The High Court refused an interlocutory injunction sought by Sean McGuinness to restrain Allied Irish Banks plc from enforcing security over his home while a mortgage arrears appeal was pursued. Mr Justice Gilligan dismissed the application on 27 February 2014. He did not decide the underlying plenary action or conclusively determine whether borrowers can bring a claim against a lender for breach of the Central Bank’s mortgage arrears code.
McGuinness had fallen into arrears on a loan secured against Hillsborough House, his principal private residence in Lucan, County Dublin. The bank declined to offer alternative repayment arrangements in April 2013 and told him he could appeal within 20 days. He did not appeal within that period.
After McGuinness wrote on 7 June asking whether he could still appeal, the bank said the appeal would be referred to its Appeals Board. It then notified him that the appeal had been rejected. McGuinness argued that he had only asked whether an appeal was possible and had not submitted grounds for one. He said he had been denied a proper opportunity to make submissions and sought an extension of time to appeal, alongside an injunction against enforcement.
The bank said it had exercised its discretion to consider an appeal despite the missed deadline. It also said McGuinness could submit new information to the Arrears Support Unit for reassessment and appeal any resulting decision. The bank had confirmed in August 2013 that it would not enforce its security without the court’s leave and before the appeals process concluded. No enforcement or possession proceedings were pending when the court considered the application.
The judge found that McGuinness had not established a fair issue to be tried for the purpose of an interlocutory injunction. The court said he remained able to make a further application under the Mortgage Arrears Resolution Process and appeal a decision on it. It also found that damages would be an adequate remedy for any injury he might ultimately prove, and that the balance of convenience favoured refusing the injunction. The court noted that the 12-month moratorium on repossession proceedings had not expired and that it had seen no evidence of new material for the bank to consider.
Gilligan said the legal status of the code, including whether a borrower could use alleged non-compliance as a cause of action against a lender, had not been conclusively determined. The facts of this application were not suitable for resolving that issue. The court refused the relief sought; it did not make a final ruling on the parties’ claims in the plenary proceedings.