The Court of Appeal has allowed parts of Declan and Marie Geary’s case over loans secured on property in County Limerick to continue, while ruling that they cannot use it to challenge the transfer of the loans and securities from Bank of Scotland to Ennis Property Finance.
The appeal concerned a High Court decision dismissing the Gearys’ proceedings against all defendants and refusing their application for interlocutory injunctions. The Court of Appeal dismissed the appeal against the claims struck out in favour of Bank of Scotland plc and Maples & Calder, its solicitors. It also upheld the refusal of the requested injunctions.
The judgment describes the loans and charge as having originated with ICC Bank, later Bank of Scotland (Ireland). Following a cross-border merger in 2010, the assets and liabilities transferred to Bank of Scotland plc. The charge and loan rights were later assigned to Ennis Property Finance DAC, which appointed Tom Kavanagh as receiver in November 2016. The Gearys disputed the receiver’s appointment. A separate action brought by the receiver seeking possession of the secured properties was already under way.
The Court of Appeal rejected the Gearys’ arguments that their case could not be dismissed before they delivered a statement of claim. It also found no basis to overturn the High Court’s decision to proceed with the applications while the Gearys were absent, after considering their medical evidence and written material.
However, the appeal court held that dismissing the claims against Ennis and the receiver as an abuse of process was disproportionate while the related receiver action remained undecided. It ordered the two actions linked and directed that they be heard one after the other. The court did not decide whether the remaining claims against Ennis or the receiver disclose a valid cause of action; either may apply to dismiss them after a statement of claim is filed.
Some claims against the Property Registration Authority (PRA) also remain for now. The court said the PRA had not applied to strike out the case and had not put forward affidavit evidence specifically addressing it. The Gearys must set out their case against the PRA with specificity. Claims against the PRA, Ennis and the receiver cannot be based on challenging the merger, Bank of Scotland’s registration as charge-holder, or its entitlement to transfer the rights to Ennis.
The court gave the Gearys eight weeks from the judgment date to deliver a statement of claim against the PRA, Ennis and the receiver. If they miss that deadline, the proceedings against those parties will stand dismissed. The court also struck out specified paragraphs of the general endorsement of claim, including the claim against Maples and claims founded on the rejected challenges to the merger and transfers.
The High Court’s refusal of interlocutory relief was upheld. The requested orders included removing Ennis’ charge or restraining the receiver. The appeal court agreed that the application was framed as final relief, that delay and the balance of convenience weighed against relief, and that the mandatory injunction threshold was not met.