The Court of Appeal has dismissed two appeals by Eugene McDermott concerning loans secured on land in County Kildare and Ennis Property Finance DAC’s efforts to enforce them.
In a judgment delivered on 17 May 2019, Mr Justice Michael Peart said the court would uphold the High Court’s dismissal of McDermott’s plenary proceedings against Ennis and its order substituting Ennis for Bank of Scotland plc in summary summons proceedings. The appeal court did not retry the underlying debt claim.
McDermott’s plenary claim argued, among other things, that a 1996 mortgage and charge had not passed through a series of banking transactions to Ennis. He contended that later loans had refinanced the original borrowing, requiring the charge to be released, and that the later facilities were therefore unsecured. He also challenged the transfer of the mortgage, the registration of Bank of Scotland as its owner, the appointment of a receiver, and whether his loans were included in a redacted 2015 sale document.
The High Court had dismissed that claim under Order 19, rule 28 of the Rules of the Superior Courts and under its inherent jurisdiction, finding no reasonable cause of action and treating the proceedings as an abuse of process. The Court of Appeal agreed. It said the evidence showed the banking business, including McDermott’s loans and security, had transferred to ICC Bank in 2002; the suggestion that it had not was speculation unsupported by evidence. It also relied on the land register, which recorded Ennis as owner of the charge, and said the register was conclusive absent an allegation of fraud. The court found the proceedings were bound to fail and that claims which could have been raised in earlier cases made the new proceedings an abuse of process.
The second appeal concerned the High Court’s decision to substitute Ennis for Bank of Scotland in summary summons proceedings, and to recognise Ennis as entitled to enforce the judgment in those proceedings. McDermott argued that the evidence did not sufficiently show his loans were included in the sale to Ennis.
The Court of Appeal held that where substitution is sought after judgment, the assignment must be established on the balance of probabilities. It said the affidavit and purchase deed provided ample evidence that McDermott’s loans had been assigned. The substitution application remained procedural and was not an opportunity for a mini-trial of the underlying issues. Both appeals were dismissed.