The Court of Appeal has dismissed Clare Gibb’s appeal against the refusal of an interlocutory injunction that would have restrained Promontoria (Aran) Limited and two receivers from interfering with properties in Clondalkin and Dublin 8.
In a judgment delivered on 12 March 2018, Ms Justice Máire Whelan said the court would not allow new grounds that had not been relied on at the High Court hearing. The appeal otherwise did not justify interfering with the trial judge’s discretion to refuse the temporary relief.
Gibb’s 2016 proceedings seek damages for alleged breaches of contract and duty, negligence and an allegedly unlawful appointment of receivers. She disputed the receivers’ appointments over Clare’s Pizzeria, 54 New Road, Clondalkin, and Unit 1, 1–3 The Coombe. The appeal concerned only the interlocutory injunction, not a final determination of those claims.
The dispute arose from lending and mortgages dating from 2002, 2006, 2007 and 2008. Gibb alleged in related proceedings against Ulster Bank that interest terms had been changed without her consent and that an interest-rate hedging product had been mis-sold. She also said she sold her former home in 2010 and that the Clondalkin premises became her family home. Promontoria disputed that account and challenged her claim to live there.
The High Court had acknowledged there might be issues to try about interest charged and the extent of the debt transferred to Promontoria. It was not persuaded that the principal debt was not owed or that the mortgages could not be relied on. The judge also said the evidence about whether the Clondalkin premises was Gibb’s home was not sufficient for a determination at the interlocutory stage, and found the balance of convenience favoured the respondents.
On appeal, Gibb’s counsel focused on whether she was a consumer under the Consumer Credit Act 1995, alleged misrepresentations, the consequences of the 2010 home sale and the validity of demand letters. The court said the consumer issue had not been argued at the High Court hearing, despite Gibb being legally represented and the issue having been mentioned in an affidavit. It found no adequate explanation or exceptional circumstances to permit the new ground to be raised on appeal.
The Court of Appeal concluded that no fair and bona fide question had been shown to justify the broad injunction sought. It noted that no statement of claim had been served and that the proceedings had not been meaningfully progressed. It considered damages an adequate remedy if Gibb’s claims succeeded at trial. The appeal was dismissed; the court did not decide the underlying claims or finally determine the disputed debt, residence or validity of the receivers’ appointments.