The Court of Appeal has ruled that each side must bear its own costs in an appeal over enforcement of a 2009 judgment obtained by Ulster Bank against Timothy and Joan Quirke.
In a costs ruling delivered on 8 June 2023, Mr Justice Binchy said the result was fairly described as a “one all draw”. The court had rejected the Quirkes’ challenge to joining Promontoria (Oyster) DAC as a plaintiff, but allowed their appeal against permission for Promontoria to execute the judgment.
The underlying judgment was made on 27 March 2009. Promontoria had sought to continue the proceedings as plaintiff and to obtain leave to issue execution. The High Court joined Promontoria as a co-plaintiff, rather than replacing Ulster Bank, and granted leave to execute. The Court of Appeal upheld the joinder decision but overturned the execution order because no reason had been given for the failure to enforce the judgment within six years, or during a further period of three years and nine months.
The appeal court had also concluded that a global deed transferring assets from Ulster Bank to Promontoria could transfer the judgment even though it was not expressly identified in the deed. It held that the benefit of part of a judgment could not be assigned, but that an assignee of part of a judgment debt could be given leave to execute in circumstances where the original plaintiff remained a party, subject to other requirements.
Promontoria told the court it had registered a judgment mortgage over property of the appellants and intended to seek a well charging order and an order for sale. A special summons seeking that relief had expired because it was not served within 12 months. Promontoria would need to apply to renew it to proceed. The court said it would not treat renewal as a foregone conclusion when deciding costs.
The Quirkes argued that Promontoria had achieved nothing tangible by being joined because it had been refused permission to execute. Promontoria said other enforcement avenues remained open and asked for all, or a proportion, of its appeal costs. The court ordered each side to bear its own costs of the appeal. It also set aside the High Court order requiring the appellants to pay Promontoria’s costs there, directing instead that each side bear its own costs in the High Court.