Allied Irish Banks Plc v Bradley and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 14 April 2023
• Neutral Citation: [2023] IEHC 179
• Docket Number: [2017 No. 2256 P.]
• Court: High Court

Between

Allied Irish Banks Plc

Plaintiff

and

Raymond Bradley, Terence Doyle and Sinead Byrne Practising Under the Style and Title of Malcomson Law Solicitors, Philip Morrissey and Property Registration Authority

Defendants

and

All Persons Concerned

[2023] IEHC 179

[2017 No. 2256 P.]

THE HIGH COURT

COMMERCIAL

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 14 ^th April, 2023

Index

1. Introduction	2
2. The Proceedings	4
3. AIB/Everyday Application	6
4. Framework for the Determination of AIB/Everyday Application	18
5. Consideration and Assessment of the Objections of the Malcomson Law Defendants	19
(a) Substitution of Everyday for AIB	19
(b) Declaration Re Equitable Mortgage and Well Charging Orders	26
(i) Whether the letter of 3 rd May, 2011, creates an equitable mortgage	30
(ii) Whether the court can grant the declaration sought in respect of the equitable mortgage at this stage	31
(iii) Whether the court should now make the declaration sought	32
(c) Appointment of Receivers and Powers	38
7. Whether Mr. Morrissey can withdraw his consent to the orders in the AIB/Everyday Application	42
8. Summary of Conclusions and Orders	51

1. Introduction

1 . This is my judgment on an application issued in February 2020 by the plaintiff, Allied Irish Banks plc (“AIB”), and by a non-party to the proceedings, Everyday Finance Designated Activity Company (“Everyday”), for various orders arising out of a Settlement Agreement dated 31 ^st January, 2020, made between a number of parties, including some of the parties to these proceedings and to related proceedings, including AIB, Everyday and the fourth named defendant, Philip Morrissey (“Mr. Morrissey”), (the “Settlement Agreement”). For ease of reference, I will refer to this application as the “AIB/Everyday application”.

2 . The parties to the Settlement Agreement are AIB, Everyday, Mr. Morrissey, Dan Morrissey (IRL) Limited (In receivership) (“DMIL”), the receivers of DMIL, namely, Paul McCann and Stephen Tennant (the “Receivers”) and a company called Plazamont Limited (“Plazamont”). The Settlement Agreement was intended to resolve the disputes between the parties to the agreement which were and are the subject of three sets of proceedings, including these proceedings in which the AIB/Everyday application was brought.

3 . As I explain below, the first to third named defendants, Raymond Bradley, Terence Doyle and Sinead Byrne, who are described in the title to these proceedings as practising under the style and title of Malcomson Law Solicitors, but who are partners in the firm (the “Malcomson Law Defendants”) are not parties to the Settlement Agreement, although they are parties to these proceedings and previously acted as solicitors for Mr. Morrissey and DMIL until differences arose between them in 2015/2016. The fifth named defendant, the Property Registration Authority (the “PRA”) is also not a party to the Settlement Agreement. The PRA was joined as a party to the proceedings solely for the purpose of ensuring that it would be bound by any orders the court might make in relation to the various properties the subject of the Settlement Agreement. In fact, one of the orders sought in the AIB/Everyday application is an order removing the PRA as a defendant to the proceedings. There was no dispute between the parties as to the making of that order.

4 . Before identifying the various orders sought in the AIB/Everyday application, I must observe that the application is quite an unusual one and has taken various twists and turns in the period since it was issued. As I noted above, these proceedings are one of several sets of proceedings brought by and against DMIL and Mr. Morrissey arising out of the provision of loan facilities to DMIL by AIB dating back, at least, to 2009, which were guaranteed by Mr. Morrissey and by other members of the Morrissey family and arising out of the appointment by AIB of the Receivers as receivers over the assets of DMIL in June 2014 and the conduct of the receivership by the Receivers, including the grant of a license by the Receivers to Plazamont to operate a part of the quarry formerly operated by DMIL at Clonmelsh, Co. Carlow. The relevant loan facilities were transferred by AIB to Everyday in June 2019, pursuant to a global deed of transfer dated 14 ^th June, 2019. That transfer is why one of the orders sought is substituting Everyday for AIB as plaintiff in the proceedings.

5 . The stated basis for the AIB/Everyday application is that three of these sets of proceedings (including the proceedings in which the application was brought) were settled by the Settlement Agreement as between the parties to that agreement (which, as noted, do not include the Malcomson Law Defendants), that Mr. Morrissey agreed to consent to various orders as part of the Settlement Agreement, that he did so consent in writing and that senior counsel on his behalf informed the court on two occasions, on 31 ^st January, 2020 and 10 ^th February, 2020, that Mr. Morrissey was consenting to the orders sought in the application.

6 . Mr. Morrissey's consent to the orders being sought by AIB and Everyday was conveyed to the court at a time when he was represented by a firm of solicitors (Farrell McElwee) and by junior and senior counsel. In addition to the two occasions just mentioned, my notes disclose that senior counsel reiterated to the court that Mr. Morrissey was consenting to the orders sought in the application on three subsequent dates, 13 ^th March, 2020, 16 ^th March, 2020 and 21 ^st May, 2020. However, the relationship between the solicitors and Mr. Morrissey appears to have broken down in the months following the Settlement Agreement. At some point prior to the end of June 2020, Mr. Morrissey informed the solicitors of his apparent desire to continue the various proceedings, notwithstanding the Settlement Agreement. In those circumstances, his solicitors applied to come off record as solicitors for Mr. Morrissey in each of the three sets of proceedings, including the proceedings herein. Those applications were heard by me on 24 ^th June, 2020, two days before the first day of the hearing of the AIB/Everyday application. In light of matters raised by Mr. Morrissey at the hearing of the solicitors' applications to come off record, I deferred ruling on those applications until the first day of the hearing of the AIB/ Everyday application. At the conclusion of the first day's hearing of that application, I ruled on the solicitors' applications and permitted them to come off record as solicitors for Mr. Morrissey. Mr. Morrissey did not oppose those applications.

7 . Mr. Morrissey represented himself on the various dates on which the AIB/Everyday application was heard. As will be seen, notwithstanding his consent in the Settlement Agreement to the orders sought in the AIB/Everyday application and notwithstanding that he signed a Consent Letter expressly consenting to those orders and notwithstanding the fact that his senior counsel conveyed to the court on, at least, two occasions that Mr. Morrissey was consenting to the orders sought in the application, Mr. Morrissey sought in the period between first and second days of the hearing of the application to “withdraw” from the Settlement Agreement and to ventilate several issues of concern which he had in relation to AIB, Everyday, the Receivers, Plazamont and the Malcomson Law Defendants. In the course of his various submissions, Mr. Morrissey accepted that he had signed the Settlement Agreement and had consented to the orders being sought by AIB and Everyday. His indication that he wished to “withdraw” from the Settlement Agreement (or, as he termed it, the “Proposed Settlement Agreement”) came during the gap between the first and second days of the hearing of the AIB/Everyday application when I had adjourned the hearing to enable certain further material to be put before the court. It was then necessary for me to require further submissions to be provided by the parties on the issue as to whether it was open to Mr. Morrissey, in the particular circumstances, to withdraw his consent to the orders sought by AIB and Everyday. The entitlement of Mr. Morrissey to withdraw his consent to the orders sought is an issue which must be determined in this judgment.

8 . The firm of Malcomson Law Solicitors previously acted as solicitors for Mr. Morrissey and DMIL. Differences arose between them and they ceased acting as Mr. Morrissey's solicitors in April 2016. The Malcomson Law Defendants (who are some of the members of that firm) were not parties to the Settlement Agreement and did not participate in the mediation in December 2019 which led to the Settlement Agreement, as it was not possible to agree terms for their participation. The Malcomson Law Defendants do not oppose some of the orders sought in the AIB/Everyday application and indeed consent to a number of those orders. They oppose, with varying degrees of vehemence, some of the other orders sought.

9 . In the period since the court reserved judgment on the AIB/Everyday application in late September 2020, Mr. Morrissey has sought to issue, at least, three further motions in the various proceedings which AIB/Everyday maintain were settled with Mr. Morrissey and the other parties to the Settlement Agreement. I am not dealing with any of those motions. This judgment concerns the AIB/ Everyday application only.

2. The Proceedings

10 . As noted above, these proceedings are but one of a number of different sets of proceedings involving some or all of the parties referred to earlier. These proceedings were commenced by AIB in March 2017. In the proceedings, AIB sought various orders against the Malcomson Law Defendants and Mr. Morrissey. The orders sought included a...