Darcy v AIB Plc

• Jurisdiction: Ireland
• Judge: Ms. Justice Eileen Roberts
• Judgment Date: 29 March 2023
• Neutral Citation: [2023] IEHC 162
• Court: High Court
• Docket Number: 2021/3557P

Between

Antoinette Darcy

Plaintiff

and

AIB Plc and Everyday Finance DAC and Hilary Larkin and Amy Byrne

Defendants

[2023] IEHC 162

2021/3557P

THE HIGH COURT

Damages – Lis pendens – Vacation – Second defendant seeking an order vacating the lis pendens registered by or on behalf of the plaintiff against the properties – Whether the plaintiff’s statement of claim made no claim to an estate or interest in land

Facts: The plaintiff, Ms Darcy, on 30 April 2021, issued proceedings, seeking damages and various declaratory reliefs including: that she is the registered owner of and holds a beneficial interest in four identified registered properties, being the properties comprised in Folio 169737F Co. Dublin, Folio 4988 Co. Dublin, Folio 172402 Co. Dublin and Folio 169731F Co. Dublin (the Properties); that she is entitled to possession of the Properties; that the deed of appointment of the receiver over the Properties is unlawful; and that any attempted conveyances of the Properties by the defendants, AIB plc, Everyday Finance DAC, Ms Larkin and Ms Byrne, are unlawful, null and void. She also sought an undertaking that the defendants will not sell or market or otherwise dispose of the Properties. She registered a lis pendens over the Properties on the same day as the proceedings issued. The second defendant applied to the High Court for an order pursuant to s. 123 of the Land and Conveyancing Law Reform Act 2009 vacating the lis pendens registered by or on behalf of the plaintiff against the Properties. Counsel for the second defendant argued that there were two separate bases on which the court should vacate the lis pendens on the Properties. He argued firstly that the plaintiff’s statement of claim made no claim to an estate or interest in land. Second he argued that the registration of the lis pendens was for an improper purpose which he said was to apply pressure on the second defendant in relation to the negotiations which were canvassed in some detail by the plaintiff in her statement of claim.

Held by Roberts J that she proposed staying the proceedings until 4 May 2023 to allow time to the plaintiff to amend her statement of claim so as to reflect the reliefs sought in her summons and to properly particularise the basis on which she claimed those reliefs. Roberts J directed that if the plaintiff wished to amend her statement of claim she should issue a motion seeking leave to amend and serve it with her proposed amended statement of claim on the solicitors for the defendants within four weeks from the date of the judgment; the motion should be returnable to 4 May 2023. Roberts J held that she would list the matter for 10.00 am on 4 May 2023 to allow the plaintiff to bring her application for the amendments she wished to make. Roberts J held that she would also hear the defendants at that time regarding those proposed amendments. Roberts J held that if the plaintiff did not take such steps within that period and instead continued to rely on her existing statement of claim, or if the application to amend was refused or the amendments were otherwise inadequate, then Roberts J would propose making an order vacating the lis pendens she had registered.

Roberts J held that, on 4 May 2023, she would make the relevant orders as appropriate, including any orders as to costs and further directions for the exchange of pleadings to ensure that as early a trial date as possible was achieved for the parties.

Proceedings stayed.

JUDGMENT of Ms. Justice Eileen Roberts delivered on 29 March 2023

Introduction

1 . This judgment relates to the second named defendant's application for an order pursuant to section 123 of the Land and Conveyancing Law Reform Act 2009 (the “ 2009 Act”) vacating the lis pendens registered by or on behalf of the plaintiff against four identified registered properties, being the properties comprised in Folio 169737F Co Dublin, Folio 4988 Co Dublin, Folio 172402 Co Dublin and Folio 169731F Co Dublin (together “ the Properties”).

2 . The plaintiff borrowed substantial monies (it would appear jointly with her husband) from the first named defendant in 2007 and 2008. She executed deeds of mortgage in relation to the Properties as security for the monies advanced. The plaintiff's loan and related security was sold to the second named defendant who is now the registered owner of a charge on three of the four Properties.

3 . The third named defendant is the receiver appointed by the second named defendant. The fourth named defendant appears to be employed by Mazars and was party to conversations regarding one of the Properties which is alleged to be the plaintiff's family home. It is not clear however from the pleadings in precisely what capacity the fourth named defendant is sued or what relief is claimed against her.

The plaintiff's claim in these proceedings

4 . On 30 April 2021 the plaintiff issued these proceedings, seeking damages and various declaratory reliefs including: that she is the registered owner of and holds a beneficial interest in the Properties; that she is entitled to possession of the Properties; that the deed of appointment of the receiver over the Properties is unlawful; and that any attempted conveyances of the Properties by the defendants are unlawful, null and void. She also seeks an undertaking that the defendants will not sell or market or otherwise dispose of the Properties. She registered a lis pendens over the Properties on the same day as the proceedings issued.

5 . The plaintiff then delayed in serving her statement of claim, which was not served until 15 July 2022, after she was directed to do so by Order of the High Court on 27 June 2022. The statement of claim is a confusing, poorly drafted document and not easy to follow. In brief terms however, it is pleaded that in January 2006 the plaintiff was introduced to an assistant manager employed by the first named defendant and that this manager negotiated and verbally agreed to loan a sum in excess of €4 million to the plaintiff's husband. The plaintiff alleges she was not party to such negotiations, that she was never advised to seek independent legal advice, that she was never provided with any “ paperwork” and that she did not sign a family home declaration.

6 . It is pleaded that the loan facilities obtained by the plaintiff's husband were to be repaid from the sale of completed properties which were to be developed using the loan monies. Planning difficulties arose. It is alleged that the first named defendant required the plaintiff's husband to withdraw various legal proceedings and investigations which he had instituted concerning the refusal of planning permission for the proposed development.

7 . The statement of claim pleads that on 12 April 2012 the first named defendant obtained a possession order for the plaintiff's “ family home and registered assets”. It is pleaded that on 13 September 2013 the Supreme Court overturned the possession order and directed a plenary hearing.

8 . The statement of claim confirms that the plaintiff and her husband made a number of offers to the first named defendant to settle the indebtedness which were refused.

9 . It is alleged that on 14 June 2019 the first named defendant “ without notice” sold its legal rights and interest in the relevant mortgage facilities to the second named defendant. The second named defendant appointed the third named defendant as a receiver over the Properties in October 2019.

10 . When the receiver sought to take possession of the Properties, the plaintiff's husband informed the fourth named defendant that one of those properties, Woodview Grays Lane, was their family home. Allegations are made that the receivers took money belonging to the plaintiff located in the family home, changed locks and appointed auctioneers to sell the family home by auction on BidX1. It is pleaded at para 29 of the Statement of Claim that taking ongoing costs into account, “ the value of all the assets that could be obtained is €900,000 less than what [the plaintiff]is currently offering.”

11 . The final paragraph of the statement of claim confirms that:

“ The Plaintiff claims damages as against the defendants for misrepresentation, breach of contract, violations of the Plaintiffs entitlements under Section 4 [sic] the Human Rights Act 2003 and Article 1 Protocol 1 of the European Convention on Human Rights”.

The second named defendant's application

12 . The motion in this case, filed on 20 May 2022, was issued on behalf of the second and third named defendants although at the hearing it was expressly said to be advanced only on behalf of the second named defendant. The affidavit grounding that motion was sworn on 18 May 2022 by Andrew McCrudden, legal manager with the second named defendant.

13 . Mr McCrudden exhibits signed facility letters dated 17 July 2007 and 4 June 2008 in relation to the loan facilities advanced to the plaintiff and her husband. The letter of sanction dated 17 July 2007 is addressed to both the plaintiff and her husband at Woodview, Grays Lane. It refers to 2 facilities, the first for €9,054,000 and the second for €1,000,000 (to add to the initial sanctioned sum of €4,748,000), to fund stated property developments. The Properties are each identified as security for the loans. The Woodview, Grays Lane property is the first property identified. Both the plaintiff and her husband appear to have signed and accepted the terms and conditions of this facility on 18 July 2007.

14 . The second letter of sanction dated 4 June 2008 relates to an amount of €15,808,303, being a renewal of an existing facility limit. It is a demand facility addressed both to the plaintiff and her husband. The security includes an all sums due legal charge over Woodview, Grays Lane and the remaining Properties as well as assignments of life policies in the name of the plaintiff and her husband....