The Court of Appeal has dismissed Timothy Carey and Finola Colgan Carey’s appeal against orders enforcing Bank of Ireland’s judgment debt against three Westmeath properties.
The court upheld High Court orders declaring €597,435.44, plus €396 in costs and interest at 2% a year from 12 September 2016 until payment, well charged against the relevant interests in Folios 2639, 16939F and 2997. The orders allow the lands to be sold if the debt is not paid, with proceeds distributed according to the priority of burdens on them. The appeal concerned proceedings 2022/113SP. A related possession case involving two other folios was addressed in a separate appeal.
The Careys argued that the debt was wrongly calculated, that the bank had waived interest, and that a lien registered against Folio 2639 was invalid. They relied in part on an accountant’s report alleging interest overcharging. The Court of Appeal said the report did not justify reopening its 2018 decision, which had reinstated the bank’s 2016 default judgment after the Careys failed to enter an appearance to the bank’s summary summons.
The court held that the Careys had not shown the exceptional grounds required to revisit that final decision. It said they had opportunities to raise their objections earlier, and that the High Court could not review the Court of Appeal’s judgment through the later enforcement proceedings. The judgment did not assess the report’s accuracy or reliability.
On interest, the court rejected the claim that a 2016 affidavit of debt waived statutory interest on the judgment. It agreed with the High Court’s interpretation that the affidavit’s waiver concerned contractual interest. The bank sought interest at 2% a year, and the appeal court said this ground had no merit.
The court also rejected the challenge to the Folio 2639 lien. It held that the land register was conclusive evidence of the registered burden; fraud was not alleged. The court said the Careys had signed a 2010 facility letter acknowledging the lien as security for their liabilities.
The bank succeeded in the appeal. The court’s view was that it should receive one set of costs across this appeal and the related appeal, but that view was provisional. It allowed either party 14 days from electronic delivery of the judgment to make written submissions on costs, with responses due within a further two weeks. The judgment did not make a final costs determination.