European Property Fund Plc v Ulster Bank Ireland Ltd

CourtHigh Court
JudgeMs. Justice Costello
Judgment Date28 January 2016
Neutral Citation[2016] IEHC 58
Docket Number[2014 No. 5450 P] [2014 No. 148 COM]
Date28 January 2016

[2016] IEHC 58



Costello J.

[2014 No. 5450 P]

[2014 No. 148 COM]


Banking & Finance – Contract – Practice & Procedures – O. 28, r. 1 of the Rules of the Superior Courts – Leave to amend statement of claim – Whether new claims permissible

Facts: Following the grant of an order for dismissal of all of the claims of the plaintiff against the defendant except two of the claims with liberty to the plaintiff to bring a motion to amend its statement of claim in relation to an application brought by the defendant to strike out the proceedings initiated by the plaintiff, the plaintiff now sought leave to amend its statement of claim. The defendant contended that the proposed amendments amounted to insertion of new claims, which could not be permitted.

Ms. Justice Costello granted an order for the preparation of another draft of amended statement of claim in line with the judgments delivered in the present matter as well as the earlier judgment in which the permission was granted to file an amended statement of claim. The Court permitted the insertion of some of the new claims while rejecting the other claims. The Court held that the introduction of new claims were permissible only to the extent that they were not prejudicial to the interests of the defendant and where the defendant could be compensated by way of costs. The Court observed that the claims already pleaded would not be allowed to be pleaded again as it was opposed to the procedural objectives of an expeditious and cost-savvy solution of the proceedings.

JUDGMENT of Ms. Justice Costello delivered on 28th day of January, 2016.

These proceedings commenced on 19th June, 2014, when the plaintiff and a co-plaintiff, Laurelmore Ltd. (‘Laurelmore’) claimed various reliefs arising out of two transactions referred to as the Belgrave Road Derivative and the Old Jewry Derivative. A statement of claim was delivered dated 7th August, 2014, and there was a notice for particulars and replies to the notice. The defence was delivered on 12th December, 2014, and a reply to the defence was delivered dated 22nd December, 2014.


The defendant brought a motion seeking to strike out the proceedings on the basis, inter alia, that they were statute barred and alternatively were frivolous and vexatious and bound to fail pursuant either to the provisions of O. 19, r. 5(2) of the Rules of the Superior Courts 1986 or the inherent jurisdiction of the court. The matter was heard over two days on 18th and 19th March, 2015, and I delivered judgment on the matter on 2nd July, 2015. This judgment should be read in conjunction with my earlier judgment of 2nd July, 2015, which sets out the factual background and pleadings in detail.


On the basis of the pleadings as they then stood and the affidavits exchanged between the parties, I struck out the entirety of the claim brought by Laurelmore against the defendant. In relation to the plaintiff, I held that its claims against the defendant fell into four parts. The first related to a loan facility referred to as the EPF Facility (though referred to by the plaintiff sometimes as the Belgrave Derivative), the second to the Old Jewry Derivative, the third to the sale of Belgrave Road and Old Jewry properties and the fourth to the delay in closing out the EPF Facility and the Old Jewry Derivative. For the reasons set out in the judgment I dismissed all of the claims of the plaintiff save those that related to the sale of the Belgrave Road and Old Jewry properties which the plaintiff alleged was procured by coercion and intimidation on the part of the defendant and a claim for damages arising out of the alleged delay in closing out of the EPF Facility and the Old Jewry Derivative.


In light of the judgment I granted the plaintiff liberty to bring a motion to amend its statement of claim.


The plaintiff brought a motion pursuant to O. 28, r. 1 of the Rules of the Superior Courts seeking leave to amend its statement of claim. Order 28, r. 1 provides:-

‘[t]he Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.’


The proposed amendments are extensive. The draft amended statement of claim runs to 40 pages. A notable feature of the plaintiff's application is that all of the information was available to it or in the public domain before the proceedings were commenced, with the exception of certain testimony provided by former officers of the defendant to the Joint Committee of Inquiry into the Banking Crisis between 7th May and 6th August, 2015, and the House of Commons Treasury Committee Conduct and Competition of SME Lending Report published on 10th March, 2015. The plaintiff now wishes to add several new causes of action:-

i) Claims based upon the relationship between the plaintiff and the defendant which give rise to a duty on the part of the defendant to act fairly and in good faith in relation to the plaintiff.

ii) A claim that the defendant mispriced the EPF Facility and therefore sought wrongfully to increase the rate of the interest chargeable on foot of the two facilities granted by the EPF Facility. In the alternative due to the mispricing of the facilities the defendant wished wrongfully to terminate these performing facilities.

iii) A claim that the defendant established limits with respect to internal credit lines based, inter alia, upon the plaintiff's contingent liabilities (which were not disclosed to the plaintiff) which adversely affected the creditworthiness of the plaintiff which in turn influenced the defendant in calling in or terminating the EPF Facility and the Old Jewry Derivative.

iv) A claim that the defendant misrepresented to the plaintiff that the EPF Facility would be restructured if the plaintiff sold the Belgrave Road property and the Old Jewry property. This is advanced as either an aspect of the intimidation and coercion claim or as a claim in its own right.

v) A claim that the defendant assured the plaintiff that it would not enforce breaches of the terms of the EPF Facility and therefore wrongfully called in the facilities and coerced and intimidated the plaintiff to force it to sell the two properties the subject of this litigation.

vi) A claim based upon alleged rigging of Libor by the defendant and/or its parent, Royal Bank of Scotland (‘RBS’), and misrepresentations as to the interest chargeable pursuant to the EPF Facility as a result of the manipulation of Libor and a wrongful overcharging of interest as a result of the manipulation of Libor.

The legal principles

The plaintiff relies upon the judgment of Geoghegan J. in the Supreme Court in Croke v. Waterford Crystal Ltd. [2005] 2 I.R. 383 where he noted that O. 28, r. 1 was intended to be a liberal rule based on the proposition that the interests of justice are best served if the real issues and controversy between the parties are before and can be determined by the court. At para. 31 he stated:-

‘[w]hile I quite agree that other factors have to be taken into account in the exercise of the discretion, the primary purpose of the rule is to give the court wide powers of amendment so that the real issues between the parties can be determined. This is always subject to questions of real prejudice to the defendant…’


The plaintiff also relied upon the decision of Clarke J. in Woori Bank & Anor v. KDB Ireland Ltd. [2006] IEHC 156. At para. 3.2 of the judgment he stated:-

‘…the starting point for a consideration of whether to allow the amendment should be to have regard to the fact that the party could have included the plea in the first place without requiring any leave from the court. Prejudice needs to be seen against that background. The prejudice that needs to be established must be prejudice which stems from the fact that the proceedings have progressed on one basis and are now sought to be altered. The prejudice must stem, therefore, from the fact of the belated alteration of the pleadings rather than the presence (if allowed) of the amendment itself.’

At para. 5.2 he held that:-

‘…the court should lean in favour of allowing an amendment if… it is otherwise appropriate so to do, unless it is manifest that the issue sought to be raised by the amended pleading must necessarily fail.’

Therefore it is necessary to this limited extent to assess the strength of the issue sought to be raised before leave to amend the pleading should be granted.


The plaintiff submitted that the pleas set out in the draft amended statement of claim were not statute barred and that the plaintiff would be entitled to institute new proceedings bringing these claims if leave to amend the existing proceedings were not granted; the defendant had not asserted that it would suffer any prejudice if the amendments were permitted and there had not been undue delay on the part of the plaintiff in seeking leave to amend the statement of claim. It was emphasised that it was not seeking to circumvent the earlier judgment of 2nd July, 2015, dismissing many of the existing pleas in the case and confirmed that the judgment was not subject to appeal.


The defendant opposed the application. It urged that the amendments went considerably beyond what remained to be determined in the case following the judgment of 2nd July, 2015. It submitted that many of the matters now sought to be raised were in fact res judicata or thinly disguised attempts to circumvent the effects of the judgment and order of July, 2015.


Insofar as the plaintiff now sought to advance new claims which had not previously...

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3 cases
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