Allied Irish Banks Plc v Aqua Fresh Fish Ltd

CourtHigh Court
JudgeMr. Justice Keane
Judgment Date27 March 2015
Neutral Citation[2015] IEHC 184
Date27 March 2015

[2015] IEHC 184


[No. 618 Sp/2012]
Allied Irish Banks plc v Aqua Fresh Fish Ltd





Property – Possession – Mortgage – Repayment of loan – Representation as an unqualified advocate – Interlocutory relief.

Facts: Following the failure to repay the loan borrowed by the defendant, the plaintiff sought an order granting possession of the premises pursuant to the terms of the mortgage of certain property and for the sale of certain lands mortgaged. During the proceedings of the case, the applicant, the managing director of the company, made an ex-parte application seeking permission to legally represent the company on the ground that the defendant had become insolvent and had no sufficient means to appoint a counsel to act on its behalf. The application was rejected by the High Court; however, it was allowed in part by the Supreme Court giving him right to represent his company in certain proceedings. Thereafter, the Supreme Court remitted the question of further representation of the defendant to the High Court. The applicant now applied for permission to further legally represent the defendant in the proceedings and for certain other interlocutory reliefs.

Mr. Justice Keane held that the application for permission to legally represent the defendant in the proceedings would be refused. The Court held that the case would not warrant a departure from the landmark judgment in Battle v. Irish Art Promotion Centre Ltd. [1968] 1 I.R. 252. The Court rejected the argument of the applicant that the rule in that judgment would not survive the entry into force of the Lisbon Treaty of the European Union.


This is an application brought by Adrian Flynn ("Mr Flynn"), the managing director of, and principal shareholder in, the defendant company ("the company"), for an order permitting him to legally represent the company in these proceedings, together with certain other interlocutory reliefs.


The application arises in proceedings in which the plaintiff bank ("the bank") seeks an order for possession and, if necessary, one for sale of certain lands mortgaged to the bank by the company ("the property").


The special summons in this case issued on the 2 nd November 2012. In it, the bank claims that the company mortgaged the property by Mortgage Deed, dated the 17 th February 2010 ("the mortgage"), and registered it as a burden on the lands in the Land Registry on the 11 th March 2010. The property is described as comprising lands at Donagmore, Kilkerley, County Louth.


The special summons is grounded upon an affidavit of Robert Amerlynck, sworn on the 28 th February 2013. Mr Amerlynck is an assistant manager employed at the insolvency and debt recovery unit of the bank. Mr Amerlynck exhibits a copy of the mortgage, which records on its face that it was given under the common seal of the company in the presence of Adrian Flynn and Patricia Flynn as directors. The mortgage recites that it incorporates the bank's mortgage conditions (2009 Edition) ("the conditions"). The conditions are also exhibited to Mr Amerlynck's affidavit.


The mortgage provides that the property is charged in favour of the bank as security for the payment and discharge of the "[t]otal [d]ebt." The "[t]otal [d]ebt" is defined (at clause 2.1. of the conditions) to include all amounts payable in respect of any loans or credits made or granted by the bank to the company "now or at any time in the future."


Mr Amerlynck exhibits a copy of the particular Land Registry Folio for County Louth in respect of the property, which records that the company was registered as owner on the 3 rd September 2007 and that the bank's mortgage was registered as a burden on the 11 th March 2010. Mr Amerlynck further avers that the mortgage was duly registered in the Companies Office on the 25 th February 2010 and he exhibits a company report containing a note to that effect.


Mr Amerlynck deposes that the company borrowed €155,615 from the bank for working capital on or about the 1 st March 2011, which the company failed to repay in accordance with the terms of the said loan. Mr Amerlynck avers that, on the 15 th June 2012, the company was indebted to the bank in the sum of €170,880.82, comprising €165,710.16 in respect of the said loan plus interest, together with €5,170.66 in respect of the company's current account with the bank. Mr Amerlynck goes on to aver that a demand for repayment of that sum was made by letter dated the 17 th July 2012 but that, despite that demand, the company failed to pay the monies due and, in consequence, the bank became entitled to exercise its powers under the mortgage. Mr Amerlynck further deposes that, while the bank demanded possession of the premises pursuant to the terms of the mortgage by letter dated the 24 th July 2012, the company failed to deliver up possession of the property.

The history of the proceedings

On the 29 th April 2013, while the proceedings were still pending before the Master's Court, Mr Flynn made an application ex parte to the High Court for an Order permitting him, as a duly authorised agent of the company, to enter an appearance on behalf of, and to represent and defend, the company in the proceedings, on the ground that the company does not have sufficient funds to appoint a solicitor or counsel to act on its behalf.


In the affidavit that he swore on the 26 th April 2013 to ground that ex parte application, Mr Flynn identified himself as the managing director of the company. Mr Flynn went on to aver that he was seeking to act on the company's behalf in the proceedings as an authorised agent of the company because of the company's lack of funds to engage a solicitor or counsel. At paragraph 9 of his affidavit, Mr Flynn averred as follows: "I further say that we have a strong and valid defence to the plaintiff's claim." Mr Flynn did not disclose what that defence is. Accordingly, insofar as it was material, neither the strength nor the validity (nor, indeed, the existence) of the company's proposed defence could have been assessed by the Court.


In a ruling delivered on the 14 th May 2013, the High Court (in the person of Peart J.) refused Mr Flynn's application on the basis of the evidence then before it and in reliance upon an established line of judicial authority to which I will return later in this judgment.


Mr Flynn appealed that decision to the Supreme Court. There is very little information before this Court concerning the circumstances in which that occurred. However, the Supreme Court made an Order on the 29 th November 2013, reciting that Mr Flynn - as managing director, chairman, company secretary and majority shareholder of the company - had brought a motion ex parte for certain interlocutory orders in respect of his appeal, and ordering that Mr Flynn be allowed to enter an appearance on behalf of the company in the proceedings, before going on to order as follows:

"In so far as any question of further representing the [c]ompany in these proceedings is concerned, the Court remits that question to the High Court and DIRECTS that in bringing any further application to the High Court that Notice of Motion be served on [the bank]."


On the 19 th February 2014. Mr Flynn entered a "conditional appearance" in the action on behalf of the company. I mean no disrespect to Mr Flynn in observing that his reasons for making the company's appearance "conditional" - as subsequently explained in the affidavit that he swore to ground the present application - are legally incoherent, being based upon his understanding that the requirement to enter an appearance (whether in this case or in general) is somehow "contractual", and involves a submission to the jurisdiction of the plaintiff (and, only by extension, to that of the Court), which submission to jurisdiction can be refused or withheld through the entry of a "conditional appearance," which entry acts as a stay on any further step in the proceedings "unless and until some judicial department prosecutor makes all disclosures" and until any other issues raised on behalf of the defendant have been resolved.


On the same day that Mr Flynn entered the said "conditional appearance" on behalf of the company, the bank successfully applied to the Master ex parte for an Order, pursuant to the terms of Order 63, rule 1(15) of the Rules of the Superior Courts ("the RSC") permitting it to correct a clerical error on the face of the special summons whereby reference was wrongly made to "an affidavit of Tom O'Reilly to be filed," whereas the grounding affidavit subsequently sworn was actually that of Robert Amerlynck. Order 63, rule 4 of the RSC provides that such applications may be made ex parte. The Master gave the bank liberty to amend the special summons by the deletion of the name "Tom O'Reilly" and the insertion in its place of the name "Robert Amerlynck."

The present application

In the present application, which Mr Flynn has brought on notice to the bank by motion dated the 23 rd April 2014, as required by the Order of the Supreme Court made on the 29 th November 2013, he seeks permission - on a variety of different legal grounds - to represent the company as an unqualified advocate for the purpose of the proceedings.


In the same notice of motion, Mr Flynn also seeks a number of other reliefs, principal among which is an Order setting aside the Order of the Master already described, permitting the bank to amend its special summons. In seeking that particular relief, Mr Flynn invokes the terms of Order 52, rule 3 of the RSC, although that rule does not appear to cover the case, and does so on two grounds: first, that the bank did not put the company on notice of the...

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6 cases
  • Allied Irish Bank Plc v Aqua Fresh Fish Ltd
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    • 18 October 2018 represent the Company by the High Court (David Keane J.) for the reasons set out in a written judgment delivered on 27 March 2015: [2015] IEHC 184. 4 The High Court decision was appealed to the Court of Appeal which dismissed the appeal. Judgment was delivered by McKechnie J. (sitting a......
  • Munster Wireless Ltd v Judge Terence Finn
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    • 28 June 2018 the Treaties.' 47 The issue of when the EU Charter can be invoked was considered by Keane J. in AIB plc v. Aqua Fresh Fish Limited [2015] IEHC 184, wherein application was made by the managing director and principal shareholder in the respondent company for an order permitting him to re......
  • Munster Wireless Ltd v A Judge of The District Court
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    ...entitle him to invoke the provisions of the Charter.” She considered the High Court decision in AIB Plc v. Aqua Fresh Fish Limited [2015] I.E.H.C. 184 adopting the dictum of Keane J. who had determined that the Charter had no applicability to the issue of the rule in Battle – the key issue ......
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1 firm's commentaries
  • Limits To Company Representation In Litigation
    • Ireland
    • Mondaq Ireland
    • 13 May 2015
    ...persons to represent a company is one that will be exercised sparingly. Footnotes (1) Allied Irish Banks plc v Aqua Fresh Fish Limited [2015] IEHC 184. (2) [1968] 1 IR 252, at p (3) [1981] IR 158, at p 172. (4) [2008] 1 IR 437. (5) GJ Mannix Limited [1984] 1 NZLR 309, at p 316. (6) [2013] I......

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