Murphy v McKeown
| Jurisdiction | Ireland |
| Judge | Baker J.,Ni Raifeartaigh J.,Murray J. |
| Judgment Date | 13 July 2020 |
| Neutral Citation | [2020] IECA 188 |
| Date | 13 July 2020 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 2017/5993P |
AND
[2020] IECA 188
Baker J.
Ni Raifeartaigh J.
Murray J.
Record No. 2017/5993P
CA 2017/539
THE COURT OF APPEAL
CIVIL
Interlocutory orders – Receiver – Properties – Appellants seeking to appeal against interlocutory orders – Whether the High Court fell into error in granting the relief sought by the plaintiff
Facts: The defendants/appellants, Mr McKeown and Ms McCarthy, appealed to the Court of Appeal against interlocutory orders of Gilligan J of 15 November 2017. The overall effect of the orders was to restrain the defendants from interfering with the plaintiff/respondent, Mr Murphy, in the exercise of his functions as receiver over certain properties owned by them. Cross applications by the defendants for injunctive relief restraining the plaintiff from disposing of those properties was refused. Murray J held that the balance was correctly struck by Gilligan J, and that the appeal should be dismissed. Murray J delivered judgment in this matter on 26 March ([2020] IECA 75). Since then, the following submissions had been delivered to the Court: (a) a document entitled ‘McKeown/McCarthy Issues Arising from Judgment of Murray J 26 March 2020’, and dated 29 March 2020; (b) Defendants/Appellants’ Submission on Costs (filed 9 April); (c) Respondent’s Submission Pursuant to COVID-19 Notice filed on 8 April. The Court had also been furnished with e-mail communications and correspondence between the parties of 9 April 2020. The submission dated 29 March enumerated what it described as ‘procedural and practice errors’ which, the appellants contended, ‘constitute the very heart of the Judgment’. They presented these contending that in the light of the circumstances arising from the COVID-19 pandemic they were ‘denied voice in the Court as per conventional delivery methodology’.
Held by the Court that it does enjoy a jurisdiction to revisit its own final judgment in the circumstances defined by the decision of the Supreme Court in Greendale Developments Ltd. (No. 3) [2002] 2 IR 514; the parameters of that jurisdiction have been described in Launcestown Property Co. v. Wright [2020] IECA 146. The Court held that the propositions advanced by the appellants in their document of 29 March did not meet those criteria. The Court ordered that the appeal be dismissed and that the Order of the High Court perfected on 16 November 2017 be affirmed.
The Court held that in circumstances where the appellants had advanced no good reason to depart from the rule reflected in s. 169 of the Legal Services Regulation Act 2015 and the law pre-existing that provision, having failed in their application costs should be awarded against them. The Court ordered that the respondent recover from the appellants the costs of the hearing in the High Court and of this appeal.
Costs awarded to respondent.
Background:
Murray J. delivered judgment in this matter on 26 March ( [2020] IECA 75). Baker J. and Ni Raifeartaigh J. agreed with the judgment and order he proposed. Consequent upon the restrictions arising from the COVID-19 pandemic, the judgment was delivered electronically. Since then, the following submissions have been delivered to the Court:
(a) A document entitled ‘ McKeown/McCarthy Issues Arising from Judgment of Murray J. 26 March 2020’, and dated 29 March 2020.
(b) Defendants/Appellants' Submission on Costs (filed 9 April).
(c) Respondent's Submission Pursuant to COVID-19 Notice filed on 8 April.
The Court has also been furnished with e-mail communications and correspondence between the parties of 9 April 2020.
The submission dated 29 March enumerates what it describes as ‘procedural and practice errors’ which, the appellants contend, ‘constitute the very heart of the Judgment’. They present these contending that in the light of the circumstances arising from the pandemic they are ‘denied voice in the Court as per conventional delivery methodology’.
The ‘procedural and practice errors’ to which they refer are, in summary, as follows:
(a) The appellants object to the reference at paragraph 24 of the judgment to a passage (paragraph 4) from the submissions of the respondent delivered on 10 December 2019. That paragraph of the respondent's submission stated as follows:
‘The Bank's instructions are that, in the use of the terms “Allied Irish Banks plc” and “Allied Irish Batiks, pic” in the Instruments of Appointment of Receiver executed in January 2017, a deliberate decision was not taken to omit a comma between “Allied Irish Banks” and “plc” (or “p.l.c”). The Instruments of Appointment were prepared by solicitors for the Bank, naming the Bank as it was without adverting to the presence or absence of a comma in the Bank's title.’
(b) This was, it is said by the appellants, outside the scope of what was required by the Court (Baker J.) when submissions were directed on 26 November.
(c) It is said that the contents of paragraph 4 of those submissions are hearsay as no officer of the entity, for example, has sworn an affidavit ‘to submit a legal instrument of Declaration/Clarification’ as to the matters referred to there.
(d) It is contended that on the date those submissions were delivered the respondent had no consent or legal authority to communicate with the Bank as he could only be reporting solely and exclusively to Everyday Finance DAC. Emphasis is placed upon the fact that the passage from the respondent's submissions recorded the Bank's instructions in the present tense, not what the Bank's instructions were during the period from January 2017 to August 2018, this being the date (it is said) when the Bank ‘ vacated the matter’ to Everyday Finance DAC. It is stated that the respondent failed to disclose these matters to the Court, and that he failed to disclose that Everyday Finance DAC were not as of the date of the submission in question plaintiff or co-plaintiff in the Summary Case.
(e) The appellants express concern that their submissions of 12 December 2020 were not addressed in the Court's judgment. This document states as follows:
‘We then require the same to be addressed/comprised in the judgment to allow us to be able to ascertain the Court's position on same’.
(f) Reference is made in this regard to one aspect of the appellant's submission of 12 December, as follows:
‘… any matters in our submissions deemed hearsay, like that the Court may deem it hearsay that the costs in the Summary Case were Adjourned Generally as ‘Allied Irish Banks plc’ cannot declare its Vat standing to the High Court of Ireland then that enjoys said equal footing as to the hearsay that has been admitted by the Plaintiff to advance his claim.’
(g) The appellants say that they were legally precluded from entering proofs that the respondent cannot facilitate redemption to the appellants for Everyday Finance DAC as he ignored multiple demands for redemption, or that as of the date of the appeal he had commandeered circa. €575,000 of their money to meet loan commitments of circa €90.000 and has not serviced their accounts or returned any surplus to them, or that his actions caused them to fall into default on their family home.
(h) It is said that the judgment is in error in stating that the respondent is receiver of certain properties, implying he has the right to sell them when in fact he is at most receiver of the income of the properties. The appellants say that damages in the event of sale at an undervalue or without proper authority are not in question as the respondent is seeking possession in his plenary case and does not enjoy a right of sale over the private properties. It is said that the mortgage deeds upon which he relies do not have a legally defined mortgagee therein and the charges upon which he relies convey no estate legal or equitable estate on any other party outside the appellants.
(i) The submission disputes references in the judgment to the ability of the appellants to pay damages, highlighting the extent of their lawful equity, noting €500,000 which they say the respondent has commandeered over and above the loan account requirements and minus the consideration paid by Everyday Finance DAC. They say that all personal liability lies with the respondent, that it is...
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...to engage this exceptional jurisdiction…” This was recently restated in this court by Murray J. in the decision of Murphy v. McKeown [2020] IECA 188: “ …a court in delivering judgment is not required to advert to every argument made or submission delivered to it or to address every point ad......