The Court of Appeal has ruled that Brian and Mary Patricia O’Donnell may maintain two limited defences to a claim seeking a permanent injunction to prevent them from returning to Gorse Hill, Killiney. The court held that other claims they had pleaded, including challenges to a bank judgment and claims for damages, vested in the Official Assignee following their bankruptcy.
The appeal concerned the Official Assignee’s application to prevent the couple from litigating their defence and counterclaim in proceedings brought by the Governor and Company of Bank of Ireland and receiver Tom Kavanagh. The bank sought a permanent injunction restraining the couple from trespassing on or attending at Gorse Hill. They had already vacated the property after an interlocutory injunction was granted by the High Court in March 2015 and upheld on appeal the following month. The Court of Appeal was not deciding whether to grant the permanent injunction.
The couple were adjudicated bankrupt in September 2013. The court said their property vested in the Official Assignee on adjudication. It held that claims concerning the underlying debt, settlement and judgment, as well as pleaded claims for fraud, deceit and misrepresentation, could not be pursued by the couple themselves. Those matters were for the Official Assignee. The court rejected procedural objections to the application and said the Official Assignee’s process for intervening did not invalidate the proceedings.
Two issues could remain as defences to the injunction claim. Mrs O’Donnell may argue that the mortgage over Gorse Hill was invalid under the Family Home Protection Act 1976 because her written consent was not obtained. The court stressed that this was a ruling about who could raise the argument, not a finding that the Act applied or that the mortgage was invalid. It said the pleaded case appeared weak: the transaction was between Vico Limited and the bank, and Mr O’Donnell had not shown how either spouse purported to convey an interest in the family home.
The couple may also rely on their asserted right of residence. The court held that a general right of residence, if established, is personal and non-assignable and does not vest in the Official Assignee on bankruptcy. But it described the evidence offered for such a right as scant. The 2000 handwritten letter and a 2012 letter from a former trustee did not establish that the property owner had granted the claimed right; the court also noted the couple’s agreement to provide vacant possession.
The Court of Appeal affirmed the High Court decision except for these two matters. It said the couple could pursue them only as defences to the permanent injunction claim; the counterclaim added nothing, and even success would mean refusal of the injunction. Whether to pursue the defences, and whether either side seeks an expedited determination, was left to the parties.