Danske Bank v S.C.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gilligan |
| Judgment Date | 23 April 2018 |
| Neutral Citation | [2018] IECA 117 |
| Date | 23 April 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 117 [2017/492] [2017/493] |
[2018] IECA 117
THE COURT OF APPEAL
Gilligan J.
Irvine J.
Hogan J.
Gilligan J.
Neutral Citation Number: [2018] IECA 117
[2017/492]
[2017/493]
AND
Discretion – Adjournment – Mediation – Appellant seeking an order pursuant to O. 56A, r. 2(1) of the Rules of the Superior Courts adjourning the proceedings and inviting the parties to attend mediation – Whether it was open to the trial judge in the exercise of his discretion to conclude that the application for the order should be refused
Facts: The defendant/appellant appealed to the Court of Appeal from the High Court order of O’Connor J whereby he refused the application of the appellant pursuant to a notice of motion as issued on the 17th October 2017 which sought an order pursuant to O. 56A, r. 2(1) of the Rules of the Superior Courts adjourning the proceedings and inviting the parties to attend mediation. There was a second appeal against the order of the court directing the delivery of certain pleadings within specific time limits.
Held by Gilligan J that it was open to the trial judge in the exercise of his discretion to come to the conclusion that the application for the order pursuant to O. 56 of the Rules of the Superior Courts should be refused and pleadings should be delivered and that the interlocutory application should proceed. In Gilligan J’s view he could not be faulted in the particular circumstances that arose in this matter.
Gilligan J held that he would dismiss the defendant’s appeal. In respect of the second appeal concerning the case management directions as made by O’Connor J, as those directions were complied with and both parties agreed that the matter was moot, Gilligan J held that he would also dismiss that appeal.
Appeal dismissed.
This matter comes before the Court by way of the defendant/appellant's appeal from the order of the High Court (O'Connor J.) whereby he refused the application of the appellant pursuant to a notice of motion as issued on the 17th October 2017 which sought an order pursuant to O. 56A, r. 2(1) of the Rules of the Superior Courts adjourning the within proceedings and inviting the parties to attend mediation. There is a second appeal against the order of the court directing the delivery of certain pleadings within specific time limits.
The background to the proceedings are that for some years prior to 2007 the defendant's now estranged husband was borrowing substantial sums of money from Danske Bank in respect of commercial properties situate in rural Ireland. A variety of loans were procured from the Bank, some of which allegedly involved the defendant. It should be said in this regard that she contests any involvement in the loans, alleging that her signature was forged on certain documents.
In 2007 the defendant commenced High Court family law proceedings against her husband. These proceedings resulted inter alia in an order being made pursuant to s. 8(1)(b) of the Family Law Act 1995 securing maintenance for herself and the two dependant children of the marriage against rental income from certain properties involved in the defendant's estranged husband's loans and, in particular, one property. That security was to discharge the sum of €780,000 by way of maintenance and was to be discharged by payments totalling €130,000 per annum for a period of six years as and from the 24th October 2013. Subsequently further orders were made by this Court (Abbot J.) securing payment on other properties which were the subject matter of the same mortgages between the first named plaintiff and the defendant's estranged husband.
The first named plaintiff has not pursued the defendant in these proceedings for judgment in respect of the various loans as taken out by the defendant's estranged husband and pursuant to a summary summons which was issued in February 2015, judgment was obtained in the High Court Central Office against the defendant's estranged husband in the total sum of €5,696,514.00. Subsequently the defendant's estranged husband allegedly did not cooperate with the first named plaintiff which resulted in the first named plaintiff seeking an order of attachment and committal against him.
The second named plaintiff was duly appointed to act as receiver over all the properties which are relevant to these proceedings on the 29th April 2016 and he accepted the appointment on 3rd May 2016.
The second named plaintiff contends that from the date of his appointment he is entitled to receive all rental payments relating to the properties involved pursuant to the terms of the mortgage and pursuant to statute, whereas the defendant contends that she has a valid order of this Court (Abbot J.) directing that the sum of €780,000 be paid over six years by way of maintenance out of the rental income from the properties involved.
Delays then ensued in that the plaintiffs sought to be joined to the family law proceedings and subsequently, in May 2017, it was determined that the method for the proposed parties to assert their competing rights was by way of fresh proceedings.
Subsequent to that judgment the plaintiffs issued these proceedings by way of plenary summons dated the 6th July 2017 and issued a notice of motion on 6th July returnable to the 27th July 2017 and the matter was adjourned to the 5th October 2017, as the defendant had not delivered any replying affidavit. The defendant was directed to deliver any replying affidavit prior to the 11th September 2017.
What occurred on the 5th October 2017 in the High Court was that the defendant had delivered a replying affidavit the day before and proceeded to indicate to the Court that she wished to avail of mediation. The plaintiffs indicated that this was the first they had heard of any request for mediation. The Court directed that a letter of request be furnished by the defendant to the plaintiff requesting mediation and, if the request was refused, granted liberty to issue a motion seeking such relief pursuant to O. 56A, r. 2(1) of the Rules of the Superior Courts.
The defendant's solicitors duly wrote by way of a letter of the 5th October 2017 formally requesting to have these proceedings referred to mediation. The plaintiffs replied by way of a letter of the 6th October declining to go to mediation, referring to an earlier settlement meeting, and made an alternative proposal that the parties would attend a further settlement meeting to be arranged in advance of the adjourned date of the proceedings and following engagement between the solicitors a meeting was fixed for 4 pm on the 18th October 2017 at the Four Courts. In the intervening period the defendant issued a motion seeking the various orders which are the subject matter of this appeal.
In the plaintiffs' solicitor's letter of the 17th October 2017 they take issue with the defendant's decision to issue what they term a fundamentally inconsistent application concerning mediation returnable for the day after the settlement meeting and that this fact causes the plaintiffs to question whether the defendant has a genuine intention of attempting to resolve the dispute and whether the defendant's true objective is rather to procure the delay of the proceedings.
The letter further references the fact that the defendant sought short service of the application concerning mediation from the High Court (Twomey J.) on an ex parte basis and failed to advise Twomey J. of the fact that the parties had agreed to attend a settlement meeting in lieu of mediation arranged for the 18th October 2017.
It also is the situation that there had been a previous settlement meeting held in March 2017 at which both parties with solicitor and counsel had attended.
The nature of the interlocutory relief as sought by the plaintiffs against the defendant was to protect the flow of the rental income that was being paid to the defendant until the issue that arose between the parties could be determined by the Court particularly against a background where the order of the High Court (Abbot J.) would expire in October 2019.
In relation to the defendant's application pursuant to O. 56A, r. 2(1) of the Rules of the Superior Courts this Court (O'Connor J.) delivered an ex tempore judgment on the 19th October 2017. It was brought to the attention of...
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Courting Mediation
...and will often encourage parties to resolve disputes by mediation. In the recent case of Danske Bank and Stephen Tallant v S.C. [2018] IECA 117, the Court of Appeal considered an appeal where the High Court had refused to order that proceedings be adjourned to facilitate mediation. In this ......