The High Court has dismissed a motion by Brian O’Donnell and Mary Patricia O’Donnell seeking permission to pursue a fresh application to extend time to appeal a €71.6 million judgment, holding that the Supreme Court had already decided that application.
The bankrupts asked the Official Assignee, Christopher Lehane, to permit them to bring a new motion before the Supreme Court or, alternatively, to assign to them the right to litigate the underlying proceedings. They wanted to seek more time to appeal a High Court judgment entered against them in favour of the Bank of Ireland in December 2011.
The original judgment was for €71,575,991.29, together with costs to be taxed and ascertained. The bank later petitioned to have both defendants adjudicated bankrupt. They were adjudicated bankrupt in September 2013, and the property in their estates, including the right to litigate the underlying proceedings, vested in the Official Assignee.
The bankrupts had applied to the Supreme Court in July 2014 for leave to extend the time to appeal. They said they had learned that the trial judge had been a personal shareholder in the bank during a period that included the trial, and wished to appeal on grounds including alleged objective bias. The Official Assignee opposed their standing to bring that application and said he did not intend to pursue the appeal.
In December 2015, the Supreme Court dismissed the extension application because the right to litigate belonged to the Official Assignee, not the bankrupts. It said the appropriate route in such matters was first to ask the Official Assignee to pursue the litigation and, if he refused, to apply to the Bankruptcy Court. The Supreme Court nevertheless dealt with the motion in the special circumstances of that case.
In the present motion, the bankrupts argued that a new Supreme Court application could proceed if the Official Assignee brought it or assigned the right to them. Ms Justice Costello rejected that argument. She held that the Supreme Court’s decision had dismissed the application to extend time itself, not merely ruled on who had standing to bring it. Bringing the same application again would be an abuse of process, she said, and any relief in this motion would serve no purpose.
The High Court therefore refused the requested relief and dismissed the notice of motion. It did not decide the parties’ arguments under sections 61(7) or 71 of the Bankruptcy Act 1988, saying those issues could be determined on another occasion.