The High Court ruled that Tom Kavanagh was validly appointed receiver over secured property and awarded Bank of Scotland plc judgment of €4,022,734.92 against Patrick and Roseann McLaughlin. Mr Justice Birmingham delivered the judgment on 30 September 2013.
The case involved separate claims. Kavanagh sought a declaration confirming his appointment; the bank sought judgment on loans advanced by Bank of Scotland Ireland. The judge said it was not disputed that the money had been borrowed and not repaid, or that the figures claimed were accurate for the proceedings. The defendants opposed the claims on technical grounds.
The defendants argued that the loans had not fallen due because the bank had not given the required notice of default. The court rejected that argument. It found that a letter from the bank’s solicitors gave notice, set out the amount claimed and allowed 21 days for repayment. The judge held that solicitors authorised by the bank could give the notice on its behalf.
The defendants also disputed whether the mortgages and charges transferred to Bank of Scotland plc when Bank of Scotland Ireland was absorbed in a cross-border merger. The judge held that the merger transferred the loans’ security along with the loans. He also rejected the argument that the charges had to be registered in the successor bank’s name before it could exercise its rights.
A further challenge concerned the authority of Lauren Whitmore, the bank employee who signed the receiver appointment documents. Although she signed them on 28 May 2012, the court found that the appointment took effect on 6 June, when Kavanagh accepted it. The judge was satisfied that Whitmore had authority to sign. He said that even if the documents did not operate as deeds, they were valid written instruments signed by an authorised employee.
The judgment noted that the loans had been advanced for property development and that sale of Latona, a mortgaged property on Torquay Road, Foxrock, had been expected to repay them. The judge said that point had not been pressed as an issue and saw no basis for requiring the bank to wait indefinitely for a sale.
The court concluded that the defendants’ arguments did not provide a defence. It granted the bank judgment for €4,022,734.92 against the defendants and declared that Kavanagh stood validly appointed as receiver.