The High Court refused an interlocutory injunction sought by Geraldine Byrne and Gerard Byrne to restrain receiver Simon Coyle from taking steps in relation to two mortgaged properties while their complaint against the mortgagee bank was before the Financial Services Ombudsman (FSO).
Mr Justice Keane delivered judgment on 14 October 2014. The injunction sought at this stage was in the same terms as the principal relief claimed in the proceedings: it would have prevented action by the receiver pending determination of the FSO complaint. The court said the order was not framed to last only until trial and, if granted, would likely decide the effective contest between the parties in the applicants’ favour before trial.
The applicants alleged that the bank had not adequately answered communications dating from 2009, had failed to provide requested documents and had delayed in dealing with repayment proposals. They contended that this breached Provision 8.3 of the Consumer Protection Code 2012, which concerns seeking an approach to help a consumer resolve arrears. Their solicitor said an FSO complaint had been made, but the judgment noted that the fuller complaint described in a later affidavit was not exhibited and its date was not given.
The judge noted that the bank was not a party to the proceedings and had no opportunity to respond. The applicants had also provided only part of the correspondence with the bank, including omitting documents that the court considered material to their account of the restructuring discussions. They did not dispute the validity of Coyle’s appointment as receiver, for which the judgment records that the bank had executed deeds dated 20 August 2014.
The court considered the applicants’ reliance on the receiver’s status as their agent, but said the connection between that status and the claim against him had not been clarified. It also observed that the FSO’s statutory mediation process concerns the complaint itself; it is not a process for mediating an agreement on the applicants’ loan arrears.
The judge concluded that it would be inequitable to grant relief against a validly appointed receiver when the applicants’ real dispute was with the bank, which was absent from the case. Given the incomplete evidence and the bank’s absence, the court could not meaningfully assess the strength of the underlying claims or find this an exceptional case where refusing an injunction would cause overwhelming injustice.
The injunction was refused. The judgment expressly states that the court did not finally decide factual or legal aspects of the applicants’ claims.