The High Court has refused an application to transfer Carol and John Morrissey’s proceedings to its Commercial List, concluding that the case was fundamentally a constitutional action rather than a commercial dispute suitable for that list.
The first and second defendants applied for the transfer, with the remaining defendants consenting. The Morrisseys opposed it. Mr Justice Kelly delivered the judgment on 10 July 2014. The ruling addressed only whether the proceedings should enter the Commercial List; it did not determine the underlying claims or allegations.
The case arose against the background of alleged debts owed by John Morrissey. The judgment described an alleged debt of about €4.7 million to the National Asset Management Agency (NAMA) concerning the couple’s home, for which no demand had issued and no litigation was under way. It also described an alleged debt exceeding €32.131 million to NAMA’s subsidiary, National Asset Loan Management, connected to investment loan facilities. A demand had issued for those facilities, but no proceedings to recover the debt were under way.
After a January 2014 demand for payment, statutory receivers were appointed over investment properties securing the loans and took possession of them, the judgment said. The Morrisseys began their proceedings on 27 February 2014. Their summons sought, among other reliefs, declarations and damages based on alleged breaches of constitutional and statutory rights, and challenges to provisions of the National Asset Management Agency Act 2009. These were claims made by the plaintiffs, not findings by the court.
The defendants argued that the commercial arrangements and the value of the dispute brought the case within the rules for the Commercial List. The Morrisseys accepted that there was a commercial background but argued that the case was, in their words, a “full blooded constitutional action”.
Kelly rejected four preliminary objections raised by the plaintiffs before considering the transfer application. He found no defect in the solicitor’s certificate supporting the application; rejected an argument that an accelerated timetable for pleadings would prejudice the plaintiffs, noting they were already in default of a request to deliver a statement of claim; and said an objection based on privileged settlement material fell away after the defendants said they would not rely on it. He also rejected the argument that the application must fail because Mrs Morrissey had no commercial dealings with the defendants, since the proceedings were brought jointly with Mr Morrissey.
On the substantive application, Kelly accepted that the case had roots in multimillion-euro commercial arrangements. But he considered that the relief sought would require little examination of those arrangements and would focus instead on the legality of remedies in light of constitutional rights and the European Convention on Human Rights Act 2003. He therefore exercised his discretion to refuse admission to the Commercial List.