The Court of Appeal has allowed businessman Peter Flanagan’s appeal against the dismissal of his remaining claims against five AIB companies, ruling that those claims were not barred by the earlier summary judgment proceedings.
The court held that Flanagan’s current damages case raised questions that had not been decided when the High Court granted judgment to Allied Irish Banks PLC and AIB Mortgage Bank for €7,027,149.77 in October 2015. That judgment, which Flanagan did not appeal, remains in force. The appeal judgment was delivered by Ms Justice Máire Whelan on 28 February 2020, with Mr Justice John McGovern and Ms Justice Niamh Donnelly also named on the court panel.
Flanagan’s 2014 plenary proceedings initially sought, among other relief, to set aside the debt judgment and challenge security over his assets. Those parts of the case were abandoned in the High Court. The remaining claims included alleged negligence in the bank’s handling of his complaint about former senior lender Frank Furey and alleged liability for Furey’s conduct. The High Court had allowed only a narrower negligence claim to continue, finding other matters barred by res judicata or the rule in Henderson v Henderson, which can prevent claims being raised later if they could and should have been brought earlier.
The Court of Appeal found that the key issues in the amended damages claim were not necessary to the bank’s debt case and had not been determined in it. It also noted that several AIB entities and Furey were not parties to the 2015 summary proceedings. The court rejected the argument that the fact the plenary case began first meant the later-raised claims were automatically exempt from the Henderson rule, but said the rule must be applied with discretion rather than rigidly.
The judgment also addressed an affidavit from financial adviser Des Walshe, whose evidence about the bank’s dealings with Flanagan had not been contradicted by a replying affidavit or cross-examination. The appeal court said the High Court had failed to give that evidence appropriate weight in deciding the bank’s dismissal motion.
The court said the vicarious liability claim could continue, while stressing that vicarious liability alone is not a cause of action. Flanagan must establish at trial that the alleged conduct had the required close connection to Furey’s employment. The parties may argue whether the conduct fell within his employment and whether any defendant is liable for a tort established at trial. The court did not decide whether the allegations are true or whether any defendant is liable; those questions remain for trial.