The High Court has refused ACC Bank plc permission to take over a Bank of Ireland order for the sale of Patrick Moffitt’s lands in County Roscommon dating from 1987.
ACC sought to be substituted for Bank of Ireland as plaintiff and to enforce the High Court order for sale, which had been made on November 30, 1987 and amended in 1990 after folio numbers changed.
ACC had its own earlier security over Moffitt’s property. It obtained two Circuit Court judgments in March 1986, for euro-equivalent sums of €17,780.18 and €17,341.62, registered judgment mortgages and secured a Circuit Court order for sale in March 1987.
The central issue was whether Bank of Ireland’s later High Court order automatically benefited other creditors with charges over the lands. If it did, ACC argued that it could take over the proceedings and potentially rely on that order in relation to limitation periods.
Mr Justice McMahon followed a recent High Court ruling which held that an order for sale benefits other incumbrancers only where they have come into the proceedings and proved their debts.
The court found that ACC had not done so. Although an ACC solicitor attended before the Examiner in June 1989 and its claim was recorded as having been entered, there was no affidavit proving the amount owed. The advertisement inviting creditors into the High Court process had expressly required claims to be proved.
The judge also found significant delay. Bank of Ireland told ACC in November 1998 that it had no objection to ACC taking over its sale order and effectively encouraged that course. ACC did not apply to do so until December 2008, after Bank of Ireland moved to discharge the order.
The application was therefore refused. The ruling means ACC cannot rely on Bank of Ireland’s 1987 order to stop limitation time running in its favour. It does not determine whether ACC retains separate enforceable rights under its own 1977 and 1979 charges or whether some other event affected limitation periods.