The Court of Appeal has allowed Aidan McGuinness to join Irish Bank Resolution Corporation Limited (IBRC), in special liquidation, as a defendant in his proceedings concerning loans and an investment fund.
In a judgment delivered on 21 December 2015, Mr Justice Kelly, with Ms Justice Finlay Geoghegan and Ms Justice Irvine, allowed Mr McGuinness’s appeal from a High Court order refusing joinder. The court also granted leave under section 6(2)(b) of the Irish Bank Resolution Corporation Act 2013 to pursue the claim against IBRC. The decision addresses whether IBRC could be joined at this stage; it does not determine whether Mr McGuinness’s allegations are true or what relief he may ultimately obtain.
Mr McGuinness alleges negligence, breach of duty, breach of contract and negligent misrepresentation relating to loans and the sale and management of the AIAC Whitgift Geared Property Fund. He also seeks declarations concerning the transfer of the loans and a lis pendens over six apartments in Marlanstown Park, Mullingar. No statement of claim had yet been delivered.
IBRC had assigned the loans and associated securities to Kenmare Property Company Limited, with the transfer taking effect on 23 May 2014. Kenmare demanded repayment, and Shane McCarthy was appointed receiver over the secured properties after the loans were not repaid. Kenmare had indicated that it would deny responsibility for alleged mis-selling, saying those claims concerned IBRC.
The Court of Appeal accepted that claims concerning whether the loans were transferred lawfully, the receiver’s appointment, the lis pendens and an alleged conflict involving Kenmare could be dealt with by Kenmare. But it was not persuaded that the assignment prevented Mr McGuinness from pursuing his negligence and misrepresentation claims against IBRC. It noted the risk that Kenmare would deny responsibility for IBRC’s alleged conduct, leaving Mr McGuinness at a litigation disadvantage if the bank were excluded.
The court said Mr McGuinness had provided enough information about his dealings with IBRC to meet the low threshold for leave, while cautioning that the case was “far from straightforward” and advising him to obtain professional help if possible.