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You are here: BAILII >> Databases >> Irish Court of Appeal >> Allied Irish Banks PLC v Sheedy (Approved) [2025] IECA 124 (28 May 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA124.html
Cite as: [2025] IECA 124

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THE COURT OF APPEAL

 

APPROVED JUDGMENT

NO REDACTION NEEDED

 

 

Neutral Citation Number: [2025] IECA 124

Court of Appeal Record Number: 2024/191

 

 

Whelan J.

Butler J.

Meenan J.

 

 

 

 

 

 

 

BETWEEN/

 

ALLIED IRISH BANK PLC

 

RESPONDENT/PLAINITIFF

 

- AND –

 

 

ANTHONY SHEEDY

 

APPELLANT/DEFENDANT

 

 

 

JUDGMENT of Ms. Justice Máire Whelan delivered on the 28th   day of  May  2025

 

 

1.               This is an appeal by Mr. Anthony Sheedy (the Appellant) against orders made by Barr J. in the High Court on 10th April 2014 substituting Everyday Finance DAC  (Everyday) as plaintiff in the within proceedings in lieu of Allied Irish Banks Plc pursuant to Order 15, rule 14 and/or Order 17 rule 4,  dispensing with re-service of the proceedings

 pursuant to Order 42, rule 5 and granting Everyday leave pursuant to O.42,r.24 to issue execution  in respect of a High Court order for summary judgment in the sum of €2,601,519.20 of the High Court obtained by AIB on 30th June 2017 together with costs.

Background

2.             AIB issued a letter of sanction for the sum of €1,735,000  on 4th November 2004. Same was accepted in writing by the appellant on 8th  November 2004. The letter of sanction indicated a varying  prime rate of interest (as of 4th November 4.125% per annum) plus 1.5% per annum.  The appellant agreed,  inter alia, to make a capital reduction of €75,000  to the loan account by the 31st January 2005 from the sale of property in the United States and royalty payments.  A special condition provided that current account  ending 048  would be cleared "... in full on drawdown of additional facilities and operating credit thereafter".  Security provided included a legal charge over two Folios [1] and a solicitor's letter of undertaking to lodge royalty payments then due to the appellant. 

 2015 Summary Summons

3.             The appellant defaulted on repayment of the loan and AIB  instituted the within proceedings [2] on 16th March 2015 seeking judgment for €2,601,519.20, continuing interest pursuant to contract and further in the alternative interest pursuant to statute and costs.  Same came on for hearing in the High Court. On 30th June 2017 Binchy J. granted judgment to AIB  in "...the sum of 2,601,519.20 inclusive of interest together with the costs of these proceedings when taxed and ascertained."  The appellant's application for a stay was refused.   The appellant appealed [3]  to the Court of Appeal.

Circuit Court Possession Proceedings

4.             On 13th July 2016 AIB  instituted possession proceedings in the South Eastern Circuit,  record no. 441/16.  A Deed of Mortgage had been executed by the appellant on 10th March 2009. Charges were registered in Land Registry as burdens over the appellant's folios on or about 12th March 2012.  The said security extended, inter alia, to the loan facility advanced by the Bank and sundry other contractual liabilities. Formal demand for payment of the sums due was served on the appellant under cover of letter dated 28th June 2016. 

5.              AIB's possession proceedings came on for hearing at Clonmel Circuit Court on 2nd October 2018.  Both parties were legally represented.  The proceedings were compromised on that date by consent orders and execution of Terms of Agreement. There  is a  dispute between the parties as to the ambit and import of the terms of settlement.

The Written Terms of Agreement

6.              The Circuit Court made the following orders within the possession proceedings:

"By consent the Court doth order:

(1) The Court doth receive the terms of settlement annexed hereto and doth make orders as requested therein and doth make the remainder a Rule of Court ( (sic)in so far as it is within the pleadings and where outside the pleadings doth direct the same to be filed in Court.

(2) That this matter be adjourned to the next sittings of Tipperary Circuit Court sitting at Clonmel for implementation of the said settlement."

The terms are in manuscript and reflect a compromise of the proceedings between the parties.  Given the conflict between the parties it is necessary to consider the written terms:

                                                 "An 'Chuirt Chuarda'

 Southeastern Circuit                                                                  Record No.441/16

                                                                                                             County Tipperary

Between/ 

Allied Irish Bank Plc

Plaintiff

 

And

 

Anthony Sheedy

Defendant

 

Written Terms of Agreement

It has been agreed between the plaintiff and the defendant in the above-entitled proceedings that they be compromised on the following terms:-

(1) That Defendant consents to an order of possession in favour of the plaintiff of the property specified in the schedule to the Civil Bill herein [4], subject to the order for possession being stayed in the Circuit Court for a period of 18 months provided that the Defendant:

(a) Place the said Property on the market, with joint auctioneers, one of which is to be from the plaintiff's panel of auctioneers within a period of six months from the date hereof.  The defendant is to fully co-operate with the joint agents in allowing them access to the said property for the purpose of preparing it for sale. 

(2) Discharge all sums due to the plaintiff on foot of loan account number ...098 the amount due as of 1st October 2018 is the sum of €2,776,427,87 and in respective (sic) loan account ...411, the amount due as of 1st October 2018 is the sum of €101,423.93 together with continuing interest at current bank rates, currently 1.625% and 2% respectively until payment.  All such sums be discharged within a period of 18 months. 

(3) The costs of the within proceedings, together with the costs of the High Court proceedings bearing the record number 2015/519S and the Court of Appeal proceedings bearing record number 2017/000369 be discharged by the defendant.  such costs order is to be taxed in default of agreement.

(4) The guide price for the said property is to be agreed by the joint agents.  The defendant shall instruct the joint agents with regard to the manner in which the property is marketed.

(5) The Court of Appeal proceedings bearing record number 2017/000369 be struck out forthwith with no further action to be taken therein."

7.             The Settlement was duly executed and dated. To date its terms have not been never implemented, no part of the property was sold, and no part of the debt was discharged. 

Subsequent Sale by AIB  to Everyday

8.             Thereafter on 14th June 2019 by Irish Law Deed of Transfer  made between Allied Irish Banks Plc, AIB Mortgage Bank, EBS DAC, Haven Mortgages Limited, AIB Group (UK) Plc (the sellers) of the one part and Everyday Finance DAC (Everyday), the sellers disposed of their respective rights and ancillary rights and claims in and over specified mortgage assets as identified therein.  Schedule 1 identified property security and identified the appellant as the grantor of the two charges in March 2009 in favour of AIB.  Elsewhere the two Folios comprising the secured properties are identified and the appellant's accounts including " ...098" and " ...171" and "...411" are identified.

The 2020 Notice of Motion

9.              A notice of motion issued on 11th September 2020 seeking an order pursuant to O.15, r.14 and/or O.17, r.4 RSC substituting Everyday Finance DAC (Everyday) for AIB as plaintiff in the above entitled proceedings, an order dispensing with re-service of the proceedings pursuant to O.42, r.5 and an order pursuant to O.42, r.24 granting Everyday leave to issue execution of the High Court order for summary judgment obtained by AIB on 30th June 2017.   The matter came on for hearing before Barr J. His judgment was delivered on 8th March 2024 granting the reliefs sought. 

High Court Judgment

10.          In granting leave to substitute Everyday as plaintiff in lieu of AIB in the proceedings and granting Everyday leave to issue execution in respect of the judgment obtained by AIB on 30th June 2017  for €2,601, 519.20 together with costs, Barr J. in his judgment, [2024] IEHC 145, outlined the history of the proceedings noting the wide range of grounds on which the appellant was alleging that the respondent was not entitled to the reliefs sought.  Many of the grounds of objection have fallen away and were not pursued on appeal.

11.         In the course of the judgment, he noted that the averments in the affidavit of Mr. McCudden filed on behalf of Everyday had referred to  and exhibited the Deed of Transfer 14th June 2019 whereby AIB had "unconditionally, irrevocably, and absolutely granted conveyed assigned transferred and assured to the applicant all such rights sight and interest as the plaintiff had in the facility and security documents set out in the Schedule contained in the Deed of Transfer." (para. 8).  It had been established that by letter of 28th  June 2019 the appellant  was notified "that the loan facilities and security documentation had been sold and transferred to" Everyday. (para.11)

12.          The court considered the arguments (para. 15) of the appellant that Everyday was not entitled to the reliefs sought because the AIB and the appellant had agreed "an overall settlement of all disputes including the within proceedings and the appeal to the Court of appeal" by the Settlement agreement of 2nd October 2018.  He noted (para.16): "The defendant stated that it was clear that the plaintiff no longer had an interest in any purported loans or security after the date of the settlement agreement.  He maintained that the plaintiff had converted that interest into a contract, which it was submitted replaced the loan the subject matter of the present spent proceedings." The appellant had denied  "that the plaintiff had any right to assign the judgment obtained on 30th June 2017 to the applicant." He asserted that AIB "... had no right to assign any interest that they purported to have in the loans, or security the subject matter of the herein matter, to the applicant." (para.17) The court noted (para. 20) that Mr. Sheehy had submitted "that the Deed of Transfer ... was insufficient to establish the applicant's entitlement to any interest in the loans or security.  Nor did it transfer any entitlement to the applicant to be made a party to an existing final order of the court."  At para. 21 Barr J. noted the argument made by Mr Sheedy that Everyday"... appeared to be attempting in this application to use a purported transfer of loan and/or security, for the purpose of amending an order of the High Court retrospectively.  He stated that any entitlement of the plaintiff to an order for summary judgment against the defendant did not mean that the same entitlement applied to the applicant.  He maintained that the present application was an attempt to remove the court's scrutiny of an entitlement to such judgment." Barr J. noted (para.22) a further argument that Everyday was prematurely seeking to obtain leave to issue execution on the summary judgment of 30th June 2017 since it had "failed to particularise any entitlement to the judgment."  It was contended that O.42, r.24 did not apply as the applicant was not capable of bringing itself within any category provided for in that Rule. It was contended that there was an attempt by Everyday to "bypass the regular usual process to enforce purported rights, which rights were denied."  He contended that Everyday was not entitled to be substituted into the proceedings as same were "spent" (para.16,23) by virtue of the summary judgment obtained by AIB on 30th June 2017.

13.          Having reviewed in detail the affidavits together with the exhibits the trial judge concluded (para. 39) that he was satisfied on the evidence that Everyday had established on a prima facie basis that the loan the subject matter of the judgment obtained by AIB against Mr. Sheedy was validly transferred to it under the Deed of Transfer dated 4th June 2019.  He concluded that that being the case "it is appropriate for the court to proceed to examine the various grounds on which the defendant argues that the applicant should not be given the reliefs sought in its notice of motion."

14.          The court proceeded to consider Everyday's entitlement to an order substituting it as plaintiff in the within proceedings pursuant to O.17, r.4 RSC in lieu of AIB noting the terms of the said Rule.  Of the appellant's arguments that O.17, r.4 did not provide for the substitution of a new party for one of the parties originally in the proceeding and his contention that judgment had been obtained by AIB in the proceedings on 30th June 2017 the said judgment had "brought the proceedings to an end, meaning that it was no longer possible for the applicant to be joined in the proceedings.", Barr J. concluded that there was no substance in theses grounds of objection.  He noted that the provisions of O.17, r.4 were clear providing "that there can be substitution where there was a transmission of interest from one party to the proceedings to another person or entity who is not already a party to the proceedings. The court is satisfied that by virtue of the Deed of Transfer of 14th June 2019 there was a transmission of interest from the plaintiff in these proceedings to the applicant, such that it is appropriate for the applicant to be joined into the proceedings in substitution of the plaintiff pursuant to the terms of this Rule."(para.43)  He continued:

"44. Insofar as it was argued on behalf of the defendant that once judgment had been obtained that that brought the proceedings to an end to mean that there could no longer be a transmission of interest by the judgment creditor to any other party and it was no longer possible for any person to whom the interest was transferred to be joined into the proceedings the court is satisfied that the case law in this jurisdiction is against that submission."

15.         He outlined (para.46) the authorities of Permanent TSB Plc v. Burns [2020] IEHC 24 which had reiterated the test set forth in the leading judgment of IBRC v Comer [2014] IEHC 671 that where an application was made prior to entry of final judgment by a party who wish to be substituted into proceedings the test was whether there was prima facie evidence that there had been (i) a valid sale of the underlying assets, (ii) a valid assignment of the chose in action and (iii) a valid notice of the assignment given to the debtor. 

"It was not necessary for the court to adjudicate, at that juncture of the proceedings, on the efficacy or validity of the assignment, or the efficacy or validity of the notice.  These were matters to be determined at the substantive hearing."

16.          Regarding the standard of proof to be met where the application to substitute a party was made subsequent to the substantive hearing, Barr J. noted that the standard of proof is higher.  He outlined the rationale for same as being that at such stage "no further hearing at which the validity of the assignment, or the efficacy of the notice given, could be ventilated...".   He stated that "the efficacy or validity of the assignment would have to be considered on the joinder application."  He noted the decision of Binchy J. in this Court in Ulster Bank Ireland Ltd. v. Quirke [2022] IECA 283 holding that the existence of a judgment was not a bar to an application by an assignee of the debt to be joined into the proceedings subsequent to the delivery of the judgment. (para. 47)  Barr J. was satisfied that fact that judgment had been obtained by AIB (the assignor) was not a bar to Everyday being substituted into the proceedings after the assignment of the debt having taken place.

17.         With regard to the appellant's contention that AIB had no right to transfer his loan the court was satisfied that there was no substance to this assertion noting well established authorities including the Supreme Court of Judicature (Ireland) Act 1877 and AIB v. Thompson [2018] 3 IR 172. He concluded that the fact that the defendant may not have given any prior consent to the assignment of his loan by AIB to Everyday was not relevant to the validity of the assignment nor to the reliefs sought by Everyday in the application. 

18.          Barr J. considered the further opposition to the orders sought; that since the summary judgment of 30th June 2017 was not explicitly mentioned in the Deed of Transfer the benefit of same had not been transferred from AIB to Everyday and that the loan was said to have been extinguished by virtue of the said judgment given in respect of the debt created by the loan such that, the argument went, Everyday "effectively got nothing under the Deed of Transfer."  Reliance had been placed on the remarks of Bingham L.J. in Director General of Fair Trading v. First National Bank Plc [2002] 1 All ER 97 that:

"Once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract." (para. 54)

19.         Barr J. carefully analyses the authorities including Ulster Bank Ireland Ltd. v. Quirke [2021] IEHC 499, Permanent TSB v. Beades [2021] IECA 48, Allied Irish Banks v. McKeown [2021] IEHC 499.  He concluded at para. 57:

"The court is satisfied that on the authority of these judgments an assignment of a loan post judgment is effective to act as a transfer of the judgment itself, even though the transfer of the judgment may not be mentioned specifically in the Deed of Transfer.  Accordingly, the court holds that in this case, the Deed of Transfer dated 14th of June 2019 which transferred the loan in respect of which the judgment of 30th June 2017 had been given was effective to transfer the judgment to the applicant."

It is noteworthy that the appellant did not argue against this finding in this appeal hearing.

20.         A further argument opposing the making of the orders concerned the issue of merger. The appellant contended that the summary judgment of 30th June 2017 had been incorporated into the settlement agreement concluded at the Circuit Court on 2nd October 2018 and was thereby extinguished by the said agreement.   Mr. Sheedy argued that the settlement of the Circuit Court proceedings for possession constituted a settlement of all outstanding issues between him and the AIB.  It was contended that when the compromise was concluded "the original cause of action was extinguished and became subsumed in the settlement agreement which constituted a new cause of action in contract". Reliance was placed on the decision in Taylor v. Smith [1991] 1 IR 142. (para 59)  The contention was that a compromise of legal proceedings creates a new cause of action bringing to an end the original cause of action unless there was a "clear and express reservation of the original rights or remedies".(para.60)  The appellant asserted that in the Circuit Court Terms of Settlement Circuit Court of 2nd October 2018 there was no provision "preserving the rights or remedies that had been obtained by the plaintiff in the summary proceedings in the High Court".  It was asserted that the within proceedings had been encompassed within the terms of the settlement agreement of 2nd October 2018.  "It had been agreed that the defendant would withdraw his appeal from the Court of Appeal; and that he would discharge the plaintiff's costs in the High Court and before the Court of Appeal.  It was further stipulated that no further action would be taken in those proceedings."(para.61)  The court noted Mr Sheedy's contention that the Settlement Agreement of 2nd October 2018 "Clearly incorporated the High Court summary proceedings and the appeal to the Court of Appeal and had brought them to an end." 

21.         Barr J. having considered the arguments of both parties observed at para 64: "As a general statement of principle, it is correct to say that when proceedings are compromised in a settlement agreement, the original cause of action on which the proceedings were based is extinguished, unless there is a specific provision in the settlement agreement for its continuance in existence, or for its re-emergence, in the event that the settlement terms are not performed by one or other of the parties to the agreement."  The judge identified the key question as; "What is the correct interpretation of the settlement agreement concluded on 2nd October 2018?" (para. 66)  The judge noted that a Settlement Agreement was to be construed in the context "in which the Agreement was concluded." (para. 66).  He considered the decision of  Clarke J. in Danske Bank AS v. Hegarty [2012] IESC 30 which noted the well-established principle that a settlement agreement is a contract and as such is to be construed in accordance with the general rules governing the interpretation of contracts.  Viewing the authorities and governing principles and applying same to the construction of the settlement agreement of 2nd October 2018 Barr J. concluded:

"The court is satisfied that the agreement was primarily concerned with settlement of the Circuit Court proceedings seeking possession of the defendant's property.  The essence of the agreement was that the defendant would consent to an order for possession of the property.  He further agreed that there be a stay on the order for possession for eighteen months, during which time, he would cooperate in the marketing of the property for sale." (para.70)

22.          The judgment continues:

" 70. Insofar as the settlement agreement made reference to the High Court summary proceedings, the court is satisfied that the settlement agreement did not extinguish any rights which the plaintiff had under the judgment which he had obtained in those proceedings.  The court reaches that conclusion for a number of reasons.  First the terms of the agreement are clear.  In relation to the summary proceedings. Clause 3 of the agreement was of particular relevance.  It provides that as well as paying the costs of the possession proceedings in the Circuit Court the defendant also agreed to pay the costs of the summary proceedings in both the High Court and the Court of Appeal and the provision that such costs were to be taxed in default of agreement.  Clause 5 of the agreement provided that the appeal then proceed then pending before the Court of Appeal in summary proceedings would be struck out forthwith and that no further action would be taken therein.

 

71. Secondly, if it had been the intention of the parties that by virtue of the settlement agreement concluded on 2nd October 2018 the plaintiff would relinquish his right under the judgment obtained by it on 30th June 2017 the court is satisfied that such a fundamental provision, it would have been clearly stated in the settlement agreement. There is no specific reference to the judgment in the settlement agreement.

 

72.  Thirdly, at the time of conclusion of the settlement agreement on 2nd October 2018 the defendant had an extant appeal against the judgment that had been obtained by the plaintiff against him in the High Court.  The settlement agreement provided that the defendant would withdraw his appeal against that judgment.  Thus, far from extinguishing the judgment, the settlement agreement made provision that the defendant would remove his extant challenge to that judgment. 

Once the appeal was withdrawn, there was no remaining legal challenge to that judgment.  On this basis the settlement agreement actually does the very opposite of what is contended for by the defendant in this submission.

 

73.  Fourthly, as well as providing that the defendant would withdraw his appeal against the High Court judgment, the settlement agreement provided that he would pay the plaintiff's costs of the High Court action and of the appeal to the Court of Appeal.  Those provisions do not extinguish any rights that had been obtained by the plaintiff in the High Court action.  They copper fastened those rights by withdrawing any challenge to the judgment obtained by the plaintiff and by providing that the defendant would pay the plaintiff's costs in those proceedings the court is satisfied that these terms are inconsistent with any submission that the plaintiff's judgment was extinguished by virtue of the settlement agreement of 2nd October 2018."

The judge went on to observe:

"I find as a fact that on a proper interpretation of the settlement agreement the judgment that had been obtained by the plaintiff on 30th June 2017 was not incorporated into the settlement agreement and was not extinguished thereby."

23.          Rejecting arguments that the orders  sought should be refused because of excessive redaction of the Deed of Transfer, the court concluded (para. 88) that it was:  "Satisfied that the applicant has put sufficient evidence before it to establish the said transfer of the defendant's loans from the plaintiff to the applicant."   Barr J. concluded that Everyday had "established that there had been a transmission of interest such that it was appropriate for it to be substituted as plaintiff; and as it had established that it is appropriate that it be granted leave to execute the judgment obtained by the plaintiff against the defendant on 30th June 2017; and as the court has held that all the defendant's objections are without substance; the court will grant the relief sought by the applicant in paras 1,3 and 4 of its notice of motion..." The appellant appealed.

 

The Notice of Appeal

24.          The appellant in his notice of appeal contends that the High Court;

(1) Erred in determining that the Circuit Court Settlement Agreement of 2nd October 2018 "did not incorporate the debt of the Defendant and the cause of action of the herein matter" .  It is contended that insufficient consideration was given by the High Court judge "to the fact that the evidence of the defendant was to the effect that the agreement was in relation to all matters (repossession proceedings and debt proceedings) and that clause 2 of the agreement addressed the debt the subject matter of the herein proceedings.  The clause defined the sum due, the interest rate and the time period in which to pay the debt.  The judgment of 30th June 2017 did not have an interest order." 

(2)  It "erred in considering that there was a transmission of interest to Everyday DAC from AIB where the interest of AIB had been transposed into the settlement agreement in relation to the herein matter". 

(3) "Everyday... does not have any right or cause of action stemming from the settlement agreement."

(4) "The court erred in its construction of the settlement agreement by not considering the effect of the settlement agreement on the debt and the herein case's judgment."

(5) This ground pertained to  alleged hearsay was not in issue in this appeal.

25.          The respondent contended that there were three live issues for determination;  

(1) Whether the judge fell into error at para. 69 of the judgment in concluding that the Circuit Court Settlement Agreement of 2nd October 2018 had not incorporated the debt of Mr. Sheedy and the cause of action relating to same upon which judgment had been entered in the High Court on 30th June 2017.

(2) Whether the judge erred in finding that there had been an effective transmission of interest from AIB to Everyday of both the loan the subject matter of these proceedings (2015/519S) and the judgment of 30th June 2018  under the Deed of Transfer 14 June 2019 and

(3) Whether the trial judge erred in his construction of the Circuit Court Settlement Agreement of 2nd October 2018 and his conclusions as to its impact on the underlying debt and the related judgment and Order of Binchy J. of 30th June 2017. 

Standard of review

26.         The judgment of the High Court was thorough and comprehensive. This court must afford due weight to the views of the trial court. As regards findings based on affidavit evidence, the jurisprudence, including Ryanair Ltd. v. Billigfluege.de GmbH [2015] IESC 11, Charleton J. (with whom Hardiman, McKechnie, Clarke and MacMenamin JJ. concurred) makes clear the appellate court is in no worse a position than the High Court in evaluating documents and reaching its own view on the issues. This is particularly so where the key issues concern the construction of documents or instruments.

The appellant's arguments

27.         The appellant argues (para. 8 of the submissions) that Everyday's contention that the Settlement Agreement does not affect its right to seek enforcement of the judgment debt results in the sum of "almost three million euro" being potentially recoverable  twice over - firstly, by AIB  under the Circuit Court Settlement Agreement and separately by Everyday under the High Court Order of 30 June 2017. "For Everyday to succeed, the settlement agreement must be deemed void or invalid."(para.9) It is contended that the Settlement Agreement incorporated not alone the Circuit court possession proceedings but also all litigation before the High Court and Court of Appeal notwithstanding that the "..preliminary line of the Agreement...does reference the Circuit Court case as being compromised and is silent in relation to the High Court and Court of Appeal..." It is contended that Everyday is not entitled to "...enforce the judgment , and...seek possession as well."  The appellant asserts that "The settlement agreement is clear in its intention to cover the herein cause of action and to supersede the cause of action with the settlement agreement."(para. 39) Any enforcement of the dispute between AIB  and the appellant "...must be taken in relation to the settlement agreement and not the judgment." (para. 40) The Circuit Court Settlement Agreement was said to have ended the purpose of the within proceedings and no cause of action survived.(para.79)

28.         With regard to the substitution application, the appellant argued that Order 17 rule 4 " cannot apply in circumstances where the dispute between the parties has been settled, and there is (sic) no continuing parties or a continuing case..."(para. 52)  It was contended that Everyday lacked  locus standi and that "...the privacy of the settlement agreement does not give Everyday any authority to take this dispute on AIB behalf, and neither do they claim to." (para. 59)

29.         The appellant contends that the transfer deed does not transfer any judgment,(it) "only purports to transfer the "lesser" right - namely the Loan - which, in fact had merged into the "higher"- the Judgment."(para.76) The respondent opposes all grounds of appeal and contends that the judgment and order of Barr J. should not be interfered with.

30.         It appears that Mr. Sheedy acknowledges that the loan was advanced and further that same has remained unpaid and continues to be due and owing.  Curiously, he  accepts that there is an entitlement to interest on foot of the settlement agreement - in other words that the interest was chargeable at 1.625% and in respect of account ...098 the amount due as of 1st October 2018 was €2,776,427.87 and in respect of loan account ...411 the amount due and owing on the said date was €101, 423.93.  However, Mr. Sheedy contends that firstly that the 2018 Settlement Agreement did not incorporate the cause of action on foot of which the 2017 judgment was entered and that benefits and rights on foot of the said judgment and Order did not pass to or vest in Everyday. He contends that Everyday is not entitled as a result to sue on the 2018 settlement the rights on foot of which apparently are said to remain outstanding in AIB Plc. In substance, his argument is that the 2017 Order was set aside by virtue of the terms and operation of the 2018 Settlement Agreement.  Nothing in the 2018 Settlement Agreement  provides for the setting aside of the June 2017 Order. Viewing the Terms in their entirety rather than extrapolating elements of clause 2 it is evident that holistically such an interpretation is fundamentally inconsistent with the substance and overall intention to be derived from the terms of the agreement.

31.         Mr Sheedy in submission points out that "no claim is made by Everyday to have any rights pursuant to the settlement agreement."  This argument does not avail him.  The orders sought are intended to be in aid of exercising enforcement rights in respect of the 2017 judgment. 

Position of Everyday

32.         Everyday emphasises that the sum due on foot of the 2017 judgment is in excess of €2.6m.   On the other hand sums due on foot of the Circuit Court Terms of Settlement of 2018 as of March 2023 were in excess of €2.9m.  With regard to the 2018 Terms of Settlement it contends that Mr. Sheedy freely agreed to pay interest.  He was fully independently legally advised and elected to enter into and execute same and it does not  operate unfairly against him.  It is contended that merely because a sum in excess of that specified in the 2017 judgment was recoverable under clause 2 of the 2018 agreement does not in any sense undermine the validity or enforceability of the 2017 judgment. 

33.         Everyday argues that the settlement set out clearly the steps intended to be taken by the parties.  There was no mention whatsoever of a setting aside of the judgment as part of the compromise.  Nothing in the compromise suggests or indicates an intention or agreement to extinguish the judgment one would expect such a fundamental term to be set out explicitly.  Further there are agreements on the part of the appellant to pay costs of the High Court proceedings which had resulted in the 2017 order being obtained and the appellant agreed to withdraw his appeal against the validity of the 2017 order rather than merely agree to strike out his appeal and further had agreed to pay costs in respect of the said appeal.  All these are material factors Everyday contended in pointing towards the continuing enforceability and operation of the 2017 judgment. 

Analysis

The ambit of the Circuit Court Settlement Agreement of 2nd October 2018

34.         The ambit of the terms of the settlement agreement (paras. 7 and 8 above) must be considered in accordance with the ordinary rules of construction of contractual agreements.  An objective approach requires this court to look at the language of the entire agreement for the purposes of endeavouring to ascertain what reasonable persons possessed of all the relevant material facts which would reasonably have been available and known to the parties at the time they entered into this agreement on 2nd October 2018 would have understood its clauses to have meant.  It is appropriate to have regard to all the relevant surrounding circumstances.  Should there be two equally possible conflicting constructions then, generally, the court is entitled to prefer the construction which is consistent with business common sense. The latter point was not argued, however.

35.         As was emphasised by the Supreme Court in Marlan Homes Limited v. Walsh [2012] IESC 23, regard must be had to the primacy of the words used by the parties in their agreement. As the jurisprudence makes clear the primary task is to ascertain what the parties meant by what they set forth in writing.  It is self-evident from the terms of the settlement agreement that it was concluded against a backdrop where AIB had by the High Court Order of 30 June 2017 after a contested hearing obtained a decree against Mr. Sheedy for the sum of €2,601,519.20 "inclusive of interest".  Same remained unsatisfied.

36.          AIB's Circuit Court proceedings sought possession of  Mr. Sheedy's  properties in Folios  58606F, and 11621, Co. Tipperary, over which AIB  had registered charges on 12 March 2012.  The proceedings were listed for hearing at Clonmel Circuit Court on 2nd October 2018 and were compromised.    Mr Sheedy consented to AIB obtaining an order for possession  in respect of the lands in the two Folios.

37.         The Terms of Settlement  self-evidently primarily intended to encompass a compromise of the Circuit Court possession proceedings 2016/00441. They were received by the Circuit Court judge and apart from the possession order made the remainder was made a rule of court insofar as the Terms of Settlement  document was within the proceedings  and where outside the pleadings the court directed that same be filed in court.

38.         At Clause 1 of the Terms of Settlement the parties agree to a stay on the said order for a period of eighteen months provided certain matters are addressed including the placing of the properties on the market  for sale "with joint auctioneers".  Logically, the  making of the order for possession along with the stay is  only consistent only with the High Court Decree of 30th June 2017 being acknowledged by both parties  as enforceable. This is reinforced by the fact that the Folios over which the orders for possession are made are both subject to the registered charge and self-evidently are to be sold out of court.

39.         Clause 2 is inelegantly worded but in the overall context it is clear what it seeks to achieve: Mr Sheedy agreed to discharge "all sums due"  to AIB "within a period of 18 months". The relevant accounts are clearly identified. A great deal is made by the appellant of the fact that the sum stated to be due in Clause 2 as of 18th October 2018 is expressed as "€2,776,427.87".  Mr. Sheedy is quite correct that same is a higher sum than that specified in the Order of  30th June 2017  which was "€2,601,519.20 inclusive of interest".  However, there is an explanation of sorts for the discrepancies insofar as Clause 2 provided that as part of the Settlement "as and of 1st October 2018" "continuing interest at current bank rates currently1.635% and 2% respectively" was payable on the separate sums due.

The respondent through its counsel indicated to the court at the hearing of this appeal that  interest was not being pursued by the respondent in the context of this Appeal. The issue may fall to be determined at a later date in the High Court. Thus, the only sum being sought at this time in the context of this application is €2,601,519.20.

40.          Nothing in clause 2 nor any reasonable construction of its language supports the  appellant's contention that the parties intended to  substitute Clause 2 for the High Court Order of 30 June 2017 or thereby to set aside that Order. When the other terms of agreement are considered alongside Clause 2, nothing in the overall  scheme of the agreement supports the appellant's assertion that the parties contemplated that the judgment of 30th June 2017 would be set aside. Rather the entire arrangement is primarily directed towards the orderly and managed realisation of the secured assets on foot of which  security the monies were advanced in the first instance and were the subject of registered charges.  It was a rational and logical step that the sale of the secured property would take place for the purposes of discharging the indebtedness of the appellant.

41.         The terms of settlement in their totality represent a composite arrangement between the parties. The benefits accruing to the appellant included obtaining an eighteen months stay in respect of the order for possession together with his entitlement to have joint auctioneers market the property and a window of six months for preparing the property to be put to auction. Such terms were of themselves inconsistent with the rights of AIB  or any valid assignee. Construction of its terms involves of the objective test as outlined in Danske Bank A/S v. Hegarty [2012] IESC 30 at para. 7.7 where Clarke J. observed:

"It is well established in law that the subjective views of the parties to a written agreement are not properly taken into account in its interpretation. This principle applies equally to settlements. ....When parties choose to reduce their settlement agreement to a written form then both sides are kept to that written form. ...It is for the court to interpret the settlement objectively in accordance with its terms but in context."

42.         The manner in which the 2019 Terms of Settlement deal with the pending appeal before this Court is inconsistent with the appellant's arguments in two distinct ways. Firstly, his pending appeal  Record No. 2017/000369 against the Order of the High Court of 30th June 2017 was agreed to be "struck out forthwith and no further action taken therein" represents an unequivocal abandonment by the appellant of the appeal. This leaves the High Court judgment and order in full force and effect. Secondly, at Clause 3 the appellant agrees to pay the Costs not alone of the Circuit Court possession proceedings but also the costs of the High Court proceedings Record No. 2015/519S in which the order for summary judgment was granted on 30 June 2017 and in addition the costs of AIB  in respect of the withdrawn appeal therefrom Record No. 2017/00369. His agreeing to discharge all the said costs of AIB is fundamentally inconsistent with the Appellant's contention that the June 2017 Order had in effect ceased to be operative and had been effectively set aside and substituted by virtue of Clause 2 of the Terms of Settlement.

43.         This court has jurisdiction pursuant to O.86A,r.2(1)(a) to make orders which the High Court may make, inter alia, pursuant to O.17, r. 4 RSC. The proper approach to such an application was considered in Pepper Finance Corporation (Ireland) DAC v. Beades [2021] IECA 39  where it was observed;

23. Order 17, r. 4 provides: -

"Where by reason of death, or any other event occurring after the commencement of a cause or matter and causing a change or transmission of interest or liability...it becomes necessary or desirable that any person not already a party should be made a party...an order that the proceedings shall be carried on between the continuing parties, and such new party...may be obtained ex parte on application to the Court upon an allegation of such change, or transmission of interest or liability...having come into existence."

 

44.         In Pepper v. Beades the application was limited to seeking that Pepper be joined as co-respondent along with the original Plaintiff, Beltany.  The judgment notes;

24...The particular focus of O. 17, r. 4 is procedural. It is available in circumstances where a change of party or parties is warranted by reason of, inter alia, a transmission of interest. The language of the rule makes clear that the court has jurisdiction to make an order ex parte "on application to the Court upon an allegation of such change, or transmission of interest..."

 

25. It is well settled in this jurisdiction that the assignment of a loan or the mortgagee's interest under an indenture of mortgage instrument or the registration of a party as successor in title to a charge holder in Part 3 of a folio constitutes an "event occurring after the commencement of a cause or matter causing a change or transmission of interest" for the purposes of O. 17, r. 4. As the authors of Delany and McGrath on Civil Procedure (4th ed., Round Hall, 2018) note at para. 6-111:-

"...the assignment of a loan or chose in action is an 'event' within the meaning of O. 17, r. 4. This was the view of Peart J. in Irish Bank Resolution Corporation v. O'Driscoll [(Unreported, High Court, Peart J., 6 February 2015)], who commented that '[t]he event is clearly the purchase by it of the loan book referred to' [para. 9 of judgment]."

Concerning the decision in Comer this court noted:

26. In Irish Bank Resolution Corporation v. Comer [2014] IEHC 671 Kelly J. (as he then was), in dealing with an application under O. 15 for an order substituting one entity for another as plaintiff in proceedings, observed at para. 38 that such an application could also have been brought pursuant to O. 17, r. 4 although the said rule:-

"...does not mention substitution. It does contemplate the application being made ex parte. This demonstrates, it seems to me, the form of proof which is required, namely prima facie evidence which will justify the court in making the order sought." [para.38 of judgment]

Kelly J. was satisfied to make the order in question notwithstanding that certain key documents and exhibits had been redacted "without any explanation being given as to why that editing took place". He observed that he was "unable to discern any disadvantage which flows to the defendant as a result of the order which I propose to make." [para.41 of judgment]

Kelly J. in Comer considered the onus of proof, at para. 43:-

"In my view, the onus of proof on a procedural motion of this sort is very different to the onus of proof which is required at the trial. I do not believe that it would be either appropriate or indeed in the interests of justice that on a procedural motion of this sort, far reaching decisions concerning the efficacy and validity of the underlying sale agreement or the assignment of a notice of that assignment should be made.

44.That would turn a procedural motion which, even under the rules is contemplated as one which can be made ex parte, into a sort of mini-trial of the action. That is not what is envisaged by the rules of court..."

The Court of Appeal in Pepper v Beades noted:

"26. A provision broadly equivalent to O. 17, r. 4 has existed in the rules of court for in excess of 150 years. The purely procedural nature of such an application was repeatedly reiterated in the jurisprudence including Long v. Crossley (1879) 13 Ch D 388 where Fry J. observed at p. 391:-

"It is said by Mr. North that, if they are added as co-Plaintiffs, the action must still fail. I think that at present I have nothing to do with that. The object of the provisions of the rules was, not that a party's case should be so framed as to succeed, but that it should be so framed that it can be adjudicated upon by the Court, whether in his favour or against him. I therefore allow an amendment by adding the proposed co-Plaintiffs..."

The key question identified traditionally was whether the presence of the applicant seeking joinder was warranted or necessary in order to enable the court to effectually and completely adjudicate upon and settle the issues in the case. If it appeared to the court that it was the order that ought to be made, the judgment of Fry J. made clear that the court should decline to enter into an assessment of the ultimate merits of an action or whether the proposed party is likely to succeed."

The Court of Appeal in Pepper v Beades further observed :

28. In Irish Bank Resolution Corporation Ltd. v. Morrissey [2014] IEHC 527, [2014] 2 I.R. 399 Finlay Geoghegan J. considered an application "brought and pursued primarily pursuant to O. 15, rr. 13, 14 and 15". However she noted that the applicants also relied on O. 17, r. 4. She expressed a view that an applicant ought to adduce sufficient prima facie evidence but leave over to the trial the question of whether there was adequate evidence to enable the substituted plaintiff to obtain the reliefs sought in the proceedings.

29. I am satisfied that in cases where no final order has been made a judge is entitled to accede to an application pursuant to O. 17, r. 4 provided a prima facie basis for the application is identified. In circumstances where an order has already been made that in itself is final a modified approach is warranted as outlined below.

45.         The  High Court Order of 30th June 2017 was formally proven and remain unsatisfied.  The consent possession order made in the Circuit Court on 2nd October 2018 was formally proven and is final and conclusive. Since the application pursuant to O17, r.4  is made post-judgment it being an order which is not self-executing  and which requires a further action by way of enforcement process and in particular, inter alia, an order for leave to execute pursuant to O. 42, r. 24(a) , the court is entitled to have regard to the nature of the order in question and relevant features. The approach was explained in the judgment of this court in Pepper v Beades (Whelan J.) at para 30 - 35, upholding Peart J. in Bank of Scotland plc v. McDermott  [2019] IECA142 was followed where he had observed;

"37. Where, as in the present case a substitution application is made after judgment has been granted, and where therefore there is no opportunity at trial to raise any issues in relation to the proofs adduced in support of the application, it seems to me that the prima facie test referred to by Kelly J. in IBRC v. Comer is not the correct test. In such cases the correct test is that applicable in civil proceedings generally, namely on the balance of probabilities. ...But such applications remain purely procedural in nature, and there can be no question of such an application becoming in the nature of a mini-trial."

38. In the present case the appellant was correctly put on notice of the application and therefore was given the opportunity to raise such issues as he wished to raise, and he did so by raising the question of whether Ennis had established to the required level of proof that the appellant's loans were included in the purchase deed referred to. That argument was put forward. On the evidence adduced by Ennis it was, in my view, beyond any doubt that the appellant's loans were assigned as sworn to by Mr O'Sullivan, and certainly met the test of the balance of probabilities."

44.       In conclusion , as was decided in Pepper v Beades (ante) in determining whether, on the balance of probabilities, it is necessary or desirable that a plaintiff be joined in proceedings where a mortgagee has already obtained an order for possession and prior to an order granting leave to issue execution pursuant to O. 42, r. 24 being made, regard can appropriately be had to the nature of such proceedings and the fact that such an order for possession is not self-effectuating in the context of the exercise of rights by a mortgagee and/or its successor in title but requires a further application to court for an order pursuant to O.42,r.24 granting leave to issue execution. It necessarily follows until the process pursuant to O. 42, r. 24 has concluded the proceedings have not terminated.  The rights of the mortgagee do not rest solely on the order for possession and decree which are of limited value without a concomitant right to enforce same by means of realisation of the secured property in the two Tipperary Folios. The appellant remains entitled to raise any relevant issue as to the entitlement of Everyday to orders pursuant to O.42, r.24 when that application comes to hearing. Such objections are premature in the context of this application as it was pursued by the respondent. Execution now sought is solely in respect of the sum specified in the 2017 High Court Order only.

Dispute as to Interest being claimed - Terms of Settlement

46.         Everyday has acknowledged that in respect of other interest claimed whether on foot of the Circuit Court Terms of Settlement clause 2 or otherwise same were distinct issues of contract and it would be open to Everyday in the future to institute proceedings if it saw fit for the recovery of same.  Therefore, this judgment does not require to engage further with any issue concerning interest. Everyday acknowledged that in respect of other interest claimed whether on foot of the Circuit Court Terms of Settlement clause 2 or otherwise same were distinct issues of contract and it would be open to Everyday in the future to institute proceedings if it saw fit for the recovery of same.

47.         As a matter of law, when a judgment is obtained and entered for a principal sum due, as occurred here on 30th June 2018, the loan contract merges in the judgment and the principal becomes owed under the judgment and not under the loan contract. The general rule is that if pursuant to the loan contract interest is due on the principal sum, in the words of  Fisher & Lightwood's Law of Mortgage , 15th Ed. ,7.13 "... generally the contractual interest provision is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest also merges in the judgment."  The respondent's concession means that it is unnecessary to engage further with any issue concerning contractual interest.

48.         It is significant that the Terms of Settlement disposed of Appeal no. 2017/000369 then pending whereby the appellant had appealed against the High Court order of 30th June 2017. Mr Sheedy consented that "the Court of Appeal proceedings bearing the record no. ...369 be discharged by the defendant." Clause 5 provided that the Court of Appeal proceedings "be struck out forthwith and no further action be taken therein."  This encompassed the complete abandonment by the appellant of his pending Appeal before the Court of Appeal. It logically follows that the necessary inference was that the appellant acknowledged the validity of the summary judgment of 30th June 2017.  Clauses 3 and 5  of the Terms of Settlement taken together amount to an acknowledgment of the validity of the order of 30th June 2017 and an acknowledgment that the appeal was not maintainable and was to be struck out with an order for costs against the appellant in respect of the Circuit Court, High Court and Court of Appeal proceedings leaving the summary judgment standing. 

49.         That the parties  entered into an agreement in 2019 whereby interest would be charged on a certain basis on the loan sums as specified in Clause 2 does not support a proposition that the Settlement Agreement of 2nd October 2018 didn't incorporate the debt of Mr. Sheedy and the cause of action derived from the 2015 proceedings relating to same upon which judgment had been entered in the High Court on 30th June 2017 in the sum of €2,601,519.20 in favour of AIB.  In the context of this application, there is force in the respondent's position that what was required to be established by Everyday was that there had been a change in the party entitled to execution of the said judgment.  Same has been established. It is also generally correct to assert that an application for leave to issue execution is purely procedural and brought for the purposes of substituting a judgment creditor without investigating the underlying judgment itself. 

50.         Nowhere in the Terms of Settlement of 2nd October 2018 does it specify that it is in full and final settlement of all matters including the summary judgment of 30th June 2017. The treatment of costs alone points strongly to the conclusion that the Order of 30th June 2017 was intended to stand. Given its fundamental nature one would expect the parties to explicitly say so if the summary order was not to be enforceable.  Nothing on the face of the Settlement document cast doubt its continued existence and enforceability. 

51.         The primary focus of the compromise was towards the realisation of the security including two folios of 5,000 acres of land in South Tipperary for the purposes of discharging the debt.  There is nothing on the face of the agreement which could safely be considered supportive of a proposition that it was in the contemplation of the parties to thereby supersede or supplant the summary judgment and decree obtained June 2017 with the terms of the Circuit Court compromise.   The possession order made and the terms of settlement setting out the modalities for the realisation of the security by a managed sale process are directed towards the realisation of security to enable the timely satisfaction of the debt and for none of the purposes being posited on behalf of the appellant.

52.         The bank has acknowledged that the intended execution will be confined to the decree of 30th June 2017 and not to the Terms of Settlement (Clause 2) insofar as interest is concerned.  It will be a matter for Everyday thereafter to assess what steps, if any, it may elect to take in respect of enforcement of clause 2 of the Terms of Settlement. Those terms do not undermine the continuing operation and validity of the earlier judgment.  The practical consequence of the Terms of Settlement was to progress enforceability of the judgment and the order for possession was a significant step in that regard.   Everyday intends to move to execute once a substitution order is place up for the sum in the 2017 judgment of €2,601,519.20. The settlement agreement has not displaced the 2017 judgment and the rights on foot judgment are vested in Everyday.

53.         Merely because AIB secured a more generous term in respect of interest than provided for under the 2017 High Court Order is not inconsistent with the continuing enforceability and validity of the 2017 judgment.  The agreement in its totality sets out the modalities for the realisation of the underlying security on foot of which the monies due under the judgment would be repaid. Both sides were fully independently legally advised in relation to the transaction.

54.           The appellant's contention that a situation arises "whereby Everyday are seeking for the appellant to owe the sum of almost €3m to AIB under the settlement agreement and owe the same sum to Everyday under the judgment, there will effect be two causes of action potentially against the plaintiff for the same debt. (sic)... this is an untenable position to maintain" is fanciful and flies in the face of the clear sequence of events established by the evidence and the objective conclusion achieved by the parties when they executed the settlement agreement at Clonmel Circuit Court on 2nd October 2018. 

55.          To make the orders sought the High Court did not have to reach final or indeed any conclusions with regard to the enforceability of interest rights pursuant to the 2018 settlement agreement.  As counsel for Everyday fairly and quite properly acknowledged such would have to be the subject of other litigation and is not of immediate concern to the court in this application.  The assertion at para. 40 of his submissions on behalf of the appellant that "the settlement agreement compromised the dispute between AIB and the appellant and any enforcement of same must be taken in relation to the settlement agreement and not the judgment"  is plainly incorrect.  It is contrary to authority.  The argument advanced that the Settlement Agreement effected a conversion of the judgment thereby extinguishing its enforceability is entirely without merit.

56.         The sums due on foot of the 2017 judgment remain unpaid. It is noteworthy that the said monies were advanced in excess of 20 years ago.  To contend, as the appellant does, that "the settlement agreement ended the purpose of the herein proceedings and no cause of action has survived" is unsound.  The Settlement Agreement is aligned with the 2017 judgment obtained and the Order for possession made on that date was a step towards realisation of the securities held in respect of the judgment debt.

Conclusions

57.          No basis has been identified whereby this Court might properly interfere with the findings and conclusions of the trial judge the subject matter of this appeal.  The contentions stem from a highly selective construction of the facts and is entirely contrary to the authorities.  I am satisfied accordingly that the High Court did not err in its determination that the settlement agreement of 2nd October 2018 did not incorporate the debt of Mr. Sheedy and the cause of action encompassed and derived from proceedings 2015/519/S including the judgment 30th June 2017. 

58.         It is not correct to assert that the High Court judge gave insufficient consideration to the facts.  The judgment is comprehensive and thorough and meticulously reasoned and supported by authority.  The appellant is plainly wrong in contending that the terms of the 2018 settlement are to be read as incorporating the 2017 judgment into the settlement agreement.  An objective assessment demonstrates that this was not the intention of the parties and it cannot reasonably be inferred that such was the case in light of the surrounding clauses including the appellant withdrawing his appeal against the validity of the 2017 judgment and agreeing to pay all costs against.  If the appellant's contentions were correct then one would logically expect that such a consequential step would be explicitly stated on the face of the agreement.  Nothing within the terms of the settlement agreement even remotely supports the appellant's contention.  All elements such as the withdrawing of the appeal and the agreement to pay all costs in the relevant proceedings including of the struck out appeal which had been brought against the said judgment point entirely in the opposite direction. 

59.         (1) With regard to ground 1, in conclusion the settlement agreement as the High Court judge correctly concluded did not extinguish any of the rights of AIB Plc under the 2017 Order made 30 June 2017s.  

(2)With regard to ground 2, as a matter of law in all the circumstances Barr J. was correct in concluding that a transmission of interest had occurred from AIB Plc to Everyday of the underlying loan the subject matter of the within High Court proceedings together with the judgment of 30th June 2017 obtained on foot of same in the within proceedings.  Although redacted the security instrument exhibited by affidavit is sufficient to satisfy the court for the purposes of the within application that the loan was validly transferred to Everyday.  The interest of AIB Plc in the 2017 judgment not having been transposed, diluted, merged or otherwise adversely dealt with including inter alia in the 2018 settlement agreement it continued in full force and effect  and the decision in IBRC v. Halpin [2014] IECA 3 is distinguishable insofar as  the application was brought  by Everyday after final orders were in place whereas in Halpin the application  pursuant to O.17 r. 4 was brought while an appeal was pending against the Orders for summary judgment given in the High Court. The decision in Halpin was also fact specific and involved the exercise by this Court  of its discretion to refuse the orders sought pursuant to O.17 r. 4 on a reasoned basis.

(3) Insofar as whether rights to claim interest on foot of the settlement agreement agreed to by the appellant for the benefit of AIB have come to vest in or be enforceable by Everyday does not arise in the within proceedings.  Counsel for Everyday acknowledged that the issue, should it ever hereafter arise, will have to be the subject matter of separate litigation. 

(4) There was ample evidence before the High Court to demonstrate that the underlying debt remained unpaid.

60.          The ground of appeal concerning hearsay was sensibly abandoned in the appeal it being acknowledged that the trial judge had appropriately dealt with the salient aspects of the issue in his judgment.

61.         Accordingly, I would dismiss this appeal on all grounds. 

Costs

62.          Since the respondent has been entirely successful in this appeal and having due regard to Order 99 of the Rules of the Superior Courts and the provisions of the Legal Services Regulation Act 2015, Section 169 it is the preliminary view of the court that the respondent is entitled to an order for the costs incurred by it in resisting the within appeal.  Should the appellant wish to contend for a different order he may do so by providing written submissions identifying the basis for his argument. Same should not exceed 1500 words and are to be filed within fourteen days from the date of delivery of this judgment.  In such event the respondent shall file any replying submission, not to exceed 1500 words within a further fourteen days.  The court will thereafter consider same and make its adjudication with respect to costs.

63.         As this judgment is being delivered electronically, Butler  and Meenan JJ. have authorised me to indicate their agreement with same.


Result:     Appeal dismissed.



[1] Folios 58606F and 11621 of the Register, Co. Tipperary

[2] 2015/519 P

[3] Appeal Record No. 2017/000369

[4] Folios 58606F and 11621 of the Register, Co. Tipperary

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