The Supreme Court has allowed an appeal by Moylist Construction Limited and set aside a High Court order dismissing its proceedings against Ulster Bank Limited and a receiver as bound to fail. The Court held that the issues were too complex to be decided on a motion and directed that the case follow its ordinary course in the High Court, with every effort made to secure an early trial date.
The dispute arose from a development of 18 holiday homes known as the Greens at Ballybunion, Co. Kerry. Moylist was the contractor and Thomas O’Carroll was the developer. Ulster Bank had financed the project and held a charge over the land, created in June 2006 but registered in February 2008. The judgment said O’Carroll owed money to both the builder and the bank, and that the nearly completed development appeared to be the main asset available to meet those debts.
Moylist claimed that the receiver and the bank had wrongly dispossessed it of its entitlement to occupy the site under its building contract. The judgment described several unresolved questions, including the scope and possible termination of Moylist’s contractual right to possession, the effect of the bank’s mortgage and delayed registration, and the legal consequences of a later agreement for Moylist to finish work on the site. Some issues could involve mixed questions of law and fact. The Court did not decide which party had the stronger claim.
In 2010, the High Court refused Moylist’s application for an interlocutory injunction and dismissed the proceedings against the receiver and the bank as bound to fail. Moylist appealed the dismissals concerning those two respondents. It did not appeal the refusal of the injunction or the dismissal of its case against Deloitte & Touche.
Delivering judgment on 4 March 2016, Mr Justice Clarke said the inherent power to dismiss a case as bound to fail should be used sparingly. A court should not use it to conduct a detailed analysis of complex legal or documentary issues that would be safer to resolve at a full hearing. The appeal concerned only whether the case could be dismissed at that stage; the Court expressed no view on the merits. The claims against the bank and receiver will now proceed in the High Court.