Fannon v Ulster Bank Ireland DAC and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 06 March 2024
• Neutral Citation: [2024] IECA 51
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal number: 2021/150

Between/

Eoin Fannon

Plaintiff/Respondent

and

Tom O'Brien and Promontoria (Oyster) DAC

Defendants

and

By Order Ulster Bank Ireland DAC

Defendant/Appellant

[2024] IECA 51

Barniville P.

Whelan J.

Haughton J.

Appeal number: 2021/150

THE COURT OF APPEAL

Contract – Negligence – Defamation – Appellant seeking to dismiss or strike out the claims made by the respondent against the appellant– Whether the appellant should be permitted to rely on substantial arguments which were not considered by the High Court

Facts: The third defendant/appellant, Ulster Bank Ireland DAC (Ulster), appealed to the Court of Appeal from the judgment of the High Court (Keane J) delivered on 28th April, 2021 ([2021] IEHC 301), and from the order made by the High Court on 19th May, 2021, dismissing an application by Ulster to dismiss or strike out the claims made by the plaintiff/respondent, Mr Fannon, against Ulster in the proceedings on various different jurisdictional grounds. The causes of action asserted against Ulster included claims in contract, negligence and related torts, and in defamation and trespass. In oral submissions, Ulster attempted to persuade the Court of Appeal that it should dismiss the plaintiff’s negligence claim. In respect of that part of its appeal, Ulster made arguments and relied on case law which were not advanced or addressed before the High Court, or, indeed, developed to any material extent in its notice of appeal or in its written submissions.

Held by Barniville P that Ulster should not be permitted to rely on substantial arguments which were not considered by the High Court. For the Court of Appeal to permit Ulster to do so would, in Barniville P’s view, be unfair and would be inconsistent with the role of the appellate court as discussed by O’Donnell J in the Supreme Court in Lough Swilly Shellfish Growers Cooperative Society Ltd v Bradley & Ors [2013] IESC 16, and considered on many occasions by the Court of Appeal (a recent example being Promontoria (Aran) Ltd v Mallon [2021] IECA 130). Barniville P held that Ulster’s appeal should be considered on the basis of the case and arguments advanced by it in the High Court and not on the basis of the fundamentally new arguments advanced on its behalf in the Court of Appeal. Barniville P held that there was a significant difficulty in Ulster relying on the provisions of s. 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 in its application to dismiss the plaintiff’s claim on the basis of the alleged assignment of the plaintiff’s loan and mortgage to the second defendant, Promontoria (Oyster) DAC, in circumstances where Ulster did not provide a copy of the document (or the relevant parts of the document) alleged to constitute the assignment. Barniville P held that Ulster did not put before the High Court or the Court of Appeal, for the purpose of its application to dismiss the plaintiff’s claims, evidence that the alleged assignment was an “absolute assignment” for the purposes of that statutory provision. Having regard to those considerations, Barniville P concluded that Ulster’s appeal should be dismissed, insofar as it related to the contract claim and the negligence claim.

Barniville P was satisfied that Ulster’s appeal from the refusal of the High Court to dismiss the defamation claim should be allowed. In Barniville P’s view, that claim was unstateable and unsustainable as pleaded, and in substance, and should be dismissed under both O. 19, r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the court. Barniville P noted that the plaintiff did not seek to avail of any opportunity to amend the pleas made in respect of the defamation claim so as to identify any stateable basis for it; the same goes for the plaintiff’s claim in trespass. Insofar as the plaintiff had sought to advance such claims in defamation and trespass as against Ulster, Barniville P believed the High Court should have dismissed those claims and he allowed Ulster’s appeal in respect of them.

Appeal allowed in part.

JUDGMENT ofMr. Justice David Barniville, President of the High Court, delivered on the 6 ^th day of March, 2024

Contents

1. Introduction	2
2. Factual Background	5
3. Procedural History	6
4. Ulster's Dismissal Application	9
5. The Judgment of the High Court	12
6. Ulster's Appeal and Submissions on the Appeal	16
(1) Ulster's Notice of Appeal and Plaintiff's Response	16
(2) Ulster's Written Submissions	18
(3) The Plaintiff's Written Submissions	20
(4) The Case Made by Ulster at the Hearing	21
7. Decision on Appeal	25
(1) Decision on Dismissal of Contract and Negligence Claims	25
(a) Arguments and issues raised for the first time on appeal	26
(b) No evidence of “absolute” assignment	28
(c) Issues not appropriate for dismissal under inherent jurisdiction	30
(d) The judge applied correct principles in exercise of discretion	31
(2) Decision on Dismissal of Defamation and Trespass Claims	32
(3) Litigious Disadvantage	33
8. Conclusion	34
9. Costs	34

1. Introduction

1 . This is an appeal by the third named defendant/ appellant, Ulster Bank Ireland DAC (“Ulster”), from the judgment of the High Court (Keane J.) delivered on 28 ^th April, 2021 ([2021] IEHC 301), and from the Order made by the High Court on 19 ^th May, 2021, dismissing an application by Ulster to dismiss or strike out the claims made by the plaintiff against Ulster in the proceedings on various different jurisdictional grounds. In addition, the High Court ordered Ulster to pay the plaintiff's costs of the application.

2 . The plaintiff initially commenced the proceedings against the first and second defendants only, Tom O'Brien (the “Receiver”) and Promontoria (Oyster) DAC (“Promontoria”). The plaintiff subsequently joined Ulster as a further defendant to the proceedings. In an amended statement of claim delivered by the plaintiff following the joinder of Ulster, the plaintiff pleaded a number of causes of action against Ulster, in addition to those originally pleaded against the Receiver and Promontoria. The causes of action asserted against Ulster included claims in contract (the “contract claim”), negligence and related torts (the “negligence claim”) and in defamation and trespass (the “defamation and trespass claims”).

3 . Ulster brought an application in the High Court to dismiss or strike out all of those claims on various different jurisdictional grounds including O. 19 r. 28, O. 19 r. 27, O. 15 r. 13 of the Rules of the Superior Courts (the “RSC”), and the inherent jurisdiction of the court. Ulster's application was advanced on a particular basis which was clearly set out in its affidavits and in its written submissions. That basis was, essentially, that because Ulster had assigned the plaintiff's loan and mortgage to Promontoria, any cause of action which the plaintiff might have arising out of the matters complained of, lay against Promontoria and not against Ulster. In advancing that argument, Ulster relied heavily on the provisions of s. 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 (the “1877 Act”). That provision reads, as far as is relevant to this appeal, as follows:

“Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed,) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor…”

4 . In a comprehensive judgment, the High Court Judge (Keane J.) carefully considered the arguments advanced for, and against, Ulster's application. The judge set out clearly and, in some detail, the legal principles applicable to the dismissal of a claim as well as the law governing the effect of an alleged assignment on causes of action in contract and tort. There is no dispute between the parties that the judge correctly identified the principles applicable to the dismissal of claims. Rather, the dispute concerns his application of those principles in the context of the particular alleged assignment in this case. The judge concluded that it would not be appropriate to dismiss or strike out any of the plaintiff's claims against Ulster on foot of Ulster's application to dismiss.

5 . Ulster has appealed to this Court from that judgment and the consequent order made by the High Court. It is clear, however, that in advancing its appeal, Ulster has relied on points and arguments not advanced in the High Court which the judge had no opportunity to address in his judgment. While the notice of appeal and Ulster's written submissions on the appeal moved some distance from the case advanced by it in the High Court, that move was even more dramatic in the oral submissions made on behalf of Ulster at the hearing of the appeal. This dramatic shift in the arguments advanced by Ulster was most pronounced in its attempts to persuade the court that it should dismiss the plaintiff's negligence claim. In respect of that part of its appeal, Ulster made arguments and relied on case law which were not advanced or addressed before the High Court, or, indeed, developed to any material extent in its notice of appeal or in its written submissions. The plaintiff protested at this in his response to the oral submissions on the appeal.

6 . In my view, there is...