Irish Nationwide Building Society v McNulty

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 11 April 2019
• Neutral Citation: [2019] IEHC 217
• Court: High Court
• Docket Number: 2018 No. 240 C.A.
• Date: 11 April 2019

[2019] IEHC 217

THE HIGH COURT

CIRCUIT APPEALS

Simons J.

2018 No. 240 C.A.

BETWEEN

IRISH NATIONWIDE BUILDING SOCIETY

PLAINTIFF

AND

ORLA McNULTY

MICHAEL IGOE

DEFENDANTS

Damages – Personal injuries – Medical negligence – Defendants seeking to appeal against a Circuit Court order substituting Mars Capital Ireland Ltd for Irish Nationwide Building Society as the plaintiff in the title of the proceedings – Whether there had been a prima facie demonstration of the transfer of the title of the loan facilities and underlying security

Facts: The defendants, Ms McNulty and Mr Igoe, appealed to the High Court from the Circuit Court. The legal effect of the order under appeal was to substitute Mars Capital Ireland Ltd for Irish Nationwide Building Society as the plaintiff in the title of the proceedings. The order under appeal was dated 19 June 2018, and was made pursuant to Order 22, rule 4 of the Rules of the Circuit Court and a Notice of Motion issued on 22 March 2017. The reliefs sought in the Notice of Motion were wider than those ultimately granted by the Circuit Court. First, the Notice of Motion sought to reflect the fact that Mars Capital Ireland Ltd had been re-registered as a designated activity company. It seemed from the terms of the Circuit Court order, however, that the certificate of re-registration had not been exhibited in the grounding affidavit. That relief was accordingly refused by the Circuit Court. The grounding affidavit had also made reference to the need to seek the leave of the Circuit Court to issue execution in circumstances where more than six years had elapsed since the date on which the order for possession was first made. That relief was not sought in the Notice of Motion.

Held by Simons J that the defendants’ appeal was largely informed by a misunderstanding of the limited effect of the Circuit Court order. More particularly, the gravamen of the defendants’ appeal was that, given the history of the proceedings and, in particular, various negotiated settlements between the parties, it would be unfair to allow the order for possession to be pursued by a new party. Simons J held that those were matters which could be raised if and when the plaintiff made an application to extend time and that they were not matters which arose at the stage of an application to add a party to the proceedings. In circumstances where Simons J refused the application for discovery and refused the implied application to adduce new evidence, the case fell to be determined by reference to the materials before the Circuit Court. Simons J was satisfied, on the basis of the affidavit of Mr Sheehy, that there had been a prima facie demonstration of the transfer of the title of the loan facilities and underlying security. Simons J attached particular weight in that regard to the fact that Mars Capital Ireland Ltd had been registered as the owner of the charge on Folio 11497 County Longford. Simons J also attached weight to the fact that “hello” and “goodbye” letters had been served on the defendants, and that this complied with the requirement for notice in writing under s. 28(6) of the Supreme Court Judicature (Ireland) Act 1877.

Simons J held that he would make an order dismissing the defendants’ appeal, and affirming the order of the Circuit Court of 19 June 2018.

Appeal dismissed.

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 April 2019.

INTRODUCTION

1 This matter comes before the High Court by way of an appeal from the Circuit Court. The legal effect of the order under appeal was to substitute Mars Capital Ireland Ltd. for Irish Nationwide Building Society as the plaintiff in the title of the proceedings.

2 The order under appeal is dated 19 June 2018, and was made pursuant to Order 22, rule 4 of the Rules of the Circuit Court. The order was made pursuant to a Notice of Motion issued on 22 March 2017. The reliefs sought in the Notice of Motion are, in fact, wider than those ultimately granted by the Circuit Court. First, the Notice of Motion sought to reflect the fact that Mars Capital Ireland Ltd. has been re-registered as a designated activity company or ‘DAC’. It seems from the terms of the Circuit Court order, however, that the certificate of re-registration had not been exhibited in the grounding affidavit. This relief was accordingly refused by the Circuit Court.

3 The grounding affidavit had also made reference to the need to seek the leave of the Circuit Court to issue execution in circumstances where more than six years have now elapsed since the date on which the order for possession was first made. This relief was not sought in the Notice of Motion, and does not form part of this appeal.

4 I reference these matters because it appears that the Defendants” appeal is largely informed by a misunderstanding of the limited effect of the Circuit Court order. More particularly, the gravamen of the Defendants” appeal is that—given the history of the proceedings and, in particular, various negotiated settlements between the parties—it would be unfair to allow the order for possession to be pursued at this stage by a new party. As explained presently, these are matters which can be raised if and when the Plaintiff makes an application to extend time. They are not matters which arise at the stage of an application to add a party to the proceedings.

PROCEDURAL HISTORY

5 The within proceedings were issued on 28 September 2006. An order for possession was made against the Defendants by the County Registrar of the County of Longford on 5 November 2008. This order was then appealed by the Defendants to a Judge of the Circuit Court. It seems, however, that an agreement was subsequently reached between the parties whereby the Defendants would consent to an order for possession subject to a stay of six months. By order dated 10 November 2009, the Circuit Court (His Honour Judge Kennedy) struck out the appeal.

6 The next significant step which occurred in the proceedings was the issuing of a Notice of Motion by the Plaintiff on 22 March 2017. The principal relief sought was as follows.

‘An Order pursuant to Order 22 Rule 4 of the Rules of the Circuit Court substituting Mars Capital Ireland Designated Activity Company as Plaintiff in the within proceedings by reason of the legal assignment of the interest of the said Plaintiff to Mars Capital Ireland Designated Activity Company over and in respect of the facilities and other obligations the subject of the within proceedings.’

7 The application was grounded on an affidavit of a director of Mars Capital Ireland DAC, Mr. Morgan Sheehy, dated 25 September 2016. The affidavit sets out the series of transactions through which the loan facility and related security, the subject-matter of the proceedings, were transferred from Irish Nationwide Building Society to Anglo Irish Bank Corporation Ltd. (subsequently Irish Bank Resolution Corporation Ltd.), and, ultimately, by way of a loan sale deed dated 31 March 2014, to Sandalphon Mortgages Ltd. Mr. Sheehy also explains that the Register of Title at the Land Registry was amended so as to reflect that Mars Capital Ireland Ltd. is the holder of the charge in respect of the folio. The Form 56 (transfer of charge) has been exhibited, as has Folio 11497. It is stated thereon that on 26 June 2014, Mars Capital Ireland Ltd. is the owner of the charge registered at No. 4.

8 Mr. Sheehy further avers that on 10 April 2014, Sandalphon Mortgages Ltd. changed its name to Mars Capital Ireland Ltd. A Certificate of Incorporation on Change of Name dated 10 April 2014 has been exhibited as part of Mr. Sheehy's affidavit. Reference is also made to the fact that Mars Capital Ireland Ltd., a private company limited by shares, was then in the process of converting to a designated activity company. No Certificate of Incorporation on Conversion to a Designated Activity Company has been exhibited.

9 The application to the Circuit Court had been opposed by the Defendants. In this regard, an affidavit was sworn before the Circuit Court by Michael Igoe, the second named defendant, on 15 November 2016. In brief, Mr. Igoe relates the history of the property the subject of the loan facility and underlying security. In particular, Mr. Igoe recites the difficulties that arose in regard to boundaries, sewerage services, damage to property and consequential losses. Mr. Igoe also avers to certain planning law difficulties. Mr. Igoe explains that there are separate High Court...