Ulster Bank Ireland Ltd v (by Order) Promontoria (Oyster) DAC

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 12 December 2022
• Neutral Citation: [2022] IECA 283
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2021/94

Between:

Ulster Bank Ireland Limited

Plaintiff

and

(By Order) Promontoria (Oyster) DAC

Plaintiff/Respondent

and

Timothy Quirke and Joan Quirke

Defendants/Appellants

[2022] IECA 283

Murray J.

Edwards J.

Binchy J.

Court of Appeal Record Number: 2021/94

High Court Record Number 2006 106 S

THE COURT OF APPEAL

JUDGMENT of Mr. Justice Binchy delivered on the 12th day of December 2022

1 This is an appeal from two orders of the High Court made on the 22 ^nd March 2021. The first order was one made pursuant to Order 17, r.4 of the Rules of the Superior Courts, whereby the Court ordered that the plaintiff/respondent herein (“Promontoria”) be joined as a co-plaintiff in the within proceedings, and further directed that the within proceedings shall thenceforth be carried on as between the original plaintiff, Ulster Bank Limited (“Ulster Bank”) and Promontoria as co-plaintiffs and the defendants/appellants. The second order was made pursuant to Order 42, r. 24 of the Rules of the Superior Courts whereby the Court granted Promontoria leave to issue execution to Promontoria of a judgment (the “Judgment”) dated 27 ^th March 2009 previously obtained by Ulster Bank.

Background

2 The uncontested background facts are that the appellants borrowed money from Ulster Bank and fell into arrears with repayments. The precise date on which funds were first advanced by Ulster Bank to the appellants is unclear, but what is clear is that by reason of falling into arrears, the appellants' loan facilities were restructured leading to the issue by Ulster Bank to the appellants of revised loan facilities by letter of 21 ^st November 2003, which letter was signed by the appellants on 22 ^nd November 2003 by way of acceptance. This letter provided for a review date of 28 ^th February 2004. It referred to a loan amount in the sum of €89,000 and the purpose of the loan was stated to be the taking over of existing loan and overdraft facilities, and to provide for planning fees.

3 A further offer letter issued from Ulster Bank to the appellants on 10 ^th September 2004. This provided for a loan in the sum of €56,100 (described as “ continuation of existing farm loan”). It appears this letter was not signed by the borrowers. There is no reference at all in this letter to the overdraft facility, although in an affidavit sworn by Mr Chris Benson, a bank official in Ulster Bank on 13 ^th March 2008 (for the purpose of grounding an application for summary judgment) Mr. Benson avers that “ in addition, the plaintiff continued to permit the defendants to operate an overdrawn joint current account numbered XXXXX054 at the same branch on terms which required them to make repayment in the event of demand”. In the same affidavit, Mr. Benson avers that the loan account to which the letter of 10 ^th September 2004 relates is account number XXXXX138.

4 The appellants fell into further arrears with repayment of the loan and the overdraft facility and Ulster Bank wrote to the appellants on 3 ^rd March 2005 demanding repayment of a total sum of €58, 868.17, and provided details in the letter as to the breakdown in respect of the amount due in respect of the loan, the current account and interest. The appellants were unable to make repayment of the sums due, and Ulster Bank caused a summary summons to issue on 26 ^th January 2006, claiming the total sum of €62,857.11, inclusive of principal (€58,713.95) and interest (€4,143.16). The summary summons also identified the amount of the overdraft (€3,641.58) and the loan account (€55,072.37).

5 Following the issue of a motion for judgment, the matter came on for hearing before the Master of the High Court on 29 ^th May 2008, when it was ordered that Ulster Bank should be at liberty to enter a final judgment in the action for the sum of €73,635.32, together with interest from 19 ^th January 2008 on (a) the principal sum of €55,072.37 at the rate of 9.75% per annum and (b) the principal sum of €3,641.58 at the rate of 10.95% per annum until judgment or prior payment. The difference between the combined total of the two principal sums (€58,713.95) and the amount of the judgment is explained by interest accrued between the date of the issue of the summary summons and the date of the order made by the Master. It was also ordered that the appellants should pay Ulster Bank its costs of the proceedings, and the proceedings were then adjourned to 30 ^th June 2008, with a stay pending further order. That stay was vacated by the Master of the High Court on 3 ^rd July 2008, and replaced by a three month stay on execution which expired on 2 ^nd October 2008. The amount in respect of which liberty was granted to Ulster Bank to enter final judgment was also amended slightly to €73,784.32.

6 Between the date on which liberty to enter final judgment was originally granted (29 ^th May 2008) and the date on which the last order was made by the Master of the High Court (3 ^rd July 2008) the second named appellant swore an affidavit on 2 ^nd July 2008 in which she acknowledged the principal sum claimed in the summary summons in the sum of €62,857.11 as being due to Ulster Bank. She made no comment on the amount claimed in respect of interest. She proceeded to explain the efforts made to raise funds to discharge the amount due to Ulster Bank, and asked for a further adjournment so that those efforts might be continued. It is apparent therefore that the appellants accepted the amount claimed by Ulster Bank as being due and owing.

7 Thereafter, Ulster Bank, on foot of the order of the Master of the High Court, applied for judgment in the Central Office of the High Court, and on 27 ^th March 2009, judgment issued in favour of Ulster Bank in the total sum of €77, 889.07, together with costs to be taxed in default of agreement. The dates of 2 ^nd October 2008 (when the stay of three months imposed by the Master on his order expired) and the 27 ^th March 2009 are relevant to arguments advanced in the High Court regarding the applicability of the Statute of Limitations to the enforcement of the judgment.

8 These matters rested and there were no further developments in the proceedings until 26 ^th February 2021 when an application was made on behalf of Promontoria pursuant to Order 17, r.4 of the Rules of the Superior Courts (“RSC”) directing that the proceedings shall be carried on between Promontoria as plaintiff, and the appellants. At the same time, Promontoria also sought an order pursuant to Order 42, r. 24 of the RSC and/or the inherent jurisdiction of the Court granting it leave to issue execution in the proceedings on foot of the order of the High Court granted on 27 ^th March 2009. These applications were sought consequent upon the execution by Ulster Bank of a global deed of transfer on 19 ^th December 2016 to which Promontoria is also a party. While I will address the precise wording of the relevant clauses of this deed in due course, in general terms by this deed Ulster Bank sold the loans described in the deed, together with the benefit of all securities provided in connection with those loans, to Promontoria. So far as the appellants are concerned, they are expressly identified in a schedule to the deed by name, and the deed also identifies their loan account, the folio number of lands registered in the sole name of the first named appellant (folio 21631F, Co. Limerick) and a lien registered over those lands on 18 ^th September 2009 by Ulster Bank. The Schedule also refers to the facility letter dated 21 ^st November 2003 issued by Ulster Bank to the appellants, but there is no reference to the facility letter of 10 ^th September 2004, a fact upon which the appellants place significant reliance.

9 The motion by which Promontoria advanced the applications referred to above was grounded upon an affidavit sworn by Mr. Michael Lynam, a partner of O'Brien Lynam Solicitors, acting on behalf of Promontoria. Mr. Lynam deposed that he had access to the books and records of Promontoria for the purposes of the application. He summarised the history of the proceedings between the parties. Apart from the summary judgment proceedings, Mr. Lynam also referred to other proceedings issued by Promontoria way of special summons on 16 ^th October 2018, for the purpose of enforcing the lien referred to above. He avers as to an entry on the folio made on 9 ^th March 2017 whereby the interest of Promontoria in the lien was registered. He refers to and exhibits a copy of the global deed of transfer and to notifications issued to the appellants informing them of the assignment of their loan facilities and related security to Promontoria. These notifications comprised a letter issued by Ulster Bank on 6 ^th January 2017 to the appellants, and another letter issued, on behalf of Promontoria, by its agent, Link ASI (formerly known as Capita Asset Services (Ireland) Limited). Mr. Lynam exhibits copies of those letters.

10 Mr. Lynam proceeds to explain that on 21 ^st August 2017, Promontoria wrote to the appellants demanding payment of all sums due and owing on foot of the “loan agreement” which he avers then stood at a total of €78,752.58. He refers to a further letter of demand issued by Promontoria to the appellants on 6 ^th December 2019, demanding payment of the then total sum due of €86,838.44 (claimed as being due as of 2 ^nd December 2019). He avers that in despite of the demands, the appellants have failed to discharge the amount due and owing. These letters make no reference to the Judgment.

11 At paragraph 23 of his affidavit, Mr. Lynam avers that:

“23. As a consequence of the deed of transfer an event has now occurred since the commencement of the within proceedings whereby the interest of Ulster Bank in (i) the loan facility and related loan account(s), the subject matter of the within proceedings and (ii) the within proceedings and the order for judgment, has been wholly transferred unto...