Litigation Update: Challenges & Changes to Enforcement Actions & Asset Management
02 March 2015
The Court of Appeal commenced its operations on 5 November 2014.
The reason for the establishment of the Court of Appeal was the huge backlog which had built up in the Supreme Court, where it could take up to four and a half years for a case to be heard.
Mr. Justice Sean Ryan is President of the Court which is comprised of nine judges in addition to the President. Six of these nine positions were filled by previous High Court Judges such as Mr. Justice Kelly, Ms. Justice Finlay Geoghegan and Mr. Justice Peart.
In broad terms, the Court of Appeal is now the default court for all appeals from decisions of the High Court and its decision will be final, save in certain limited circumstances.
It is possible to bypass the Court of Appeal and appeal a decision of the High Court directly to the Supreme Court. However, leave must be sought from the Supreme Court to do so.
Decisions of the Court of Appeal will, in the main, be final. However, the Supreme Court can grant leave to bring a further appeal if it deems it necessary.
There are two types of appeals which will be dealt with by the Court of Appeal – expedited and ordinary appeals.
A number of existing Supreme Court appeals were identified as being suitable for transfer to the Court of Appeal such that, on day one of its operation, it already had a significant body of work to get through.
O’Flynn Group v Carbon Finance Limited
The corporate loans of the O’Flynn Group as well as certain personal loans of Cork developers, John O’Flynn and Michael O’Flynn were acquired by NAMA and subsequently sold to Carbon Finance Limited (“Carbon”).
On 29 July 2014, Carbon made demands of John O’Flynn and Michael O’Flynn under their personal facilities. Three hours later, receivers were appointed over personal assets including shares in a company called Colebridge.
The receivership appointment was then treated as an event of default under the Group’s corporate facilities through cross default provisions. Demand letters were issued to four companies within the Group that afternoon.
On the same day, an examinership petition was presented to the High Court by Carbon in respect of these companies. An order was made appointing an interim examiner.
The O’Flynn companies and John and Micheal O’Flynn brought an application (i) to discharge the interim examiner and (ii) discharge the receivers appointed over the personal assets.
The basis for the application was:
(i) Material non-disclosure of key facts by Carbon;
(ii) Petition had been presented for an improper purpose;
(iii) Demands made did not give adequate time to repay;
(iv) Demands made were void as made for improper or collateral purpose;
(v) Demands void as made in breach of fair procedures which bound NAMA and its successors and assigns.
The judge held that Carbon had failed in its duty of utmost good faith as it had not disclosed a number of key items in its petition. On this basis, the judge dismissed the examinership petition.
In the separate but related application, the court also granted the injunction removing the receivers appointed over the personal assets.
ACC Bank plc v Michael Byrne & Sean O’Toole
In a number of instances over the last 12 months, the Master of the High Court struck out summary debt collection cases on the basis of alleged non-compliance with the Bankers’ Books Evidence Act.
The Bankers Books Evidence Act creates exceptions to the best evidence and hearsay rules. In essence, it enables banks to put copy documents into evidence without the need for the person who created the original document or record to prove it.
This case creates certainty on the steps which must be taken when seeking to rely on copy documents in compliance with the Act.
Briefly, by way of background, ACC Bank was seeking summary judgment against Mr Byrne on foot of a personal guarantee of certain corporate facilities. The Master refused the application and this decision was appealed to the High Court.
Two defences were put forward by Mr Byrne:
That the guarantee had been released by the bank; and
That the evidence put before the court did not comply with the provisions of the Bankers’ Books Evidence Act and was therefore inadmissible.
The Court held that the first argument was of no merit. However, the Court also held that the relevant affidavit evidence did not satisfy the provisions of the Act. The Court made it clear that the following must be established in seeking to rely on copy records:
That the records are ordinary computer records of the bank;
That the records were made in the usual and ordinary course of business of the bank;
That the records are in the custody or control of the bank;
That the statements relied on were produced directly from the computer records;
That the copy of the statements is a correct copy of that printed form the computer;
That the copy relied upon has been compared with the original entry in the bank’s computer records.
Given the Court’s findings, it is essential that the affidavit grounding the bank’s application for judgment satisfies these requirements.
The content of this article is provided for information purposes only and does not constitute legal or other advice. Mason Hayes & Curran (www.mhc.ie) is a leading business law firm with offices in Dublin, London and New York.