Bank of Ireland Mortgage Bank v Vincent Kelly

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 20 December 2017
• Neutral Citation: [2017] IEHC 775
• Docket Number: [2013 No. 58SP]
• Court: High Court
• Date: 20 December 2017

[2017] IEHC 775

THE HIGH COURT

CHANCERY

Twomey

[2013 No. 58SP]

BETWEEN:

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF

-AND-

VINCENT KELLY

DEFENDANT

EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 20 ^th day of December, 2017.

1 This is a case where Gilligan J. gave an order that the within proceedings (the “Possession Proceedings”) taken by Bank of Ireland Mortgage Bank (“BOIMB”) against Mr. Vincent Kelly be heard, with or directly after other proceedings taken by The Governor and Company of the Bank of Ireland (the ‘GovCo’ Proceedings) against Mr. Kelly and his wife Ms. Claire Collins. The within proceedings seek possession of a property at Toormore, Skibbereen, County Cork (the “Skibbereen Property”)

2 The Possession Proceedings relate to a loan of €1,000,000 made by BOIMB to Mr. Kelly to purchase the Skibbereen Property. Uncontroverted evidence was provided that the last repayment made on that loan was made by Mr. Kelly some nine years ago in July. 2008 and that over €1,000,000 remains outstanding on this loan. For reasons mentioned hereinafter, Mr. Kelly alleges that while this sum was borrowed, it is not due to the BOIMB.

3 The GovCo Proceedings are three sets of proceedings taken against:

a. Mr. Kelly and Ms. Collins seeking an order of possession of a property at Cappaghglass, Ballydehob, County Cork;

b. Mr. Kelly seeking judgment in the sum of €2,214,240.66;

c. Mr. Kelly and Ms. Collins seeking judgment in the sum of €1,805,506.37.

4 The order coupling the two sets of proceedings was granted by Gilligan J. on the 13 ^th November, 2013. It is relevant to note that Gilligan J. gave liberty to apply, since BOIMB is now applying to this Court for that Order to be set aside pursuant to its Notice of Motion dated 25 ^th October, 2017.

5 It seems clear that one of the reasons Gilligan J. gave liberty to apply was to allow either party to apply for the proceedings to be decoupled if circumstances were such as to warrant their decoupling.

6 It is this Court's view that the following pre-existing circumstances and changed circumstances since Gilligan J.'s Order in November, 2013 are such as to warrant such decoupling;

a. The pleadings in the Possession Proceedings closed on the 20 ^th February, 2015, and so the Possession Proceedings have been ready to be set down for trial since that date. However, due to the fact that they are linked with the GovCo Proceedings, it has not been possible to set them down for trial.

b. It is relevant that Mr. Kelly has not made any payments in repayment of the loan on the Skibbereen Property since 2008, yet he and Ms. Kelly have had the full use of the property since that date, which is a period of almost 10 years (and some 9 years from the first application for possession of the Skibbereen Property by BOIMB). While Mr. Kelly does not deny receiving some €1,000,000 to purchase the Skibbereen Property, he is resisting the application for possession and in particular he does not wish to have the matter set down for trial now, but wishes to have the matter heard in conjunction with the GovCo proceedings, which are not ready to be set down for trial.

c. The Possession Proceedings are in the Chancery List and submissions were made on behalf of BOIMB that if the Possession Proceedings are set down for trial now in the Chancery List, it is likely that one will get a trial date in a matter of months and so in or around April of 2008.

d. In contrast, the GovCo proceedings, which are in the Non-Jury List, are...