The Court of Appeal has dismissed Mary Anne Watt’s appeal over Danske Bank’s decision to discontinue proceedings seeking repayment of a loan, and struck out her related motion for discovery and disclosure.
The court upheld a High Court decision refusing to set aside the bank’s notice of discontinuance. It said Ms Watt had no defence filed when the bank discontinued the action, and the affidavits she had submitted in response to the bank’s summary judgment application did not count as a defence under Order 26 of the Rules of the Superior Courts. The bank therefore did not need her consent or the court’s approval to discontinue, though it remained liable for her costs of defending the claim up to that point.
The bank had started the proceedings in 2013, seeking €239,722.85 said to be due under a term loan granted to Ms Watt and her husband by National Irish Bank. The loan was said to be secured by a mortgage over a property at 12 Sandymount Drive, Wilton, Cork. The bank later reduced the sum it claimed to €24,817, saying it had applied net proceeds from selling the property.
After the bank filed its notice of discontinuance in January 2016, Ms Watt sought to have it set aside and to pursue a motion seeking documents from the bank. She said she had not received the notice and argued, among other things, that it was invalid without her consent or a court order. The Court of Appeal accepted her evidence that she had not received it, noting that the notice omitted “43 Southbury Road” from her address. It also found that the notice was signed by the bank’s solicitors, contrary to one of her arguments.
The court said setting aside the notice would not enable Ms Watt to force the bank to continue with the case. The bank could serve a fresh notice, or leave the proceedings inactive, in which case her remedy would be to seek to strike them out for delay. In either event, she would not obtain the hearing or inquiry she sought in those proceedings.
The judgment did not determine whether the bank’s loan claim was valid or resolve Ms Watt’s concerns about the receivers’ appointment or the property sale. It said such issues might be pursued in separate proceedings brought by her. The court concluded that the High Court had acted within its jurisdiction and discretion, and that striking out the proceedings was neither irregular nor prejudicial. With the appeal dismissed, the discovery motion was also struck out.