The High Court refused ACC Bank plc the relief it sought against two solicitors, finding that technical breaches of undertakings had not caused the bank appreciable loss and that the proceedings were an abuse of process.
The judgment, delivered by Mr Justice Brian J. McGovern on 24 June 2014, concerned loans to a borrower developing land at Glack, County Longford, and Newtowncashel, County Roscommon. The borrower is identified in the judgment by name. The case proceeded against the first and second named defendants only; the third defendant was not represented and the case against her did not proceed by agreement. Proceedings against two other defendants had previously been struck out.
The first defendant, then practising as Anthony Barry & Company Solicitors, gave an undertaking in October 2005 to register a mortgage over the Glack lands and provide the bank with a report, Certificate of Title and title documents. He sold his practice to the second and third defendants on 1 December 2005. The court found that the mortgage had not been lodged for registration within the one-month period, and that the report, certificate and title documents had not been provided as soon as practicable.
Further undertakings concerned sale proceeds from the Glack development and security for a later Newtowncashel loan. The judgment records that the Glack facility was repaid, as was €150,000 towards the Newtowncashel facility from Glack sale proceeds. The court also noted that the bank had accepted it held security for the Newtowncashel loan and that the late registration had not cost it priority.
The bank relied on an expert report from solicitor Michael W. Carrigan. His opinion was that the borrower had good marketable title and that the delay in registration was a technical or administrative default if it did not deprive the bank of a first mortgage or cause loss. The judge said the bank had not shown that the title was defective or that it had lost priority. He considered the alleged failures to provide a certificate and lodge title documents technical matters that had not prejudiced the bank.
The judgment also criticised the conduct of bank representatives who attended the second defendant’s office without an appointment in September 2012 to demand title deeds. The judge accepted evidence that staff were intimidated and described the representatives’ behaviour as unacceptable.
The court concluded that the bank had established technical breaches but no adverse consequences. It said there was no evidence that full compliance would have left the bank in a better position, and characterised the proceedings as an attempt to use the claims as leverage over a reduction in the security’s value. The court refused the relief sought. The judgment does not specify any separate damages award or further order.