Allied Irish Banks,p.l.c. (“AIB”) (in proceedings 2018/ IEHC306), has lost it’s application for a revisit of judgment of Judge Marie Baker’s adjudication in findings regarding AIB Mortgage Bank v Thompson [2017] IEHC 515 (High Court, Baker J, 31 July 2017) – Summary Judgment proceedings.

In the 2017 Summary Judgment proceedings Justice Baker found AIB Mortgage Bank failed to obtain Ms Thompson’s consent and failed to give sufficient notice to Ms Thompson of her loan transfer from AIB to AIB Mortgage Bank as statutorily required under the Superior Court of Judicature (Ireland) Act 1887  in a written judgment delivered on the 31st July 2017.

The defence offered by Nadine Thompson in the 2017 Summary Judgment proceedings  was that by reason of alleged failure to give her express written notice of the assignment, under the requirements of S28(6) of the Superior Court of Judicature (Ireland) Act 1887, AIB Mortgage Bank had failed to show that it had taken a valid transfer from the original creditor.  However, Justice Baker considered that an assignment of the debt had occurred in equity, that as the debt was actionable in equity, and as there was no argument to be made that any equitable principle was engaged, nor was there any question of priorities.  Accordingly, judgment was to be entered against Ms Thompson.

AIB in it’s 2018 proceedings sought that the 2017 decision be revisited.  AIB  had a complete answer to the Ms. Thompson’s defence  - the Asset Covered Securities Act 2001 (“the ACS Act”), in particular S.58 and that by virtue of the provisions of S. 58 of the Act, no notice in writing of an assignment was required in respect of bank assets transferred by AIB to AIB Mortgage Bank.  It was further argued by AIB, in a general way, that the objective of the ACS Act would not be met post 2017 AIB Mortgage Bank v Thompson judgment, if it were a requirement that each individual debtor be given express notice of a transfer of his, her or it’s loan.

AIB particular concern here is that the focus of the judgment on S. 28 (6) of the Supreme Court of Judicature Act is liable to “misinterpretation” and could be relied on in other litigation which could result in a degree of litigation chaos and uncertainty in the law.  Further AIB argued that the substantive judgment is liable to cast doubt on the legal effect of interbank transfers made pursuant to a scheme under S. 58 of the ACS Act and,  in those circumstances,  they sought clarification with regard to the legal position from Justice Baker.   AIB were satisfied that the risk of legal uncertainty was such that it is in the public interest that the reasoning be dealt with now by the courts.

In response to same in her  2018 judgment delivered on the 20th June 2018,  Justice Baker’s referred to Counsel for AIB seeking Justice Baker would amplify a reasoning or clarify the reason between the interplay in S. 58 of the ACS Act and S28 (6) of the Supreme Court of Judicature Act.

In the 2017 Summary Judgment proceedings (“2017 proceedings”) Justice Baker requested written submissions be prepared by Counsel and that the parties make submissions with regard to the provisions of S. 28(6) of the Supreme Court of Judicature Act as this was the focus of oral submissions.  Those written legal submissions were understandably confined to the Superior Court of Judicature (Ireland) Act 1887, although the written submissions on behalf of Ms. Thompson did make short reference to S. 58 of the ACS Act.

In her 2018 Judgment, Justice Baker confirmed that in the course of the principal judgment on the 2017 proceedings she did make reference to the ACS Act in Para 7.2.1 to 7.2.3 and she did so in order to deal with the possible argument that the original owner of the debt, the assignor, namely AIB might continue to have some right to pursue the debtor, and because she was satisfied that, by virtue of S. 58 of the Act and the scheme, AIB could no longer maintain such a claim and that there was no basis to join AIB as a party.

Justice Baker confirmed she did not in the 2017 Judgment, consider the question now sought to be addressed, namely whether the ACS Act offered a complete answer to any defence that the absence of notice of assignment was fatal to the claim of a plaintiff.

Justice Baker was satisfied therefore that the argument that S. 58 of the ACS Act might have ordered a full answer to the argument of the defendant, was not advanced prior to the delivery of the 2017 principal judgment.

Justice Baker argued that it seems to her that the 2017 principal judgment is not authority for any proposition that a loan transferred by virtue of the provisions of S.58 of the ACS Act including the loans transferred under the scheme by which the loan books of AIB were transferred to AIB Mortgage Bank would require notice under S.28 (6) of the Supreme Court of Judicature Act.  The judgment had not considered that question at all, and S. 58 was engaged in the judgment for the purposes of answering a separate limited question.  Per Justice Baker the principal judgment was not intended to be, nor is it, an authority that may be relied on in a suitable case where S. 58 is fully litigated.  Justice Baker confirmed she was not directed to, nor did she address, the provisions of the ACS Act as a substantive defence to the 2017 Summary Judgment proceedings.

Justice Baker was of the opinion in her 2018 Judgment that the Bank in essence now sought to re-litigate matters which were already fully and fairly heard and determined at the 2017 hearing.  Further, she was not satisfied that AIB ought now to be permitted to reopen the case and rely on wholly different legal principles to defeat the argument of the defendant when those legal proceedings and arguments were in existence and capable of being addressed in the earlier 2017 hearing.  No new legal basis on which AIB might now seek to revisit the case exists.  That basis was available to be argue at the first hearing and no explanation is now tendered for the failure to argue it in 2017.  AIB rather relies on an argument from the public interest.

Finally, Justice Baker determined that there was nothing preventing another creditor institution in those circumstances from fully ventilating the argument now sought to be raised in the present case and accordingly, she considered that there is no public interest to be gained by now revisiting the 2017 Judgment.

Accordingly, Justice Baker refused receipt of the request of AIB that she revisit her judgment.

 

Rose Murphy is a Solicitor in the Commercial Department of FitzGerald Solicitors, 6 Lapps Quay, Cork.

TEL:         +353 (0)21 4279800
FAX:        +353 (0)21 4279810

EMAIL:    RoseMurphy@fitzsols.com
WEB:       www.fitzsols.com

Please note the foregoing article does not constitute legal advice and you should contact your solicitor for specific advice tailored to your circumstances.

 

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