Irish Bank Resolution Corporation Ltd(in Special Liquidation) v Browne

CourtHigh Court
JudgeMr. Justice Brian O'Moore
Judgment Date08 February 2021
Neutral Citation[2021] IEHC 83
Docket Number[2010/4996 S]
Date08 February 2021

[2021] IEHC 83

Brian O'Moore

[2010/4996 S]


RULING of Mr. Justice Brian O'Moore delivered on the 8th day of February, 2021.
A. The History of the Proceedings

This action was commenced by Summary Summons issued on the 15th of October 2010. The sums claimed by the Plaintiff (‘I.B.R.C.’) are significant. According to the Legal Submissions delivered on behalf of I.B.R.C. in preparation for the trial due to commence in January 2021, the Defendant (Mr. Browne) as of September 2020 owed I.B.R.C. £11,964,478 under one facility and €13,539,286, £2,093,311 and $990,992 under a second facility. Mr. Browne claims that he was induced to enter into these loan arrangements by the fraud of I.B.R.C., and accordingly he is entitled to have these transactions rescinded and set aside; he further claims that he is entitled to damages against I.B.R.C.


The action was admitted to the Commercial List on the 1st of November 2010. On the 16th of December 2010 Kelly J. refused I.B.R.C.'s application for summary judgment, and made directions for the exchange of pleadings and correspondence concerning discovery. On the 26th of July 2011 the action was provisionally listed for trial on the 7th of February 2012.


Because of ongoing disputes about discovery and interrogatories, the trial could not proceed in February 2012. However, on the 16th of April 2012 Kelly J. fixed the trial of the action for the 16th of October 2012; this time, the trial date does not appear to have been a provisional one. The date of the 16th of October 2012 was confirmed by the Court on the 2nd of July 2012, with the length of the hearing being extended from four weeks to six weeks. The estimated length of the trial remains, some eight years later, at about six weeks.


On the 24th of September 2012, Kelly J. gave what he must have hoped were final precise directions in preparation for the hearing on the 16th of October. He also directed that Mr. Browne would go first at the trial, ‘in order to prove his counterclaim’, given the lack of dispute about the advancing of loans to Mr. Browne under the two facilities as asserted by I.B.R.C. and the non-repayment of these loans.


However, immediately before the trial was due to take place these proceedings were seriously disrupted by the prosecution of Mr. Patrick Whelan and Mr. Sean Fitzpatrick. Both of these gentlemen were former officers of Anglo Irish Bank Plc., the entity which had made the loans in question to Mr. Browne; as it happens, Mr. Browne himself had been a senior official in the same institution. On the 10th of October 2012, having heard counsel for Mr. Browne, counsel for I.B.R.C., counsel for Mr. Whelan, counsel for the DPP, and counsel for Mr. Fitzpatrick, McGovern J. adjourned the trial of this action ‘to the determination of the criminal proceedings”.


This was not a trivial delay. It was not until the 24th of June 2019 that Haughton J. re-entered the proceedings in the Commercial List, and fixed the 21st of April 2020 as the trial date. As had been the case in respect of the February 2012 hearing date, the listing for April 2020 was a provisional one, at least initially. However, in his Order of the 18th of November 2019 Barniville J. confirmed this trial date and gave directions for the delivery of witness statements and submissions in order to have the hearing proceed on that date.


The misfortune of the parties in attempting to have this action tried persisted. The fallout from the banking crisis had already lead to a delay of over nine years in getting to trial. Now, the COVID-19 pandemic intervened. The April 2020 trial could not proceed because of the national health crisis created by the novel coronavirus, and it was not until September 2020 that the question of yet another trial date could safely be raised; or so it must have seemed.


On the 15th of September 2020, Barniville J. fixed the 15thof January 2021 for the trial of this action. The parties agreed to a hybrid hearing, which would involve some of the evidence being taken in person and some being taken remotely. While there remained certain outstanding issues, including the inspection of a document over which I.B.R.C. maintained a claim of privilege and the late indication by Mr. Browne's counsel that two further witnesses were to be called by him, these have been resolved without any great difficulty.


Because of the rapidly deteriorating public health position, on the 5th of January 2021 Irvine P. issued a COVID-19 Notice in connection with High Court Civil Sittings. This provided that:-

“High Court Civil Business Update

Ahead of the new legal term commencing next week and in light of the current Level 5 restrictions, public health guidance and the high incidence of the virus in the community President of the High Court Justice Mary Irvine has issued a Notice in relation to the conduct of Civil Business in the High Court. The new ways of working adopted by the Courts to manage the pandemic, and keep footfall to Courts low, will enable as much business as possible to be facilitated in the coming weeks.


Summary: Civil Proceedings and Applications

Until further notice the following work will continue subject to (i) staff availability, (ii) the availability of Technology/WIFI enabled courtrooms, (iii) strict compliance with public health guidance, the Court's own guidance on face coverings and (iv) weekly review:

1. All non-remote applications and proceedings at hearing at the time of the introduction of Level 5 restrictions;

2. All applications and proceedings that are currently being heard remotely or are capable of being heard remotely;

3. All applications and proceedings which can fairly be classified as urgent;

4. All applications for injunctions and their enforcement and applications which must be brought within a time limit provided for by statute;

5. All Judicial Review ex parte applications;

6. All bail applications;

7. All Article 40/Habeas Corpus applications;

8. All applications for extradition;

9. All wardship applications;

10. Applications to appoint an Interim Examiner or Provisional Liquidator.

11. All urgent Hague Convention and Child care matters.

12. All urgent Family Law matters. Applications concerning “urgency” to be made to Jordan J.

13. All case management/directions hearings, lists to fix dates and “for mention” lists, where capable of being dealt with remotely.

14. All High Court personal injury cases listed for hearing will remain in the list for the allocated date for negotiation and case management purposes.

15. All Common Law Motions, with the exception of the Motions in Common Law List 1, will proceed as normal.

Mary Irvine 5th January 2021”


Because of the imminent commencement of the trial in these proceedings, and in light of the President's Notice, I listed this action for mention on the 8th of January 2021 in order to see whether or not the parties would be happy to go ahead with the trial as a fully remote hearing. I will return to the position taken by the parties on this issue. However, in order to complete this account of the history of these proceedings there is one separate but related aspect of the hearing of the 8th of January which I should describe.


During the course of that hearing, I raised the possibility that the opening (at least) of the case could take place on the 15th of January; that would have allowed some use to have been made of the time set aside for the trial. However, this was opposed by Mr. Browne's counsel. He gave two main reasons for this position.


Firstly, he preferred a ‘seamless’ progress of the trial from opening to conclusion. While this preference for a traditional hearing was understandable, I did not see why a more novel approach was not possible and appropriate given the desirability of making some progress in respect of the trial. Even if there was ultimately a long gap between opening and evidence, the eventual second tranche of the hearing would be materially shorter if the opening (and I.B.R.C.'s responding speech) took place now.


Secondly, counsel informed me that the second senior on his side was ‘for the moment unable to engage’ as he was isolating. Ultimately, counsel accepted my formulation of his position, which was that as lead counsel he could not prepare for and conduct the opening of the case in a satisfactory way given the personal circumstances of the other senior on his team. I therefore fixed the opening of the case for the 27th of January 2021, in order to allow Mr. Browne's side time to regroup and prepare fully. The opening proceeded that day, the I.B.R.C. position on the substantive issues in the case was outlined by its counsel the following day, and after some debate about the appropriateness of the witness statements put forward by Mr. Browne's three experts I fixed the 5th of February for the delivery of refined statements by these individuals. I made an Order under section 11(2) of the Civil Law and Criminal Law ( Miscellaneous Provisions) Act 2020, directing a fully remote hearing of the trial using the TrialView platform. I also made certain consequential Orders. I will now set out the position of the parties on the question of a fully remote trial, and the reasons why I have decided that such a hearing should take place.

B. The Submissions of the Parties

Despite the fact that I identified section 11 of the 2020 Act as the provision giving me jurisdiction to direct a fully remote hearing, there was only one submission made to me about the scope and operation of that section. Counsel for Mr. Browne submitted that ‘such a remote hearing can only be of a limited nature’; by this, I believe that counsel meant that the section could not be used to order the remote hearing of a witness action. I do not accept...

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