Allied Irish Banks Plc v AIB Mortgage Bank and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 17 April 2015
• Neutral Citation: [2015] IEHC 247
• Court: High Court
• Date: 17 April 2015

[2015] IEHC 247

THE HIGH COURT

[Record No. 328 JR/2014]

Allied Irish Banks Plc & AIB Mortgage Bank v Honohan & Farrell

No Redaction Needed

JUDICIAL REVIEW

BETWEEN/

ALLIED IRISH BANKS PLC

-and-

AIB MORTGAGE BANK

APPLICANTS

-and-

EDMUND HONOHAN

RESPONDENT

-and-

ANGELA FARRELL

NOTICE PARTY

Order of mandamus – Order of certiorari – O. 38 of the Rules of the Superior Courts – Jurisdiction of Master of High Court – Judicial review

Facts: The applicant through judicial review sought an order of mandamus directing the respondent to refer the papers, court file, through the special summons earlier in the instant case to the Director of Public Prosecution alleging perjury committed by applicants. The applicants applied for an order quashing the decision of the respondent striking out the special summons without jurisdiction. The applicant contended that the respondent was under an obligation pursuant to O. 38 r. 6 of the Rules of the Superior Courts to place the matter before the concerned court.

Ms. Justice Iseult O'Malley held that the application for judicial review would be allowed. The Court held that the relief sought to first direct the respondent to make an order referring the papers, court file, through the special summons to the Director of Public Prosecution and thereafter quashing the said order would not be necessary. The Court ignoring the traditional procedure passed a declaration that the respondent did not have power to withhold the court file. Further, the Court held that the decision of the respondent striking out the special summons would be quashed for want of jurisdiction.

Introduction

1 The respondent to this application is the Master of the High Court. The case concerns the manner in which he dealt with a special summons issued by the applicant banks. The notice party is the defendant in those proceedings. She is a former solicitor, now bankrupt, but who was still in practice as a solicitor when the applicants initiated their action against her.

2 The proceedings sought enforcement of certain undertakings given by the notice party in her capacity as solicitor. As they were initiated by special summons, the matter came before the respondent in the first instance rather than being entered directly into the court list. It remained in the list over a period of months and was dealt with by the respondent on several separate occasions. On the 14 ^th May, 2014, the respondent announced that he was going to refer the papers in the case to the Director of Public Prosecutions because of what he considered to be perjury in one or more of the affidavits sworn by bank officials.

3 The applicants sought leave to seek judicial review of this decision. They claimed that the respondent, firstly, had taken it upon himself to enquire into the merits of the case when his function was purely administrative; secondly, had decided to send the papers in the case to the Director of Public Prosecutions for investigation into what he pronounced, wrongly and irrationally, to be perjury on the part of a bank witness; and, thirdly, had refused to draw up an order either confirming that decision (so that it could be appealed) or reflecting his refusal to draw up such an order (which could also be appealed).

4 After leave to seek judicial review had been granted, the respondent requested the applicants to withdraw the special summons proceedings (which were still before him). After they had refused to do so he struck out the summons. The applicants then obtained leave to amend the judicial review application in order to seek additional reliefs relevant to that decision.

5 The applicants say that in dealing with the matter as he did the respondent acted without jurisdiction and in an irrational and biased fashion.

6 The respondent takes the position that in deciding to send the papers to the Director of Public Prosecutions he was acting as a private citizen and is in that context not amenable to judicial review. It is also pleaded that the public has a right to expect every public official to report suspected crime, and that the applicants are attempting to prevent him from reporting a serious crime.

7 The respondent

"invites the Judge hearing this Judicial Review application to dismiss the application and instead refer the Plaintiff banks' Affidavits to the Director of Public Prosecutions."

8 He says that there is "incontestable prima facie evidence of perjury" and argues on this basis that it is inevitable that the matter must be referred to the DPP. The case is, he says, therefore moot.

9 It is claimed that the special summons proceedings against the notice party are in fact an attempt by the applicants to gain unjust enrichment, and that they should be refused relief in the judicial review, on the basis of the maxim ex turpi causa non oritur actio, because they are seeking to avoid the consequences of perjury.

10 It is denied that there is any evidence of bias, and it is pleaded that the applicants waived any right to object at the relevant hearing. It is further pleaded that the respondent at all times afforded fair procedures to the applicants.

11 The locus standi of the applicants is challenged on two grounds. Firstly, it is said, in effect, that the banks have no right to take this application because they have no special interest in their employees' "personal concerns". Secondly, there is an express plea that the applicants should lose their standing because the allegation of bias is a malicious abuse of the court's processes.

"The bank is seeking to engineer a general defamation of the Master, under cover of absolute privilege, leaving the Master with no remedy in defamation."

12 In relation to the striking out of the summons, the respondent says that he was entitled to do so because, despite several adjournments to facilitate correction of the banks' position, the case was not ready for hearing.

The evidence

13 The facts of the case as set out in the applicants' affidavits are not in dispute and the respondent has not filed an affidavit. The notice party, who supports the position of the respondent, did not appear in the matter before the respondent until the 23 ^rd July, 2014, and has not contradicted any averment made on behalf of the applicants as to what happened on that occasion.

14 Since the respondent stands over his view that there was evidence of perjury, and claims that this judicial review application is an effort by the applicants to cover up that evidence, the case will be laid out in considerable detail.

Background facts - the special summons against the Notice Party

15 The applicants had issued a special summons against the notice party, in which the reliefs claimed were an order that she comply with undertakings that she had given in her capacity as a solicitor, acting for customers of the banks in relation to loans relating to certain properties, and/or compensation for loss suffered by them as a result of her failure to comply with those undertakings.

16 Allied Irish Banks plc was the first named plaintiff on the summons and AIB Mortgage Bank the second. The loans in question, totalling in excess of €3 million, were all made to members of the same family. (Since it is accepted that the borrowers have not defaulted on the loans, they were not joined as parties in either the special summons proceedings or before this court and there is no need to identify them in this judgment.)

17 The schedule to the summons listed eight undertakings, given by the notice party to the plaintiffs on dates between February, 1999 and March 2009, covering some twenty properties. As the schedule is relevant to at least some of the difficulties that subsequently arose, it is here set out in full.

1 Solicitor's undertaking dated 25 May 2005 in favour of the First Named Plaintiff pertaining to Apartment Nos. 8, 23, 31, 55, 56, 39 and 194 Bracken Hill, Simonsbridge, Sandyford, Dublin 18.

2 Solicitor's undertaking dated 9 April 2002 in favour of the First Named Plaintiff pertaining to Apartment Nos. 2, 3, 4, 5, 6, 7, 8 & 9, Bow Bridge, Bow Lane West, Dublin 8.

3 Solicitor's undertaking dated 23 March 2009 in favour of the Second Named Plaintiff pertaining to Apartment 71, Bow Bridge, Kilmainham, Dublin 8.

4 Solicitor's undertaking dated 6 October 2003 in favour of the Second Named Plaintiff pertaining to Apartment 10, New Row Place, Dublin 8.

5 Solicitor's undertaking dated 16 November 2005 in favour of the First Named Plaintiff pertaining to Apartment 31, Bracken Hill, Sandyford, Dublin 18.

6 Solicitor's undertaking dated 13 January 2009 in favour of the Second Named Plaintiff, pertaining to 5 Seamount, Stillorgan Road, Mount Merrion, County Dublin.

7 Solicitor's undertaking 4 February 1999 in favour of the Second Named Plaintiff pertaining to Apartment No. 2 Seamount, Mount Merrion, Dublin 4.

8 Solicitor's undertaking dated 13 March 2009 in favour of the Second Named Plaintiff pertaining to 7 La Rochelle, Christchurch, Dublin 8.

18 It is agreed that in each case the notice party undertook:

i) that the borrowers would acquire good and marketable title to the properties;

ii) that the bank's standard form of all sums mortgage/charge had been or would be executed by the borrowers;

iii) as soon as practicable, to stamp and register the mortgage/charge to ensure that the bank would obtain a valid first legal mortgage/charge on the property;

iv) to lodge with the bank a certified copy of the folio showing the bank's charge duly registered; and

v) to lodge with the bank the solicitor's report and certificate of title.

19 It is important to appreciate that such undertakings are a common and perhaps essential feature of residential mortgages in this country, obviating the need for the lender to have its own solicitor. Compliance with an...