The High Court has refused James Osborne’s application to be relieved of an undertaking not to begin fresh proceedings against KBC Bank Ireland, finding that he had instructed his counsel to give it.
In a decision delivered on 30 May 2022, Mr Justice Brian O’Moore said he preferred the evidence of barrister Gabrial Reynolds on the dispute. The undertaking had been given to Mr Justice McGovern on 17 April 2018 in proceedings involving Osborne, the bank and a receiver.
Osborne’s motion, dated 30 October 2020, said the undertaking had been given without his authority. After the initial hearing in December 2020, O’Moore J issued an interim decision giving Osborne an opportunity to address whether he had agreed to the undertaking directly or indirectly, formally or informally. Osborne later swore affidavits stating that he had not instructed anyone to give it.
Reynolds then swore an affidavit saying Osborne had accepted his advice and instructed him, among other things, to undertake not to begin fresh proceedings against the bank. Reynolds also said that in January 2021 Osborne and the solicitor acting for him in the motion asked him to make a significant change to a note he had prepared about the undertaking.
At a further hearing on 22 and 23 July 2021, Osborne and Reynolds were cross-examined. The judge found Reynolds’s evidence preferable and was satisfied Osborne had instructed him to offer the undertaking to the court. He therefore refused Osborne’s request to be released from it.
The judge also refused Osborne’s request for liberty to issue fresh proceedings if he remained bound by the undertaking, saying no cogent case had been made for that relief. The other reliefs in the motion, including a request concerning reinstatement of a lis pendens and an escrow account for rents, were also refused.
The decision stated it was not a substitute for a full judgment, expected to be circulated before the end of July. The motion was to be listed for mention after the parties had considered that judgment, to address the costs of the application.