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Cite as: [2020] IEHC 155

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THE HIGH COURT

[2020] IEHC 155

[2017 No. 42 S.]

BETWEEN

ALLIED IRISH BANKS PLC

PLAINTIFF

AND

PADDY MCKEOWN AND ADELAIDE MCCARTHY

DEFENDANTS

JUDGMENT of Mr. Justice David Barniville delivered on the 1st day of April, 2020

Introduction

1. This is my judgment on an application made by Everyday Finance Designated Activity

Company (“Everyday”) by a notice of motion issued in the Court of Appeal on 9th

October, 2019, for an order substituting Everyday as plaintiff/respondent in the

proceedings in place of the existing plaintiff/respondent or, in the alternative, for an order

adding Everyday as a co-plaintiff/co-respondent. Everyday’s application was remitted by

the Court of Appeal to be determined by the High Court, in the circumstances explained

below.

2. Everyday’s application was opposed by the defendants, who are litigants in person, on a

number of grounds.

3. While Everyday’s application, as issued, sought to substitute Everyday as the

plaintiff/respondent in place of the existing plaintiff/respondent or, in the alternative, to

add Everyday as a co-plaintiff/co-respondent, it was indicated during the course of the

hearing of the application that, in light of developments which had occurred in the context

of the defendants’ appeal to the Court of Appeal and their subsequent application for

leave to appeal to the Supreme Court, Everyday was seeking the second of the

alternative orders sought, namely, an order that it be joined as a co-plaintiff/co-

respondent. Following that clarification, at the outset of the second day of the hearing of

the application (and following the delivery of the judgment of the Court of Appeal

dismissing the defendants’ substantive appeal), the defendants maintained their objection

to Everyday’s application.

4. Everyday’s application was brought pursuant to O. 15, r. 14 of the Rules of the Superior

Courts (“RSC”) (erroneously referred to in the notice of motion as O. 15, r. 4) and O. 17,

r. 4 (and pursuant to the relevant provisions of O. 86 and O. 86A, as the motion was first

issued before the Court of Appeal) or, in the alternative, under the inherent jurisdiction of

the court. As I indicate in the course of this judgment, the appropriate provision of the

RSC under which to consider Everyday’s application, is Order 17, rule 4.

5. For reasons which I explain in detail in this judgment, I have concluded that it is

appropriate to make an order adding Everyday as an additional plaintiff to the

proceedings. I have considered all of the objections raised by the defendants, insofar as I

could understand them, and have concluded that the defendants have not raised any

sustainable grounds of objection to Everyday’s application. In those circumstances, I will

make an order pursuant to O. 17, r. 4, adding Everyday as a plaintiff to the proceedings.

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Factual and Procedural Background

6. The plaintiff, which I will describe for convenience, and where appropriate, throughout

this judgment as “AIB”, commenced summary proceedings against the defendants on

12th January, 2017. The defendants have sought to raise an issue as to the description of

the plaintiff in the proceedings (Allied Irish Banks PLC), and have sought to argue that the

plaintiff as so described is a different entity to Allied Irish Banks, p.l.c. I will address the

defendants’ arguments in that regard in the course of this judgment. For present

purposes, I will adopt the neutral abbreviation of the plaintiff, namely, AIB. The

proceedings were entered in the Commercial List and AIB sought summary judgment

against the defendants. As against the first defendant, AIB sought judgment in the sum of

€1,429,166.22. As against the first and second defendants, judgment was sought on a

joint and several basis in the further separate sum of €40,548.60. Judgment was also

sought against the second defendant in the sum of €1,387,003.82 and in the further sum

of €40,000.00 on foot of guarantees given by her. Interest was also sought. AIB’s

application for summary judgment was heard by the High Court (Costello J.) on 27th

April, 2017. The Court reserved judgment on the application and delivered a detailed

reserved judgment on 12th May, 2017. Summary judgment was granted by the High

Court as follows. Judgment was granted against the first defendant in the sum of

€1,469,251.43. Judgment was granted against the second defendant in the sum of

€1,467,102.96. Costs were awarded against the defendants. The High Court refused to

grant a stay.

7. The defendants appealed to the Court of Appeal. Up to that point, the defendants were

represented by solicitors and counsel. The defendants applied in person to the Court of

Appeal for a stay. In an order made on 28th July, 2017, the President of the Court of

Appeal granted a stay on the execution of the High Court order pending the determination

of the appeal by the Court of Appeal.

8. On 2nd August, 2018, AIB (together with AIB Mortgage Bank and EBS Designated Activity

Company (“EBS”)) (as sellers) and Everyday (as buyer) executed an Irish law deed of

transfer (excluding property (the “deed of transfer”) assigning and transferring AIB’s

rights and interests in certain assets to Everyday. Among the assets which Everyday

maintains were assigned and transferred to it under the deed of transfer were the rights

and interests in the loans and security documents referable to the facilities provided by

AIB to the defendants, on foot of which AIB had obtained judgment in the High Court. I

stress that I am attempting to summarise very much in shorthand the effect of the deed

of transfer and will consider it further later in this judgment. A further deed was executed

by the same parties on 22nd October, 2018 (the “amendment deed”). Nothing turns on

the amended deed for the purposes of Everyday’s application.

9. On 8th August, 2018, AIB wrote a number of letters to the defendants informing them

that it had agreed to sell their loans and the guarantees which the second defendant had

provided to AIB to Everyday. These were the “goodbye letters”. On 14th August, 2019,

Everyday wrote to the defendants referring to the goodbye letters and informing the

defendants as to what was to happen in relation to the relevant facilities following the

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effective date of the transfer (2nd August, 2018). These were the “hello letters”. The

defendants have sought to raise certain issues in relation to the deed of transfer and the

goodbye letters and the hello letters and I will address those issues later in this judgment.

10. A date was ultimately fixed for the hearing of the defendants’ appeal in the Court of

Appeal on 18th October, 2019. On 9th October, 2019, Everyday made an ex parte

application to the Court of Appeal for leave to bring a motion seeking to be substituted as

a plaintiff/respondent in place of AIB or, alternatively, to be added as a co-plaintiff/co-

respondent. The Court of Appeal gave Everyday liberty to bring that motion, returnable

before the directions list sitting of the Court of Appeal on 11th October, 2019. The order

of the Court of Appeal of 9th October, 2019 is stated that the application was made by

counsel on behalf of Everyday, “a Non-Party” to the proceedings. Fitzgerald Solicitors

were referred to as “solicitors on behalf of the plaintiff” at the bottom of the order. The

defendants were referred to as the “defendants in person”. Byrne Wallace were referred

to as “solicitors on behalf of Everyday Finance DAC”. The motion issued on foot of that

order is the motion which is now the subject of this judgment. It was issued on 9th

October, 2019. However, in error, the motion stated that the application would be made

on behalf of the “plaintiff/respondent” and not on behalf of Everyday. Further, the motion

was signed by Byrne Wallace as “solicitors for the plaintiff/respondent” and not as

solicitors for Everyday. The defendants have taken issue with the validity of the motion in

circumstances where Byrne Wallace were described as solicitors for the

plaintiff/respondent when that was not in fact the case and Fitzgerald Solicitors remained

on record for the plaintiff/respondent, i.e. AIB, in the proceedings.

11. The motion was, in due course, adjourned to the hearing of the substantive appeal on

18th October, 2019. A number of affidavits were sworn on behalf of Everyday and on

behalf of the defendants in advance of that date. As appears from the order of the Court

of Appeal of 18th October, 2019, the Court was concerned as to its jurisdiction to hear the

motion as there would be no automatic right of appeal to the defendants should the

motion be granted. The Court, therefore, ordered that the motion be remitted to the High

Court for hearing. However, the substantive appeal proceeded that day. The Court of

Appeal reserved judgment. The Court of Appeal order of that date refers to the motion as

having been brought by the plaintiff rather than Everyday and refers to Byrne Wallace as

the “solicitors for the plaintiff”. This may well have been due to the errors contained in the

motion itself.

12. Having been remitted to the High Court, the motion was then listed before me as the

Judge of the Commercial List and was ultimately listed for hearing on 28th November,

2019. As it happens, the Court of Appeal announced that judgment on the substantive

appeal would be delivered at 2:00pm that day. In the circumstances, it was agreed that I

would commence hearing Everyday’s application but would not determine the application

until the judgment of the Court of Appeal could be considered by the parties and by me.

In the time allotted for the hearing of the application, counsel for Everyday had almost

concluded his submissions. The application was then adjourned to enable the parties to

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receive and consider the judgment of the Court of Appeal and the matter was listed for

mention to enable a date to be fixed to resume the hearing of the application.

13. The Court of Appeal dismissed the defendants’ appeal. In its conclusion, the Court held

that the defendants had sought to argue certain grounds that were not argued in the High

Court, or not included in the grounds of appeal. The Court noted that the defendants were

legally represented in the High Court and that no reason had been advanced as to why

these grounds were not so argued. The Court held that they were not properly before the

court and were, therefore, rejected. In relation to the grounds of appeal which were

properly before the Court, the court concluded that there was no error on fact or of law

on the part of the trial judge and that she had correctly applied well-established

jurisprudence. Accordingly, the defendants’ appeal was dismissed. The order of the Court

of Appeal dismissing the defendants’ appeal was perfected on 16th December, 2019.

14. Everyday’s application was listed to resume before me on 14th January, 2020. My

attention was drawn on that date to the judgment of the Court of Appeal and to the fact

that the defendants had made an application for leave to appeal to the Supreme Court

from the judgment and order of the Court of Appeal. The defendants’ application was

apparently made on 6th January, 2020. As of the date of the resumed hearing before me,

the respondent’s notice had not been filed with the Supreme Court and the Supreme

Court had not determined the defendants’ application for leave to appeal. In light of the

state of the proceedings, with a pending application for leave to appeal to the Supreme

Court, counsel for Everyday confirmed that it was seeking an order joining Everyday as an

additional plaintiff to the proceedings and not an order substituting it for AIB. The first

defendant then responded to Everyday’s application on his behalf and on behalf of the

second defendant. The defendants opposed the application on several grounds. Having

heard the first defendant’s submissions and the submissions and reply on behalf of

Everyday, I reserved judgment.

15. On 10th March, 2020, I was informed by counsel for Everyday, in the presence of the first

defendant, that the Supreme Court had recently given its determination refusing to grant

leave to appeal to the defendants. The first defendant was present on that occasion and

reminded the court that Everyday had confirmed on the previous occasion that it was

seeking an order that it be added as a plaintiff to the proceedings, rather than an order

that it be substituted for the existing plaintiff, AIB.

Everyday’s Application

16. I have explained earlier the circumstances in which Everyday came to issue its motion in

the Court of Appeal to be substituted as plaintiff/respondent in place of AIB or,

alternatively, to be added as a co-plaintiff/co-respondent with AIB and how that motion

came to be remitted by the Court of Appeal to be determined by the High Court. I should

now say something about the evidence provided to the court by Everyday in support of its

application and by the first defendant, on his own behalf and on behalf of the second

defendant, in response to that application.

The Judgment of Costello J.

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17. Before doing so, I should draw attention to the findings of fact made by Costello J. in the

judgment she delivered in the High Court on 12th May, 2017 on AIB’s application for

summary judgment. At the outset of her judgment (at para. 2), Costello J. described the

plaintiff (“Allied Irish Banks PLC”) as a “body corporate… [which]… at all material times

carries on the business of a bank within the State and has its registered office at Bank

Centre, Ballsbridge, Dublin 4”. She described the defendants and the business carried on

by them. Costello J. then referred to the relevant facilities (at para. 3), commencing with

the loan offer dated 20th May, 2013, by which the plaintiff offered to refinance three

facilities which the first defendant had with the plaintiff. She noted that the letter referred

to three facilities, namely, loan account numbers 934054-28910235 (“facility 1”),

934054-28910318 (“facility 2”) and 934054-28910581 (“facility 3”). Costello J. noted that

the plaintiff had offered those facilities subject to the terms and conditions set out in the

letter and “subject to the Bank’s General Terms and Conditions Governing Business

Lending”. She noted that in each case, repayment was:-

“On demand at the pleasure of the Bank, subject to repayment/refinance on

31/12/2013. In the interim, interest is to be funded by way of a monthly standing

order…”

Security for the facilities included two letters of guarantee from the second defendant in

the amount of €1,650,000.00 and interest and €40,000.00 and interest. The first

guarantee (“guarantee 1”) was held by way of security in respect of facility 1 and facility

2 and the second guarantee (“guarantee 2”) was in respect of security for facility 3 (see

para. 3 of the judgment). Costello J. held that the funds were drawn down by way of

refinancing, in the sense that they had previously been drawn down in respect of existing

facilities. She noted that it was “common case that the facilities were not repaid or

refinanced and [that] each of the loan accounts remains outstanding” (para. 4). That

remains the case.

18. Costello J. then referred to a further letter of sanction, also dated 20th May, 2013, which

was to refinance loan account number 934054-27044366 in the amount of €39,476.00

(“facility 4”), together with an overdraft facility of €10,000.00. She held that that facility

was repayable on demand at the pleasure of the plaintiff and pending

repayment/refinance on 31st December, 2013, with interest being funded by way of a

monthly standing order. She further held that the defendants were jointly and severally

liable for the liabilities incurred under facility 4 and that the funds had already been

advanced on foot of an earlier facility. She held that the facilities were not repaid or

refinanced and that the loan remained in arrears (para. 5).

19. Costello J. then referred to the two guarantees given by the second defendant to the

plaintiff. The first was dated 2nd March, 2009 (i.e. “guarantee 1”), under which the

second defendant agreed to guarantee the sums due to the plaintiff by the first defendant

up to an amount not exceeding €1,650,000.00 together with interest. The Court found

that the second defendant had agreed to guarantee 1 in writing on 2nd March, 2009. The

Court then referred to a second guarantee in identical terms given by the second

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defendant to the plaintiff on 1st December, 2009 (i.e. “guarantee 2”), under which the

second defendant guaranteed the liabilities of the first defendant to the plaintiff up to a

total amount not exceeding €40,000.00 together with interest (paras. 6 and 7).

20. At para. 8 of her judgment, Costello J. noted that:-

(1) The defendants did not deny that they entered into the May, 2013 facilities;

(2) The defendants accepted that funds were drawn down, in the sense that the

facilities were by way of a refinancing of existing facilities;

(3) The defendants accepted that the facilities were temporary and expired on 31st

December, 2013; and

(4) The defendants accepted that the monies had not been repaid.

21. Costello J. then considered the various defences put forward on behalf of the defendants

in response to the plaintiff’s application for summary judgment. She found that the

defendants did not have a real or bona fide defence to the application for summary

judgment. As outlined earlier, Costello J. granted judgment on the terms which were set

out in the order made on 12th May, 2017. The Court of Appeal dismissed the defendants’

appeal from the judgment and order of Costello J., and the Supreme Court refused to

grant the defendants leave to appeal from the judgment and order of the Court of Appeal.

Accordingly, the findings made by Costello J. in the High Court are now unimpeachable by

the defendants. Those findings are of importance when it comes to consider the evidence

put before the court for the purposes of Everyday’s application.

The Affidavit Evidence before the Court

22. Everyday’s application was grounded on an affidavit sworn by Andrew McCudden on 8th

October, 2019. Mr. McCudden is Head of Compliance in Everyday. Mr. McCudden swore

further affidavits for the purposes of Everyday’s application on 17th October, 2019 and

20th November, 2019. Affidavits were also sworn in support of Everyday’s application on

10th October, 2018 and 17th October, 2019 by Robert Nash, a solicitor in Byrne Wallace,

the solicitors acting for Everyday in its application. The first defendant, Paddy McKeown,

swore three affidavits in response to Everyday’s application, on 11th October, 2019, 11th

November, 2019 and 22nd November, 2019.

23. I should make clear that in considering Everyday’s application, and the defendants’

opposition to that application, I have considered all of the affidavits and material put

before the court. I have carefully considered all of the arguments advanced by Everyday

in support of its application and all of the objections raised by the defendants in response

to the application (so far as I could understand them). I have attempted to deal in this

judgment with what appeared to me to be the principal grounds of opposition.

24. In his first affidavit, Mr. McCudden outlined the four facilities made available by AIB to the

first defendant and to both defendants on foot of the letters of sanction dated 20th May,

2013. He exhibited partial copies of the letters of sanction to his supplemental affidavit of

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17th October, 2019 (which I will refer to as his “second affidavit”). Complete copies of the

letters of sanction were exhibited to his supplemental affidavit of 20th November, 2019

(which I will refer to as his “third affidavit”). He exhibited a copy of AIB’s “General Terms

and Conditions Governing Business Lending” (March, 2013) (“AIB’s general terms”) to his

second affidavit. Mr. McCudden also exhibited to that affidavit, a copy of the guarantees

given by the second defendant in favour of AIB dated 2nd March, 2009 and 1st

December, 2009.

25. Mr. McCudden referred in his first affidavit to the judgment delivered by Costello J. on

12th May, 2017 and to the order made on foot of that judgment. He then referred to the

deed of transfer and to the amendment deed under which AIB, AIB Mortgage Bank and

EBS (inter alia) assigned and transferred to Everyday their rights and interests in (inter

alia) the facilities provided to the defendants and the guarantees and other security

documents provided in respect of those facilities. A redacted copy of the deed of transfer

and of the amended deed was exhibited to that affidavit (Exhibit “AMcC1”). Mr. McCudden

explained the reasons for the redactions to both deeds. The reasons advanced were

threefold. The first reason given was commercial sensitivity (and an explanation was

given for that). The second reason was bank/client confidentiality and restrictions under

the Data Protection legislation. The third reason was on the basis of irrelevance.

26. Mr. McCudden exhibited the goodbye letters from AIB and the hello letters from Everyday

(at Exhibits “AMcC2” and “AMcC3”). Having done so, he sought an order substituting

Everyday as the plaintiff/respondent to the proceedings and the appeal then pending

before the Court of Appeal. The motion issued on behalf of Everyday sought a substitution

order or, in the alternative, an order adding Everyday as a co-plaintiff/co-respondent.

27. Mr. Nash of Byrne Wallace swore an affidavit on behalf of Everyday on 10th October,

2019 in relation to the circumstances in which the motion was issued in the Court of

Appeal and notified to the defendants.

28. The first defendant, Mr. McKeown, swore his first replying affidavit on 11th October, 2019

(and I will refer to that as his “first affidavit”). He set out various grounds on which the

defendants were objecting to Everyday’s application. Among the grounds raised by Mr.

McKeown were the following: First, there was no consent from AIB, the

plaintiff/respondent, and no consent from the entity which entered into the deed of

transfer, which Mr. McKeown contended was a separate entity to the plaintiff/respondent

in the proceedings. Second, Mr. McKeown contended that it was not open to the

plaintiff/respondent to assign the benefit of the judgment and order made by Costello J.,

in circumstances where the judgment and order provided for the payment of costs and

that issue was (and remains) before the Taxing Master (or his successor under the Legal

Services Regulation Act, 2015). Third, Mr. McKeown contended that the

plaintiff/respondent had proceeded to register a judgment mortgage over two properties

and, in doing so, made a claim to securities far in excess of their entitlements and that it

was not open to Everyday to seek to benefit from that. Fourth, Mr. McKeown took issue

with aspects of the deed of transfer and with the redactions made to that document. Fifth,

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Mr. McKeown contended that the letter of sanction did not permit the transfer (or

assignment) of the benefit of the facilities to Everyday. Nor, he contended, did the AIB

general terms. Sixth, Mr. McKeown contested Everyday’s entitlement to rely on securities

held by the plaintiff and relied on the judgment of the High Court (Abbott J.) in Re a

Reference to Court under Section 19(2) of the Registration of Title Act, 1964 and in the

Matter of an Application by Allied Irish Banks PLC and Allied Irish Mortgage Bank

[2006] IEHC 463 (the “Abbott judgment”). Seventh, Mr. McKeown contended that there was no

“explicit notice of transfer” in respect of an alleged transfer between Allied Irish Banks,

p.l.c. and Allied Irish Banks PLC contrary to s. 28(6) of the Supreme Court of Judicature

(Ire) Act, 1877 (the “1877 Act”) so as to effect a legal transfer as between those allegedly

different entities, such that the plaintiff/respondent could have “no legal, lawful or

contractual underlying cause of action”. Finally, Mr. McKeown requested the court to

refuse the motion and to protect the defendants’ constitutional rights to private property

and “private income”.

29. Mr. McKeown exhibited various documents in support of the contentions advanced on

behalf of the defendants in his first affidavit, including a copy of an appearance entered

by “Fitzgerald Legal & Advisory” as solicitors for various defendants in plenary

proceedings commenced against them by the defendants (Record No. 2019/6902 P); an

extract from the special endorsement of claim to the summary summons issued by AIB

against the defendants; and documents in respect of the registration by AIB of the

judgment against the defendants as a judgment mortgage on folio CK19666L.

30. Mr. McCudden replied to that affidavit by way of his second affidavit. He took issue with a

number of the contentions advanced on behalf of the defendants by Mr. McKeown in his

first affidavit and exhibited the further documents referred to earlier.

31. A supplemental affidavit was sworn on behalf of Everyday by Mr. Nash on 14th

November, 2019. In that affidavit, Mr. Nash exhibited a document dated 17th October,

2019 which purported to provide AIB’s consent to Everyday’s application.

32. Mr. McKeown swore a supplemental replying affidavit on 11th November, 2019 (which I

will refer to as his “second affidavit”). As well as reiterating most of the grounds of

objection set out in his first affidavit, Mr. McKeown advanced some additional grounds of

objection in his second affidavit. So far as I can understand from his affidavit, the

additional grounds of objection were as follows.

33. First, Mr. McKeown contended that the notice of motion issued by Byrne Wallace on behalf

of Everyday was defective, as Byrne Wallace were not the solicitors on record for the

plaintiff/respondent in the proceedings. Mr. McKeown contended that the motion should

be struck out as it had been brought in breach of the provisions of O. 7 RSC. He disputed

the assertion made in correspondence by Byrne Wallace that it had been acting as agents

for the solicitors on record for the plaintiff/respondent, “Fitzgerald Solicitors”.

34. Second, Mr. McKeown reiterated his contention that no consent had been provided by the

plaintiff/respondent in the case or by the alleged separate entity, Allied Irish Banks, p.l.c.

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Mr. McKeown then made a number of points in relation to the terms of the “goodbye

letters” and the “hello letters” and in relation to the deed of transfer and AIB’s general

terms. These points were made both in an attempt to demonstrate that different AIB

entities existed and that no consent was evident from any of them, as well as to support

the contention that there was no entitlement under the AIB general terms to assign or

transfer any charges to Everyday, notwithstanding the terms of the deed of transfer.

35. Third, Mr. McKeown criticised the document put forward by Mr. Nash on behalf of

Everyday as representing the consent of the plaintiff/respondent to Everyday’s application

on various grounds.

36. Fourth, Mr. McKeown disputed the suggestion that the defendants had not made the case

in the High Court in the summary summons proceedings as to the alleged difference

between the entity referred to as the plaintiff in the title to the proceedings (Allied Irish

Banks PLC) and the alleged separate entity (Allied Irish Banks, p.l.c.). He referred to

para. 15 of the supplemental affidavit he had sworn in those proceedings on 21st April,

2017, which he claimed was opened by counsel for the plaintiff/respondent to Costello J.

37. Fifth, Mr. McKeown raised the possibility that a novation may have occurred in respect of

the defendants’ facilities and that required the defendants’ consent. He referred to and

exhibited a document obtained by the defendants from Deutsche Bank AG (London

Branch) (“Deutsche Bank”) which referred to an agreement between “Allied Irish Banks

Plc” and Deutsche Bank “in relation to the securitisation of loans including yours” and

which provided certain personal data which Deutsche Bank had located on its systems in

relation to the defendants. The document referred to both defendants and provided

personal data in relation to them. It does not, however, refer to any particular loans or

transactions. Mr. McKeown contended that this document amounted to proof of a

novation which required the defendants’ consent, which had not been sought or provided.

He contended that as a result “the underlying contractual agreements” were “null and

void”.

38. Sixth, Mr. McKeown contended that by reason of its alleged status, Everyday could not

purchase commercial loans under its licence from the Central Bank of Ireland.

39. Seventh, Mr. McKeown reiterated the defendants’ reliance upon s. 28(6) of the 1877 Act,

which he contended was fatal to Everyday’s application.

40. Mr. McCudden replied by way of a supplemental affidavit sworn on 20th November, 2019

(which I will refer to as his “third affidavit”). In summary, among the points made by Mr.

McCudden in his third affidavit were the following.

41. First, Mr. McCudden explained the circumstances in which the notice of motion issued on

behalf of Everyday and stated that Byrne Wallace were the solicitors for the

plaintiff/respondent. He stated that that was a typographical error and the motion should

have referred to Byrne Wallace as “solicitors for the intended plaintiff/respondent”. He

referred to correspondence sent by Byrne Wallace to the defendants prior to the bringing

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of the application and to the order of the Court of Appeal dated 9th October, 2019 which,

as noted earlier, referred to the application being made on behalf of Everyday, as a non-

party to the proceedings.

42. Second, Mr. McCudden explained that Byrne Wallace were solicitors acting for Everyday in

the motion now before the court and also attended the substantive appeal in the Court of

Appeal as agents of “Fitzgerald Solicitors (now titled “Fitzgerald General & Advisory”)”,

the solicitors on record for the plaintiff/respondent in the proceedings (para. 11). He

stated that “Fitzgerald Legal & Advisory” gave express authority permitting Byrne Wallace

to act as town agents for the Court of Appeal hearing and referred to correspondence to

that effect (paras. 12-15 and Exhibits “AMcC13”, “AMcC14” and “AMcC15”).

43. Third, Mr. McCudden referred to the express written consent provided by AIB to

Everyday’s application dated 17th October, 2019 (exhibited at Exhibit “RN7” to Mr. Nash’s

second affidavit). He further sought to rely on the terms on which the loans were

transferred to Everyday and the “goodbye letters” and the “hello letters” sent to the

defendants on foot of the transfer, as demonstrating that, in any event, it was not

necessary to obtain the express consent of AIB to the application.

44. Fourth, Mr. McCudden referred to the “goodbye letters” and the “hello letters” and

contended that they fully complied with s. 28(6) of the 1877 Act.

45. Fifth, while accepting that Mr. McKeown did make reference to an issue in relation to the

identity of the plaintiff in his affidavit of 12th April, 2017, it did not feature in the

defendants’ written submissions or oral submissions at the hearing before Costello J. and

was not germane to the determination of Everyday’s application.

46. Sixth, Mr. McCudden contended that the existence of a costs order was not determinative

one way or the other of Everyday’s application, nor did the stay on execution granted by

the President of the Court of Appeal on 28th July, 2017 preclude the registration of

judgment mortgages or the transfer of the facilities and guarantees to Everyday.

47. Seventh, Mr. McCudden addressed again the redactions made to the deed of transfer and

averred that the redacted portions were not relevant to the application before the court

and did not hide any novation agreement or unrevealed transfers or any other

information relevant to the defendants. He further noted that, with regard to the

document from Deutsche Bank exhibited by Mr. McKeown, the document did not identify

the particular facilities or guarantees to Everyday and further averred that Deutsche Bank

has not acquired those facilities or guarantees.

48. Finally, Mr. McCudden contended that some of the arguments advanced by Mr. McKeown,

such as the argument concerning the term of the facilities, were the subject of

submissions before Costello J. and were addressed by her in her judgment (which has

now been upheld by the Court of Appeal).

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49. The final affidavit sworn in connection with Everyday’s application was the supplemental

replying affidavit sworn by Mr. McKeown on 22nd November, 2019 (which I will refer to

as his “third affidavit”). It is unnecessary to rehearse everything stated in that affidavit.

Mr. McKeown reiterated and repeated many of the grounds of objection set out in his

previous two affidavits. He continued to contend that Everyday’s motion was improperly

brought as Byrne Wallace were not the solicitors on record for the plaintiff/respondent

and that the motion was, therefore, “devoid of legal effect or force” and could not be

“legally heard by the court”. Mr. McKeown disputed the consent provided by “Fitzgerald

Legal & Advisory” and advanced the case that the firm of solicitors under that name was a

different firm of solicitors to “Fitzgerald Solicitors”. He objected to the confirmation

provided by Philip O’Leary on behalf of “Fitzgerald legal & Advisory” on 15th October,

2019 (exhibited at “AMcC13” to Mr. McCudden’s third affidavit) on the basis that it did not

come from “Fitzgerald Solicitors” and also on the basis of the wording contained at the

bottom of the relevant email. Mr. McKeown continued to assert that, in bringing the

motion, Everyday and its solicitors had not complied with the provisions of O. 7 RSC.

50. Most of the other points made in Mr. McKeown’s third affidavit were reiterations of and

elaborations on arguments made in his earlier affidavits. He did, however, make some

new points. One of those points was made in reliance on the decision of the Supreme

Court in SPV Osus Limited v. HSBC Institutional Trusts Services (Ireland) Limited & ors

[2018] IESC 44 (“SPV Osus”). Mr. McKeown submitted that discovery would be required

in order to determine whether the purported transfer or assignment to Everyday

amounted to “commodification or maintenance and champerty” which would render it

unenforceable as a matter of public policy (para. 10(c)). Mr. McKeown also sought to rely

on the alleged absence of notice given to the defendants in respect of the purported

transfer to Everyday and relied on s. 28(6) of the 1877 Act and the judgment of Baker J.

in the High Court in AIB Mortgage Bank v. Thompson [2018] 3 I.R. 172 (“Thompson”)

(para. 16).

51. This is necessarily an imperfect and incomplete summary of all of the points advanced in

Mr. McKeown’s third affidavit. I have, however, nonetheless considered all of the points

made by him on behalf of the defendants in that affidavit and in his earlier affidavits.

Proper Approach to Consideration of Everyday’s Application

52. In this section of the judgment I address three issues. First, I consider the relevant

provision of the RSC under which Everyday’s application must be considered. Second, I

consider the nature of an application to substitute a party or to add an additional party

and how the court should treat such an application. Third, I consider the appropriate

standard of proof to be applied in such an application.

(1) Basis for application under RSC

53. As noted earlier, Everyday initially sought an order that it be substituted for AIB as the

plaintiff/respondent in the proceedings or, alternatively, an order that it be joined as a

co-plaintiff/co-respondent. It is not pursuing the substitution application, but is pursuing

its application to be joined as an additional plaintiff. The basis upon which the application

was made (leaving aside the provisions of the RSC applicable to appeals before the Court

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of Appeal) was stated to be O. 15, r. 4 (this was intended to read O. 15, r. 14) and O. 17,

r. 4 or, alternatively, the inherent jurisdiction of the court.

54. It is now well established that the appropriate provision of the RSC under which an

application of the type made by Everyday to substitute or add a party in circumstances

where an event occurs after the commencement of the proceedings which causes a

change of interest, is O. 17, r. 4 and not O. 15, r. 14. This is clear from the judgment of

Baker J. in the High Court in Irish Bank Resolution Corporation Limited (In Special

Liquidation) v. Lavelle [2015] IESC 321 (“Lavelle”). Having considered the relevant

authorities, Baker J. held that O. 17, r. 4 permits an application to be made to add or

substitute a party who has taken a legal assignment of a loan book from the original

plaintiff in proceedings. The Court of Appeal upheld that judgment on appeal in Stapleford

Finance Limited (As Substituted) v. Lavelle [2016] IECA 104. The Court of Appeal held

that Baker J. was correct in her conclusion that the assignment in question amounted to a

change in interest within the meaning of O. 17, r. 4. The Court of Appeal concluded that

Baker J. was correct in holding that she had the power to substitute the relevant party as

the sole plaintiff in the proceedings under that provision and that she had not erred in law

in making the order under it.

55. I am satisfied, therefore, that the relevant provisions of the RSC under which to consider

Everyday’s application to be added as an additional plaintiff with AIB, in circumstances

where the relevant facilities and guarantees were transferred or assigned to Everyday

under the deed of trust and amendment deed, is O.17, r.4.

(2) The nature of the application

56. The Court of Appeal has made clear that an application for an order under O. 17, r. 4 is

intended to be a simple, straightforward and purely procedural application. It is not

intended to be in the nature of a “mini-trial”.

57. In Irish Bank Resolution Corporation Limited v. Comer [2014] IEHC 671 (“Comer”), Kelly

J. described a similar application to substitute a party for an existing party in the

proceedings (in the case of the sale of a loan book and facilities), albeit made under O.

15, r. 14 RSC, as a “procedural motion” which should not be turned into “a sort of mini-

trial of the action”. That was not what was envisaged by the RSC, in general, or under the

provisions of O. 63A, in particular (see para. 44).

58. The Court of Appeal reached the same conclusion in relation to a substitution application

made under O. 17, r. 4 in Bank of Scotland PLC v. McDermott [2019] IECA 142

(“McDermott”). I will come back to the judgment in this case in a moment, when

considering the question of the standard of proof to be applied. However, the judgment is

also relevant in describing the nature of an application under O. 17, r. 4. Having noted

that an application under that provision could be made ex parte, but had been made on

notice in that case, Peart J. in delivering the judgment of the Court of Appeal then stated:

“I would consider that the very fact that such an application may be made on an ex

parte basis is at least an indication that it is not contemplated that such a simple,

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straightforward, and perhaps formal application should give rise to the level of

controversy that has attended upon the present application. Of course, it goes

without saying, that the court must be satisfied by the affidavit evidence adduced

by the applicant that it is entitled to be substituted. But it should not be seen as yet

another opportunity for the other party to raise issues that relate more to the merit

of the underlying proceedings, and to in that way open up an avenue for further

litigation and consequent delay in the proceedings. In my view, the appellant has

seized upon the respondent's application for substitution, having been put on notice

of it, in order to further frustrate the efforts of the creditor bank, now Ennis, to take

steps of enforcement against him on foot of the summary judgment obtained on

the 29th July 2013, by raising grounds of objection that are devoid of merit.” (para.

31).

59. It seems to me that the same could be said for the present application and the

defendants’ attempts to raise issues by way of opposition to the application, which relate

more to the merit of the underlying proceedings in which summary judgment was granted

against them by the High Court and upheld by the Court of Appeal. The description of the

nature of the application as being “simple, straightforward, and perhaps formal” is

particularly apposite. That is how an application such as that made by Everyday should be

seen. It should not be seen, or used, as an opportunity to ventilate issues relevant to the

underlying and substantive dispute between the parties (particularly when the merits of

the underlying dispute have already been determined by the High Court and by the Court

of Appeal).

60. Having referred to what Kelly J. stated in Comer, the Court of Appeal in McDermott went

on to state as follows:

“…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.” (para. 37).

61. Everyday’s application should, therefore, be dealt with as a simple, straightforward and

formal application and should not be regarded as a mini-trial of contentious issues

between the parties.

(3) The Standard of Proof

62. Counsel for Everyday raised the issue in the course of his submissions as to the standard

of proof which the court should apply in determining Everyday’s application. He contended

that the correct standard to apply was that the court should be satisfied that Everyday

had demonstrated a “prima facie” case to the effect that it was entitled to be substituted

or, alternatively, added as a party to the proceedings on the basis of the material put

before the court. That, counsel submitted, was the correct standard to be applied to

Everyday’s ultimate application to be joined as an additional plaintiff to the proceedings

with AIB. However, counsel also made it clear that in the event that the court were to

conclude that the standard of proof which it had to meet in order to succeed on its

application was the ordinary civil standard of proof on the balance of probabilities, the

evidence put before the court satisfied that higher standard also. I recognise that at the

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time counsel advanced his submission as to the appropriate standard for the court to

apply, the defendant’s application for leave to appeal to the Supreme Court had been

made but had not yet been determined. That application was subsequently determined

against the defendants.

63. The defendants did not engage on this issue at the hearing. However, it seems to me that

I should consider and rule on the issue so as to make clear the standard which I have

decided to adopt in determining Everyday’s application.

64. A resolution of the issue as to the appropriate standard of proof to be applied in an

application such as this, requires a brief consideration of a trio of judgments of the Court

of Appeal. The first in time is Irish Bank Resolution Corporation Limited v. Halpin

[2014] IECA 3 (“Halpin”). That was a case in which the transferee and as signee of certain

facilities from IBRC applied to be substituted for IBRC in an appeal before the Court of

Appeal from two judgments obtained by it against the defendant in the High Court. It was

indicated by the applicant that if the court was not prepared to make a substitution order,

it was seeking to be added as a party to the appeal. The Court of Appeal refused to grant

the substitution order but did add the applicant as a party to the appeal. The Court of

Appeal refused a substitution order on the grounds that since it was being sought to

uphold the judgments of the High Court in favour of IBRC (as plaintiff), then IBRC had to

remain as a plaintiff in the proceedings. The judgments were granted to IBRC, as plaintiff,

by reason of it having established by factual evidence to the satisfaction of the High Court

its entitlement to such judgments. Otherwise, the effect of the substitution would be to

permit the applicant to be considered as being entitled to have been granted judgment in

the High Court in circumstances where it did not have any entitlement to judgment in its

favour on the relevant dates. The Court of Appeal distinguished the case from other cases

where the substitution was sought before judgment was obtained in the High Court.

65. The Court of Appeal went on to consider the alternative application to join the applicant

as a co-plaintiff/co-respondent to the appeals. The court was satisfied that the applicant

had put before the court evidence on a prima facie basis that, pursuant to a deed of

transfer, it was entitled from the date of that deed to the benefit of the facilities

underlying the claim against the defendant and also to the judgments obtained by IBRC

against the defendant in the High Court. On that basis the Court of Appeal concluded that

it was in the interests of justice that the applicant be added as a party and be permitted

to participate in the hearing of the appeals, albeit that it was confined to making any

argument advanced by IBRC in the High Court or which it might properly advance on the

appeal, in reliance upon the evidence before the High Court (para. 28).

66. Finlay Geoghegan J., in giving the judgment of the Court of Appeal, stated:

“In making this order the Court is not determining the claimed entitlement of [the

applicant] to the judgments obtained by IBRC. It is simply determining that it has

put forward evidence on a prima facie basis that would entitle it to be joined as a

co-plaintiff in the proceedings for the purpose of pursuing its claim either to the

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facilities which it contends have been transferred or to the judgments which it

contends have been transferred or assigned.” (para. 28).

67. The Court of Appeal then stated that if the appeals were dismissed, the existing High

Court judgments in favour of IBRC would remain in place and the applicant, as a co-

plaintiff in the proceedings, would then be entitled to pursue any application in the High

Court for execution on foot of the judgments in favour of IBRC. The Court of Appeal made

clear that on such an application, the alleged entitlement of the applicant to enforce the

judgments, as an assignee or transferee of the judgments, could be determined as

appropriate at first instance (see para. 30).

68. The Court of Appeal in Halpin was making clear, therefore, that it was determining the

applicant’s application to be added as a plaintiff/respondent to the appeal on the basis

that it had put forward prima facie evidence of its entitlement to the benefit of facilities

transferred. Having made that order, the court would then proceed to determine the

appeals. If the appeals were dismissed and the judgments of the High Court upheld, then

it would be a matter for the applicant to establish in the High Court its entitlement to

execute the judgments obtained by IBRC.

69. The second relevant judgment of the Court of Appeal is Bank of Scotland plc v. O’Connor

[2017] IECA 54 (“O’Connor”). The issue in that case concerned the standing of Bank of

Scotland to participate in an appeal by the defendant from a judgment obtained against

him in the High Court by Bank of Scotland in circumstances where, a number of months

after the judgment had been granted, Bank of Scotland agreed to sell the relevant

facilities, guarantees and security rights to a purchaser. The defendant argued that,

following that sale, Bank of Scotland had no further interest in the loans in respect of

which judgment was granted in its favour by the High Court and no standing to defend

the appeal against the judgment. Bank of Scotland submitted that, in part in reliance on

the judgment of the Court of Appeal in Halpin, it was entitled to remain as a respondent

and to defend the appeal. It also argued that it had the benefit of an order for costs in the

High Court which it was entitled to defend. The Court of Appeal applied Halpin and held

that Bank of Scotland had to, and was entitled to, remain as a respondent to the appeal,

as what was sought to be upheld was the determination of the High Court that it was

entitled to judgment against the defendant. Bank of Scotland had not agreed to sell the

loans to the purchaser until after the date the judgment was granted. Further, Bank of

Scotland had the benefit of a costs order in the High Court which it was entitled to seek to

uphold on appeal. On that basis, the Court of Appeal concluded that Bank of Scotland did

continue to have locus standi in the appeal. The Court of Appeal had decided to dismiss

that appeal. However, in a separate judgment, having concluded that Bank of Scotland

had standing, Finlay Geoghegan J. (delivering the judgment of the Court of Appeal) went

on to state:

“It is important to stress that the question as to the person who is now entitled to

seek to enforce the High Court judgment against the appellant is not determined by

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this judgment. Any future application by reason of the sale of the loans of the

appellant would be to the High Court and different issues may arise.” (para. 14.)

70. Although the question of the standard of proof to be applied did not directly apply in

O’Connor, as it was the defendant/appellant who was contending that Bank of Scotland

had no standing to participate in the appeal, there is no reason to believe that if the

application to be joined had been made by the purchaser, the court would have applied a

different test to that applied in Halpin, having expressly endorsed the judgment in Halpin

(and the reasons for it).

71. The third relevant judgment of the Court of Appeal is McDermott. In that case, the High

Court had made an order substituting the purchaser of a loan book for Bank of Scotland in

summary proceedings where judgment had been granted more than four years

previously. The High Court had also made an order that the purchaser be substituted for

Bank of Scotland as the party entitled to enforce the judgment. One of the issues which

arose on the appeal was whether the evidence before the High Court was sufficient to

enable that court to be satisfied that it was appropriate to make the substitution order

sought. The purpose of the application to substitute the purchaser of the loan book was to

enable it to take steps on foot of the judgment to enforce the judgment and to obtain

payment on foot of it. I have set out earlier the Court of Appeal’s description of the nature

of the application to substitute a party. On the appeal, the defendant/applicant sought to

argue that the level of proof required on the application (being one made after judgment

had been granted, as opposed to the normal situation where a substitution order was

sought prior to final judgment) should be to a higher standard than the prima facie

standard stated in Comer. The Court of Appeal noted that in O’Driscoll the substitution

order was made after final judgment had been granted and in circumstances where there

would be no opportunity at a subsequent trial to raise issues in relation to the validity of

the assignment of the loans to the purchaser. The Court of Appeal concluded that, where

the substitution application was made after judgment had been granted and where there

would be no opportunity at trial to raise issues in relation to the proofs adduced in

support of the application, the prima facie test referred to by Kelly J. in Comer was not

the correct test to apply. The Court held that the correct test in such circumstances was

that applicable in civil proceedings generally, namely, the balance of probabilities (para.

37). The Court went on to conclude that the trial judge had correctly applied that test by

stating that he was “absolutely satisfied that the transfer of the loan has been

established” and that there was ample evidence to justify that conclusion. The Court of

Appeal held that the trial judge had been satisfied at least to the level of the balance of

probabilities, if not beyond that standard, and that he was entitled to be so satisfied

(para. 38). In applying the balance of probabilities standard, it seems to me that the

Court of Appeal was recognising that, unlike in Halpin and in O’Connor, where it would be

open to the defendant to raise issues in relation to the validity of the assignments in

question when the purchaser sought to enforce the judgment, that option was not open to

the defendant in McDermott as the High Court had already made an order that the

purchaser be substituted for Bank of Scotland as the party entitled to enforce that

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judgment. Therefore, the defendant would not have the opportunity to challenge the

assignment at the later enforcement stage.

72. It seems to me that, based on that trio of Court of Appeal judgments, the normal position

is that the court decides an application to substitute or add a party under O. 17, r. 4 RSC

on the basis that a prima facie case must be established by the applicant for such an

order. That is the standard to be applied where it would be open to the opposing party

(normally the defendant to the proceedings) to raise issues in relation to the assignment

or transfer of the facilities in question at the subsequent enforcement stage. However,

where that opportunity does not exist, the court will adopt the higher standard of the

balance of probabilities.

73. In the present case, the application is merely now to add Everyday as a co-plaintiff to the

proceedings, on the basis of the transfer or assignment of the relevant facilities and the

guarantees. If that order was to be made, the defendants would nonetheless be entitled

to raise issues in relation to the transfer or assignment if and when Everyday comes to

seek to enforce the judgment. An order joining Everyday as a co-plaintiff to the

proceedings would, therefore, not determine those issues. The defendants could

subsequently raise issues in relation to them at that later stage. On that basis, the

position is more like that which pertained in Halpin and O’Connor, rather than the position

in McDermott.

74. However, the defendants did seek to ventilate a range of issues in relation to the validity

of the transfer or assignment of the facilities, guarantees and related security by AIB to

Everyday. I have considered many of those issues in the course of this judgment. I have

decided to do so on the basis of the balance of probabilities, rather than to a prima facie

standard, in order to deal with the defendants’ grounds of opposition at their highest at

this point in time. I am satisfied that irrespective of whether the prima facie standard is

applied or whether the approach to be taken is to consider the issues on the basis of the

balance of probabilities, the defendants fail on each of the objections they have raised.

However, what they have failed on is their objection to the application by Everyday to be

added as a party to the proceedings. It may be that the defendants will be in a position to

raise other grounds of objection if and when it comes to Everyday’s attempt to execute on

foot of the judgment. It may, however, be of relevance and assistance to whatever judge

or court is dealing with the issue at that later stage to have regard to the conclusions I

have reached in the course of this judgment. That will be a matter for that judge or court,

as the case may be.

75. I will now turn to consider those grounds of objection raised by the defendants which are,

or may be relevant to Everyday’s application to be joined to the proceedings.

Defendants’ Principal Grounds of Objection to Application

(1) Defective notice of motion: Alleged breach of O.7 RSC

76. One of the main or principal grounds of objection raised by the defendants concerns the

circumstances in which Everyday’s motion came to be issued by Byrne Wallace. The

defendants contended that the motion is defective in that it was issued by Byrne Wallace,

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purportedly as solicitors for the plaintiff/respondent, and purportedly sought relief on

behalf of the plaintiff/respondent, in circumstances where Byrne Wallace were not the

solicitors acting for AIB, the plaintiff/respondent, but rather were acting for Everyday. The

defendants contended that that amounted to a breach of the provisions of O. 7 RSC. They

contended that the motion was fatally defective and should, therefore, be refused by the

court. Everyday accepted that the notice of motion contained an error, in that it referred

to the motion being issued on behalf of the plaintiff/respondent and by Byrne Wallace as

solicitors for the plaintiff/respondent where it should have referred to the motion being

issued on behalf of the “intended plaintiff/respondent”, with Byrne Wallace acting for that

entity. The error was described as a “typographical error” at para. 10 of Mr. McCudden’s

third affidavit.

77. I accept that the notice of motion did contain an error. It should have been issued by

Byrne Wallace as solicitors on behalf of Everyday and should have made clear at the

outset that the application was being made by counsel on behalf of Everyday as the

intended plaintiff/respondent. However, I do not accept that the error was a fatal one or

that there was any breach of the provisions of O. 7 RSC. In the event that there was a

breach of that provision, I am satisfied that it was inadvertent and did not cause any

prejudice or unfairness to the defendants. If there was a failure by Everyday, through its

solicitors, to comply with the provisions of O. 7 RSC in bringing the motion (and I do not

believe that there was), I hold that any such failure did not render the proceedings void

and would so direct under O. 124 RSC. My reasons for these conclusions are as follows.

78. First, the notice of motion itself made very clear what reliefs were being sought and on

whose behalf they were being sought. Paragraphs 1 and 2 of the notice of motion made

clear that the reliefs being sought were an order substituting Everyday in place of AIB,

the existing plaintiff/respondent or, in the alternative, an order adding Everyday as a co-

plaintiff/co-respondent with AIB. The motion was grounded on an affidavit sworn by Mr.

McCudden on 8th October, 2019. That motion made it very clear that the application was

being made by Everyday and not by AIB. Mr. McCudden explained at the outset of his

affidavit that he was the Head of Compliance in Everyday and was making the affidavit for

and on its behalf. I do not believe that the defendants could have been confused by the

motion and affidavit as to the party seeking the relief and as to the basis on which that

relief was being sought, despite the errors contained in the notice of motion. In fairness

to the defendants, they did not contend that they were confused.

79. Second, the correspondence which preceded the ex parte application to the Court of

Appeal by Everyday on 9th October, 2019, made very clear what the application was to

be and on whose behalf it was being brought. That correspondence also made clear that

Byrne Wallace were the solicitors acting for Everyday and not for AIB. The

correspondence was exhibited by Mr. Nash to the first affidavit which he swore on 10th

October, 2019.

80. Byrne Wallace wrote to the defendants’ then solicitors, Gary Matthews Solicitors, on 2nd

October, 2019 stating that they acted for Everyday. Everyday was identified in that letter

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as the client of Byrne Wallace. The letter explained that by virtue of Everyday’s

acquisition of the facilities the subject of the proceedings and its consequential interest in

the proceedings, Byrne Wallace would need to make a “short procedural application” to

the Court of Appeal to substitute Everyday in place of AIB. That letter was copied to the

first defendant at his email address.

81. Gary Matthews Solicitors responded by informing Byrne Wallace that they were no longer

acting for the defendants. Byrne Wallace then emailed the first defendant on 3rd October,

2019 informing the defendants that the application referred to in the previous letter would

be listed for hearing before the Court of Appeal on 11th October, 2019 and that they

would be serving the relevant papers on the defendants by email and by registered post

the following day.

82. The defendants responded on 7th October, 2019. From that response, it is clear that the

defendants were well aware that the application to the Court of Appeal was one being

made by Everyday and that Byrne Wallace were the solicitors acting for Everyday. Byrne

Wallace wrote again to the defendants on 8th October, 2019. Again, their letter made

clear at the outset that their client was Everyday. That letter enclosed a copy of the

motion and of Mr. McCudden’s first affidavit and exhibits. It again explained that the

substitution application merely sought to have Everyday reflected as plaintiff/respondent

in the proceedings in circumstances where the facilities, guarantees and security in

question were sold by AIB to Everyday after the High Court proceedings had come to an

end. I have no hesitation in concluding that on the basis of that correspondence the

defendants were well aware that the motion referred to in the correspondence was one

which was being brought by Everyday and that Byrne Wallace were the solicitors acting

for Everyday in connection with that motion.

83. Third, the order of the Court of Appeal made on 9th October, 2019 made clear that the

motion was one made on behalf of Everyday and not on behalf of AIB, and that Byrne

Wallace were the solicitors acting for Everyday and not for AIB. The order was made

following the ex parte application by counsel on behalf of Everyday which was described

at the outset of the order as being “a Non-Party to the within proceedings”. The order

made clear that the application was made on behalf of Everyday for short service of the

motion seeking the substitution order. The order further expressly stated that Everyday

was to have liberty to issue the motion returnable for 11th October, 2019. Everyday was

referred to as the applicant. Byrne Wallace were described at the bottom of the order as

solicitors on behalf of Everyday. Fitzgerald Solicitors were described as the solicitors for

the plaintiff. The defendants were referred to as defendants in person.

84. It was clear from the Court of Appeal order of 9th October, 2019 that there was no

confusion on the part of the court at that stage, that the application was one being made

by Everyday and that Byrne Wallace were acting in the motion as solicitors for Everyday.

I note, however, that in the subsequent order made by the Court of Appeal on 18th

October, 2019 in which the court refused to deal with Everyday’s application and remitted

it to the High Court, the order stated that the motion was made by counsel for the

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plaintiff rather than by counsel for Everyday. The order made a number of references to

counsel for the plaintiff. Byrne Wallace were described as solicitors for the plaintiff at the

bottom of that order. However, it seems to me that those references are understandable

in circumstances where, as we shall see shortly, Byrne Wallace were engaged to act as

agents for Fitzgerald Solicitors/Fitzgerald Legal & Advisory, the solicitors acting for AIB in

the proceedings, and appeared on their behalf at the hearing of the appeal on 18th

October, 2019. The order made on 28th November, 2019, consequent upon the delivery

of the judgment of the Court of Appeal that day, referred to “Fitzgerald” as solicitors for

the plaintiff.

85. I do not believe that there was any breach of the provisions of O. 7, r. 2(1), (2) or (2A)

RSC by reason of the circumstances in which the motion came to be issued. Order 7, rule

2 deals with the situation where a party has changed or discharged his or her solicitor.

Where that is done, a notice to that effect must be filed in the Central Office and until that

is done and a copy served on every other party to the proceedings, the change or

discharge will not be deemed to have taken effect. Order 7, rule 2A contains an additional

requirement in the case of such a change or discharge taking place in the case of an

appeal pending before the Court of Appeal or the Supreme Court. However, there was no

such change or discharge by any party of the solicitor acting on its behalf. AIB was not

changing or discharging its solicitor. Its solicitor remained as Fitzgerald

Solicitors/Fitzgerald Legal & Advisory (and I will come to the issue raised by the

defendants in relation to that firm shortly). Byrne Wallace were acting as solicitors for

Everyday which wished to become a party to the proceedings, but which was not at the

time the motion was issued (and still is not) a party to the proceedings. There was,

therefore, no question of a party seeking to change or discharge its solicitor on the facts

as they presented themselves before the Court of Appeal or before this court. In my view,

neither Byrne Wallace nor Everyday acted in breach of O. 7, r. 2(1), (2) or (2A) RSC in

bringing the motion before the Court of Appeal in the manner in which it was brought.

Furthermore, if I am wrong about that, I am satisfied that any breach was inadvertent

and did not give rise to any confusion on the part of the defendants or any injustice or

unfairness to them. Nor did any such alleged noncompliance with O. 7 render the motion

brought void. That is the effect of O. 124, r. 1 RSC which provides as follows:-

“Non-compliance with these Rules shall not render any proceedings void unless the

Court shall so direct, but such proceedings may be set aside either wholly or in part

as irregular, or amended, or otherwise dealt with in such manner and upon such

terms as the Court shall think fit.”

86. It is clear from that provision that even if I were to take the view that there was a breach

of or non-compliance with O. 7, and I do not, such non-compliance or breach would not

render the proceedings void unless the court were to so direct. For the reasons set out

earlier, I would not be prepared to so direct. Nor would I be prepared to set aside the

motion, either in whole or in part, as being irregular. On the contrary, I would be and am

prepared to deal with the motion on the basis that it was validly brought and is validly

before the court.

Page 21 ⇓

87. The defendants have also sought to raise an issue concerning the circumstances in which

Byrne Wallace came to act as agents for Fitzgerald Solicitors/Fitzgerald Legal & Advisory,

the solicitors acting for AIB, the plaintiff/respondent in the appeal. However, it does not

seem to me that that is an issue which properly arises on Everyday’s application. Nor is

there any merit whatsoever to the allegations made by the defendants in that regard. I do

not have to decide whether Fitzgerald Solicitors changed their name to Fitzgerald Legal &

Advisory (as Mr. McCudden stated at para. 11 of his third affidavit) or whether Fitzgerald

Solicitors and Fitzgerald Legal & Advisory are separate firms (as Mr. McKeown asserted at

para. 5 of his third affidavit). None of that is, in my view, remotely relevant to Everyday’s

application to be joined as a party to the proceedings. In my view, it is totally irrelevant.

However, lest there be any lingering doubt in the mind of the defendants that there was

something untoward about the circumstances in which Byrne Wallace came to act as

agents for Fitzgerald Solicitors/Fitzgerald Legal & Advisory at the substantive appeal

before the Court of Appeal, I should make clear that I do not accept that there was

anything improper or irregular about what occurred, on the basis of the evidence which I

have seen. The evidence discloses that in response to a letter from the defendants of 6th

November, 2019, Byrne Wallace wrote to the defendants by email on 8th November,

2019 and informed them that Byrne Wallace would be acting as agent for Fitzgerald

Solicitors before the Court of Appeal under an express authority given to that firm in

advance of the Court of Appeal hearing. When the defendants requested a copy of the

“express permission” from Fitzgerald Solicitors, Byrne Wallace responded by pointing out

that Fitzgerald Solicitors had been copied with the email of 8th November, 2019 which

attached the Byrne Wallace letter and “can confirm the position is as outlined in our

letter”. When pressed further by the defendants, Mr. McCudden addressed this issue at

paras. 11 and 12 of his third affidavit. He explained that Byrne Wallace were solicitors for

Everyday (in the substitution application) and attended the substantive appeal as agents

of Fitzgerald Solicitors who were by then called “Fitzgerald Legal & Advisory”, the

solicitors on record for the plaintiff in the appeal. He further stated that Fitzgerald Legal &

Advisory had given express authority permitting Byrne Wallace to act as town agents for

the Court of Appeal hearing and that that authority was confirmed in email

correspondence with Byrne Wallace dated 15th October, 2019. Mr. McCudden exhibited a

redacted copy of the email correspondence sent on 15th October, 2019 at Exhibit

“AMcC13” to that affidavit. The exhibit discloses that at 17:03 on 15th October, 2019,

Gemma Freeman of Byrne Wallace wrote to Philip O’Leary, making reference to a call

earlier that day. Following a redacted portion of the email, she stated:-

“As such the CA [Court of Appeal] may expect or enquire about an appearance from

Fitzgeralds on the basis that you are on record for AIB and AIB is not yet removed

from the proceedings. In this event, in order to avoid incurring costs, Byrne Wallace

is happy to act as your town agents and appear on your behalf, once you confirm

that you are happy for us to do so.

I would be grateful if you would confirm.”

Page 22 ⇓

88. The response to that email came at 17:29 on the same date from Philip O’Leary (with the

email address philipoleary@fitzsols.com). Mr. O’Leary was described in that email as

“Managing Partner” of “Fitzgerald Legal & Advisory”. He stated:-

“Gemma, happy to confirm on the basis as outlined.”

89. Whether Mr. O’Leary was providing that confirmation as managing partner of Fitzgerald

Legal & Advisory or whether he was doing so, as appears from his email address, on

behalf of Fitzgerald Solicitors, is not material to the determination of Everyday’s

application. The required confirmation was provided. The order ultimately made by the

Court of Appeal on 28th November, 2019 recorded “Fitzgerald” as acting for the plaintiff

(i.e. AIB). Whether that was intended to be a reference to Fitzgerald Solicitors or to

Fitzgerald Legal & Advisory, if they are indeed separate firms or merely the same firm

with a change of name, is, in my view, irrelevant for the purpose of Everyday’s

application.

90. The defendants also contended that Mr. O’Leary’s email could not be relied upon as

evidence of the confirmation from his firm that Byrne Wallace could act as its agents for

the appeal before the Court of Appeal, in light of the wording contained at the bottom of

Mr. O’Leary’s email. In particular, they relied on the fact that the wording at the bottom

of the email stated that the communication was “without prejudice and subject to contract

and shall not be construed as a memorandum within the meaning of the Statute of

Frauds”. The defendants suggested that in some way that precluded the document being

relied upon as evidence of the confirmation of Mr. O’Leary’s agreement. I reject that

submission. It has no merit whatsoever. That or similar wording at the bottom of the

email is a variation of the wording contained at the bottom of emails sent by many

solicitors’ firms to deal with various issues including solicitor/client privilege and

confidentiality. Wording is also often used so as to make clear that the document does not

bind a client in the context of a commercial or property transaction. That was obviously

not the purpose of Mr. O’Leary’s email. The use of the words “without prejudice” would

only be relevant where the email amounted to a communication in the context of an

attempt to negotiate a settlement of proceedings. Otherwise, the “without prejudice”

designation is meaningless and ineffective. Mr. O’Leary’s email was not sent in the course

of any attempted negotiation of the settlement of proceedings. Therefore, those words

have no effect. There is nothing in the words used at the bottom of Mr. O’Leary’s email

which would preclude the court from considering that email as evidencing the

confirmation from Mr. O’Leary that his firm was happy for Byrne Wallace to act as its

agents in the substantive appeal before the Court of Appeal.

91. I am satisfied that there is no basis whatsoever for the defendants’ objection to

Everyday’s application on the basis of alleged non-compliance with the provisions of O. 7

RSC. There was no change of solicitors for AIB. Byrne Wallace were at all times acting for

Everyday on its application. Byrne Wallace also acted as agents for Fitzgerald

Solicitors/Fitzgerald Legal & Advisory at the substantive hearing of the defendants’ appeal

in the Court of Appeal. While Everyday’s notice of motion did contain a number of errors

Page 23 ⇓

as mentioned earlier, in my view, they were insignificant and did not give rise to any

confusion on the part of the defendants or any injustice or unfairness to them.

Furthermore, even if there were any non-compliance with the provisions of O. 7 RSC (and

there was not), that non-compliance did not render the motion void and it was and is in

order for the court to deal with the motion in all the circumstances outlined above.

(2) Description of AIB in proceedings and in other documents

92. As part of their objection to Everyday’s application, the defendants sought to raise

inconsistencies between the description of AIB in the title to the proceedings and the

description of AIB in other documents put in evidence before the court, including the

relevant facility letters and guarantees, the deed of transfer, the “goodbye letters” and

the “hello letters” and the letter of consent by AIB to Everyday’s application. So far as I

could understand the defendants’ contentions in that regard, I address them below.

(a) The identity of the plaintiff

93. The defendants sought to advance the argument that the AIB entity described in the title

to the proceedings is different to the AIB entity referred to in the relevant facility letters

and guarantees, the deed of transfer and in the “goodbye letters” and the “hello letters”.

In my view, this is completely irrelevant to Everyday’s application.

94. It appears that the defendants, at one stage, did seek to make the point in the High Court

that the AIB entity described as plaintiff in the proceedings was a different entity to that

referred to in the relevant facility letters and guarantees (according to Mr. McKeown, it

was referred to at para. 15 of the supplemental affidavit he swore on 21st April, 2017).

However, I have read the written submissions prepared on behalf of the defendants by

counsel and solicitors for the purpose of the summary judgment application before

Costello J. and the transcript of the hearing before Costello J. on 27th April, 2017. The

point was not pursued on behalf of the defendants in their written submissions or in the

oral submissions at the hearing. Nor was the point made in the grounds of appeal

advanced by the defendants in their notice of expedited appeal to the Court of Appeal. As

noted by Donnelly J. in her judgment on behalf of the Court of Appeal on the defendants’

appeal, the defendants sought leave to admit new grounds of appeal directed to the issue

of the identity and locus standi of the plaintiff. However, the defendants’ application was

refused by Irvine J. on behalf of the Court of Appeal on 20th October, 2017. Nonetheless,

it appears that the defendants sought to advance in the appeal an argument that the

plaintiff entity had no locus standi in the proceedings as it was not the entity that had

provided the facilities the subject of the facility letters. The Court of Appeal refused to

permit the defendants to advance that argument. At para. 22 of her judgment on behalf

of the Court of Appeal, Donnelly J. noted that the Court of Appeal was being asked to act

as a court of first instance in respect of that issue and that there had been no explanation

for the defendants’ failure to pursue the point in the High Court where the defendants

were legally represented. The Court of Appeal refused to permit the defendants to

advance the argument on the appeal and rejected it.

95. The defendants have now sought to make the point again in response to Everyday’s

application. In my view, it is entirely irrelevant to Everyday’s application. Furthermore,

Page 24 ⇓

there is no merit whatsoever to the point. While great care should undoubtedly be taken

to ensure that an entity is correctly named in the title to the proceedings, it is very clear

in the present case which AIB entity is and is intended to be the plaintiff. This is clear, for

example, from the summary summons which (at para. 1 of the special endorsement of

claim) described the plaintiff as a “body corporate engaged in the provision of financial

services and… authorised to carry on business within the State by the Central Bank of

Ireland” and that it had its registered office at Bankcentre, Ballsbridge, Dublin 4.

Paragraphs 4 to 17 of the special endorsement of claim then referred to the loan facilities

provided by the plaintiff to the first defendant and to both defendants and to the

guarantees given by the second defendant in respect of certain of those facilities. Specific

reference was made to the facility letters of 20th May, 2013 and to the guarantees

accepted and signed by the second defendant on 2nd March, 2009 and 1st December,

2009. Those facility letters and guarantees all made clear that the relevant AIB entity

which provided the loans and which was the recipient of the guarantees provided by the

second defendant was Allied Irish Banks, p.l.c., which had its registered office at

Bankcentre, Ballsbridge, Dublin 4 and was registered in Ireland under no. 24173. There

could have been no doubt or confusion on the part of the defendants that the entity

named as plaintiff in the summary summons and which sought judgment on foot of the

facility letters and guarantees was the entity named in the facility letters and guarantees.

96. I am satisfied that that is also the case in relation to the deed of transfer in which one of

the sellers was named on the first page as Allied Irish Banks, P.L.C. (along with AIB

Mortgage Bank and EBS). That entity was then referred to as the first party named on p.

2 of the deed as “ALLIED IRISH BANKS, PUBLIC LIMITED COMPANY, a company

incorporated in Ireland, with registered no. 24173, having its registered office at

Bankcentre, Ballsbridge, Dublin 4 (AIB)”. That entity was referred to as one of the sellers

of the various loans and securities which were transferred or assigned to Everyday. It is

quite clear that the AIB entity referred to in that deed is Allied Irish Banks, p.l.c. and is

the same entity named as the plaintiff in the proceedings.

97. The same as the case in relation to the “goodbye letters” sent by AIB to the defendants

on 8th August, 2018. Each of those letters was sent by James F. Hurley, senior manager,

on AIB notepaper from the “AIB Transition Services Team”. It is, however, clear from the

bottom of the letters, that the letters were coming from Allied Irish Banks, p.l.c. with its

registered office at Bankcentre, Ballsbridge, Dublin 4 and that the company was

registered in Ireland under no. 24173. All of the “goodbye letters” were sent on the same

AIB letterhead and contained the same references to the relevant AIB entity. While the

“hello letters” from Everyday dated 14th August, 2019 referred to “AIB plc” and/or AIB

Mortgage Bank, they made express reference to the “goodbye letters” of 8th August,

2018 which contained the description of the relevant AIB entity. In my view, there was

and is no doubt whatsoever as to the AIB entity which is and was the plaintiff in the

proceedings and the respondent to the appeal in the Court of Appeal and that entity is

and was the same entity that provided the loan facilities to the defendants and was the

recipient of the guarantees provided by the second defendant. There is no basis

whatsoever for any ground of objection advanced by the defendants based on an alleged

Page 25 ⇓

difference between the entity named as plaintiff in the proceedings and the entity which

provided the loan facilities and received the benefit of the guarantees.

98. Arguments based on an alleged misdescription of AIB, by reason of the absence of a

comma or other similarly insignificant feature, have unsurprisingly not fared well before

the Irish Courts. See, for example: Ben Gilroy and Jerry Beades v. The Governor of

Mountjoy Prison [2019] IEHC 71 (Barrett J.) and Allied Irish Banks, plc v. Seamus

McQuaid & ors [2018] IEHC 516 (Haughton J.). As in those cases, the argument made in

the present case by the defendants based on an alleged misdescription of the plaintiff or

an alleged inconsistency between the description of the plaintiff and the description of AIB

in the relevant documents, in my view, is equally devoid of any merit.

99. I should note that just as I was about to sign this judgment I came across a judgment of

the Court of Appeal delivered on 26th March, 2020 in another case in which the

defendants were parties – Ned Murphy v. Paddy McKeown and Adelaide McCarthy

[2020] IECA 75 (“Murphy”). The judgment of the Court of Appeal was delivered by Murray J.in an

appeal by the defendants against an order restraining them from interfering with a

receiver in the exercise of his functions over certain properties owned by them. The

defendants raised an issue concerning the description of AIB in the instruments

appointing the receiver and claimed that the AIB entity described in those instruments

without a comma was not the entity with which they dealt. Since that judgment was

decided after I reserved judgment in this case and since the parties have not had the

opportunity of making any submissions to me in relation to it, I have not placed any

reliance on the judgment of the Court of Appeal in Murphy, save to record that I became

aware of it and that, in my view, there is nothing in the judgment which would cause me

to alter the conclusions I have reached on the argument advanced by the defendants in

response to Everyday’s application concerning the identity of the plaintiff.

100. Insofar as the defendants sought to rely on an affidavit sworn by Tony Cooper, an AIB

case manager, on 11th October, 2017, in the context of an application by the defendants

to admit new evidence as part of their appeal to the Court of Appeal, that reliance is

equally misplaced. The defendants sought to rely in oral submissions on para. 33 of that

affidavit. In his affidavit, Mr. Cooper was addressing the argument sought to be advanced

by the defendants that there was some confusion between the identity of the plaintiff and

a UK AIB entity. Mr. Cooper was explaining how the plaintiff was described in the Credit

Institutions Register, where it was referred to without the comma. Mr. Cooper did not

accept that the presence or omission of a comma was significant. He made the point that

if the plaintiff did not commence the proceedings using the name of the plaintiff as it was

listed on the Credit Institutions Register, objections would be raised by the defendants for

including a superfluous comma. Whatever about that later point, I agree with Mr. Cooper

that the presence or omission of the comma is and was not significant, in the particular

context of this case in any event. It is again clear that the entity referred to in the

to Everyday’s application. The AIB entity named as plaintiff to the proceedings is and has

Page 26 ⇓

at all material times been the same entity as was referred to in the facility letters,

guarantees, deed of transfer, “goodbye letters” and “hello letters”.

(b) Consent by plaintiff to Everyday’s application

101. The defendants contended that there was no valid consent by the plaintiff to Everyday’s

application having regard to the terms of the consent provided on its behalf. In my view,

this ground of opposition has no merit whatsoever.

102. It is arguably the case that it was unnecessary for Everyday to obtain the plaintiff’s

consent to its application to be substituted for or added as an additional party to the

existing plaintiff in the proceedings, in light of the terms of the deed of transfer and

amendment deed. Whether or not that was so, the consent of the plaintiff was sought and

provided. The consent was exhibited at Exhibit “RN7” to Mr. Nash’s second affidavit. He

exhibited a document on AIB notepaper which came from “AIB Financial Solutions Group”

with an address in Cork. The plaintiff’s name, correctly spelt as Allied Irish Banks, p.l.c.

with the registration no. 24173 and the registered office at Bankcentre, Ballsbridge,

Dublin 4 was contained at the bottom of the AIB notepaper, clearly indicating that the

document emanated from that entity. The document bore the title of the proceedings,

together with the High Court record number and the Court of Appeal record number. It

then stated:-

“Allied Irish Bank’s plc hereby consent to Everyday Finance DAC being substituted

as the Plaintiff/Respondent or to be joined as Co-Plaintiff/Respondent with the

current Plaintiff/Respondent in the above proceedings.”

103. The defendants complained that the AIB entity referred to in the passage quoted, namely,

“Allied Irish Bank’s plc”, was not the same as the entity named as the plaintiff in the

proceedings or the entity referred to at the bottom of the letter. The first defendant (at

para. 15 of his second affidavit) suggested that there was “now yet another AIB floating

around”. While the description of the AIB entity referred to in the passage quoted above

was careless and greater care most certainly ought to have been exercised in the

preparation of the consent, there could, in my view, be no doubt as to the AIB entity

actually providing its consent to Everyday’s application. It was clearly the same entity as

was and is the plaintiff in the proceedings, being the entity referred to at the bottom of

the consent document and the same entity as provided the loan facilities to the

defendants and was the recipient of the guarantees from the second defendant. While

careless and sloppy, the misdescription of the AIB entity in the letter of consent was in no

way fatal to the consent provided. It was and is clear from a reading of the document as a

whole, that the relevant AIB entity was providing its consent to Everyday’s application.

104. The defendants also criticised the terms of the consent on the additional grounds that the

person signing the document was not identifiable and that it was not clear from the

signature that the person signing was a person with the appropriate authority to do so on

behalf of AIB. I agree that it would have been preferable if the person signing the

document and his or her title had been clearly identified. However, I do not agree that the

absence of identification or confirmation that the person concerned had authority to sign

Page 27 ⇓

the document on behalf of AIB is in any way fatal to the consent evidenced by the

document. The document was provided in order to evidence and confirm the consent of

the plaintiff/respondent to Everyday’s application. It is not a deed or contract or other

formal document in respect of which any particular formality was required. It simply

evidenced the consent of the plaintiff/respondent to the application. In my view,

notwithstanding the errors in the document, it nonetheless evidenced the consent of the

plaintiff/respondent to Everyday’s application. The absence of any objection by the

plaintiff to the application and the agreement of its solicitors, Fitzgerald

Solicitors/Fitzgerald Legal & Advisory, for Byrne Wallace to act as their agents for the

substantive appeal before the Court of Appeal, are all entirely consistent with that

consent to the application.

(3) Validity of transfer/assignment

105. The defendants sought as part of their opposition to Everyday’s application, to challenge

the validity of the transfer or assignment of the relevant loan facilities, guarantees and

securities to Everyday. In circumstances where Everyday’s application is now to be joined

as a co-plaintiff to the proceedings with the existing plaintiff, it is very difficult to see how

these grounds of objection have any relevance to Everyday’s application. In the event

that Everyday is joined as a co-plaintiff to the proceedings, and if it seeks to take further

steps to execute on foot of the judgment granted against the defendants, it would in the

ordinary way be open to the defendants to seek to raise these issues at that stage.

However, as the defendants have raised them on this application, I should set out, in

brief, my views on the objections raised, in the event that they are relevant or of

assistance to whatever judge or court may have to consider those issues at a later stage.

106. I am satisfied that there is no merit whatsoever to the grounds of objection raised on this

point by the defendants. I will deal with each of the arguments raised by the defendants

in turn.

107. First, the defendants contended that the plaintiff in the proceedings was a different entity

to the AIB entity which was a party to the deed of transfer and amendment deed with

Everyday. However, for reasons already mentioned, I do not accept that that is the case.

It is clear that the plaintiff is the same AIB entity which granted the loan facilities to the

defendants and took the benefit of the guarantees and other security from them, for

reasons already mentioned. I am also satisfied, for reasons previously outlined, that the

first named party to the deed of transfer and amendment deed is one and the same as

the plaintiff. The correct AIB entity (with AIB Mortgage Bank and EBS) entered into the

deed of transfer and amendment deed with Everyday.

108. Second, the defendants’ objections to the redactions made to the deed of transfer are

misplaced and are also without merit. Mr. McCudden explained the basis for the

redactions made at para. 13 of his first affidavit and at para. 21 of his third affidavit. The

redactions were made in accordance with GDPR requirements, including the redaction of

third party personal data, for commercial sensitivity and for banker/client confidentiality

reasons. They were further made on the grounds of relevance. The case law in relation to

the redaction of documents such as these, was considered by McDonald J. in the High

Page 28 ⇓

Court in Everyday Finance Designated Activity Company v. Woods [2019] IEHC 605

(“Woods”). McDonald J. considered the judgments of Noonan J. in the High Court in

Launceston Property Finance v. Walls [2018] IEHC 610, my judgment in Promontoria

(Arrow) v. Burke [2018] IEHC 773 and the judgment of Haughton J. in the High Court in

Courtney v. OCM Emru Debtco [2019] IEHC 160. As noted by McDonald J. at para. 11 of

his judgment in Woods, what is necessary for the court to consider are the “relevant parts

of the deeds which contain the assignment of the loans in issue” and that:-

“If a Defendant wishes to see more of the deed, the burden is on the Defendant to

show why more is necessary…, if the Defendant does discharge that burden, then

the burden shifts to the Plaintiff to justify the extent of the redaction made.”

109. I am satisfied that in the present case, Mr. McCudden on behalf of Everyday has provided

an adequate explanation for the redactions. The burden then shifted to the defendants to

show why it was necessary for them to see more than was provided in the redacted

deeds. In my view, the defendants have failed to discharge that burden. It is clear from

the redacted portions of the deed of transfer that the relevant facilities, guarantees and

security referable to the defendants, were being transferred or assigned to Everyday.

Therefore, I reject any objection raised by the defendants based on the failure by

Everyday to produce an unredacted version of the deed of transfer.

110. Third, the defendants contended that the deed of transfer was in breach of the provisions

of the applicable AIB general terms. I do not accept that submission. As noted earlier, the

relevant version of the AIB general terms were those applicable in March, 2013. Clause

7.18 of those AIB general terms dealt with “Assignment by the Bank”. It is necessary to

quote clause 7.18 in full, as the first defendant relied on only a partial extract from that

provision (see para. 14(b) of the first defendant’s second affidavit). Clause 7.18 provided

as follows:-

“The Bank reserves the right to assign, charge, transfer (by way of novation,

securitisation or otherwise) or sub-participate all or part of any facilities and any

security held as collateral in respect of the facilities to any member of the Allied

Irish Banks Group or to any third party, either within the State or elsewhere,

without notice to or the prior consent of the Borrower. The Borrower irrevocably

consents and agrees that the Bank will be entitled to give any proposed assignee,

chargee, transferee or sub-participant such information as the Bank deems

necessary relating to the Borrower, the facility and the security. The Borrower

agrees to execute, at the cost of the Bank, any documentation (including without

prejudice to the generality of the foregoing, any deed of novation) which the Bank

requests it to execute in connection with any such assignment, transfer, sub-

participation or securitisation and in consideration of the facilities and as security

therefore, the Borrower irrevocably appoints the Bank to be its attorney for the

purpose of the execution of any such documentation.”

111. The relevant facility letters of May, 2013 expressly incorporated those AIB general terms,

including clause 7.18. Clause 7.18 clearly entitled the plaintiff to transfer or assign the

Page 29 ⇓

loan facilities and any security held as collateral for those facilities to any third party,

without notice to or the prior consent of the defendants. It was, therefore, open to the

plaintiff to transfer or assign the facilities, guarantees and other security provided.

Further, separately the guarantees provided by the second defendant envisaged the

possibility that the plaintiff could assign the benefit of the guarantees, as the plaintiff was

defined in both of the guarantees as including “its successors and assigns”. There is no

basis, therefore, for the defendants’ contention that the deed of transfer was in breach of

the relevant AIB general terms.

112. Fourth, the defendants contended that the AIB entity which was party to the deed of

transfer was different to the AIB entity which granted the facilities and obtained the

benefit of the guarantees and other security and that there was no assignment or transfer

of them as between the two AIB entities and no notice of any such transfer or assignment

to the defendants. However, that contention was based on the fundamentally mistaken

contention that the AIB entity which advanced the facilities and obtained the benefit of

the guarantees and other security was a different AIB entity to that which was a party to

the deed of transfer. It was not. They were and are the same entities for the reasons

explained earlier. There was, therefore, no such assignment or transfer as between two

AIB entities and no requirement to provide notice of any such alleged assignment to the

defendants.

113. Fifth, the defendants contended that the transfer or assignment to Everyday under the

deed of transfer was unlawful or was ineffective, as no “explicit written notice” was

provided to the defendants as required by s. 28(6) of the 1877 Act (para. 16 of Mr.

McKeown’s third affidavit). The defendants placed reliance on the judgment of Baker J. in

the High Court in Thompson. In my view, there is no merit to this ground of objection

either. The plaintiff had a contractual right to transfer or assign the facilities, guarantees

and other security held under the terms of the relevant AIB general terms and under the

terms of the guarantees themselves. It exercised that contractual right by means of the

deed of transfer. Furthermore, express written notice was provided to the defendants in

the form of the “goodbye letters” in themselves or read together with the “hello letters”. I

agree with the conclusions reached by McDonald J. in the High Court in McCarthy v.

Moroney [2018] IEHC 379 (“Moroney”) where he held that the Bank of Scotland Ireland

(“BOSI”) had a contractual right under the contracts in place between it and the

borrowers to assign the relevant loans and related security to the purchaser, Ennis

Property Finance DAC (“Ennis Property”). McDonald J. looked at the relevant contractual

documents and concluded that they clearly conferred a contractual right to transfer or

assign the relevant interests to Ennis Property. Having reached that conclusion, McDonald

J. stated that it was unnecessary to consider in any detail whether in addition to that

contractual right, BOSI had a right as a matter of law to assign its rights under the

relevant deed subject to compliance with the provisions of s. 28(6) of the 1877 Act.

However, he went on to consider whether those requirements were complied with and

held that they were (see, for example, paras. 76 and 80 of the judgment of McDonald J.

in Woods).

Page 30 ⇓

114. In the same way, I have concluded that the plaintiff had a contractual right to assign or

transfer the relevant facilities, guarantees and security to Everyday and did so by means

of the deed of transfer and the amendment deed. Insofar as it may also be necessary to

demonstrate compliance with the general law in relation to assignments and with the

statutory formalities contained in s. 28(6) of the 1877 Act (and I am not so deciding), I

am in any event satisfied that the requirements of s. 28(6) were met on the facts of this

case.

115. In her judgment in Thompson, Baker J. in the high Court explained clearly the purpose of

s. 28(6) of the 1877 Act, which was to ensure that the debtor would know to whom the

debt was due and from what date the debtor could, with certainty, pay the debt to an

assignee of that debt. Baker J. pointed out that s. 28(6) set out the means by which the

legal right to sue on a chose in action or debt could be assigned and that in order for the

assignment to take effect at law, the court had to be satisfied that the requirements of s.

28(6) were complied with. Without such compliance, the assignment would remain in

equity only.

116. Baker J. also addressed the form of notice required under s. 28(6) of the 1877 Act. She

agreed with Costello J. in LSREF III Stone Investments Limited v. Morrissey [2015] IEHC 603

(“Stone”) that no particular form of notice is required. Both Baker J. and Costello J.

agreed with the legal position as stated by Widgery L.J. in Van Lynn Developments Ltd v.

Pelias Construction Co. Ltd [1969] 1 Q.B. 607 at p. 615 where he said:-

“…the only formality required by the section is that express notice in writing be

given to the debtor. The section does not speak of ‘a notice’: it speaks of ‘notice’.

Accordingly, it is wrong to suppose that a separate document purposely prepared

as a notice, and described as such, is necessary in order to satisfy the statute. The

statute only requires that information relative to the assignment shall be conveyed

to the debtor, and that it should be conveyed in writing.”

117. Baker J. held that the court had to look at the “substance and not the form of a notice”

(para. 48, p. 183). She continued:-

“I consider that in order to be a valid notice under s. 28(6) the debtor must be

given express notice in writing of an assignment of his debt to another, that other

must be identified, and the notice must contain sufficient information to enable the

debtor to know with reasonable certainty that the assignment did assign the debt

so that he may without acting at his peril pay the debt to the identified assignee.

The absence of a date is relevant, and this must be so because s. 28(6) expressly

provides in its terms that the date of the notice to the debtor is the effective date of

the assignment for the purposes of the assignment at law.” (para. 49, p. 183)

118. Baker J. further observed that the 1877 Act does not make provision for who is to give

the required notice in writing of the assignment (para. 50, p. 183). Later, she stated:-

Page 31 ⇓

“While a notice does not have to be sent with the intention of constituting a

statutory notice, a notice must be sufficiently clear as the legislation requires that

the notice be express… I do not consider that s. 28(6) leaves open an argument

that a notice which impliedly identifies an assignment can be sufficient, or that a

prior general consent performs the statutory function of a notice. A notice must be

given, it need not be formal, it need not refer to the statute, but it must be an

express notice of an assignment and not merely a claim to the debt by another

party. The existence of a prior assignment ought not to be implied. There is nothing

in the statute to my mind which suggests that the notice must be contained in one

document and for that reason the joinder of documents maybe sufficient to

constitute a notice of assignment. Costello J. described the process of the sending

of ‘goodbye’ and ‘hello’ letters by assignor and assignee to a debtor or obligor

which taken together amount to an assignment and she had no doubt that the

debtor had as a matter of fact sufficient notice for the purposes of her judgment in

LSREF III Stone Investments Limited v. Morrissey [2015] IEHC 603…” (para. 53,

pp. 184-185)

119. I am satisfied that the “goodbye letters” sent to the defendants on 8th August, 2018

satisfied all the notice requirements of s. 28(6) of the 1877 Act. Those letters made

express reference to the sale and transfer of the relevant loans and related security,

guarantees and other rights to Everyday with effect from 2nd August, 2018. The notice

given by those letters was, in my view, sufficiently clear. It went on to explain how the

loans would be dealt with in the future and with whom the defendants were required to

deal in that regard. The assignee or transferee was clearly identified. A date was provided

and a transitional period identified. It was explained to the defendants what was to

happen following the expiry of the transitional period. In my view, in themselves, the

“goodbye letters” constituted sufficient notice for the purpose of section 28(6). If I am

wrong about that, those letters read together with the “hello letters” sent by Everyday to

the defendants on 14th August, 2018, together amounted to valid notice for the purposes

of section 28(6). Those letters identified Everyday as the purchaser of the relevant

facilities, guarantees and security, the transfer date and the transitional period and

explained what was to happen during those relevant periods in respect of the accounts

identified in the letters. It is clear from the cases that a number of documents together

can constitute a notice of assignment for the purpose of s. 28(6): see, for example,

Thompson and Stone. There is, in my view, therefore, no merit whatsoever to the

contention that “explicit written notice” of the sale by the plaintiff to Everyday and of the

relevant transfer or assignments contained therein was not provided to the defendants.

120. While perhaps not directly relevant to Everyday’s application, as these issues were raised,

I have decided them and have concluded that there is no basis for the defendants’

challenge to the validity of the transfer or assignment of their facilities, guarantees and

security by the plaintiff to Everyday.

(4) Existence of costs order made by the High Court

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121. The defendants contended that the fact that the order made by Costello J. on 12th May,

2017 which gave effect to her judgment of that date contained an order that the

defendants pay the plaintiff’s costs of the proceedings when taxed and ascertained and

that the plaintiff had sought to have those costs taxed by the Taxing Master (as he was

then known), precluded the plaintiff from assigning or transferring the facilities to

Everyday. I do not accept that that is so. The plaintiff obtained the costs order and was

and is entitled to enforce that costs order against the defendants (and is now

unconstrained in doing so having regard to the fact that the stay on execution on foot of

the order granted by the President of the Court of Appeal on 28th July, 2017 pending the

determination of the appeal has now expired in light of the dismissal of the appeal by that

court). The costs order was made in favour of the plaintiff and not in favour of Everyday.

Like Bank of Scotland in O’Connor, the plaintiff had and has the benefit of the costs order

made by Costello J. on 12th May, 2017. The fact that the Taxing Master may have

adjourned the taxation of the costs hearing brought by the plaintiff generally (as alleged

by Mr. McKeown at para. 18 of his second affidavit) is irrelevant to the issue as to

whether Everyday should be joined as a party to the proceedings. The defendants’

objection based on the costs order and adjourned taxation hearing was not a well-

founded objection to the order sought by Everyday.

122. Similarly, and for completeness, I should also make clear that I am satisfied that the fact

that the plaintiff registered the judgment it obtained against the defendants in the High

Court as a judgment mortgage on the defendants’ folio, did not preclude the plaintiff from

selling the relevant facilities, guarantees and security to Everyday and does not preclude

the court from acceding to Everyday’s application to be joined a party to the proceedings.

(5) Defendants’ reliance on the Abbott judgment

123. As noted earlier, the defendants sought to rely, in the course of the replying affidavits

sworn by Mr. McKeown, on the Abbott judgment, namely, the judgment delivered by

Abbott J. in the High Court in In Re Allied Irish Banks plc and Allied Irish Mortgage Bank

[2006] IEHC 463. Having read and reread what Mr. McKeown stated in his affidavits in

reliance on the Abbott judgment, I confess that I have found it extremely difficult to

understand the basis on which the defendants have sought to rely on that judgment by

way of objection to Everyday’s application. Insofar as the defendants sought to rely on

the Abbott judgment as precluding AIB from transferring or assigning the relevant

facilities, guarantees and security to Everyday by means of the deed of transfer and the

amendment deed, they are mistaken. There is nothing in the Abbott judgment which

bears upon that issue. Nor is there anything in that judgment which precludes the court

from granting the order sought by Everyday that it be joined as a party to the

proceedings.

124. The Abbott judgment dealt with something completely different. It arose on foot of a

reference made by the Registrar of Titles to the High Court pursuant to s. 19(2) of the

Registration of Title Act, 1964. The reference was made in circumstances where

applications were made to the Registrar for registration of charges created in favour of

the plaintiff and AIB Mortgage since February, 2006 which were created by a new

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standard form mortgage introduced by the AIB Group, under which borrowers

simultaneously created a mortgage in favour of both the plaintiff and AIB Mortgage Bank.

The purpose of doing so was, as appears from the Abbott judgment, to enable the AIB

Group and its customers to take advantage of the Asset Covered Securities Act, 2001. A

single mortgage was created to be executed by the mortgageor in favour of the plaintiff

and AIB Mortgage Bank. Various issues arose in relation to that type of newly created

mortgage, which caused the Registrar to make the reference to the High Court. Abbott J.

answered the questions raised in the reference. However, none of those issues appears to

me to be remotely relevant to, or to cast any doubt upon, the terms of the deed of

transfer between the plaintiff, AIB Mortgage Bank and EBS, on the one hand, and

Everyday on the other, or to Everyday’s application to be joined as a party to the

proceedings. There is, in my view, nothing in the Abbott judgment which precludes me

from granting the order sought by Everyday.

(6) Alleged novation in favour of Deutsche Bank

125. The defendants contended, on the basis of material obtained by them from Deutsche

Bank, that some form of arrangement was entered into between the plaintiff and

Deutsche Bank concerning the facilities granted to the defendants and the securities

provided by them in respect of those facilities for which the plaintiff failed to obtain the

defendants’ consent. Mr. McKeown asserted that the arrangement between the plaintiff

and Deutsche Bank was in the nature of a novation, for which the defendants never

provided their consent and for which notice had not been provided to the defendants’

contrary to s. 28(6) of the 1877 Act. The defendants further speculated that, if there was

a novation arrangement with Deutsche Bank, it was “secret and unrevealed” and that it

was not possible for the defendants to ascertain what occurred by reason of the

redactions made to the deed of transfer.

126. It is difficult to see how any of this is relevant to Everyday’s application to be joined as a

party to the proceedings. I do not believe that it is. However, as the point was raised by

the defendants, I will address it briefly.

127. Mr. McCudden, on behalf of Everyday, unequivocally confirmed on affidavit that the

redacted portions of the deed of transfer “certainly do not hide a novation agreement or

any unrevealed transfers” or any other information relevant to the allegations made by

Mr. McKeown at paras. 20, 21, 24 and 25 of his second affidavit (see para. 21 of Mr.

McCudden’s third affidavit). Mr. McCudden was not cross-examined on that averment and

there is nothing in the material before the court to cast doubt on its veracity.

128. Furthermore, there is unequivocal evidence before the court as to the facilities,

guarantees and security transferred or assigned to Everyday under the deed of transfer.

They include the facilities and guarantees on foot of which the plaintiff obtained summary

judgment against the defendants. The evidence provided by the defendants from

Deutsche Bank merely indicates that the plaintiff may have entered into an arrangement

with Deutsche Bank in relation to the securitisation of loans, including loans made to the

defendants (see the email from Ms. Natasha Mavrommati of Deutsche Bank to the first

defendant sent on 18th December, 2018). The email provided certain personal data in

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relation to each of the defendants, but did not contain any information in relation to the

loans which were the subject of the securitisation agreement between the plaintiff and

Deutsche Bank. The information exhibited by Mr. McKeown does not contradict the clear

and unequivocal evidence which Everyday put before the court concerning the facilities,

guarantees and security transferred or assigned to Everyday. It is not for me to

speculate, but it may be that the defendants had other loans which were the subject of a

securitisation arrangement between the plaintiff and Deutsche Bank. However, Everyday

has established to my satisfaction, and at the very least to the standard of the balance of

probabilities, that the relevant facilities and guarantees on which judgment was granted

against the defendants were transferred to Everyday. There is no evidence before the

court that those particular facilities and guarantees had previously been transferred or

assigned or otherwise dealt with in favour of Deutsche Bank.

129. While none of the defendants’ arguments based on an arrangement between the plaintiff

and Deutsche Bank is relevant to Everyday’s application to be joined as a party to the

proceedings, I am nonetheless satisfied that the evidence clearly discloses that the

defendants’ loan facilities, guarantees and security were transferred or assigned by the

plaintiff together with AIB Mortgage Bank and EBS to Everyday.

(7) Defendants’ reliance upon SPV Osus

130. In his third and final affidavit, and in the course of his oral submissions to the court, the

first defendant sought to impugn the transfer or assignment in favour of Everyday on the

basis of the judgment of the Supreme Court in SPV Osus. The defendants raised the

argument that the assignment could be unenforceable as a matter of public policy, as

amounting to “commodification or maintenance and champerty” (para. 10(c) of Mr.

McKeown’s third affidavit). The defendants submitted that if the application by Everyday

to be substituted as a plaintiff in place of the existing plaintiff were granted, it would

remove the existing plaintiff from the proceedings and deny the defendants the

opportunity of obtaining discovery in relation to that issue.

131. That point was advanced before Everyday clarified that it was not pursuing its application

to be substituted in place of the plaintiff, but was seeking to be joined as an additional

party. I am satisfied that the judgment of the Supreme Court in SPV Osus provides no

impediment to the court making an order joining Everyday as an additional party to the

proceedings.

132. Nor, in my view, is there anything in that judgment which casts doubt upon the validity of

the assignment contained in the deed of transfer in favour of Everyday. It was not a “bare

right to litigate”, to use the terms referred to by O’Donnell J. in SPV Osus (at para. 51, p.

27). The arrangement, the subject of the Supreme Court’s decision in SPV Osus, was

fundamentally different to the arrangement the subject of the deed of transfer in favour

of Everyday. That arrangement was more akin to the arrangement considered by the

Court of Appeal in Morrissey v. Irish Bank Resolution Corporation Limited (In Special

Liquidation) & ors [2017] IECA 162 (“Morrissey”). There, the Court of Appeal considered

whether certain loan sales made by IBRC were champertous. Having referred to the

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relevant authorities, Hogan J., in delivering judgment of the Court of Appeal, concluded

on the basis of a redacted version of the loan sale agreement that:-

“…there is nothing to suggest that the loan sale agreement involved anything other

than a bare loan sale agreement, comprising the assignment of the loans from

IBRC to Stone, along with the associated right to sue in respect of the recovery of

the loans…” (para. 57)

133. The Court of Appeal in Morrissey concluded that, in those circumstances, the objection to

the loan sale agreement on the grounds that it was champertous or savoured of

champerty, or that it amounted to maintenance failed. In my view, the same conclusion

should be reached in relation to the arrangement the subject of the deed of trust in the

present case. However, it is not necessary to go so far as to reach a concluded view on

that issue for the purposes of dealing with Everyday’s application to be joined as a party.

It is sufficient to conclude the decision of the Supreme Court in SPV Osus does not

preclude the court from making that order.

(8) Status of Everyday

134. The defendants also sought to object to Everyday’s application on the basis of the

regulatory status of Everyday (para. 24 of Mr. McKeown’s second affidavit and para. 26 of

his third affidavit). In my view, the regulatory status of Everyday is not relevant to its

application to be joined as a party to the proceedings. The fact that Everyday is not a

bank or may not be entitled to act as a lender to the defendants, is irrelevant for the

purpose of Everyday’s application. I do not consider it necessary, therefore, to address

further this ground of objection.

Conclusions

135. While Everyday originally sought an order substituting it as the plaintiff/respondent in the

appeal before the Court of Appeal or, alternatively, adding it as a co-plaintiff/co-

respondent after the Court of Appeal remitted Everyday’s application to be determined by

the High Court, and during the course of the hearing of Everyday’s application, Everyday

confirmed that the order it was seeking was an order that it be joined as an additional

plaintiff to the proceedings. I have considered Everyday’s application on that basis.

Although it is certainly arguable that Everyday was only required to establish its

entitlement to be joined as a party on a prima facie basis, I have considered Everyday’s

application on the basis that it was required to establish its entitlement to be joined as a

party, insofar as evidential and other issues are concerned, on the basis of the balance of

probabilities. I have considered all of the grounds of objection raised by the defendants to

Everyday’s application. I have attempted to deal with each of those objections in this

judgment. It may be that I have not specifically addressed each and every point raised by

the defendants. However, I have addressed most, if not all, of the objections raised. In

the event that I have not specifically referred to and individually addressed any further

objection made by the defendants, it is because I consider that those grounds of objection

were completely devoid of any merit. I have concluded that none of the grounds of

objection raised by the defendants have any merit. While I completely acknowledge that

the first defendant advanced the defendants’ opposition to Everyday’s application in a

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courteous and measured manner, I am afraid that I have concluded that there is no basis

for any of the objections raised.

136. I have decided that Everyday is entitled to an order pursuant to O. 17, r. 4 RSC adding it

as an additional plaintiff in the proceedings.

137. While I have concluded that many of the issues sought to be raised by the defendants in

opposition to Everyday’s application did not properly arise on an application to add a

party to proceedings, I nonetheless proceeded to consider many of those objections and

to offer my views and conclusions on them. Those conclusions may be of relevance and

assistance to whatever judge or court is required to deal with any further steps which

may be taken by Everyday in the proceedings.

Result: Order was granted.