Ulster Bank Ltd v Quirke

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 19 March 2021
• Neutral Citation: [2021] IEHC 199
• Docket Number: [2006 No. 106 S.]
• Court: High Court

BETWEEN

ULSTER BANK LIMITED

PLAINTIFF

AND

TIMOTHY QUIRKE

AND

JOAN QUIRKE

DEFENDANTS

[2021] IEHC 199

Butler

[2006 No. 106 S.]

THE HIGH COURT

JUDGMENT of Ms. Justice Butler delivered on the 19th day of March, 2021

Introduction

1 This is an application by Promontoria (Oyster) DAC for what it describes as process orders in aid of execution of an existing judgment against the defendants under O. 17, r. 4 and O. 42, r. 24 of the Rules of the Superior Courts. The orders sought are to add the applicant as a plaintiff to the proceedings and for leave to execute the judgment. The application is resisted by the defendants on a range of grounds which are more fully discussed below.

2 The judgment, in the sum of €73,685.32, resulted from summary proceedings issued by Ulster Bank Ltd against the defendants in January, 2006 in respect of monies lent by Ulster Bank to the defendants on foot of a loan account number XXXXX138 and the overdraft on a current account number XXXXX054. Of the principal sum of €58,713.95 initially claimed, by far the larger portion was due on foot of the loan account, namely €55,072.37, compared to €3,641.58 due on the current account. The balance of the sum comprised interest which continued to accrue during the course of the proceedings in similar, although not identical, proportions.

3 Although an appearance was entered by the solicitor on behalf of the defendants when the summary proceedings were initially instituted, no affidavit was filed and no defence to the claim was advanced. In March, 2008, Ulster Bank brought a second motion seeking liberty to enter final judgment and, on 29th May, 2008, the Master of the High Court granted liberty to enter final judgment in the sum of €73,635.32 together with continuing interest from 19th January, 2008 (differentiating between the rate of interest applicable to the loan account and to the overdraft) and costs against the defendants. The matter was adjourned back to the Master's Court on the 30th June, 2008 and the order was stayed pending further order. Counsel for the defendants is recorded as having been present in the Master's Court on the making of the order and it may well be that both the stay and the adjournment were made on that counsel's request because, subsequent to the Master's order, an affidavit was sworn by the second defendant in which the defendants' liability to Ulster Bank was acknowledged in the following terms: “ I acknowledge the sum claimed in the summons herein is due and owing to the plaintiff in the sum sought of €62,857.11”. (The sum of €62,857.11 is the figure claimed in the summary summons as issued on 26th January, 2006. The second defendant's affidavit is silent on the question of any interest due on that sum subsequent to the issuing of the proceedings). The purpose of the affidavit seems to have been to seek further time and the balance of the affidavit sets out efforts then being made by the defendants to sell the lands which were (and are) security for the loan and/or to refinance their debt through a different lender.

4 A further order was made by the Master of the High Court on 3rd July, 2008 in which the stay originally ordered on 29th May, 2008 was vacated and a three month stay on execution imposed instead (i.e. to expire on 2nd October, 2008). There was also a change made to the figure in respect of which liberty was granted to the Ulster Bank to enter final judgment from €73,635.32 to €73,685.32. Whilst it was suggested in argument that this figure could reflect an updated calculation of interest, given that only one digit is changed and the change is from a 3 to an 8, it seems far more likely that a typographical error had crept in at some point. In any event, nothing now turns on this.

5 Some six months after the expiry of the stay imposed by the Master, Ulster Bank proceeded to enter judgment in the Central Office on 27th March, 2009. In the context of this application, that judgment is evidenced by an Execution Order of the same date addressed to the County Registrar. The applications currently before the court are made in light of the fact that a twelve-year limitation period from the date of entry of judgment is due to expire on 26th March, 2021. Whilst the applicant does not concede the applicability of s. 11(6)(a) of the Statute of Limitations to the potential execution of the judgment, the defendants contend that the original High Court judgment is statute barred and has been since “ at least” October, 2020. Consequently, the applicant is making this application on a protective basis, lest s. 11(6)(a) applies. I will deal with the defendants' argument pursuant to the Statute of Limitations further below.

6 On 19th December, 2016, Ulster Bank executed a global deed of transfer which assigned to the applicant all rights, title and interest that the Ulster Bank held in a large number of security documents, underlying loans and finance documents together with Ulster Bank's ancillary rights and claims therein. Clause 1 of the deed of transfer, which is exhibited for the purposes of this application, is drafted in very broad terms. For the avoidance of doubt, the security documents the subject of the transfer include those listed at Schedule 1 to the deed. There are four listings in that Schedule to the defendants' loans and/or securities. These are found at Section 1A Tier 2 Security Documents (Real Estate) where the lien registered on 18th September, 2009 is listed with the defendants named as borrowers; at Section (2B Part-01) Tier 2 Underlying Loan Agreements (Dataroom Facility Letters) where the facility letter dated 21st November, 2003 between Ulster Bank and the defendants is listed; at Section (2B-Part-02) Tier 2 Underlying Loan Facility (Loan Database) where loan account XXXXX138 is listed; and, finally, at Section (1B) Tier 2 Properties, the defendants were again listed as is their property comprising 57 acres of land at Folio 21631F, County Limerick. It is clear that the intent and effect of the 2016 transfer was the sale of Ulster Bank loans (including the defendants' loans) to the applicant. The court was advised that the defendants' indebtedness on foot of the said loans currently stands at some €90,000.

7 However, the applicant accepts that the defendants' current account number XXXXX054 was not transferred to it by Ulster Bank as part of this global transfer. Consequently, there is a dispute between the parties as to the extent to which the applicant can seek orders in respect of the judgment in circumstances where it does not have an interest in the entire of the defendants' indebtedness underlying the judgment.

8 Finally, before looking at the specific issues raised on this application, the court notes the existence of related proceedings between the same parties (Record No. 2018/500SP) in which Promontoria seeks a well charging order for the repayment of monies owed by the defendants under loan account number XXXXX138 on foot of a lien registered by Ulster Bank on 18th September, 2009. Those proceedings were adjourned by consent with liberty to re-enter on the same date that these applications were heard. Although the court has not considered the content of the well charging/lien proceedings in any detail, they are relevant insofar as the defendants assert, firstly, that a settlement was reached between the parties in the well charging/lien proceedings creating both an issue estoppel and obviating the need – or entitlement – of the applicant to pursue these applications in respect of a judgment relating to the same indebtedness. The existence of any concluded settlement is disputed by the applicant. Secondly, the defendants rely on differences in the presentation of the applicant's case as between the two sets of proceedings.

Admissibility of Without Prejudice Correspondence:

9 Given that the defendants' solicitor has exhibited the entire exchange of without prejudice correspondence between the parties' respective solicitors to assert the existence of a concluded settlement agreement, the court regarded it as both necessary and appropriate to rule on the admissibility of this evidence as a preliminary matter during the course of the hearing. Having heard from counsel on both sides, I ruled that I would not consider this material for the following reasons. The overriding concern of the court was the importance of the principle that parties to litigation should be able to conduct without prejudice negotiations freely and without fear that any concessions made in the context of negotiations will be used against them in the proceedings in the event that a settlement is not reached. I acknowledge that there are circumstances where, notwithstanding that exchanges or negotiations are conducted on a without prejudice basis, their contents may become admissible in evidence, most particularly where proceedings are brought to enforce a settlement alleged to result from such negotiations ( per Moorview Developments v First Active plc [2009] 2 IR 788). However, these are not proceedings brought to enforce the agreement alleged to have resulted from the negotiations, nor are they the proceedings in which the negotiations took place. Thus, the defendants are attempting to rely on the assertion that a concluded settlement reached in negotiations in separate (albeit related) proceedings has given rise to an issue estoppel which precludes the applicant proceeding with this application. No authority was advanced for that proposition.

10 The applicant urged the court not to embark on any consideration of whether a concluded settlement had been reached on the basis that, even if that dispute were to be resolved in the defendants' favour, it would still be irrelevant to this application in light of the nature of the relief sought. The applicant asserted that any comments made by the court in this application regarding the grounds for...