Carol Morrissey and Another v National Asset Management Agency Ltd and Others
|Mr. Justice Kelly
|10 July 2014
| IEHC 343
|[No. 2799 P./2014]
|10 July 2014
 IEHC 343
THE HIGH COURT
CONSTITUTION ART 40.5
CONSTITUTION ART 40.3
CONSTITUTION ART 41
CONSTITUTION ART 42
CONSTITUTION ART 43
CONSTITUTION ART 40.1
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S17
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S192
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S189
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S195
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 PART 4
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 PART 5
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 PART 6
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S172
CONSTITUTION ART 41.2
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S171
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL 1 ART 1
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182(2)
COURTS ACT 1981 S22
RSC O.63(A) r1(A)(I)
RSC O.63(A) r1(B)
RSC O.20 r3
MULHOLLAND & KINSELLA v BORD PLEANALA 2005 IEHC 188 2005/40/8352
RSC O.63(A) r1(A)
RSC O.63(A) r1(C)
RSC O.63(A) r1(G)
P J CARROLL & CO LTD & ORS v MIN FOR HEALTH & ORS 2004 IEHC 310 2004/41/9499
Commercial Proceedings – Commercial List – Application to transfer – Entitlement – Loans – Repayment – Constitutional Action – Preliminary Objections – Solicitor Certificate – Prejudice – Privilege
Facts: The first and second defendants applied to transfer the case to the Commercial List, the third, fourth and fifth defendants consented to the application and it was opposed by the plaintiffs. It was alleged Mr Morrissey was indebted to the first named defendant (NAMA) and its subsidiary National Asset Loan Management (NALM), in the sums of €4.7m and €32,131,000 respectively. The €4.7m debt arose on foot of a facility concerning Mr Morrissey”s private dwelling house and the €32,131,000 arose from a series of loan facilities granted by the Irish Nationwide Building Society, known as the ILF loans. The ILF loans were secured over properties. In January 2014, NALM issued a demand letter to Mr. Morrissey demanding full payment of the ILF facilities by 27th January 2014. No payment was made and statutory receivers took over the properties. In the plenary summons, the plaintiff ought various reliefs such as damages and numerous orders relating to breaches by the defendants of the plaintiff”s constitutional rights and duties. The application to transfer this litigation to the Commercial List was grounded by Michael Broderick, a senior asset recovery manager with NAMA and Alan O”Sullivan, solicitor and partner in the firm of Hayes Solicitors for the plaintiffs. Preliminary objections were put forward. Firstly, the certificate put forward by the solicitors for the defendants moving the application was criticised as it was alleged the certificate failed to set out facts relating to the proceedings as demonstrated the appropriateness of the action to be transferred to the commercial list. The second preliminary objection related to an alleged prejudice which would be caused to the plaintiffs if the substantive application was granted, which would force the plaintiffs to deliver a statement of claim in advance of the time fixed by the Rules of Court. The third preliminary objection related to an allegation the affidavit grounding the application for transfer to the List contained material which was legally privileged as it dealt with settlement negotiations between the parties. The final objection asserted the substantive application failed in limine as Mrs Morrissey had no commercial dealings with the first or second defendants.
Mr Justice Kelly held it was for the moving party to demonstrate an entitlement to the order sought when seeking an application to transfer to the commercial list, to satisfy the court the case fell within the ambit of O. 63A, r. 1 of the Rules of the Superior Courts and that it was suitable for the judge”s discretion to be exercised in favour of the applicant. The plaintiffs asserted it was inappropriate for their case to be dealt with on the Commercial list. Mr Justice Kelly cited Order 63A, rule 1 of the Superior Court rules, defining commercial proceedings. Mr Justice Kelly stated the Commercial List was not limited to adjudicating on matters of commercial law and that it had jurisdiction to deal with other disputes relating to planning law, environmental law and administrative law, so long as the judge in charge of the list was satisfied the matter was appropriate for entry into the Commercial List. Mr Justice Kelly discussed and considered the case of P.J Carroll & Company Limited v Minister for Health and Children .
Held by Mr Justice Kelly the Commercial Court was set up primarily to facilitate the efficient resolution of commercial disputes and that even by giving a wide and purposive construction to the relevant court rules, this case could not be regarded as a case with sufficient commercial elements to be admitted to the Commercial List. Mr Justice Kelly quoted the words of Geoghegan J, that this action was ‘fundamentally a constitutional action’ and refused to admit the matter to the Commercial List.
Application to admit to Commercial List refused
These are my reasons for refusing to admit this case to the Commercial List.
The first and second defendants applied to transfer this case to the Commercial List. The third, fourth and fifth defendants consented to the application. It was opposed by the plaintiffs.
Mr. Morrissey is allegedly indebted to both the first named defendant (NAMA) and its subsidiary National Asset Loan Management (NALM). The indebtedness to NAMA is of the order of €4.7m and has arisen on foot of a facility concerning his private dwelling house (the PPR facility). It is common case that no demand has issued to Mr. Morrissey in respect of this alleged indebtedness. Consequently, there is no litigation in being in respect of it either.
His alleged indebtedness to NALM is much larger. It amounts to a sum in excess of €32,131,000 and arises,inter alia, from a series of loan facilities granted by the Irish Nationwide Building Society. These have been called the Investment Loan Facilities (ILF). It is common case that demand has issued in respect of these facilities but no proceedings are in being.
The ILF loans are secured over a series of properties situated for the most part in Rathmines, Rathgar and Ranelagh, Dublin. The PPR facility is secured by a mortgage over the private dwelling house of the plaintiffs located at 36 Palmerston Road, Rathmines.
It is alleged that the ILF facilities have been in default for what is described as a considerable period of time.
In January 2014, NALM issued a demand letter to Mr. Morrissey demanding full payment of the ILF facilities by 27th January, 2014. In the absence of payment, statutory receivers were appointed by NAMA over the secured investment properties. Upon such appointment, the statutory receivers took possession of the properties.
The appointment of the receivers brought about correspondence from the plaintiffs' solicitors and thereafter there was an exchange of letters but no accommodation was reached.
On 27th February, 2014, these proceedings commenced.
The general endorsement of claim seeks the following reliefs:-
2 "1. An Order declaring that acts of the first named, second named and third named defendants, their servants and agents in the purported exercise of their respective statutory and non-statutory functions in respect of the second named plaintiff's properties including (but not limited to) the family home at 36 Palmerston Road, Dublin 6, including the failure to act fairly and reasonably in respect of the valuation and disposition of the said properties, (including the appointment of a receiver) have engaged in breaches of, and threaten further inferences (sic) in the exercise of by the plaintiffs of, the plaintiffs' respective constitutional rights and duties, including the following rights and duties:-
(i) Their right to inviolability of their dwelling, under Article 40, section 5 of the Constitution;
(ii) Their rights and duties as spouses, parents and educators of their children under Article 40, section 3, 41 and 42 of the Constitution;
(iii) Their right to property, under Article 40, section 3, and 43 of the Constitution;
(iv) Their right to martial (sic) autonomy, under Article 40, section 3, 41 and 42 of the Constitution;
(v) Their right to equality before the law, under Article 40, section l of the Constitution;
(vi) Their right to human dignity, under Article 40, section 1 and 3 of the Constitution;
(vii) Their right to access of the courts under Article 40, section 3 of the Constitution;
(viii) Their right to litigate under Article 40, section 3 and 43 of the Constitution.
2. An Order for damages (including aggravated and exemplary damages) against the defendants for:-
(i) Breach of Constitutional Rights;
(iii) Negligent misrepresentation;
(iv) Breach of Statutory Duty;
(v) Breach of Section 3 of the European Convention on Human Rights Act 2003;
(vi) Breach of Statutory Rights, under the Guardianship of Infants Act, 1964, as amended;
(vii) Causing loss by unlawful...
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Morrissey v The National Asset Management Agency Ltd
...to the Commercial Court; see the judgment of Kelly J (as he then was) on that application, which can be found under the neutral citation  IEHC 343. For my part, I cannot see how that gives rise to any estoppel (or inhibition of any other kind), particularly when one considers that NA......