Farrell v Petrosyan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 02 March 2016 |
| Neutral Citation | [2016] IEHC 522 |
| Docket Number | [2016\753P] |
| Court | High Court |
| Date | 02 March 2016 |
[2016] IEHC 522
[2016\753P]
THE HIGH COURT
Banking & Finance – Appointment of receivers – Deeds of appointment – Breaches of duty – Compromised proceedings – Re-litigation of issues – Determination of serious issue – Adequate remedy
Facts: The present proceedings were two sets of proceedings. The issues that were the subject of the claims in both sets of proceedings were (a) whether the receivers could act in the proceedings in view of their deeds of appointment from the respondent/bank in the second set of proceedings and (b) whether the name change of respondent/bank in the second set of proceedings provided in some way or effected in some way the operation of the charges pursuant to which the receivers were appointed.
Mr. Justice Tony O'Connor refused the relief sought by the appellant in the second set of proceedings. The Court, however, observed that the said appellant was not precluded to prosecute her claim for damages as an adequate remedy The Court found that there was no serious issue to be tried in relation to the claim made by the said appellant. The Court found that the proceedings against the bank in the second set of proceedings for alleged breaches of duty and failure to honour commitments were compromised in terms of settlement and in that regard, the said appellant in the second set of proceedings, was now not able to re-litigate those issues. The Court granted the injunction sought by the receivers in order to secure compliance with the recommendations of the Fire Officer while taking note of the undertaking as to the damages being given by the receivers. The Court found that the Companies Act permitted the companies to change its names.
This is a judgment arising from the issue of two sets of proceedings. Mrs. Carmel McLoughlin, as will be explained later, is the only participating claimant in the claim against ACC Loan Management (‘ ACC’), and the only effective respondent/defendant in the proceedings issued by Messrs. Farrell and Kelly, the Receivers.
Mrs. McLoughlin was accompanied by her son and daughter for the hearing of these applications. The law is well established that in the absence of legal representation by either solicitor and/or counsel, only a lay litigant may make submissions on the lay litigant's behalf. In exceptional circumstances the Court may ask or allow a ‘McKenzie Friend’ to assist in communications between the Court and the lay litigant.
The Court expects legal representatives who are on the other side of contested applications involving lay litigants to summarise the applications and to open all relevant pleadings, affidavits and exhibits while helping the Court to focus on the issues between the parties. Suffice it to say that following the initial outline of the issues yesterday morning by Senior Counsel for the Receivers, I asked Mrs. McLoughlin whether she wanted herself or her son to reply to discrete questions from me about the actual questions to be decided.
The parties agreed that the following issues outlined by counsel for the Receivers were the subject of the claims in both sets of proceedings:
a. Whether the Receivers could act in the proceedings in view of their Deeds of Appointment from ACC Loan Management Limited (ACC);
b. Whether the name change of ACC Bank plc to ACC Loan Management Limited provided in some way, or effected in some way the operation of the charges pursuant to which the Receivers were appointed;
c. Whether the sense of grievance felt by Mrs. McLoughlin over the outcome of talks with a Mr. Archbold of ACC in 1997, and given the ventilation of that sense of grievance in proceedings started in 2001, and which were compromised in 2010, had an invalidating effect on the entitlement of ACC to the properties which are the subject of the two sets of proceedings before the Court. For clarity purposes, the relevant properties are 56 Mary Street and 32-36 Wolfe Tone Street in Dublin.
d. Whether there is some frailty or misconduct which requires the Court to set aside the terms of settlement signed by Mr. Jamie McLoughlin for Mrs. McLoughlin with Messrs. O'Sullivan and Murphy to give up vacant possession of 56 Mary Street that led to an order for the Sheriff issued by this Court on 2nd November, 2015.
Following the opening of affidavits and exhibits and a summary of the relevant law by counsel for the Receivers, I asked Mr. Jamie McLoughlin whether he had any interest in the relevant properties. The Court repeats its appreciation of Mr. McLoughlin's candour when he acknowledged that he did not have any legal interest in the...
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