The High Court has struck out Michael Breslin’s proceedings against Irish Bank Resolution Corporation Limited (in special liquidation), finding that issue estoppel barred his claim over alleged representations made before he signed a guarantee in 2008.
In a judgment delivered on 3 April 2020, Ms Justice O’Regan ruled on the bank’s application to strike out the proceedings as an abuse of process. Breslin had claimed damages for misrepresentation, negligent misstatement, breach of duty and contract. His statement of claim also alleged deceit and fraudulent misrepresentation.
The claim concerned alleged statements by a bank employee, Mr Feeney, during a telephone conversation on 23 October 2008 and a meeting the following day. Breslin said he was told that the bank would continue lending in the normal way and was willing and able to finance the balance of the Waterloo Road project. He argued that a later bank decision to stop or severely limit new commercial lending made those statements fraudulent. He signed the guarantee on 5 November 2008.
The bank argued that the Court of Appeal had already decided the effect of the alleged representations in earlier summary judgment proceedings brought by NALM. In that case, the Court of Appeal found that the statements attributed to Mr Feeney were, at most, opinions about future events; they created no binding legal obligation and could not displace the guarantee’s wording. The High Court also noted that the appeal court had found the guarantee’s clause 22.6, in which the guarantor acknowledged that he had not relied on representations, answered the claim.
Breslin argued that the earlier case dealt with contractual issues, not the tort and fraud claims now pleaded, and that the Court of Appeal’s discussion of section 101 of the National Asset Management Agency Act 2009 meant its findings on the representations were not necessary to its decision. Justice O’Regan rejected those arguments. She found that the same issue—the effect of the alleged representations—had been raised in the earlier proceedings and that the Court of Appeal’s decision on their nature was necessary to its conclusion.
Although the judge accepted that the bank was not NALM’s privy through an assignment of estate, she found a sufficient identity of interest between them concerning the alleged representations. She concluded that issue estoppel applied and ordered the proceedings struck out as an abuse of process. The ruling concerned whether the claim could proceed; the judgment does not determine a new assessment of damages or make a separate finding on the truth of the alleged statements.