The Court of Appeal has refused Balford Construction Limited’s request to adjourn its appeal against a High Court judgment while the company pursues separate proceedings alleging that the Bank of Ireland misled the High Court. The appeal is to continue as listed.
In a ruling delivered by Ms Justice Costello on 20 January 2023, the court found it procedurally inappropriate to delay the appeal. It said the issues raised in the company’s new claim had already been before the High Court and formed part of the judgment under appeal. The appeal panel could consider whether those matters supported the company’s case.
The alleged fraud concerns the bank’s sale of secured property, the treatment of sale proceeds and access to 27 houses on lands in County Mayo. Balford’s director, Peter McNicholas, set out the allegations in an affidavit supporting the motion. They remain allegations; the Court of Appeal was deciding whether to adjourn the appeal, not determining the separate fraud claim.
Justice Costello reviewed evidence that had been before the High Court, including a valuation report describing the properties and access arrangements. She said the report and its maps were available to the High Court, and that submissions by counsel were not evidence. She considered it difficult to establish the high threshold for fraud where the relevant documents had been before the court.
The ruling also recounted that the High Court knew the bank had transferred the property as mortgagee in possession, while accepting evidence that sale proceeds were distributed through the receivership. Whether the High Court was right on those issues was for the appeal. Justice Costello noted that the matters now raised could be argued there and that the appeal panel could, if appropriate, remit the matter for a plenary hearing or rehearing.
The company also sought the digital audio recording of the High Court hearing on its application for judgment, citing concerns that the transcript it had received might have been tampered with. Justice Costello ordered the recording released but said its absence would not justify adjourning the appeal. She found no demonstrated problem with the transcript apart from a page with a substantial gap, and asked the respondents’ solicitors to contact the stenographers about whether it could be corrected.
The judge said the recording was being released because it had been requested and she saw no prejudice in doing so. She directed that her ruling be brought to the appeal panel’s attention if an adjournment application were made.