The Court of Appeal has dismissed a borrower’s appeal against the High Court’s decision to strike out his proceedings against Promontoria (Aran) Limited and its receiver. The proceedings arose from a debt settlement and alleged further extensions of time to repay it. The appeal court upheld the strike-out under the court’s inherent jurisdiction; it did not need to decide whether the claim should also be struck out under Order 19, rule 28.
Under a 2016 settlement, the lender agreed to forbear from enforcing a debt of about €5.2 million if the borrower paid the proceeds of four investment bonds and €1.35 million within 12 months. He paid the bond proceeds but not the full €1.35 million by the original deadline. The lender then agreed to two written extensions, the second running to 15 February 2018. By January 2018, the borrower had paid about €550,000 of the €1.35 million.
In March 2018, the lender demanded repayment of €3,040,222.48 under the original facility. A receiver was appointed over the borrower’s secured lands in April. The borrower maintained that a conversation between his solicitor and the lender’s agent on 26 April had secured further forbearance while he sought an €800,000 loan from Ulster Bank. His solicitor’s letter of 30 April requested a 10-week period and written confirmation of the amount due. The Court of Appeal said the letter read as a request for an extension, rather than confirmation that one had already been agreed.
The borrower also argued that the parties’ course of dealing supported an estoppel by convention. The court accepted that this argument could be advanced on appeal, although it had not been pleaded by name. It concluded that the claim lacked a stateable basis: the borrower had not shown detriment from relying on an assumed extension, and the defendants had not taken steps to realise the secured assets before he issued proceedings in July 2018. The court also upheld the conclusion that the pleaded claims of intimidation and harassment, including elder abuse, lacked sufficient particulars and supporting evidence.
The High Court had struck out the whole claim and directed that the lis pendens be vacated. The appeal concerning that direction was moot because the lands had since been sold. The Court of Appeal dismissed the appeal and proposed that the defendants receive their costs, subject to either party seeking a different order within 21 days of electronic delivery of the judgment.