Leahy v Bank of Scotland Plc and Ors
| Jurisdiction | Ireland |
| Judge | MacMenamin J.,Dunne J.,Hogan J. |
| Judgment Date | 13 January 2022 |
| Neutral Citation | [2022] IESCDET 3 |
| Court | Supreme Court |
| Docket Number | Supreme Court record no: S:AP:IE:2021:000112 High Court record no: 2016 No. 6718 P |
[2022] IESCDET 3
Composition of Court: MacMenamin J., Dunne J., Hogan J.
Supreme Court record no: S:AP:IE:2021:000112
Court of Appeal record no: A:AP:IE:2019:000244
High Court record no: 2016 No. 6718 P
THE SUPREME COURT
DETERMINATION
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 12th July, 2021 |
| DATE OF ORDER: 5th October, 2021 |
| DATE OF PERFECTION OF ORDER: 6th October, 2021 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 27th October, 2021 AND WAS IN TIME. |
The general principles applied by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134, ( Unreported, Supreme Court, 6 December 2017) and in a unanimous judgment of a full Court delivered by O'Donnell J. in Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73, [2017] 3 I.R. 812. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
Furthermore, the application for leave filed and the respondent's notice are published along with this determination (subject only to any redaction required by law), and it is therefore unnecessary to set out the position of the parties in any detail. No aspect of this ruling has precedential value as a matter of law.
In 2004, Bank of Scotland (Ireland) Limited entered into two loan agreements with the first and second-named applicants. On the 31st December 2010, Bank of Scotland (Ireland) Limited merged with Bank of Scotland PLC (“the first-named respondent”), and ownership of the applicants' loans were transferred to Bank of Scotland PLC pursuant to Directive 2005/36/EC. Bank of Scotland (Ireland) Limited was then dissolved. The applicants' loans were subsequently purchased by Pentire Property Finance Limited (“the second-named respondent”), and ownership of the loans transferred to it on 20th April 2015. On the 8th July 2015, the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 (“the 2015 Act”) was enacted and commenced. The applicants defaulted on the respective loan agreements, and on the 19th February 2016, a receiver was appointed over the lands in question by the second-named respondent.
On 25th July 2016, the applicants instituted plenary proceedings against the four above-named respondents, seeking damages for breach of contract and for breach of duty (including statutory duty) and damages for negligence against the first-named respondent. They claimed that Bank of Scotland PLC was precluded from transferring the loans to an “unregulated” entity where that transfer resulted in the protection afforded to the borrowers being substantially diminished during the three-month period between the 20th April 2015 and the 8th July 2015, and in so doing, they acted negligently and in breach of their statutory duty. In particular, the applicants argued that the transfer of their loans to the second-named respondent deprived them of the benefit of certain Codes of Conduct issued by the Central Bank under section 117 of the Central Bank Act 1989 (as amended). Bank of Scotland PLC by Notice of Motion dated the 23rd May 2018 sought an Order striking out the applicants' action pursuant to Order 19, rule 28 of the Rules of the Superior Courts on the grounds that it was frivolous and vexatious and/or disclosed no reasonable cause of action.
In a judgment delivered on 5th April 2019 ( [2019] IEHC 203), Simons J. made an Order pursuant to Order 19, rule 28 striking out the applicants' claims against the first-named respondent, and made a further Order dismissing a motion brought by the applicants against the Bank seeking a number of declaratory reliefs. Firstly, he considered the basis of the claim for damages against the Bank and concluded that the loan agreements expressly authorised the transfer and assignment of the loan to third parties, citing the decision in McCarthy v. Moroney; Moroney v. Property Registration Authority ...
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Leahy and Another v Bank of Scotland Plc and Others
...IEHC 379 and Geary v Property Registration Authority [2018] IEHC 727. 8 The Supreme Court refused an application for leave to appeal ( [2022] IESCDET 3) on 13 January 9 The second, third and fourth Defendants delivered a Defence and Counterclaim on 24 July 2018 and an amended Defence and Co......