the appellant consented to an order that the first named respondent was entitled to recover against him the sum of €1,616,934.11 (with no order as to costs) and that the second named respondent was entitled recover against him the sum of €4,233,606.66 (with no order as to costs).

The 2023 Plenary proceedings

3 . Subsequently, a third party, the appellant's sister-in-law, brought High Court proceedings (Record Number 2023/822P) against the respondents and inter alia the appellant, contending that she held a beneficial interest in Doughiska Ardaun Developments Ltd., a company otherwise understood to be beneficially owned by Mr. Burke, and over which the respondents sought to appoint a Receiver. It is noteworthy in the context of the appellant's non-attendance in the High Court on 29 ^th July 2024, which is the subject of this appeal, that a year previously on Wednesday 28 ^th June 2023, in the said plenary proceedings, at the hearing of the respondents' motion seeking discovery against him of specified categories of documents, the appellant had also failed to attend court instead seeking an adjournment on the basis of a Doctor's Certificate. In the course of his ruling, and explicitly embodied in the order of the High Court, which was perfected on that occasion on 28 ^th June 2023, Dignam J. directed that Mr. Burke, the appellant:-

“…do have until the close of business on Monday the 3rd day of July 2023 to provide adequate medical evidence on Affidavit preferably to be in the form of an Affidavit by a General Practitioner or a Report of a General Practitioner appended as an Exhibit to an Affidavit

And the Court suggesting that such evidence should provide more detail than what has been provided thus far same to include a prognosis and timeline for when the condition of the Second Named Defendant will abate sufficiently so as to proceed with the within action.”

The order went on to expressly provide that the respondents “do notify [Justin Burke] of the within Order being made on this day at Old Doughiska Road Galway same being the address of … [Justin Burke] by ordinary pre-paid post and by email to …[specified email address] and by leaving a true copy of the said pleadings at the entrance gate to … [Justin Burke's] address at Old Doughiska Road Galway.”

4 . When that application again came before the High Court on 7 ^th July 2023 there was still no attendance in court by Mr. Burke. Dignam J. proceeded to hear the motion and grant the order for discovery. Amongst the evidence considered by Dignam J., as recited on the face of the said discovery order (perfected on 14 ^th July 2023), was an affidavit of the appellant's G.P. Dr. Adrian Carney, filed on 5 ^th July 2023.

5 . Within the original debt proceedings (2014/2737S) the respondents on foot of a motion dated 14 ^th July 2023 sought and the High Court granted an order pursuant to Order 46, rule 1 of the Rules of the Superior Courts and/or section 23 of the Debtors (Ireland) Act 1840 (as amended) and/or section 132 of the Common Law Procedure Amendment Act (Ireland) 1853 that the sum due and owing by the appellant to the first named respondent on 28 ^th June 2021 of €1,103,526.60 and as of the same date the sum of €5, 333,026.38 due and owing by the appellant to the second named respondent consequent upon the order of the High Court made on 3 ^rd July 2015 to which Mr. Burke had consented stood well charged on shares held in the name of a third party in the company. Same were declared to be held in trust for the appellant as “being the beneficial owner of the said shares until payment and unless [Justin Burke] … shall show cause to the contrary”. It was further recited on the face of the court order that the sums as of the said date of the order, namely 7 ^th March 2024, due and owing by the appellant to the first named respondent on 29 ^th February 2024 was €1,141, 174.24 and in respect of the second named respondent €5,071,046.92. It was further ordered that the conditional order previously made on 13 ^th July 2021 against, inter alia, the appellant herein be made absolute and the sums standing charged upon the shareholding of the appellant in the company Doughiska Ardaun Developments Ltd.

Application for Orders for Possession and Sale 2024

6 . The proximate reason for the within application arises from the respondents' seeking orders for possession and sale of identified property pursuant to proceedings Record Number 2023/338SP. Same came on for hearing in the High Court on 29 ^th July 2024 before Mulcahy J. There was no attendance in court by or on behalf of Mr. Burke “… or any person in receipt of the profits of 22, 23, 24 or 25 Garrai Sheain Doughiska County Galway.” The order directed that the appellant forthwith upon service of the order upon him deliver up to the respondents “ or to some person duly authorised by it in writing in that behalf possession of [the lands] comprised of Folio 68555F of County Galway which includes 22, 23, 24 and 25 Garrai Sheain, Roscam, County Galway.” Further consequential orders were made including authorisation to sell the aforesaid lands and premises pursuant to s.100(3) of the Land and Conveyancing Law Reform Act 2009 and a consequential account and inquiry to be taken as specified.

Hearing of 29th July 2024

7 . The appellant repeatedly suggests (including at grounds 8, 9 and 10) that the respondents and their solicitors had engaged in conduct including “ not making the Court aware of the full facts of previous hearings and my Doctors certificates and the Doctors Affidavit…”. This assertion, as the affidavits and transcripts demonstrate, is...