The High Court has granted Bank of Scotland plc the reliefs it sought in a mortgage claim against Anne Hickey, after finding she had not established an arguable defence to the bank’s case.
In a judgment delivered on 11 April 2014, Mr Justice Ryan said Ms Hickey and her then partner, Declan Porter, remained jointly and severally liable for €155,841.73 arising from loans made in 2001. The bank sought declarations that it held a mortgage or charge over No. 19 Pairc Mhuire, Saggart, and that the sum was due, together with judgment and consequential relief.
The bank said it could not register the mortgage on the property’s folio and relied instead on an equitable charge. It argued that the loan agreement, mortgage documents, a solicitor’s undertaking and payment of the loan money together created that security. The court considered the case under the law that applied before the Land and Conveyancing Law Reform Act 2009.
Ms Hickey’s affidavit did not dispute the loan and arrears details. She said the money was largely used by Mr Porter for his own purposes, that she signed documents at his direction, and that she had not received independent legal advice. She contended that any outstanding debt was his alone. The bank submitted that the borrowers had agreed to be jointly and severally liable and that Ms Hickey had been represented by a solicitor.
The judge considered whether the proposed defence was sufficiently credible to require a plenary hearing. He held that using loan funds for purposes other than those agreed did not release either borrower from repayment obligations. He also found that Ms Hickey’s brief assertion that she acted at Mr Porter’s behest gave no details capable of supporting undue influence or coercion. The judgment records that she was represented by a solicitor when the loan and mortgage documents were executed.
The court concluded that the circumstances did not engage the lender’s obligation to ensure independent advice under the principles in Etridge (No. 2), describing the borrowing as commercial and noting that Ms Hickey had identified herself as a company director and said she was acting in the course of business or trade.
The decision was made at the stage of assessing whether Ms Hickey had an arguable defence; the court did not direct a plenary hearing. It granted the reliefs sought by the bank. The judgment does not separately itemise the precise form of each relief in its conclusion.