O.S v National Irish Bank and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Conor Dignam
• Judgment Date: 21 June 2024
• Neutral Citation: [2024] IEHC 382
• Docket Number: Record No. 2019/6583P
• Court: High Court

Between

O.S.

Plaintiff

and

National Irish Bank Ltd, Danske Bank, Christopher D. Lehane, O.S., George Maloney and The Property Registration Authority of Ireland

Defendants

[2024] IEHC 382

Record No. 2019/6583P

THE HIGH COURT

Judgment of Mr. Justice Conor Dignam delivered on the 21 ^st day of June 2024

INTRODUCTION

1 . This judgment concerns two applications, one brought by the third-named defendant and the other brought by the first, second, and fifth-named defendants. The third-named defendant is the Official Assignee in the plaintiff's husband's bankruptcy. I will refer to him as “the Official Assignee” in this judgment. The first-named defendant is a bank with whom the plaintiff's husband had borrowings, some of which was secured by a mortgage. The first-named defendant's business was transferred to the second-named defendant in 2007. The fifth-named defendant is a receiver who was appointed by the second-named defendant over the mortgaged lands. I will refer to them as “NIB”, “Danske” and “the receiver” or collectively as “the bank defendants”.

2 . Both applications seek Orders pursuant to Order 19 Rule 28 of the Rules of the Superior Courts and/or the Court's inherent jurisdiction dismissing the plaintiff's claim on the grounds that it fails to disclose any reasonable cause of action and is bound to fail and, in the case of the Official Assignee's application, that it is frivolous and vexatious. In substance, the applications to dismiss the plaintiff's claim were made on the basis of the Court's inherent jurisdiction and I have approached the applications on that basis in the first instance. Both sets of defendants also seek, in the alternative, an Order pursuant to Order 19 Rule 27 and/or the Court's inherent jurisdiction striking out the Plenary Summons and Statement of Claim as unnecessary or scandalous pleadings and, in the case of the bank defendants, as pleadings which tend to prejudice, embarrass or delay.

3 . I will only consider the applications under Order 19 Rule 28 and Order 19 Rule 27 if the applications pursuant to the Court's inherent jurisdiction do not succeed (see Scanlan v Gilligan & Ors [2021] IEHC 25). This is also the appropriate way to proceed in light of deficiencies in the manner in which the case is pleaded.

4 . I consider the bank defendants' application first, followed by the Official Assignee's application. There is a degree of overlap between the two.

5 . Before doing so, it would be helpful to set out the background and the applicable principles, as these are, of course, relevant to both applications.

6 . It should also be noted at this stage that the plaintiff is married to the fourth-named defendant (since 2009) and that there are several judgments in different sets of proceedings involving the fourth-named defendant and/or the plaintiff relating to some of the same issues which are relevant to the Court's consideration. The following background is drawn from the affidavits grounding these applications and from these other judgments.

7 . I have anonymised the names of the plaintiff and the fourth-named defendant because they were anonymised in an earlier Court of Appeal judgment for reasons set out in that judgment. I have to refer to that judgment and in those circumstances it seems to me that I should also anonymise them. It does have to be acknowledged that they were not anonymised in the High Court judgment leading to that Court of Appeal decision (because the reasons requiring their anonymisation had not yet arisen) and in those circumstances my anonymisation of them may be somewhat academic. Furthermore, the Court of Appeal did not redact or anonymise the lands in question so I have not done so either.

BACKGROUND

8 . In 2003, the fourth-named defendant (“Mr. O.S.”) borrowed monies from NIB. These lands are secured by a mortgage executed by Mr. O.S. on the 15 ^th October 2003, over the lands in Folio 976, Co. Kildare. This was not registered at the time (it was in fact not registered until the 4 ^th February 2010). This is a point raised by the plaintiff.

9 . In April 2007, NIB's business transferred to Danske. The plaintiff disputes the lawfulness of this transfer.

10 . On the 5 ^th September 2012, Danske appointed the fifth-named defendant as receiver over part of the lands in Folio 976. These lands are described as “ fields”, “ agricultural land” or “ a farm” in the affidavits and as “ two fields comprising 77.87 hectares, which are used for tillage and non-residential” by Laffoy J in a judgment to which I refer below.

11 . On the 4 ^th March 2013, Danske obtained summary judgment in the sum of €1,296,114.47 against Mr. O.S. (It may be noted at this stage that he appealed this but ultimately, on the 13 ^th May 2019, following him. having been adjudicated bankrupt, as discussed below, his appeal against that Order was dismissed by the Court of Appeal on the consent of the Official Assignee).

12 . Danske, when they obtained summary judgment on the 4 ^th March 2013, registered a judgment mortgage over another property belonging to Mr. O.S., lands in Folio 38675F, Co. Kildare. These lands and the lands in Folio 976 are adjacent to each other. Indeed, it is clear from the folio maps that the lands in Folio 976 surround the lands in Folio 38675F (which are 0.23 hectares) apart from an entrance gate and roadway.

13 . It is worth pausing to note at this stage that one of the issues in the case, or at least on these applications, is the question of where the family home is: Folio 976F or Folio 38675F. It is deposed by the Official Assignee that the family home is in Folio 38675F. This is rejected by the plaintiff who says in her affidavit that “ Mr. Lehane is untruthful in his statement at paragraph 8 of his affidavit in stating that Folio 976 County Kildare did not include the family home. I reject this statement and wish to correct the record and state that KE976 does include my family home.”

14 . In May 2013, the receiver issued proceedings against Mr. O.S. and sought interlocutory injunctions directed towards obtaining possession of the part of the lands in Folio 976 over which he had been appointed receiver on the 5 ^th September 2012, i.e. the fields or agricultural lands. Laffoy J granted relief on the 19 ^th July 2013 and delivered a judgment on that date ( Maloney v O'Shea and Cannon Agri Limited [2013] IEHC 354). I will have to refer to this judgment further.

15 . Also in July 2013, the fifth-named defendant was appointed as receiver over the remaining part of the lands in Folio 976, which are described as four large storage sheds. Laffoy J notes that this remaining part is about 4.5 hectares.

16 . In July 2014, the receiver issued a further set of proceedings seeking the same reliefs in respect of this portion of the lands in Folio 976 as he had obtained from Laffoy J in respect of the fields and I understand that Noonan J granted an Order on the 22 ^nd December 2014 which mirrored that of Laffoy J.

17 . Mr. O.S. appealed against the Order in respect of the lands in Folio 976.

18 . On the 12 ^th May 2015, the plaintiff issued proceedings against Mr. O.S. seeking, inter alia, a declaration that she has a 50% interest in various parcels of land including Folios 976, 38675F and another folio, KE5445.

19 . On the 4 ^th July 2016 Mr. O.S. was adjudicated bankrupt. The effect of section 44 of the Bankruptcy Act 1988 is that Mr. O.S.'s assets vested in the Official Assignee and, on the 27 ^th September 2016, the Official Assignee was registered as the owner of the property in Folio 38675F (as recorded by Costello J in a judgment delivered by her on the 21 ^st February 2018).

20 . On the 20 ^th June 2017, the Official Assignee brought an application pursuant to section 61 of the Bankruptcy Act 1988 for the sanction of the Court for the sale of the property in Folio 38675F on the basis that it comprised the family home. Section 61 provides that:

“Notwithstanding any provision to the contrary contained in subsection (3), no disposition of property of a bankrupt, arranging debtor or person dying insolvent, which comprises—

(a) a family home (within the meaning of the Family Home Protection Act 1976) of the

bankrupt or the bankrupt's spouse, or

(b) a shared home (within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010) of the bankrupt or the bankrupt's civil partner (within the meaning of that Act),

shall be made without the prior sanction of the Court and any disposition made without such sanction shall be void.”

21 . This application was resisted by the plaintiff on various grounds relating to it being a family home and the legal protections afforded to family homes. On the 21 ^st February 2018, Costello J, in a written judgment ( [2018] IEHC 181), granted the Official Assignee leave to sell that property, to be postponed for one year. The plaintiff appealed that Order.

22 . As noted above, on the 13 ^th May 2019, the Court of Appeal dismissed Mr. O.S.'s appeal of the summary judgment Order of the 4 ^th March 2013 on the consent of the Official Assignee (Mr. O.S. having been adjudicated bankrupt and therefore the cause of action having vested in the Official Assignee).

23 . On the 5 ^th March 2020, the Court of Appeal upheld the judgment and Order of Costello J giving sanction for the sale of the property in Folio 38675F and postponed that sale for six months.

THE PLAINTIFF'S CLAIM

24 . The plaintiff issued these proceedings by Plenary Summons on the 24 ^th August 2019 and delivered a Statement of Claim on the 9 ^th October 2019. One of the reliefs sought in the General Indorsement of Claim is “ a declaration that the plaintiff has a right of possession in the properties and lands described in the Schedule” to the Plenary Summons. These are the lands in Folio KE976 and KE38675F and lands at Narraghbeg, Castledermot, Co. Kildare...