Re F. McManus (a debtor)

• Jurisdiction: Ireland
• Judge: Ryan P.
• Judgment Date: 22 June 2016
• Neutral Citation: [2016] IECA 248
• Date: 22 June 2016
• Court: Court of Appeal (Ireland)
• Docket Number: [2016 No. 283] H:IS:HC 2016:00003

[2016] IECA 248

THE COURT OF APPEAL

Ryan P.

[2016 No. 283]

H:IS:HC 2016:00003

The President

Finlay Geoghegan J.

Irvine J.

IN THE MATTER OF PART 3 OF THE PERSONAL INSOLVENCY ACTS 2012

(AS AMENDED)

AND

IN THE MATTER OF FERGAL MCMANUS OF SANTA MARIA ALACKEN,

CAVAN, COUNTY CAVAN

A DEBTOR

Personal insolvency – Irreparable loss – Financial arrangements – Creditor seeking to invoke the facility under s. 97 of the Personal Insolvency Acts 2012 to 2015 – Whether the rationale for s. 97(3)(a) was satisfied

Facts: On 11th February 2016, the High Court issued a Protective Certificate to the debtor, Mr McManus, pursuant to s. 95(6) of the Personal Insolvency Acts 2012 to 2015. On 18th April 2016, the period of protection was extended. The creditor, Clones Credit Union Ltd, got liberty to enter judgment against the debtor on 27th October 2015. This matured into a judgment mortgage on 19th November 2015. This judgment mortgage fell short of the three months space that was required in order to give it immunity under s. 102(7) of the legislation. In the High Court, Clones Credit Union brought an application to invoke the facility under s. 97 of the Act whereby, on satisfying the court of the requirements in the section, it could have its debt excluded from the operation of a personal insolvency arrangement entered into by the debtor. The High Court (Baker J) delivered judgment on 27th May 2016. This case is an appeal to the Court of Appeal against the judgment of Baker J.

Held by Ryan P that the Court was concerned only with the provisions of s. 97. It seemed to Ryan P that it came down to sub-section (3) and whether Baker J was correct in her analysis of sub-section (3).

Ryan P held that the rationale for s. 97(3)(a) was not satisfied, namely, irreparable loss which would not otherwise occur. On the strict application of the section, Ryan P could not agree with Baker J and accordingly allowed the appeal.

Appeal allowed.

EX TEMPORE JUDGMENT of the President delivered on 22nd June 2016

1 There is great urgency about this matter and the court proposes to give judgment now.

2 Anyone is aware that there are perils in ex tempore judgments. Reports of decided cases draw particular attention to the frailties that arise in the case of ex tempore judgments. In this case, there are a number of exacerbating features. The first difficulty is the pressure of deciding the case today. Because of the demands on the court's work, we do not have the luxury of reserving judgment, bearing in mind the other work obligations that the court has. The second difficulty is my unfamiliarity with this area of jurisprudence. The third difficulty is the poor quality of the materials submitted. I remain critical of this, but I was particularly struck by the contrast between the quality of the written materials and the high quality of the oral submissions.

3 This case is an appeal against the judgment of Baker J. in the High Court delivered on 27th May 2016. The application was made under s. 97 of the Personal Insolvency Act 2012. The application came before the court on a notice of motion.

4 The background to the case is outlined in the judgment of Baker J. wherein she says that on 11th February 2016, the High Court issued a Protective Certificate to the Debtor pursuant to s. 95(6) of the Personal Insolvency Acts 2012 to 2015. On 18th April 2016, the period of protection was extended.

5 The application concerns the judgment obtained by the creditor, Clones Credit Union Ltd. Clones Credit Union Ltd. brought its application in circumstances where it had got liberty to enter judgment against the Debtor on 27th October 2015. This matured into a judgment mortgage on 19th November 2015. Bearing in mind the date of 11th February 2016, this judgment mortgage fell short of the three months space that was required in order to give it immunity under s. 102, sub-section (7) of the legislation.

6 In the High Court, Clones Credit Union brought an application to invoke the facility under s. 97 of the Act whereby, on satisfying the court of the requirements in the section, it could have its debt excluded from the operation of a personal insolvency arrangement entered into by the Debtor. There are a number of affidavits filed on behalf of the Credit Union, but principally the affidavits of Mr. Jenkinson and Counsel relies and relied in the High Court on the contents of that affidavit. It seems to be that there is reason to be uneasy about the materials and matters that were raised in the course of the affidavits, specifically, the materials that were put before the High Court in Mr. Jenkinson's affidavits. I think there are considerable reasons to be concerned about the contents of those affidavits.

7 It seems to me that the court is concerned, and concerned only with the provisions of s. 97. I do not agree with Counsel that the court has a parallel application of inherent jurisdiction. There was a debate about the provisions of s. 97(1) and whether the extent to which a range of grounds may be invoked in order to apply under s. 97(1) of the Act. Again, for the purpose of this application, it is not necessary to make any declaration about that. It would also be inappropriate, in a brief ex tempore judgment held urgently, to attempt to make any definitive point in that regard.

8 It seems to me that it comes down to sub-section (3) and whether Baker J. was correct in her analysis of sub-section (3). I also think that sub-section 3(b) can be excluded, not because it...