Judgment: 2018-10-19 · Court archive

High Court refuses bid to add evidence in Pentire loan transfer dispute

The application to introduce company records after a hearing had concluded failed because the material was available earlier and would not have materially affected the motion.

High Court · [2018] IEHC 575

Who, what, where, when and why

Who
  • Patricia Hinde (Plaintiff)
  • Pentire Property Finance
  • Tom Kavanagh (Defendant)
What

The application to introduce company records after a hearing had concluded failed because the material was available earlier and would not have materially affected the motion.

Where

Places mentioned in the report

  • Luxembourg
  • Straffan
When

Judgment:

Why

Reasons reported in the judgment

The judge said the information could have been put before the court before the July hearing, and the solicitor’s affidavit did not explain why it had not been. The judge also found that the pleaded case and written submissions did not rely on CarVal and Pentire being related or connected companies. Although counsel had made an oral assertion that they were a single economic unit or that Pentire was CarVal’s agent, the judge said it was unsupported by evidence and the judgment on the earlier motion had assumed neither a relationship nor its absence.

The High Court refused Patricia Hinde’s application to introduce further evidence in proceedings concerning a mortgage and a receiver’s appointment over a Straffan property. The court ruled only on whether to admit the proposed new material; this judgment did not decide the defendants’ earlier motion to strike out her proceedings or vacate a lis pendens.

Hinde’s case, as set out in her pleadings, was that a 2014 transfer of her loan and mortgage from Bank of Scotland (Ireland) to Bank of Scotland plc, then to CarVal Investors UK Ltd and subsequently to Pentire Property Finance DAC, was ineffective. She argued that CarVal was not authorised under UK financial services legislation and that the transfer to Pentire therefore failed. She also contended that Pentire lacked authority to appoint Tom Kavanagh as receiver. These were her claims, not findings in this judgment.

The defendants had applied to strike out the proceedings as frivolous, vexatious or bound to fail, and to vacate the lis pendens registered against the property. After hearing that motion over two days in July 2018, the judge reserved judgment. Hinde later sought leave to add an affidavit from her solicitor, David Turner, supported by company records from Ireland, the UK and Luxembourg, concerning a possible relationship between CarVal and Pentire. The proposed material was publicly available online.

The judge said the information could have been put before the court before the July hearing, and the solicitor’s affidavit did not explain why it had not been. The judge also found that the pleaded case and written submissions did not rely on CarVal and Pentire being related or connected companies. Although counsel had made an oral assertion that they were a single economic unit or that Pentire was CarVal’s agent, the judge said it was unsupported by evidence and the judgment on the earlier motion had assumed neither a relationship nor its absence.

Applying the approach in an earlier High Court decision, the judge considered whether the new material was credible and would probably have an important influence on the result, and whether it could have been produced earlier with reasonable diligence. The judge concluded that the material failed those requirements: it was available earlier and could not have materially affected the motion because it did not relate to the case as pleaded or argued in writing.

The application to admit the further evidence was refused. The judgment records that no order had been perfected following the earlier judgment’s scheduled delivery, but does not state the outcome of the defendants’ original motion.

Read the original court judgment

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