The Court of Appeal dismissed Patrick O’Connor’s motion concerning two appeals involving Bank of Scotland plc (BOS). It held that BOS had standing to remain a respondent to the appeal against a High Court judgment in its favour, but did not decide who is now entitled to enforce that judgment.
The supplemental judgment, delivered by Ms Justice Finlay Geoghegan on 1 March 2017, addressed a motion issued by O’Connor on 3 March 2016. The motion had been adjourned to the appeal hearing and was not expressly dealt with in the court’s first judgment, delivered on 10 February 2017.
The High Court had entered judgment for BOS against O’Connor on 6 March 2015 for €7,683,999.96. BOS later informed him that it had agreed to sell his facilities, guarantees and security rights to Feniton Property Finance Limited. The sale was to take effect on 20 November 2015, after the High Court judgment. Pepper Finance Corporation (Ireland) Limited, trading as Pepper Asset Servicing, told O’Connor it would act as contact point and collect payments on Feniton’s behalf.
O’Connor argued that because BOS no longer had an interest in the loans in 2016, it had no standing to defend his appeal against the judgment. BOS accepted that it no longer had an interest in the loans or a right to enforce the High Court judgment, but argued it could remain to defend the appeal and its costs order.
The court relied on the timing of the sale and the question being considered on appeal: whether BOS was entitled to judgment on the evidence and circumstances existing on 6 March 2015. As BOS had not agreed to sell the loans until after that date, the court said it was entitled to remain as respondent. It noted that the appeal against the judgment had already been dismissed in the first judgment.
The court expressly left open who is now entitled to seek enforcement. It said any application arising from the loan sale would have to be made in the High Court, where different issues might arise.
The motion also sought to challenge four mortgages on the basis that they had not been executed by BOS or Bank of Scotland (Ireland) Limited. The court said the issue had not been before the High Court and could not be added by a motion in the appeals. It dismissed any relevant relief on that basis. The court also recorded the respondents’ submission that a mortgage deed need not be executed by the mortgagee to be valid and enforceable, citing *Camiveo Limited v. Dunnes Stores*; it did not determine the mortgage challenge on its merits.