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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> FFrench -O'Carroll v Permanent TSB PLC (formerly known as Irish Life and Permanent PLC) & ors [2017] IEHC 851 (09 November 2017)
URL: http://www.bailii.org/ie/cases/IEHC/2017/2017_IEHC_851.html
Cite as: [2017] IEHC 851
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THE HIGH COURT
[2017] IEHC 851
[2016 No. 5892 P]
BETWEEN
ARTHUR FFRENCH-O’CARROLL
PLAINTIFF
AND
PERMANENT TSB PLC (FORMERLY KNOWN AS IRISH LIFE AND PERMANENT PLC),
KEITH LOWE, STEPHEN TENNANT, HAVBELL DAC AND TOM O’BRIEN
DEFENDANTS
EX TEMPORE JUDGMENT of Mr. Justice Tony O’Connor delivered on the 9th day of
November, 2017
Introduction
1. These proceedings came before me on 25th and 26th October, 2017, by way of a notice
of motion issued on 13th February, 2017, on behalf of the fourth and fifth named
defendants (“these defendants”) seeking specific interlocutory orders arising from their
counterclaim.
2. An order by consent was made on 26th October, 2017, changing the name of the fourth
named defendant.
3. Following the opening of the application Mr. Brady SC, for the plaintiff/respondent,
explained what he considers a killer point to the claim of these defendants to take
possession, lease and/or sell premises at the rear of 55 Fitzwilliam Square, previously
rented out to a restaurant (“the Fitzwilliam premises”). Mr. Brady prepared written legal
submissions overnight on 25th October, 2017, in reply to the submissions of Mr. Fanning
SC, for these defendants. This morning, Mr. Brady enlightened me further in relation to a
few authorities which he will rely upon at trial including those of Laffoy J. in EBS v.
Woodchester Home Loans Ltd v. Reade and Another (No 1) [2012] IEHC 363 (unreported,
22nd August, 2012).
4. Although it might comfort the plaintiff for this Court to give an initial view in support of
Mr. Brady’s strident position, it is clear that such a view cannot be definitive because:-
(a) This application only involves ascertaining whether there is a prima facie or
serious bona fide issue to be tried.
(b) Any view of the Court will be confined to a consideration of the alleged
demand letter of 2nd December, 2010, (nearly seven years ago) to the
plaintiff from the first named defendant in the proceedings. The Court should
not engage in delivering advice or judgments supportive of one side or
another in advance of a full trial. It only considers whether there is a fair
issue or serious issue to be tried. There are procedures for seeking an order
directing the trial of a preliminary issue of fact or law. The Court in making
this comment is not encouraging such an application but is merely explaining
why it should not take a view at this stage.
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(c) The issue, which Mr. Brady submits is clear-cut, has not been the subject of
an application to this Court for determination as between the plaintiff and the
first named defendant, who actually sent the letter.
5. Without dwelling much further on this aspect, I stress that there is little if any opposition
now by these defendants to the striking out of the applications for interlocutory orders set
out at paras. 2-6 inclusive of the notice of motion because they relate to the Fitzwilliam
premises. I arrive at this position in view of the following:-
(i) the contents of the letter from the solicitors for these defendants to the
plaintiff’s solicitors dated 8th November, 2017, as directed to be furnished by
my order made on 26th October, 2017;
(ii) the fact that the fifth named defendant (“the receiver”) has been and
remains in possession of the Fitzwilliam premises with no threat from the
plaintiff despite the claim which the plaintiff will make at a plenary hearing;
(iii) the welcome attitude of counsel for these defendants to the Court’s
suggestion that it need not embark on determining whether it has a view
which supports the submissions made by Mr. Brady on the law relating to the
letter of demand;
(iv) the undertaking given on behalf of these defendants, that neither of these
defendants will dispose, whether by sale or otherwise, of the Fitzwilliam
premises pending the determination of these proceedings.
Longwood Avenue
6. Again, the Court appreciates the candour of counsel that the receiver can be taken to be
lawfully appointed to these properties, at least for the purpose of this application. Certain
advices will be given to the plaintiff I am told following a consideration of a judgment
delivered by Baker J. notwithstanding the delivery of the amended statement of claim on
1st November, 2017, in accordance with my order of 26th October, 2017. The amended
statement of claim indicates that the validity of the appointment of the fifth named
defendant remains in issue.
Balance of convenience
7. The essential issue is the balance of convenience, whether one or other party will be able
to pay the other the damages which arise if they lose at the plenary trial. The
maintenance of the status quo is also relevant. The plaintiff, in accordance with my
order, swore an affidavit giving details about the tenancies and vacancies in the premises
on Longwood Avenue.
8. These defendants have given an undertaking to the Court to pay the plaintiff such
damages as may be assessed if required and no question arises about their ability to
discharge same. The plaintiff, on the other hand, admits to having recovered rent and
refers to maintenance and other costs. Although the plaintiff has had a business
relationship with the tenants and is familiar with the property, I agree with counsel for
these defendants that they will be obliged to perform their statutory and contractual
duties to maintain and look after the property whether through professional estate
management agents or whoever. It was agreed that whatever rents will be collected and
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received by the receiver will be placed in an account from which disbursements can be
made for maintenance. The plaintiff does not dispute his multimillion euro debt and does
not appear to be in a secure position to repay rents. It is a fair proposal for the receiver
to maintain and look after the Longwood Avenue property while collecting rents to be
placed in an account for ease of transparency. The Court, therefore, grants an
interlocutory injunction in the terms of paras. 2 and 3 of the notice of motion as set out in
the letter of 8th November, 2017, from the solicitors for these defendants confined to the
properties described in the second schedule to the amended statement of claim delivered
on 1st November, 2017.
Books and Records
9. The plaintiff has furnished an affidavit with exhibits in compliance with my earlier order
and rather than make a general order for records to be discovered, I encourage the
parties to limit the amount of discovery and work by the orders and directions which I will
make now in an effort to allocate a trial date in January or February 2018.
Terms of Order
10. The following are the proposed orders:-
(i) an order directing the plaintiff to deliver his reply and defence to the counterclaim
by 22nd November, 2017, and copy same to each of the solicitors on record for the
other defendants;
(ii) an order requiring the plaintiff to issue a motion returnable for 23rd November,
2017, and serve with at least five days’ clear notice seeking directions for:-
(a) the delivery of defences by the other defendants within a specific timeframe
or such time as this Court will direct on 23rd November, 2017;
(b) the delivery of replies to the defences to the amended statement of claim;
(c) the delivery of replies to any particulars or discovery requests which must be
sought by each and all of the plaintiff and the defendants by a date which I
will ascertain on 23rd November, 2017; and
(d) the exchange of estimates of legal fees and outlays which will be incurred by
the parties from 23rd November, 2017, to the end of a plenary trial.
11. This latter direction arises from my concern that the legal costs of so many parties at a
plenary hearing will be disproportionate to the claims for damages which will be pursued
ultimately. In this regard, I mentioned earlier the welcome candour of Mr. Brady
concerning the merit of relying on the claim in the amended statement of claim relating to
the Longwood Avenue property.
Postscript
12. On 18th December, 2018, Ní Raifeartaigh J. delivered judgment ([2018] IEHC 794) in
which she determined questions posed in a case stated concerning the entitlement to
appoint a receiver.
Result: Limited interlocutory injunction granted to counter claimants with directions for expedited hearing.