Kearney v Bank of Scotland

• Jurisdiction: Ireland
• Judge: Mr Justice Brian O'Moore
• Judgment Date: 30 May 2021
• Neutral Citation: [2022] IEHC 344
• Court: High Court
• Docket Number: 2017 No. 11335P

Between:

Thomas Kearney

Plaintiff

and

Bank of Scotland Plc and Patrick Horkan

Defendants

[2022] IEHC 344

2017 No. 11335P

(2018 No. 17 COM)

THE HIGH COURT

COMMERCIAL

Receiver – Appointment – Validity – Court of Appeal remitting outstanding issue in proceedings – Whether the second defendant had been validly appointed as receiver

Facts: The Court of Appeal, by its judgment of the 5th of August 2020, remitted to the High Court the one outstanding issue in the proceedings: 'whether the appointment of [the second defendant, Mr Horkan] as "Receiver" by deed of appointment dated 5 July 2012 was valid pursuant to clause 8.1 of the Charge (as defined...) conferring on the mortgagee the power to appoint a "receiver and manager" over the Secured Property (as defined...)’ - Appendix I to the judgment. The judgment of the 5th of August 2020 constituted the decision of the Court of Appeal on the review sought by the plaintiff, Mr Kearney, of that court's main judgment on his appeal. The one issue came before O’Moore J for hearing on the 9th and 10th of December 2021. At the start of the hearing, counsel for Mr Kearney sought to vary the Isaac Wunder order which had been placed on Mr Kearney by McGovern J and which was upheld (with some variation) by the Court of Appeal.

Held by O’Moore J that, having heard extensive submissions on the issue which Mr Kearney wished to ventilate, he would refuse to vary the Isaac Wunder order, not least because the argument which Mr Kearney sought to advance was one which would not in any event have succeeded.

O’Moore J held that, on the issue remitted by the Court of Appeal, Mr Horkan had been validly appointed. Applying the analysis described by Murray J in Fennell v Corrigan [2021] IECA 248, O’Moore J found that the appointment of Mr Horkan was an effective and lawful one.

Judgment approved.

DECISION of Mr Justice Brian O'Moore delivered on the 30 ^th day of May, 2021

1 . By its judgment of the 5 ^th of August 2020, the Court of Appeal remitted to this court the one outstanding issue in these proceedings. That issue is;

“…whether the appointment of Patrick Horkan as “Receiver” by deed of appointment dated 5 July 2012 was valid pursuant to clause 8.1 of the Charge (as defined…) conferring on the mortgagee the power to appoint a “receiver and manager” over the Secured Property (as defined…)” — Appendix I to the judgment.

2 . The judgment of the 5 ^th of August 2020...