Bank of Scotland Plc v O'Connor

• Jurisdiction: Ireland
• Judge: Ms Justice Finlay Geoghegan
• Judgment Date: 01 March 2017
• Neutral Citation: [2017] IECA 54
• Date: 01 March 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 54 Appeal No: 2015 No. 225 Appeal No. 2015 No. 226

BETWEEN:

BANK OF SCOTLAND PLC.

PLAINTIFF/RESPONDENT

- AND -

PATRICK O'CONNOR

RESPONDENT/APPELLANT

BETWEEN:

PATRICK O'CONNOR

PLAINTIFF/APPELLANT

AND

BANK OF SCOTLAND PLC., MICHAEL COTTER,

AND

LUKE CHARLTON, TRADING AS ERNST & YOUNG, MICHAEL COTTER TRADING AS ERNST & YOUNG, JAMES RIORDAN

AND

DARREN O'KEEFFE TRADING AS JAMES RIORDAN & PARTNERS,

AND

JAMES RIORDAN

AND

DARREN O'KEEFFE TRADING AS M.J.HORGAN & SONS

DEFENDANTS/RESPONDENTS

[2017] IECA 54

Finlay Geoghegan J.

Finlay Geoghegan J.

Peart J.

Binchy J.

Neutral Citation Number: [2017] IECA 54

Appeal No: 2015 No. 225

Appeal No. 2015 No. 226

THE COURT OF APPEAL

Locus standi – Loans – Order for costs – Appellant seeking to appeal against judgment of High Court– Whether respondent had standing to defend appeal against judgment

Facts: Judgment was given in the High Court in favour of the respondent, Bank of Scotland plc (BOS), against the appellant, Mr O’Connor, on 6th March, 2015. The appellant appealed to the Court of Appeal submitting that as BOS in 2016 had no further interest in the loans in respect of which judgment was granted in its favour by the High Court it had no standing to defend his appeal against the judgment. BOS in response accepted that in 2016 it had no further interest in the loans or any right to enforce the High Court judgment against the appellant. It did not put before the Court any of the documents relating to the sale of the appellant’s loans. Notwithstanding it submitted in part in reliance upon the judgment of the Court of Appeal (delivered by Finlay Geoghegan J) in Irish Bank Resolution Corporation v Patrick Halpin [2014] IECA 3 that it was entitled to remain as the respondent and defend the appeal. BOS also submitted that it had the benefit of an order for costs in the High Court which it was entitled to defend.

Held by Finlay Geoghegan J that BOS must and was entitled to remain as a respondent to the appeal as what was sought to be upheld was the determination of the High Court that as of 6th March 2015, BOS was entitled to judgment against the appellant. The Court was satisfied that BOS did continue to have locus standi to continue as the respondent in the appeal.

Finlay Geoghegan J held that the appellant’s motion should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by Ms Justice Finlay Geoghegan on the 1st day of March 2017

1 This is a judgment to which all members of the Court have contributed. It is the second judgment given in the above appeals and relates to a motion issued by the appellant on 3rd March, 2016 which on its face was issued in both appeals. However the primary relief sought in the motion in relation to the locus standi of Bank of Scotland p.l.c. (‘BOS’) to continue as respondent arises only in the first appeal (2015/225) in which judgment was given in favour of BOS against the appellant in the High Court in the sum of €7,683,999.96 (‘judgment proceedings’).

2 This judgment is supplemental to the judgment of the Court delivered by Peart J. on 10th February, 2017 (the ‘first judgment’) in both appeals. As appears from that judgment in the High Court both proceedings were heard together. Further, in the High Court the only basis upon which the appellant sought to resist judgment was on the basis of the claims made in the separate proceedings in which he is the plaintiff against BOS and others.

3 As appears from para. 2 of the first judgment the appellant accepted that if he failed on his second appeal in the proceedings in which he is the plaintiff it followed that his first appeal also failed and the judgment granted by the High Court in favour of BOS stood. That was the judgment of the Court.

4 Upon delivery of the first judgment, the appellant queried whether the Court had included in its judgment its decision on a motion issued by the appellant on 3rd March 2016 which upon its return date of 15th April, 2016 had been adjourned to the hearing of the appeal. It was not expressly dealt with in the judgment and hence this supplemental judgment.

5 In the course of the appeal hearing submissions were made by both sides in relation to the issue raised by the motion of the locus standi of BOS to continue to act as respondent to the appellant's appeal in the judgment proceedings. The factual basis for the appellant's contention that it was not so entitled is not in dispute nor is his entitlement to raise the issue by motion in the appeal.

6 Judgment was given in the High Court in favour of BOS against the appellant on 6th March, 2015. By letter of 26th August, 2015 the appellant was informed by BOS that it had agreed to sell his facilities, guarantees and security rights to Feniton Property Finance Limited (‘Feniton’). He was informed that he would be told in due course the date upon which the sale would take effect. He was subsequently informed by letter of 26th October that the sale...