The High Court has refused Brian and Mary Patricia O’Donnell’s applications to annul their bankruptcy adjudications, finding no compelling reason to reopen them. Ms Justice Costello also refused related applications for discovery and interrogatories, and rejected challenges to evidence and requests to adjourn the hearing.
The applications were made under section 85C of the Bankruptcy Act 1988. The O’Donnells argued that the Governor and Company of the Bank of Ireland was not their creditor because, they said, their loans came from Bank of Ireland Private Banking (BOIPB). They also alleged that the Bank concealed BOIPB’s status and misled courts. The Bank denied the case and argued that the applications were an abuse of process.
The court recounted that the Bank obtained a judgment of about €71.5 million against the O’Donnells in December 2011, after they missed a payment under a settlement agreement. The Bank later petitioned for their bankruptcy. They were adjudicated bankrupt in September 2013 after the High Court found their centre of main interests was in Ireland; their appeal against those adjudications was rejected by the Supreme Court in February 2015.
Justice Costello said the documents on which the O’Donnells relied had been available to them for years, and that they had opportunities to raise the creditor-identity argument in earlier proceedings. She rejected their claim that the Bank had concealed the lender’s identity, finding no evidence of concealment or fraud. She also said the O’Donnells had not produced new evidence to support annulment and that allowing the argument at this stage would breach the rule against relitigating matters that could have been raised earlier.
The judge separately refused annulment because the same creditor-identity argument was being pursued in other litigation. She expressly made no decision on the merits of whether the Bank was the creditor, leaving that factual issue for another court. She also found no evidence supporting the serious allegations made against Bank officials, solicitors or counsel.
The court rejected the O’Donnells’ applications to strike out a Bank employee’s affidavit, compel production of his board authorisation, obtain discovery, deliver interrogatories and adjourn the hearing. It refused to join BOIPB to the bankruptcy applications, noting that BOIPB had not presented the petitions and did not claim to be a creditor. The court also refused to consolidate the bankruptcy applications with separate plenary proceedings, while stating that its decision did not prevent the O’Donnells from applying to add a defendant in those proceedings.