Supreme Court Ruling
Supreme Court brings down
the curtain on ‘delay litigation’, over the past number of years The High
Court, Commercial Court, Appeals Court and indeed The Supreme Court have been
used as ‘tools’ of ‘delay litigation’. Almost identical to the Modus Operandi of
Jail-House-Lawyers, many Cowboy Builders and Property Speculators have learned
a few tricks of the legal trade and have abused them in abundance, these abuses
have seen fraudsters and in many instances criminals, continuing to profiteer from
business operations that should long since have been called in, due to their attachment
to Toxic Loans.
Delay litigation has been
tolerated due to the desire of the Superior Courts to ensure that ‘justice’ is
seen to be done, however, as Ireland begins the recovery process, it is
essential that the cancerous growth of ‘delay litigation’ is cut clean off our
Judicial system, so that a new generation may breath live back into a badly
beaten economy.
Bank of Scotland
A couple have lost their
Supreme Court appeal against a decision that Bank of Scotland Plc was entitled
to recover some €4 million from them arising from unpaid loans made for
property development purposes and to appoint a receiver over certain properties.
Patrick and Roseann
McLaughlin, of Foxrock, Dublin, had, in their appeal, argued the 2010
cross-border merger between Bank of Scotland (BOS) and Bank of Scotland
(Ireland) (BOSI) did not involve the transfer of any securities held by BOSI to
BOS.
Their appeal was given a
priority hearing by the Supreme Court because, if that argument was upheld, it
would have what Mr Justice Frank Clarke described as a “profound” effect on the
position of BOS and would also potentially impact other cross-border mergers.
In unanimous judgments
yesterday, the three-judge Supreme Court dismissed the McLaughlins’ argument.
It ruled that the security held by BOSI over the McLaughlins’ properties was an
“asset” of BOSI within the meaning of the relevant 2005 EC Directive on
cross-border mergers, which had passed to BOS on the coming into effect of the
relevant merger.
The court also refused as
unnecessary the couple’s application to have issues, including the meaning of
the word “assets” in the 2005 EC Directive, referred to the European Court of
Justice for determination.
Decision upheld
Based on that and other
findings, the court upheld a High Court decision BOS was entitled to recover
some €4.06 million from the couple arising from the loans dating from 2008 and
had validly appointed Tom Kavanagh receiver over certain properties on which
various loan facilities were secured.
In their appeal, the couple
also claimed they had had an arrangement with BOSI that it would not call in
the relevant loans until their residence, “Latona”, Torquay Road, Foxrock, had
been sold. They said that they intended to move to smaller accommodation and
took out a bridging loan to buy another property at Kerrymount Rise, Foxrock.
Dismissing that point, Mr
Justice Clarke said if the evidence was that there may have been “some sort of
vague understanding or acceptance” by the parties some latitude might be given
to the couple if there was difficulty selling Latona.
However, the judge said
there was no evidence to establish a legal obligation on the part of the bank
to refrain from calling in the loan until Latona was sold.
The judge also said there
was also no evidence to suggest BOSI/BOS ever agreed, as the couple claimed, to
forego any entitlement to recover any shortfall if the property was sold for a
sum insufficient to clear the loans.
The judge said that the
issue was not whether it might or might not have made business sense for the
lender to wait, as “it probably did”. The issue was rather whether the lender
was “legally obliged” to wait, and it was not.
The court said another
issue, also of potentially wider significance, was whether the failure to
specifically register BOS as the new registered owner of charges originally
executed in favour of BOSI meant, at least where registered lands were affected,
neither BOS nor the receiver could enforce the charge.
In her judgment specifically
addressing that point, Ms Justice Mary Laffoy said she was satisfied, as a
matter of contract, BOS had power independent of the provisions of the 1964
Registration of Title Act to appoint the receiver under the terms of a 2006
charge between the couple and BOSI.
Ms Justice Laffoy held that
although BOS was not registered as owner of the 2006 charge, the receiver was
validly appointed.
Supreme Court Judgements
2015, McLaughlins, Bank of Scotland, ACC Bank, Delay Litigation, Mr
Justice Frank Clarke
