Allied Irish Banks Plc v Paddy McKeown

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 16 July 2021
• Neutral Citation: [2021] IEHC 499
• Docket Number: [2017/42 S]
• Year: 2021
• Court: High Court

Between

Allied Irish Banks Plc

and

Everyday Finance DAC

Plaintiffs

and

Paddy McKeown

and

Adelaide McCarthy

Defendants

[2021] IEHC 499

[2017/42 S]

THE HIGH COURT

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 16th day of July, 2021.

1 On the 12th of May 2017, Costello J. made Orders marking judgment in favour of Allied Irish Banks PLC (“AIB”) against each of the Defendants. The judgment against the first Defendant was in the sum of €1,469,251.43. The judgment against the second Defendant was in the sum of €1,467,102.96. AIB was also granted an Order that the Defendants pay AIB's costs of the proceedings, when taxed and ascertained.

2 The judgment was unsuccessfully appealed by the Defendants to the Court of Appeal. Leave to appeal to the Supreme Court was refused by a Determination of that Court, dated 3rd March 2020.

3 After the judgment and Order of Costello J. in this Court, AIB transferred to Everyday Finance DAC (“Everyday”) “the relevant facilities and guarantees on which judgment was granted against the Defendants […]” (see paragraph 109 of the judgment of Barniville J. of 1st April 2020).

4 In a very comprehensive judgment, to which I have just referred, Barniville J. ordered that Everyday be joined to these proceedings as an additional Plaintiff. Originally, Everyday had sought to be joined either as an additional Plaintiff or as the only Plaintiff in substitution for AIB. However, ultimately only the first of those two Orders were sought.

5 Everyday now seek to be substituted for AIB in the portion of the Order of Costello J. requiring each of the Defendants to pay fixed sums to the original Plaintiff. Everyday does not seek an amendment of the Order in as much as the Defendants are obliged to pay the costs of AIB.

6 This application in no way varies the fundamental obligations of the Defendants on foot of the original Order of Costello J. made over four years ago to repay debt that this Court has found they owe. That finding is now unchallengeable, given the complete failure of the appeals taken by the Defendants against the original Order.

7 The current application is one grounded upon Order 17 rule 4 of the Rules of the Superior Courts and/or in the alternative in the inherent jurisdiction of the Court. The nature of such an application is very fully set out in the judgment of Barniville J. to which I will repeatedly refer to in the course of this decision.

8 At paragraph 37 of his judgment, Barniville J. states:-

“The Court of Appeal has made clear that an application for an Order under Order 17, rule 4 is intended to be a simple, straightforward and purely procedural application. It is not intended to be in the nature of a mini-trial.”

9 Barniville J. goes on to consider (from paragraphs 38 – 42 of the judgment) the authorities which support this proposition. These authorities, including IBRC v. Comer [2014] IEHC 671 and Bank of Scotland plc v. McDermott [2019] IECA 142, unequivocally support the summary of the nature of this type of application set out at paragraph 37 of the judgment.

10 Significantly, in determining Everyday's application, Barniville J. imposed on Everyday a requirement to prove matters on the balance of probabilities, and not on the lesser prima facie standard which may have been thought applicable to add a party rather than to replace one. For the purpose of the application before me, the appropriate standard of proof is, on the authorities, proof on the balance of probabilities. However, the reason why Barniville J. applied the higher standard to the application before him is set out at paragraphs 54 and 55 of his judgment, and is of relevance to the decision I make on the current application.

“54. In the present case, the application is merely now to add Everyday as a co-Plaintiff to the proceedings, on the basis of the transfer or assignment of the relevant facilities and the guarantees. If that Order was to be made, the Defendants would nonetheless be entitled to raise issues in relation to the transfer or assignment if and when Everyday comes to seek to enforce the judgment. An Order joining Everyday as a co-Plaintiff to the proceedings would, therefore, not determine those issues. The Defendants could subsequently raise issues in relation to them, at that later stage. On that basis, the position is more like that which pertains in Halpin and O'Connor rather than the position in McDermott.

55. However, the Defendants did seek to ventilate a range of issues in relation to the validity of the transfer or assignment of the facilities, guarantees and related security by AIB to Everyday. I have considered many of those issues in the course of this judgment. I have decided to do so on the basis of the balance of probabilities, rather than to a prima facie standard, in order to deal with the Defendants grounds of opposition at their highest at this point in time. I am satisfied that irrespective of whether the prima facie standard is applied or whether the approach to be taken is to consider the issues on the basis of the balance of probabilities, the Defendants fail on each of the objections they have raised. However what they have failed on is their objection to the application by Everyday to be added as a party to the proceedings. It may be that the Defendants will be in a position to raise other grounds of objection if and when it comes to Everyday's attempt to execute on foot of the judgment. It may, however, be of relevance and assistance to whatever Judge or Court is dealing with the issue at that later stage to have regard to the conclusions I have reached in the course of this judgment. That would be a matter for the Judge or Court, as the case may be.”

11 While I have carefully considered each of the objections made by the Defendants to the current application, and have done so independently of the conclusions of Barniville J., those conclusions have been of significant assistance in confirming the views that I have formed which (in all cases) align with the views expressed by Barniville J. on the relevant issue in his judgment.

12 I should also observe that many of the issues raised by the Defendants have no relevance to the current motion. Not only are many of the objections raised irrelevant, they include allegations of an unfortunate and personalised nature. I will now give some flavour of these accusations:-

• (a) The staff of the Central Office of the High Court are alleged to have “tampered with” an Affidavit sworn on behalf of Everyday in August 2020. This led to complaints by the Defendants to the Minister for Justice and Equality and to the President of the High Court. When I come to consider this ground of objection by the Defendants, it will be immediately seen that there is no basis for this very serious allegation.

• (b) It is suggested that Barniville J. was biased and prejudiced against the Defendants. Anyone reading the careful judgments of Barniville J. in connection with these applications will be struck by the even handed way in which he dealt with all matters before him, including some of the more fanciful objections on the part of the Defendants.

• (c) It is alleged that the original judgment of Costello J. represents “ double dipping – thus serious fraud” on the part of AIB. The basis of this very serious charge is that the individual sums for which judgment was marked against each Defendant had the effect of doubling their actual level of debt. In fact, it is clear that these amounts represent joint and several liability on the part of the Defendants as opposed to a multiplication of their debt.

• (d) It is stated on oath “ that Everyday are in Court in a fraudulent manner”. There is in fact no evidence for this charge.

• (e) The Defendants claim that “the CEO of the Property Registration Authority has been a party to ‘criminal behaviour and actions […]’.”

• (f) Referring to the Appellate Courts, the Defendants suggest that there has been “ blatant bias and prejudices as against us” and also assert that the Court of Appeal and the CEO of the Court Service are answerable to a claim by the Defendants “ of a completely defective performance on their part to the contract” that an expedited appeal be made available to the Defendants against an Order made in favour of the Receiver appointed to their properties in November 2017. Notwithstanding the payment of €250 for the “expedited” appeal, three years later the appeal was still not concluded.

13 Needless to say, very few if any of these unfortunate allegations have anything to do with the “ straightforward and formal application” currently before me. Not just the making of these allegations, but the way in which the Defendants have chosen to resist this motion, go some way to explaining why the motion papers (including submissions) before me ran to about a thousand pages, why the books of authority ran to three volumes (and 54 citations), and the hearing of this motion (in conjunction with a separate motion taken by the Defendants covering very similar ground) ran into two days. A straightforward procedural application, in respect of which the main areas of contention have already been addressed by Barniville J. in his judgment, has turned into another pitched battle in a war of attrition between the Defendants, AIB and Everyday. In order to try to return this application to the sort of focused dispute it should always have been, I will deal with the relevant arguments. The parties can be assured, nonetheless, that I have considered all of the evidence before me, the written submissions and the oral submissions in deciding what are in fact the relevant matters that I have to determine.

14 At paragraphs 13 to 17 inclusive of his affidavit grounding the motion, and also relying on his evidence in the earlier motion to add Everyday as a Plaintiff, Mr. Andrew McCudden carefully sets out (by reference to the...