Morissey v Allied Irish Bank Plc and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] IECA 131 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2022/148 |
[2023] IECA 131
Whelan J.
Noonan J.
Haughton J.
Appeal Number: 2022/148
THE COURT OF APPEAL
JUDGMENT delivered by Ms. Justice Máire Whelan on the 26th day of May 2023
. This judgment is directed towards the issue of the proper allocation of costs in the above entitled appeal brought by Philip Morrissey against the order of the High Court made on the 20 th May, 2022 which had determined a preliminary issue, to wit, that the appellant was not entitled to pursue a claim, inter alia, in his capacity as an officer or member or asserted creditor of the company Dan Morrissey (Irl) Limited (the company) for the purposes of securing an order of the High Court pursuant to s. 438 of the Companies Act, 2014 compelling receivers appointed over the company to grant to him an agricultural lease on terms nominated by him of agricultural lands situate at Powerstown, County Carlow in folios 6160F, 6161F, 20894F, 3349F, 7387F and 7388F, all County of Carlow, said to comprise in or about 110 acres or thereabouts for a term of 10 years at a rent nominated by him subject to the covenants and conditions specified by him in a draft Agricultural Lease exhibited. The application was brought by way of notice of motion dated the 29 th March, 2022 grounded upon, inter alia, the pleadings in High Court proceedings 2019-294-COS his grounding affidavit of the 29 th March, 2022 and two subsequent affidavits sworn by him in the said proceedings. The High Court judgment [2022] IEHC 276 was delivered on the 13 th May, 2022.
. The appellant did not succeed in respect of any aspect of his claim before the High Court. His appeal against that decision has been wholly unsuccessful [2023] IECA 89. The respondents being wholly successful in this appeal contended that they are entitled to an order for costs pursuant to the statutory regime and in particular section 169 of the Legal Services Regulations Act, 2015 and Order 99 of the Rules of the Superior Courts (recast). Nevertheless, the appellant contends that in the circumstances of this case no order as to costs ought to be made as hereinafter outlined.
. The appellant has significant direct personal and commercial interests in the litigation and in the process of the receivership. In addition to his shareholding and directorship of the company, and his assertion that in substance he was a creditor of the insolvent company — though apparently he had not obtained any judgment against it — he also informed this court that he had signed a personal guarantee for the benefit of AIB in respect of the indebtedness of the company and thereafter on the 17 th December, 2015 had consented to judgment in favour of AIB on foot of the said guarantee, in the sum of €24,970,000.
. In a written submission dated 10 th May, 2023 Mr. Morrissey, who was self-represented, contends that there should be no order as to costs in respect of his unsuccessful appeal and further seeks an order setting aside the High Court order for costs.
. The appellant contends that in his view, since the appointment of the receivers, which apparently took place on the 18 th June, 2014, whereas the company's agricultural lands were being leased out to farmers pending sale by the receivers the said lands were not being operated with due regard to “… proper husbandry knowledge of agricultural land”. He further asserted as being a matter of relevance that the receivers had “engaged an Auctioneer whose primary business was in commercial property”. He asserts, repeating claims advanced in the course of his application before the High Court and in the course of the appeal that “[n]o cultivation of lands was conducted for a period from October 2021 until 5 th April 2022 following the issue of my motion and without notice to the Court.” No basis was identified for the implicit assertion that it was necessary for the receivers, who were appointed by the bank under a security instrument nine years ago, to furnish notice to the court in respect of the granting of agricultural lettings on an 11- month basis in the course of an out-of-court receivership.
. By way of justification for his issuing the motion on the 29 th March, 2022, in circumstances where subsisting short-term lettings operated over part of the lands, he states:-
“I had believed that no use of the land was being made up to March 2022 hence my request on the 16 th March 2022. I was unaware that the lands had been leased to Kevin Morrissey from 1 st November 2020 to the 30 th September 2021 and further extended by agreement for another 11 months.”
In that belief he was entirely mistaken as he acknowledges. He complains that the said lease was referred to in correspondence from McCann Fitzgerald, solicitors for the receivers dated the 25 th April, 2022 but had not been produced in evidence. Kevin Morrissey (the lessee in occupation) is, apparently, a brother of the applicant. He further states “If I had been aware of that lease, I would not have issued these proceedings.”
. Essentially the appellant asserts that had the information which was subsequently provided by McCann Fitzgerald in their letter of the 25 th April, 2022 been provided to him prior to the 29 th March, 2022 he would not have issued the motion pursuant to s. 438 of the Companies Act, 2014 on the latter date. That assertion needs to be stress tested against the salient facts as hereinafter outlined and the appellant's own conduct.
. The appellant invokes the decision of the Supreme Court in Heather Hill Management Company CLG and McGoldrick v An Bord Pleanála & Ors. [2022] IESC 43. He contends, in reliance on the said judgment, that he was apparently unaware of the Aarhus Convention “until I became aware of the Heather Hill decision by the Supreme Court.” He further asserts:-
“Neither the High Court nor this Court advised me of my rights to apply for a protective costs order when deciding the costs issue against me and I was unable to apply on an interlocutory basis.”
He further asserts:
“There was considerable emphasis by me on the need to protect the environment in the case I presented in the High Court and on appeal.”
He seeks that by virtue of the Aarhus Convention and his asserted rights thereunder this court should make no order as to costs and further should set aside the High Court order in respect of costs made against him.
. As is clear from the notice of motion and the affidavits sworn in the application which were put before the High Court, the application sought to be pursued by the appellant was advanced purely for his personal benefit. In particular, he sought, based on novel, idiosyncratic and ultimately erroneous arguments and legal propositions that he had an entitlement, personal to him, to be granted a lease over 110 acres or so of the indebted company's lands. He invoked the jurisdiction of the High Court pursuant to s.438 of the Companies Act 2014 for the purposes of securing a coercive order that would compel the receivers to give effect to his demand. He did so in a context where the receivership had been in train for many years and in the course of same judgment had been obtained by the bank against him as personal guarantor of the company's indebtedness for €24,900,000 approximately. He made clear to the court that he wished to resile from the said judgment in which consent orders had been made and that litigation was in train seeking to set aside the said consent order obtained against him and otherwise impugning the validity of the appointment of the receivers.
. Whereas general comments were made with regard to his views concerning husbandry on the subject lands and alleged farm practices, a perusal of the affidavits and exhibits make clear that these assertions were advanced to buttress his application that he ought to be granted the lease in question in preference to the existing short-term agricultural tenancies.
. It is clear from the papers that there was evidence before the High Court of a fraught relationship reaching back over many years between the receivers and Mr. Morrissey. In addition at least some tensions had emerged from time to time between Mr. Morrissey and tenants who had been put into occupation of parts of the company's land holding or their workmen.
. Albeit that it is surprising that he was unaware that his own brother was a tenant in occupation of the subject lands on foot of a letting agreement, which said letting agreement subsisted at the date of the institution of these proceedings, the appellant acknowledges that with effect from the 25 th April, 2022 he was actually aware of the existence of the subject lease the term of which had initially ran from the 1 st November 2020 to the 30 th September, 2021 and which had thereafter been extended for a further 11 months.
. Mr. Morrissey's assertion that had he known of the said lease “I would not have issued these proceedings” must be considered in light of the fact that from and after the 25 th April, 2022 he continued to actively pursue the said application before the High Court in the full knowledge of the existence of the said lease and indeed filed his third affidavit on the 27 th April, 2022. Whilst in the latter affidavit the appellant recalls that subsequent to the issuing of the motion he had taken issue with ploughing activities on the lands, he complains that details of the current lease over the lands had been “withheld” from him. He demanded proof on affidavit that named individuals were the employees of certain lessees. He further acknowledges that he had gone onto the...
To continue reading
Request your trial