The High Court has dismissed Columb Brazil’s claim against the State, Bank of Scotland plc and six other defendants, ruling that his challenge to the transfer of a loan and mortgage security following a cross-border merger was bound to fail.
Mr Justice Mark Heslin delivered the judgment on 21 December 2021, after hearing applications by the defendants on 25 November. The applications sought dismissal of Brazil’s proceedings as having no reasonable cause of action, being vexatious or constituting an abuse of process.
Brazil’s pleaded case centred on the 2008 regulations implementing EU rules on cross-border mergers. He argued that provisions concerning the transfer of contracts went beyond the EU directive, could not apply to his earlier loan and mortgage, and unlawfully enabled the transfer of the charge over his property. He also challenged later transfers of the loan and security, the appointment of a receiver and the registration of the charge.
The judgment records that Bank of Scotland (Ireland) Ltd advanced Brazil €750,000 in 2002 and that he granted the bank a charge over land in County Kildare in January 2003. The Irish bank merged into Bank of Scotland plc on 31 December 2010. The loan and security were later assigned to Ennis Property Finance DAC, which appointed a receiver in November 2017. Part of the folio’s agricultural land was sold at auction in May 2018, while the property where Brazil resided was excluded from that sale.
Mr Justice Heslin said the Supreme Court and Court of Appeal decisions cited in the judgment had already rejected arguments challenging the merger’s legal effect and the transfer of the security. He concluded that the rules had not changed Brazil’s rights or obligations under the loan and mortgage, and that the retrospectivity argument could not support his claim. He also found that Brazil had not particularised his allegations of fraud.
The court dismissed the claim under both Order 19, rule 28 of the Rules of the Superior Courts and its inherent jurisdiction. It also refused to admit an unsworn document Brazil sought to introduce on the eve of the hearing, and declined his request for more time to file written submissions.
The judgment states that the parties should correspond about the final order, including costs. The judge’s preliminary view was that costs should follow the event; if the parties could not agree the wording of the order, they were directed to file short written submissions within 28 days.