Geary and Another -v- Property Registration Authority and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 08 May 2020
• Neutral Citation: [2020] IECA 132
• Docket Number: Record No. 2019/12
• Court: Court of Appeal (Ireland)
• Date: 08 May 2020

Between:

Declan and Marie Geary

Plaintiffs/Appellants

and

Property Registration Authority, Ennis Property Finance Designated Activity Company, Bank of Scotland Plc, Tom Kavanagh and Maples & Calder, Solicitors

Defendants/Respondents

[2020] IECA 132

Baker J.

Haughton J.

Murray J.

Record No. 2019/12

THE COURT OF APPEAL

CIVIL

Interlocutory relief – Substitution – Duplicated relief – Appellants seeking interlocutory reliefs – Whether the appeals against the Judgment and Order of the High Court were well founded

Facts: The plaintiffs/appellants, Mr and Ms Geary, brought an application for certain interlocutory reliefs. By Judgment and Order of the High Court of 19th November 2018 (Ní Raifeartaigh J), the proceedings were dismissed as against each of the defendants/respondents, Property Registration Authority (PRA), Ennis Property Finance Designated Activity Company (Ennis), Bank of Scotland PLC (BOS), Mr Kavanagh (the Receiver) and Maples & Calder, Solicitors (Maples). The plaintiffs appealed to the Court of Appeal against that Judgment and Order.

Held by Murray J that the appeals against the Order of Ní Raifeartaigh J insofar as the High Court dismissed the plaintiffs’ claims against BOS and Maples were ill founded and should be dismissed. Similarly, insofar as the plaintiffs’ appeal against the refusal by Ní Raifeartaigh J of their applications for injunctive relief, Murray J held that this should also be dismissed. However, Murray J would allow the appeal of the plaintiffs against that part of the Order of the High Court dismissing the claims in the proceedings as against the Receiver, Ennis and (in part) the PRA. In Murray J’s view the proper order to address the well-founded concerns of the Court as to the existence of multiple proceedings seeking duplicated relief was for this action and the Receiver’s action to be linked, and tried together. Murray J held that a number of paragraphs of the general endorsement of claim should be struck out; these were paras. 5, 6, and 9 (relating to the PRA and the effect of the merger), paras. 7, 9, and 10 (each of which assumed that BOS’s charge was invalid having regard to the 2008 Regulations), paras. 11, 12 and 13 (which assumed that BOS was precluded from effecting a transfer of the plaintiffs’ loans and securities relevant thereto) and para. 16 (concerning Maples). Murray J held that the claims for damages referred to at para. 17 that remained live were limited to claims against the PRA, Ennis and the Receiver. Murray J held that no claim may be advanced against the PRA, Ennis or the Receiver based on or involving a challenge in any way to, the merger or registration of BOS as the owner of the charges, nor upon BOS’s entitlement to transfer its rights vis-à-vis the plaintiffs, to Ennis. It was Murray J’s view that the plaintiffs had ample time within which to formulate their Statement of Claim in this action. Accordingly, Murray J would order that they be afforded a further eight weeks from the date of this judgment to deliver a Statement of Claim as against PRA, Ennis and the Receiver in accordance with the preceding paragraph; this order should be an ‘unless’ Order, to the extent that if the Statement of Claim was not delivered within that period, the proceedings should stand dismissed as against those parties also for failure to deliver that pleading.

Murray J held that he would substitute for the Order of the High Court the following: (i) an Order dismissing the proceedings as against the third and fifth defendants; (ii) an Order striking out the reference to the third defendant in paragraph 4 of the Indorsement of Claim, and an Order striking out paragraphs 5, 6, 7, 9, 10, 11, 12, 13 and paragraph 16 of the General Endorsement of Claim; (iii) an Order that within eight weeks from the date of this judgment the Plaintiffs shall deliver a Statement of Claim as against PRA, Ennis and the Receiver and if the Statement of Claim is not delivered within that period, the proceedings shall stand dismissed as against those parties; (iv) an Order that no claim may be advanced in these proceedings against PRA, Ennis or the Receiver based on or involving a challenge in any way to, the merger or registration of BOS as the owner of the charges, nor upon BOS’s entitlement to transfer its rights vis-à-vis the plaintiffs, to Ennis; (v) an Order directing that the proceedings be linked to the action bearing the record number and title ‘The High Court Record Number 2017/6534P Between Tom Kavanagh, Plaintiff, and Declan Geary and Marie Geary, Defendants’ and that same be heard one after the other; (vi) an Order refusing the plaintiffs’ applications for interlocutory injunctive relief.

High Court Order substituted.

JUDGMENT of Mr. Justice Murray delivered on the 8 ^th of May 2020

Background.

1 . By Judgment and Order of the High Court of 19 ^th November 2018 (Ní Raifeartaigh J.) these proceedings were dismissed as against each of the defendants. An application brought by the plaintiffs for certain interlocutory reliefs was refused. This is an appeal against that Judgment and Order.

2 . By deed dated the 23 ^rd March 2000 between Mr. and Mrs. Geary (‘the plaintiffs’) and ICC Bank plc. (‘ICC’) the plaintiffs charged lands and premises in County Limerick with payment of all monies due or to become due by the plaintiffs to ICC either as principal or surety. The charge was registered as a burden on the relevant Land Registry Folios on 4 ^th October 2000. On 25 ^th March 2002 ICC (having re-registered as a private company limited by shares on that date) changed its name to Bank of Scotland (Ireland) Limited (‘BOSI’). BOSI thereafter afforded loan facilities to the plaintiffs. Those facilities were secured by that charge. The facilities were granted by letters dated 17 ^th August 2006 (as amended on 29 ^th November 2006), 20 ^th November 2006 (as amended on 24 ^th November 2006) and 23 ^rd July 2008. The terms and conditions of these facilities were set out in the relevant letters of loan offer together with BOSI's general conditions of 2004 (in respect of the 2006 letters) and 2008 (in respect of the facility of 23 ^rd July of that year). None of these facilities or securities have been denied by the plaintiffs.

3 . On 31 ^st December 2010 all of the assets and liabilities of BOSI were transferred to the third named defendant (‘BOS’), and BOSI was dissolved. This was effected by way of a cross border merger pursuant to the provisions of domestic law giving effect to Council Directive 2005/46/EC on Cross Border Mergers of Limited Liability Companies.

4 . By purchase deed dated 29 ^th November 2014, BOS agreed to sell inter alia the loan facilities advanced to the plaintiffs and related security to ELQ Investors II Limited. By deed of novation dated 12 ^th December 2014 ELQ Investors II Limited transferred its rights under the Debt Purchase Deed to Ennis Property Finance Limited (now Ennis Property Finance DAC) (‘Ennis’). On 19 ^th April 2015, BOS became registered owner of the charge. By deeds of transfer and assignment dated 20 ^th April 2015 BOS assigned, conveyed and transferred its rights, title and interest in certain loans and securities, including the loans to and securities granted by the plaintiffs to Ennis. On 24 ^th April 2015 Ennis was registered on the Folios as owner of the charge. By letters dated 7 ^th November 2016 Ennis demanded €1,337,013.03 from the plaintiffs. By deed of appointment of 14 ^th November 2016 Ennis appointed Tom Kavanagh (‘the Receiver’) as Receiver. The plaintiffs thereupon disputed the validity of the Receiver's appointment. Maples and Calder (‘Maples’) acted as the Receiver's solicitor.

5 . In July 2017, the Receiver commenced an action against the plaintiffs (‘the Receiver's proceedings’). In those proceedings, the Receiver sought possession of the secured properties and related reliefs. On December 6 ^th 2017 a company alleged by the plaintiffs to be the tenant of the property — Habanville Limited — was added as a defendant to the Receiver's proceedings. Various procedural steps were directed in these proceedings by Order of Gilligan J. of 6 ^th December 2017 and by Order of Barniville J. of 29 ^th January 2018.

6 . When the applications the subject of this appeal were heard and determined the plaintiffs had not delivered a defence to those proceedings, notwithstanding being directed to do so. Such a defence was filed by them on 13 ^th December 2018, a defence having been delivered on behalf of Habanville Limited on 7 ^th June of that year. The defence delivered by the plaintiffs in that action does not deny that monies were borrowed and they specifically plead that they ‘ do not suggest that they have been repaid’. A variety of claims are advanced in that defence which do not feature in the affidavit evidence or submissions in this case including an allegation that the loan and security ‘ may well not have been part of the Cross Border Merger’ due to a sale to ‘ Wolfhound Funding’ prior to the merger. Claims are also made of alleged breaches of the applicable data protection legislation by Ennis. Relevant to this case, however, is the plea there that the Receiver is not entitled to claim relief in equity in relation to loans on behalf of Ennis:

‘… in light of very serious issues arising with the loan sale and Cross Border Merger in relation to Irish Regulation 19(g) and (h) which are at odds with the Order of the Scottish Court of Sessions…’

(Emphasis in original.)

7 . On 17 ^th May 2018 the High Court (O'Connor J.) refused an application by the plaintiffs to strike out the Receiver's proceedings as against them. He also refused their application to join Ennis, BOS and the PRA to those proceedings (which application was opposed by the Receiver). All of these orders are under appeal.

8 . The action the subject of this appeal was commenced by the plaintiffs by plenary summons issued on 5 ^th...