The Court of Appeal has refused Thomas Kearney’s application to review its earlier judgment, ruling that his complaints sought to reargue the appeal rather than establish the exceptional denial of justice required for a review.
In a judgment delivered on 5 August 2020, Ms Justice Máire Whelan said Mr Kearney had not shown a fundamental error affecting the result or met the “very heavy onus” for review. His application challenged how the court had described arguments about a cross-border merger, legislation and earlier decisions. The court said it had addressed the key elements of his case and was not required to reproduce every submission or authority verbatim. The other judges concurred.
The judgment also granted the receiver’s request to correct two minor factual inaccuracies in the earlier, unapproved judgment under the slip rule. The source does not specify the corrections.
The appeal had succeeded on one issue: whether Patrick Horkan’s appointment as receiver by deed dated 5 July 2012 was valid under clause 8.1 of a 2004 mortgage and charge. The Court of Appeal remitted that question to the High Court for determination. It did not decide the validity of the appointment itself.
The court varied the High Court’s Isaac Wunder order. Under the replacement order, Mr Kearney and those acting for him are restrained from bringing proceedings challenging the cross-border merger, title to the charge, its assignment to Pentire Property Finance DAC, or the receiver’s appointment and acts—except for the single issue remitted to the High Court—unless they first obtain leave from the President of the High Court or a nominated judge.
The Court of Appeal vacated the High Court costs order relating to the respondents’ motions to dismiss. It ordered that Bank of Scotland plc and Mr Horkan each recover 75% of their respective costs of those High Court motions from Mr Kearney. Execution of that costs order is stayed pending final determination of the proceedings. There was no order as to the costs of the appeal, including Mr Kearney’s motion seeking a stay to pursue an application to appeal to the Supreme Court and to join the Attorney General as a notice party.
The court said there was no valid basis to make other orders interfering with the receivership while the proceedings continue. The appeal was dismissed except as provided in the order.