The Court of Appeal has upheld an order adding Promontoria (Oyster) DAC as a co-plaintiff in a long-running Ulster Bank debt case, but allowed the borrowers’ appeal against permission for Promontoria to execute a 2009 judgment.
The judgment, delivered by Mr Justice Binchy on 12 December 2022, concerned two High Court orders made in March 2021. One joined Promontoria to the proceedings after Ulster Bank transferred loan assets to it. The other gave Promontoria leave to execute a judgment originally obtained by Ulster Bank.
The borrowers, Timothy and Joan Quirke, had borrowed from Ulster Bank and fallen into arrears. The bank obtained judgment on 27 March 2009 for €77,889.07, plus costs. Promontoria later applied to join the case and execute that judgment, relying on a 2016 global deed of transfer.
The Court of Appeal rejected the borrowers’ argument that the transfer did not cover the relevant loan because the deed referred to a 2003 facility letter rather than a 2004 letter. The court held that the deed transferred the benefit of the borrowers’ loan account, and that was sufficient to establish a change of interest in the proceedings. It affirmed the High Court’s joinder order.
On execution, the court said an applicant seeking leave under Order 42, rule 24 must explain the lapse of time from the date of judgment through to the application. Some reasonable explanation is required, though exceptional reasons are not. Promontoria had explained that the parties engaged about resolving the debt after the transfer, but offered no explanation for the years before the transfer. The court held that the High Court had erred by accepting an explanation that covered only a short period at the end of a long period of inactivity. It allowed the appeal against the order granting leave to execute.
The court also addressed the rule against assigning only part of a judgment debt. It said leave to execute part may be possible where all parties with an interest in the judgment are before the court or their interests are otherwise shown to have been waived. Ulster Bank remained a party but had not participated in the application. The court did not decide the execution appeal on that issue, because it had already concluded that the delay was inadequately explained.
The judgment directed the parties to make written submissions on costs, with Promontoria to file first and the borrowers to reply. It did not determine those costs in this judgment.