The Court of Appeal has dismissed ACC Loan Management Limited’s appeal over solicitors’ undertakings connected to a loan secured on property at Glack, Lackagh, Co. Longford. It affirmed the High Court’s refusal to grant the relief sought.
The bank sought a declaration that the solicitors were guilty of misconduct for failing to comply with undertakings given in 2005 and 2007, as well as an order directing compliance. The appeal had been transferred from the Supreme Court to the Court of Appeal under Article 64 of the Constitution.
The dispute concerned a charge registered over apartments at Glack. The Court of Appeal said the charge did not cover the wider property, including rights of access to common areas and car parks. That could create difficulty if a receiver sought to sell the apartments, but there was no evidence that a sale had been impeded or that the bank had suffered loss.
The court held that the High Court had no jurisdiction to formally declare a solicitor guilty of misconduct for failing to honour an undertaking. Such a declaration would intrude on the Law Society’s disciplinary role and could not arise through court practice without legislation and appropriate safeguards. The court distinguished that from its inherent jurisdiction to enforce undertakings, which it described as fundamentally compensatory.
The court also declined to order compliance with the undertakings. It said proceedings were issued without a prior letter giving the solicitor an opportunity to address the issue. The bank had not pursued an offer by the borrower, Mr. Doyle, to assist in resolving the problem, and there was no evidence of actual loss or difficulty in a prospective sale. The court said the case did not meet the threshold for judicial intervention under the discretionary jurisdiction.
The judgment noted that the bank acknowledged an inaccuracy in its pleaded description of the registration issue: the charge was not confined to “property number 2” in the way alleged. The undertakings also did not extend to apartment 4. The court did not determine which solicitor had assumed responsibility for the undertaking, and the bank was no longer pursuing its case against Ms. Shanley.
The court dismissed the appeal and affirmed the High Court decision.