Denis English v Promontoria (Aran) Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Stack
• Judgment Date: 17 May 2021
• Neutral Citation: [2021] IEHC 338
• Docket Number: [Record No. 2015/9196 P]
• Court: High Court
• Date: 17 May 2021

Between

Denis English

Plaintiff

and

Promontoria (Aran) Limited

Defendant

[2021] IEHC 338

[Record No. 2015/9196 P]

THE HIGH COURT

Reply and defence to counterclaim – Amendments – O. 28 r. 1 of the Rules of the Superior Courts 1986 – Plaintiff seeking an order granting him liberty to amend his reply to defence and counterclaim – Whether the proposed amendments fell within O. 28, r. 1 of the Rules of the Superior Courts 1986

Facts: The plaintiff, Mr English, entered into a number of loan agreements with Ulster Bank between years 2008 and 2011. He entered into certain agreements on foot of facility letters dated 7 November, 2008, 13 May, 2010, 11 August, 2008, and 21 March, 2011. He entered into a mortgage with Ulster Bank dated 8 November, 2007, as security for the facilities, which related to Knocklofty House, Clonmel, Co. Tipperary. The central complaint of the plaintiff was that Ulster Bank purported to sell and/or assign, by way of the suite of documents, the loans, facilities and the mortgage to the defendant, Promontoria (Aran) Ltd, but the plaintiff did not accept the validity or effectiveness of those transactions and therefore did not accept that the defendant had acquired any rights, interests or powers pursuant to the suite of documents. He also questioned the appointment by the defendant of Mr Fennell, as receiver, and alleged that Mr Fennell either caused or permitted significant damage to the property by way of fires, flooding and criminal damage. The plaintiff sued the receiver in separate proceedings. The plaintiff applied to the High Court by notice of motion dated 17 December, 2020, in which he sought an order extending the time to deliver an amended reply to defence and counterclaim, an order granting him liberty to rely upon an amended reply to defence dated 24 November, 2020, and, if necessary, an order pursuant to O. 28 r. 1 of the Rules of the Superior Courts 1986, as amended, granting him liberty to amend his reply to defence and counterclaim in terms of the amended reply to defence and counterclaim dated 24 November, 2020.

Held by Stack J that she would permit the amendments set out at paras. 1, 2, 3, 4, 6, 7 (b) and (d), 8, 9, 10, 11, 12 (save the last line and a half referring to the receiver proceedings), 13, 14, 15, 16, 17, 18, 19, 20, 21 (save the last two sentences of sub-para (v)), 22, 23, 24, 25, 26, 27, and 28 of the amended reply. She held that she would also permit the amendments set out at paras. 29, 30, 31 (save the subsidiary clause mentioning the receiver proceedings), 32 (save the last sentence which relates to the receiver proceedings, 33 (save the last sentence insofar as it refers to the receiver proceedings), 34 (save the last sentence) and 35 of the amended defence to counterclaim. She held that she would refuse liberty to include the remaining amendments sought, being paras. 5, 7(a) and (c) and the portions of other paragraphs indicated as being excluded. She held that it was a strict condition of the grant of that permission that a fresh draft amended reply and defence to counterclaim reflecting this judgment should be served on the defendant (by email) and filed in court within one week of the date of this judgment. She held that this was necessary to ensure that the matter proceeded expeditiously and that the delay occasioned by the failure to adhere to the time lines prescribed by O’Connor J was not further exacerbated. She held that the time allowed should be more than sufficient and therefore the application would be refused if this direction was not complied with. She held that, provided the deadline was complied with, an order granting liberty to serve an amended reply and counterclaim in terms of the draft filed in court on or before 24 May 2021 would be made.

Stack J proposed reserving the costs of the motion given that, even though the plaintiff was largely successful in the application, he was not wholly successful and was further guilty of unjustifiable delay in submitting the draft amended reply and defence to counterclaim in breach of a previous direction that it be served on or before 3 April 2020.

Liberty granted.

JUDGMENT of Ms. Justice Siobhán Stack delivered on the 17th day of May, 2021.

Introduction

1 This is an application brought by the plaintiff by notice of motion dated 17 December, 2020, in which he seeks an order extending the time to deliver an amended reply to defence and counterclaim, an order granting him liberty to rely upon an amended reply to defence dated 24 November, 2020, and, if necessary, an Order pursuant to O.28 r.1 of the Rules of the Superior Courts, 1986, as amended, granting him liberty to amend his reply to defence and counterclaim in terms of the amended reply to defence and counterclaim dated 24 November, 2020.

2 These proceedings were issued by plenary summons dated 10 November, 2015, and have had a protracted history. They arise out of a number of loan agreements with Ulster Bank, which the plaintiff accepts he entered into between years 2008 and 2011 (“the Loans”). In particular, he accepts that he entered into certain agreements on foot of facility letters dated 7 November, 2008, 13 May, 2010, 11 August, 2008, and 21 March, 2011 (“the Facilities”). He also admits that he entered into a mortgage with Ulster Bank dated 8 November, 2007, as security for the facilities (“the Mortgage”), which relates to Knocklofty House, Clonmel, Co. Tipperary (“the Property”).

3 The central complaint of the plaintiff is that Ulster Bank purported to sell and/or assign, by way of the suite of documents (as defined at para. 10 of the defence) the Loans, Facilities and the Mortgage to the defendant, but the plaintiff does not accept the validity or effectiveness of those transactions and therefore does not accept that the defendant has acquired any rights, interests or powers pursuant to the suite of documents.

4 He also questions the appointment by the defendant of Mr. Ken Fennell, as Receiver, and alleges that Mr. Fennell either caused or permitted significant damage to the property by way of fires, flooding and criminal damage. The plaintiff has sued the Receiver in separate proceedings bearing High Court Record No. 2019/1826P (“the Receiver proceedings”) and these are referred to further below.

5 There are two previous judgments of this Court, both given by Murphy J., which are significant for the purpose of this application. First, Murphy J. delivered judgment in these proceedings in English v. Promontoria (Aran) Ltd. (No. 1) on 16 November, 2016, [2016] IEHC 662 (“the No. 1 judgment”) finding that the defendant had failed to provide sufficient evidence to the plaintiff that it had acquired Ulster Bank's rights, titles and interest in the plaintiff's Loans, Facilities and Mortgage, and stayed the appointment of the Receiver. On foot of this judgment, the defendant furnished additional documents to the plaintiff and, in a second judgment, English v. Promontoria (Aran) Ltd. (No. 2) [2017] IEHC 322 (“the No. 2 judgment”), Murphy J. found that the additional documents were sufficient to demonstrate the power of the defendant to appoint the Receiver, and accordingly she lifted the stay on his appointment.

6 However, the immediate background to the within application is that the plaintiff got liberty on 24 October, 2019, to amend his statement of claim. It appears that the amendments permitted were less than what was sought, but nevertheless that liberty was given. This resulted in the inclusion of two further paragraphs in the statement of claim, giving liberty to the plaintiff to litigate the issue of the role of a third party, Capita Trust Company Limited (“Capita”), and no other issue is raised by virtue of those amendments. Other proposed amendments were refused, apparently, but I am not aware of the nature of those proposed amendments.

7 An amended defence and counterclaim was served on 22 November, 2019. Subsequently, on 6 March, 2020, on the hearing of a motion for inspection, this Court (O'Connor J.) directed the plaintiff to deliver his notice for particulars on the amended defence by 13 March, 2020, with the defendant to deliver replies for 27 March, 2020, and the plaintiff to deliver an amended reply to defence by 3 April, 2020. The deadlines for both delivery and reply to notice for particulars were complied with by the parties. As can be seen from the relief sought by the plaintiff in this application, however, the deadline of 3 April, 2020, was not complied with by the plaintiff, and he did not deliver an amended reply and defence to counterclaim until 24 November, 2020. It then appears that, as the defendant objected to the amendments, this motion was brought.

8 The most striking aspect of the amended reply and defence to counterclaim upon which I am now asked to adjudicate is its length. In sharp contrast to the limited amendments permitted to the statement of claim by O'Connor J., the amended reply and defence to counterclaim contains 25 new, or substantially altered, paragraphs, along with less significant changes to other paragraphs. Certainly, the impression is that the plaintiff has been given an inch but has taken a mile. However, impressions are not what counts and what matters is the substance of the proposed amendments and whether, in light of the relevant legal principles, the plaintiff should be permitted to introduce these amendments into the proceedings at this stage.

9 It should be added that the substance of the initial statement of claim could be, very broadly, divided into two strands. First, the plaintiff takes issue with the status of the defendant as the purported assignee of Ulster Bank and puts the defendant on full proof of its entitlement to appoint a receiver over his property and to recover monies said to be due and owing on foot of certain loan facilities which were originally granted to him by Ulster Bank. In addition,...