The Supreme Court has dismissed Brian O’Donnell and Mary Patricia O’Donnell’s application to extend the time to appeal a High Court order for €71,575,991.29, ruling that they lacked standing because they had been adjudicated bankrupt and the right to litigate belonged to the Official Assignee.
In a judgment delivered on 8 December 2015, Chief Justice Denham said the application concerned property in the appellants’ bankruptcy estate. The Official Assignee had said he did not wish to pursue the litigation. The Supreme Court therefore held that the appellants could not bring the application themselves.
The underlying proceedings were brought by the Governor and Company of the Bank of Ireland in 2010. The judgment records that the parties settled the proceedings in March 2011, when the appellants were represented by a solicitor and counsel. Their agreement acknowledged that they had no defence to the proceedings and provided for payments. It also recorded that they had received legal advice.
After the settlement was breached, the bank sought to re-enter the proceedings and enforce the agreement. On 12 December 2011, the High Court ordered the appellants to pay €71,575,991.29, comprising €63.7 million in principal and €7,875,991.29 in interest, along with costs. The order was certified as a European Enforcement Order.
The appellants argued that the High Court judge had failed to disclose alleged conflicts or a relationship with the bank, and submitted that comments and correspondence gave rise to objective bias. They sought more time to appeal on grounds including lack of disclosure and bias. The judgment also records allegations of fraud in relation to the parties.
The bank opposed the application, arguing, among other points, that the appellants had consented to judgment and had no bona fide ground of appeal. The Official Assignee said he had not been served with the application and had received its papers after 10 October 2014. He said he had considered the litigation and did not wish to pursue it.
The Court explained that, under bankruptcy law, property in the estate—including the right to litigate—vests in the Official Assignee. A bankrupt may retain rights to bring personal actions, but the proposed appeal concerned estate property, not personal litigation. The Court said the usual route is to ask the Official Assignee to commence or continue proceedings; if refused, the bankrupt may apply to the Bankruptcy Court.
Although the Supreme Court dealt with this application in the special circumstances of the case, it decided only whether the appellants had standing. It dismissed the motion on that basis. It did not grant an extension of time or decide the merits of the proposed appeal or the allegations of bias and fraud.