Allied Irish Banks Plc v McKeown

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 01 April 2020
• Neutral Citation: [2020] IEHC 155
• Docket Number: [2017 No. 42 S.]
• Court: High Court
• Date: 01 April 2020

BETWEEN

ALLIED IRISH BANKS PLC

PLAINTIFF

AND

PADDY MCKEOWN

AND

ADELAIDE MCCARTHY

DEFENDANTS

[2020] IEHC 155

David Barniville J.

[2017 No. 42 S.]

THE HIGH COURT

JUDGMENT of Mr. Justice David Barniville delivered on the 1st day of April, 2020

Introduction

1 This is my judgment on an application made by Everyday Finance Designated Activity Company (“Everyday”) by a notice of motion issued in the Court of Appeal on 9th October, 2019, for an order substituting Everyday as plaintiff/respondent in the proceedings in place of the existing plaintiff/respondent or, in the alternative, for an order adding Everyday as a co-plaintiff/co-respondent. Everyday's application was remitted by the Court of Appeal to be determined by the High Court, in the circumstances explained below.

2 Everyday's application was opposed by the defendants, who are litigants in person, on a number of grounds.

3 While Everyday's application, as issued, sought to substitute Everyday as the plaintiff/respondent in place of the existing plaintiff/respondent or, in the alternative, to add Everyday as a co-plaintiff/co-respondent, it was indicated during the course of the hearing of the application that, in light of developments which had occurred in the context of the defendants' appeal to the Court of Appeal and their subsequent application for leave to appeal to the Supreme Court, Everyday was seeking the second of the alternative orders sought, namely, an order that it be joined as a co-plaintiff/co-respondent. Following that clarification, at the outset of the second day of the hearing of the application (and following the delivery of the judgment of the Court of Appeal dismissing the defendants' substantive appeal), the defendants maintained their objection to Everyday's application.

4 Everyday's application was brought pursuant to O. 15, r. 14 of the Rules of the Superior Courts (“RSC”) (erroneously referred to in the notice of motion as O. 15, r. 4) and O. 17, r. 4 (and pursuant to the relevant provisions of O. 86 and O. 86A, as the motion was first issued before the Court of Appeal) or, in the alternative, under the inherent jurisdiction of the court. As I indicate in the course of this judgment, the appropriate provision of the RSC under which to consider Everyday's application, is Order 17, rule 4.

5 For reasons which I explain in detail in this judgment, I have concluded that it is appropriate to make an order adding Everyday as an additional plaintiff to the proceedings. I have considered all of the objections raised by the defendants, insofar as I could understand them, and have concluded that the defendants have not raised any sustainable grounds of objection to Everyday's application. In those circumstances, I will make an order pursuant to O. 17, r. 4, adding Everyday as a plaintiff to the proceedings.

Factual and Procedural Background

6 The plaintiff, which I will describe for convenience, and where appropriate, throughout this judgment as “AIB,” commenced summary proceedings against the defendants on 12th January, 2017. The defendants have sought to raise an issue as to the description of the plaintiff in the proceedings (Allied Irish Banks PLC), and have sought to argue that the plaintiff as so described is a different entity to Allied Irish Banks, p.l.c. I will address the defendants' arguments in that regard in the course of this judgment. For present purposes, I will adopt the neutral abbreviation of the plaintiff, namely, AIB. The proceedings were entered in the Commercial List and AIB sought summary judgment against the defendants. As against the first defendant, AIB sought judgment in the sum of €1,429,166.22. As against the first and second defendants, judgment was sought on a joint and several basis in the further separate sum of €40,548.60. Judgment was also sought against the second defendant in the sum of €1,387,003.82 and in the further sum of €40,000.00 on foot of guarantees given by her. Interest was also sought. AIB's application for summary judgment was heard by the High Court (Costello J.) on 27th April, 2017. The Court reserved judgment on the application and delivered a detailed reserved judgment on 12th May, 2017. Summary judgment was granted by the High Court as follows. Judgment was granted against the first defendant in the sum of €1,469,251.43. Judgment was granted against the second defendant in the sum of €1,467,102.96. Costs were awarded against the defendants. The High Court refused to grant a stay.

7 The defendants appealed to the Court of Appeal. Up to that point, the defendants were represented by solicitors and counsel. The defendants applied in person to the Court of Appeal for a stay. In an order made on 28th July, 2017, the President of the Court of Appeal granted a stay on the execution of the High Court order pending the determination of the appeal by the Court of Appeal.

8 On 2nd August, 2018, AIB (together with AIB Mortgage Bank and EBS Designated Activity Company (“EBS”)) (as sellers) and Everyday (as buyer) executed an Irish law deed of transfer (excluding property (the “deed of transfer”) assigning and transferring AIB's rights and interests in certain assets to Everyday. Among the assets which Everyday maintains were assigned and transferred to it under the deed of transfer were the rights and interests in the loans and security documents referable to the facilities provided by AIB to the defendants, on foot of which AIB had obtained judgment in the High Court. I stress that I am attempting to summarise very much in shorthand the effect of the deed of transfer and will consider it further later in this judgment. A further deed was executed by the same parties on 22nd October, 2018 (the “amendment deed”). Nothing turns on the amended deed for the purposes of Everyday's application.

9 On 8th August, 2018, AIB wrote a number of letters to the defendants informing them that it had agreed to sell their loans and the guarantees which the second defendant had provided to AIB to Everyday. These were the “goodbye letters”. On 14th August, 2019, Everyday wrote to the defendants referring to the goodbye letters and informing the defendants as to what was to happen in relation to the relevant facilities following the effective date of the transfer (2nd August, 2018). These were the “hello letters”. The defendants have sought to raise certain issues in relation to the deed of transfer and the goodbye letters and the hello letters and I will address those issues later in this judgment.

10 A date was ultimately fixed for the hearing of the defendants' appeal in the Court of Appeal on 18th October, 2019. On 9th October, 2019, Everyday made an ex parte application to the Court of Appeal for leave to bring a motion seeking to be substituted as a plaintiff/respondent in place of AIB or, alternatively, to be added as a co-plaintiff/co-respondent. The Court of Appeal gave Everyday liberty to bring that motion, returnable before the directions list sitting of the Court of Appeal on 11th October, 2019. The order of the Court of Appeal of 9th October, 2019 is stated that the application was made by counsel on behalf of Everyday, “a Non-Party” to the proceedings. Fitzgerald Solicitors were referred to as “ solicitors on behalf of the plaintiff” at the bottom of the order. The defendants were referred to as the “ defendants in person”. Byrne Wallace were referred to as “ solicitors on behalf of Everyday Finance DAC”. The motion issued on foot of that order is the motion which is now the subject of this judgment. It was issued on 9th October, 2019. However, in error, the motion stated that the application would be made on behalf of the “ plaintiff/respondent” and not on behalf of Everyday. Further, the motion was signed by Byrne Wallace as “ solicitors for the plaintiff/respondent” and not as solicitors for Everyday. The defendants have taken issue with the validity of the motion in circumstances where Byrne Wallace were described as solicitors for the plaintiff/respondent when that was not in fact the case and Fitzgerald Solicitors remained on record for the plaintiff/respondent, i.e. AIB, in the proceedings.

11 The motion was, in due course, adjourned to the hearing of the substantive appeal on 18th October, 2019. A number of affidavits were sworn on behalf of Everyday and on behalf of the defendants in advance of that date. As appears from the order of the Court of Appeal of 18th October, 2019, the Court was concerned as to its jurisdiction to hear the motion as there would be no automatic right of appeal to the defendants should the motion be granted. The Court, therefore, ordered that the motion be remitted to the High Court for hearing. However, the substantive appeal proceeded that day. The Court of Appeal reserved judgment. The Court of Appeal order of that date refers to the motion as having been brought by the plaintiff rather than Everyday and refers to Byrne Wallace as the “ solicitors for the plaintiff”. This may well have been due to the errors contained in the motion itself.

12 Having been remitted to the High Court, the motion was then listed before me as the Judge of the Commercial List and was ultimately listed for hearing on 28th November, 2019. As it happens, the Court of Appeal announced that judgment on the substantive appeal would be delivered at 2:00pm that day. In the circumstances, it was agreed that I would commence hearing Everyday's application but would not determine the application until the judgment of the Court of Appeal could be considered by the parties and by me. In the time allotted for the hearing of the application, counsel for Everyday had almost concluded his submissions. The application was then adjourned to enable the parties to receive and consider the judgment of the Court of Appeal and the matter was listed for mention to enable a date to be fixed to resume the hearing of the application.

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