Irish Bank Resolution Corporation Ltd v Kennedy

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 06 July 2016
• Neutral Citation: [2016] IEHC 395
• Docket Number: [2016 No. 29 C.A.]
• Court: High Court
• Date: 06 July 2016

BETWEEN

IRISH BANK RESOLUTION CORPORATION LTD.

PLAINTIFF

AND

CONOR KENNEDY

AND

CECILY KENNEDY

DEFENDANT

[2016] IEHC 395

[2016 No. 29 C.A.]

THE HIGH COURT

CIRCUIT APPEAL

Practice & Procedures – O. 22, r. 4 of the Circuit Court Rules – Substitution of assignor – Notice of assignment – Effective administration of justice

Facts: The applicant had filed an appeal against the order of the Circuit Court refusing to grant an order for substitution of the applicant in place of the existing plaintiff in the underlying proceedings as wells as similar other proceedings. The applicant contended that since it was assigned the right, titles and interests of the defendants by virtue of a deed of transfer by the existing plaintiff, it would be prudent to substitute it as the party to the underlying proceedings.

Mr. Justice McDermott refused to grant the order sought by the applicant. The Court held that it was evident that the plaintiff had conveyed to the applicant all its rights, titles, interests and benefits in the facilities to the defendants in the proceedings by virtue of a deed of transfer. The Court held that it would not be desirable or in the interests of justice that the order of substitution should be made. The Court held that the making of an order of substitution for a large number of pending cases would disrupt the convenience of the administration of the local courts and their jurisdictions. The Court held that it would be more appropriate if the applicant continued the proceedings within the Circuit Courts in accordance with law. The Court held that given the nature of disputes pending in the Circuit Courts such as possession of family homes, it would not be feasible to grant an order of substitution without notice to the defendant who then would be tempted to bring an application for setting aside of that order.

JUDGMENT of Mr. Justice McDermott delivered the 6th day of July, 2016

1 This is an appeal from the order and judgment of the President of the Circuit Court of 3rd September, 2015 refusing an application made ex parte for an order pursuant to O. 22, r. 4 of the Circuit Court Rules substituting the applicant, Mars Capital Ireland Ltd. as plaintiff in the above entitled proceedings in lieu of Irish Bank Resolution Corporation Ltd. and an order substituting the same applicant as plaintiff in lieu of Irish Nationwide Building Society, Anglo Irish Bank Corporation Ltd. or Irish Bank Resolution Corporation Ltd. as appropriate in similar type proceedings described in a Schedule exhibited at exhibit 'CM1' to the grounding affidavit of Mr. Colin Maher sworn 20th December, 2015.

2 Order 22, rule 4 of the Circuit Court Rules provides:

'Where, by reason of the death, or bankruptcy, or any other event occurring after the commencement of an action, proceeding or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the action, proceeding, or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the court upon an allegation of such change or transmission of interest or liability, or of such person interested having come into existence.'

3 Any order obtained under O. 22, r. 4 must be served upon the continuing parties or their solicitors under rule 5. A person who is served under rule 5 may apply to the court to discharge or vary the order at any time within ten days from the service thereof under rule 6.

Background

4 The case between the plaintiff and the defendants is one of 583 proceedings which arise on foot of loans advanced by Irish Nationwide Building Society (INBS) and the other plaintiffs to the defendants. On 1st July, 2011 a transfer order was made by the High Court pursuant to s. 34 of the Credit Institutions (Stabilisation) Act 2010 whereby the assets and liabilities including mortgage loans of INBS were transferred to Anglo Irish Bank Corporation Ltd. (Anglo).

5 On the 14th October, 2011 Anglo Irish Bank Corporation Ltd. changed its name to Irish Bank Resolution Corporation Ltd. (IBRC).

6 By a 'loan sale deed in respect of Project Sand – Tranche 4' dated 31st March, 2014 (the loan sale deed) IBRC agreed to sell and the applicant Mars Capital Ireland Ltd. agreed to purchase inter alia all rights, title interests, benefits and obligations of IBRC under a number of assets as identified in the loan sale deed (the assets).

7 The transfer of the registered charges associated with the mortgages of registered land which IBRC agreed to transfer to the applicant under the loan sale deed was completed by a deed of transfer form 56 dated 6th June, 2014.

8 A deed of conveyance and assignment of unregistered property dated 6th June, 2014 was also executed in respect of the mortgages of unregistered land which IBRC agreed to transfer to the applicant under the loan sale deed.

9 The completion of the transfer of all IBRC rights, title interests, benefits and obligations subject to the borrowers' right of redemption in the assets (other than those consisting of registered charges or mortgages of unregistered land), was achieved by a deed of transfer also dated 6th June, 2014.

10 The defendants in these proceedings were notified by letter dated 10th June, 2014 of the transfer of their loan facility obligations and related rights from IBRC to the applicant on 6th June, 2014. It is stated in the grounding affidavit that each of the remaining defendants in similar type proceedings was sent a letter of notification in the same terms as the letter exhibited in respect of the defendants in these proceedings. Mr. Colin Maher deposes that he is advised and believes that the defendants and each defendant in the similar type proceedings' debts and related rights against, and obligations to, IBRC were legally assigned to the applicant from the date of these letters.

11 It is submitted on behalf of the applicant that it is necessary or desirable that the applicant be substituted in lieu of IBRC as plaintiff in these proceedings and in all similar type proceedings. It is submitted that it is appropriate to make an omnibus order with a view to saving costs and judicial and administrative resources and that it would be appropriate for the court to permit the applicant to be substituted as plaintiff in place of INBS, Anglo or IBRC, as appropriate, in each of the other similar type proceedings on foot of the ex parte docket by way of a single application.

12 The following exhibits are contained in Mr. Maher's affidavit:

(a) A schedule setting out the party details and record numbers for each of the similar type proceedings in respect of which the applicant was made;

(b) The transfer order made pursuant to s. 34 of the Credit Institutions (Stabilisation) Act 2010 whereby the assets and liabilities including mortgage loans of INBS were transferred to Anglo Irish Bank Corporation Ltd. on 1st July, 2011 (McGovern J.);

(c) A true copy of the certificate of incorporation on change of name from Anglo to IBRC issued by the company's registration office;

(d) The Loan sale deed between IBRC and the applicant dated 31st March, 2014;

(e) A redacted copy of a deed transfer of registered charges associated with the mortgages of registered land which IBRC agreed to transfer to the applicant dated 6th June, 2014;

(f) A redacted copy of deed of conveyance and assignment of mortgages of unregistered land which IBRC agreed to transfer to the applicant under the loan sale deed;

(g) A redacted deed of transfer completing the transfer of all IBRC rights, title interests,...