Bank of Ireland Mortgage Bank v Murray

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Baker
• Judgment Date: 12 April 2019
• Neutral Citation: [2019] IEHC 234
• Docket Number: [2013 No. 4369 P]
• Date: 12 April 2019

[2019] IEHC 234

THE HIGH COURT

Baker J.

[2013 No. 4369 P]

BETWEEN

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF

AND

BRIAN MURRAY

AND

ATTRACTA MURRAY

DEFENDANTS

Banking and finance – Debt – Evidential dispute – Plaintiff seeking judgment against the defendants in respect of a loan agreement – Whether the plaintiff failed to comply with the mandatory statutory provisions of the Consumer Credit Act 1995

Facts: Proceedings were commenced by plenary summons on 30 April 2013, by which the plaintiff, Bank of Ireland Mortgage Bank, sought judgment against the defendants, Mr and Mrs Murray, jointly and severally for €194,433.53, and interest. The claim was made in respect of a loan agreement alleged to have been entered into by the plaintiff and the defendants on 8 May 2007. In the alternative, the Bank’s claim was for damages for breach of contract, or for monies had and received by the defendants, or for conversion. Mr Murray entered an appearance on 6 June 2013 and served a defence on 11 May 2015 in which he pleaded that he had not signed the documents proffered by the Bank for the 2007 Loan nor an earlier loan agreement in 2003, and pleaded that the Bank failed to comply with the mandatory statutory provisions of the Consumer Credit Act 1995, as a result of which it was argued the loan was void and unenforceable. He counterclaimed for damages for negligence. The evidence of Mr Murray was that his wife affixed his signature on the relevant documents, and that she did so without his authority. Mrs Murray entered an appearance on 4 June 2013. She served a defence dated 15 May 2015 which contained a general traverse of the Bank’s claim. She did not offer any evidence in support of her defence.

Held by the High Court (Baker J) that the justice of the case required that Mr Murray be held liable in restitution and for money had and received. Baker J was satisfied that it was just and equitable to dispense with the mandatory statutory requirements. The claim for interest was not allowed, as Baker J was not satisfied that the Bank had established a basis for that claim or how the applicable rate was to be assessed. Baker J held that this result was also one that may be made in the light of the discretion of the court conferred by the saver provisions of s. 38 of the 1995 Act. Baker J held that there was evidence of a valid loan facility in respect of Mrs Murray.

Baker J proposed entering judgment against Mr Murray for the sum claimed less the amount of interest claimed by the Bank. She proposed entering judgment against Mrs Murray in the full amount claimed. She held that he would hear the parties on how to deal with Mr Murray’s counterclaim and in regard to the precise amount of the judgment to be entered against him.

Relief granted.

JUDGMENT of Ms. Justice Baker delivered on the 12th day of April, 2019

1 This judgment concerns a claim for debt in which there is significant evidential dispute regarding the execution of standard loan documentation.

2 Proceedings were commenced by plenary summons on 30 April 2013, by which the plaintiff bank (‘the Bank’) seeks judgment against the defendants jointly and severally for €194,433.53, and interest. The claim is made in respect of a loan agreement alleged to have been entered into by the plaintiff and the defendants on 8 May 2007 (‘the 2007 Loan’).

3 In the alternative, the Bank's claim is for damages for breach of contract, or for monies had and received by the defendants, or for conversion.

4 The first named defendant, Mr Murray, entered an appearance on 6 June 2013 and served a defence on 11 May 2015 in which he pleaded that he had not signed the documents proffered by the Bank for the 2007 Loan nor an earlier loan agreement in 2003 (‘the 2003 Loan’), and pleads that the Bank failed to comply with the mandatory statutory provisions of the Consumer Credit Act 1995, as amended (‘the Consumer Credit Act’), as a result of which it is argued the loan is void and unenforceable. He has counterclaimed for damages for negligence.

5 The evidence of Mr Murray is that his wife affixed his signature on the relevant documents, and that she did so without his authority. Mrs Murray did not give evidence. The Bank makes no argument of agency.

6 Neither party adduced handwriting evidence.

7 The second named defendant, Mrs Murray, entered an appearance on 4 June 2013.

She served a defence dated 15 May 2015 which contained a general traverse of the Bank's claim. She represented herself at the hearing, and did not offer any evidence in support of her defence, nor did she cross-examine any of the Bank's witnesses. At the closing of the evidence, she stated that she did not propose to make any submissions.

8 I propose dealing with the position of Mrs Murray later in this judgment, as her husband has made an argument that impacts upon her position.

9 Orders were made by Costello J. in relation, inter alia, to discovery and that the Bank be permitted to deliver interrogatories in writing for the examination of the first named defendant.

10 Evidence was heard over four days from witnesses on behalf of the Bank and on behalf of the first named defendant who himself gave evidence.

11 Written and oral legal submissions were later adduced by the Bank and Mr Murray.

Factual background

12 Mr Murray is a 60-year-old commercial fisherman who has been fishing since he was 15 years old, and who still spends a significant amount of time at sea. He is, and was at the material times, the sole breadwinner for his family.

13 Mrs Murray is 59 years of age and used to carry on occasional part-time work but has not worked outside the home for at least 10 years before the matters now in contention. By agreement between the couple, Mrs Murray managed all aspects of family finance until the events later described in this judgment.

14 The couple were married in 1979, their principal private residence is in Killybegs, and they are registered as full owners of the property comprised in Folio 34490F, County Donegal. The Bank is owner of a charge registered on the Folio on 19 September 2003. The present claim is for debt only. The security documentation is relevant in regard to the nature of the loans, and to the credibility of the evidence.

15 The couple have three children, two of whom are working full time and one of whom is a full time student.

16 The amounts advanced and the current balance are not in contention. Transactions on the account were proved and are not controverted. The primary defence offered by Mr Murray is that he did not sign the documentation to create the borrowings or the security. The 2003 Loan has been fully repaid. Monies borrowed and drawn down between June 2007 and November 2009 remain mostly unpaid, and the last monthly instalments was paid in July 2012.

Disputed facts

17 The issues of fact that need to be addressed can be summarised as follows:

a) whether the plaintiff and the defendants did enter into a loan agreement secured on their principal private residence on foot of the letter of offer issued on 31 July 2003 or otherwise,

b) whether the plaintiff and the defendants did enter into a loan agreement on foot of the letter of offer issued on 2 May 2007 or otherwise, secured by the existing charge on the Murrays” principal private residence.

The management of family finances

18 The agreement between the couple as to the management of their family finances forms part of the backdrop to the events in the relevant years and I turn now to outline the evidence regarding these arrangements which is largely uncontroverted.

19 Mr Murray gave evidence of how his household has been operating since he and his wife married in 1979. Mrs Murray runs the household and all family finances since Mr Murray ‘was always at sea for the five working days’ and ‘if there was any business to be done anywhere [Mrs Murray] had to do it’ (Transcripts, day 3, p 10). He said this is how most households in Killybegs are organised, as most of the men are fishing at sea.

20 Mr Murray gave a description of his average day at sea as a skipper on the vessel ‘Catherine R’. The boat normally lands between 6 and 9 in the morning and, at best, gets back by 5 or 6 in the evenings. He said after coming back from a fishing trip ‘you'd be mentally and physically just wrecked’ (Transcripts, day 3, p. 18). The fishing trips can involve the vessel being at sea for up to a week at a time.

21 He gave a detailed explanation of how the catch might be valued and the division of the income between the owner of the vessel and the crew (Transcripts, day 3, pp. 10 et seq.).

22 His evidence is that Mrs Murray pays the bills, and gives him personal money as he needs it from time to time (Transcripts day 3, p. 14). He has a personal credit card which ‘was just lying down in my drawer’ (Transcripts, day 3, p. 26). In cross-examination, Mr Murray admitted he has his own account with Ulster Bank (Transcript day 4, p. 5, line 7).

23 Mr Murray said that the ‘big decisions’ were made jointly with his wife including the decision to buy an apartment in Spain in 2003, and the decision to pay their daughter €30,000 in 2007 to acquire the site adjoining the family home in Roshine, Killybegs. Mr Murray's evidence is that, at a certain stage of their married life, Mrs Murray expressed her desire to live closer to town and she therefore arranged the construction of their new house in Killybegs. He said he ‘went out fishing one day’ and that he ‘came back in and went into the house in Killybegs and that was it’ (Transcripts day 3, p. 7).

24 Mr Murray said that he knew his wife had an addiction to alcohol for about six years before her admission to a rehabilitation centre in 2012 (Transcripts day 3, p. 50).

The 2003 Loan

25 Up until the year 2002, Mr Murray owned his own fishing vessel ‘The Boy Conor’, which he had bought in France from a broker with the benefit of a...