The Court of Appeal has refused Clare Gibb’s appeal against a High Court decision declining to stop receivers appointed over two Dublin properties from taking enforcement steps. The appeal concerned an interlocutory injunction, not the final resolution of her wider claims about the loans.
Promontoria (Aran) Limited had purchased two loans previously obtained by Ms Gibb and other borrowers from Ulster Bank. It appointed Brendan Hanratty and Declan Taite as receivers over 54 New Road, Clondalkin, and Unit 1, 1-3 The Coombe, Dublin, on 15 February 2016, after repayment was not made by the deadline in demand letters. The loans were secured by mortgages over the properties. The judgment says Ms Gibb had stopped making repayments by the time she began the High Court proceedings.
The High Court refused her application for an injunction in July 2016. On appeal, Ms Gibb relied principally on an argument that she was a “consumer” under the Consumer Credit Act 1995 and had not received the 10 days’ notice she said was required before enforcement action. She argued that the receivers’ appointments were therefore unlawful. Her counsel accepted that this issue had not been argued in the High Court during the injunction application.
The Court of Appeal held that the new argument should not be introduced on appeal. It said there was no good reason for the failure to raise it below, and the case did not fall within circumstances that justified allowing a new ground. The court also considered the argument in the alternative and concluded that it did not amount to a fair issue to be tried for the purpose of an interlocutory injunction.
The judgment noted that the respondents disputed that the Clondalkin property was Ms Gibb’s home and that the court reached no concluded view on that question. It also said that, even if she later established a breach of the notice requirement, the lender could give notice and recommence enforcement. The court considered damages an adequate remedy and said the balance of convenience did not favour an injunction, particularly given that no repayments were being made.
The Court of Appeal therefore refused the appeal. It did not determine the ultimate merits of the underlying loan disputes or make a final finding about whether the Clondalkin property was Ms Gibb’s home. The judgment also referred to separate 2012 proceedings against Ulster Bank, which had not progressed to pleadings, and said those proceedings had not been consolidated with the present case.