The Court of Appeal has allowed Thomas Kearney to continue a narrow challenge to the appointment of a receiver over secured property, while dismissing the rest of his appeal against orders made by the High Court in 2018.
The appeal concerned proceedings Kearney brought against Bank of Scotland plc (BOS) and receiver Patrick Horkan. The High Court had dismissed the proceedings, ordered the cancellation of notices registered against two property folios, and imposed restrictions on further litigation without leave. The Court of Appeal’s judgment was delivered on 8 April 2020.
Kearney argued, among other things, that the deed appointing Horkan as “receiver” did not comply with the mortgage, which provided for a “receiver and manager”. The Court of Appeal said this issue depended on how the mortgage and appointment deed should be read together. It found the point was at least arguable and had not been definitively determined in Ireland. The High Court should not have struck it out under its inherent power to dismiss claims bound to fail. Kearney may continue the proceedings solely to challenge the validity of the appointment on that ground.
The court rejected Kearney’s challenges to the cross-border merger through which BOS acquired the bank’s assets and liabilities, including the mortgage. It said the Supreme Court had already established the legal effect of the merger, and the High Court was bound by that authority. The balance of Kearney’s claims could also be dismissed under the rule against re-litigating matters that could and should have been raised in earlier proceedings.
The court upheld the order vacating the notices registered against the two folios under section 123(b)(i) of the Land and Conveyancing Law Reform Act 2009. It also replaced the broader restrictions on litigation with a narrower order. Kearney and people acting for him must obtain prior leave from the President of the High Court, or a judge nominated by the President, before bringing proceedings that challenge the merger, BOS’s title to the charges, their disposition by BOS or a successor, or BOS’s right to appoint the receiver.
The appeal was otherwise dismissed. The court refused a last-minute application to adjourn the appeal so Kearney could pursue a separate application before the Supreme Court.