The Court of Appeal has dismissed two appeals by Fintan Fox, upholding a €1,472,996.95 judgment for Danske Bank and the dismissal of Mr Fox’s separate claim against the bank and receiver Declan McDonald.
In a judgment delivered by Ms Justice Irvine on 26 April 2017, the court considered orders made in two High Court proceedings. The first appeal concerned summary judgment granted to Danske Bank on 4 April 2016. The second concerned the dismissal of Mr Fox’s plenary action on 15 July 2016.
The bank’s debt claim arose from a loan facility signed by Mr Fox on 15 November 2012. It required repayment of €1.524 million within 12 months. The judgment records that €1,478,527.42 remained outstanding when the bank sought payment in February 2014. Mr Fox argued that he had continued repayments under an earlier facility, that the 2012 restructuring was made without his agreement, and that the bank had wrongly debited €21,291.10 from one of his accounts.
The Court of Appeal found that the earlier repayments did not answer the obligation under the 2012 facility, which Mr Fox had signed. It described his claims about the restructuring and the disputed debit as unsupported by credible evidence. The bank had produced account records and an affidavit explaining the balance. The court concluded that Mr Fox had not shown a bona fide defence and dismissed his appeal, leaving the €1,472,996.95 judgment in place. It added that even an arguable defence concerning the disputed debit would not necessarily have sent the entire claim to a full hearing.
Mr Fox’s separate action alleged, among other matters, that the bank mismanaged his accounts, unlawfully altered his loan arrangements and that the receiver’s appointment was invalid. He also challenged the receiver’s powers to appoint an auctioneer and sell properties secured by mortgages. The bank denied wrongdoing, while the receiver argued that the claim disclosed no cause of action against him.
The Court of Appeal held that the mortgages provided for appointment of a receiver and a power of sale. It found that evidence from a bank officer and certified powers of attorney supported the execution of the appointment deeds; the court said the deeds did not have to be made under the bank’s seal. It also upheld the receiver’s authority to appoint an auctioneer. The court said the account-management and loan-restructuring claims had already been determined against Mr Fox in the debt proceedings and could not support the separate action.
The court dismissed both appeals. The source records that the High Court had ordered Mr Fox to pay the defendants’ costs in the plenary proceedings, to be taxed if not agreed; it does not state a separate costs order on the appeals.