Supreme Court of Ireland Decisions

You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Bank of Scotland v Beades [2019] IESC 88 (10 December 2019)
URL: http://www.bailii.org/ie/cases/IESC/2019/2019IESC88.html
Cite as: [2019] IESC 88

[New search] [Printable PDF version] [Help]

Page 1 ⇓

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Supreme Court Record No. 2012/425

Court of Appeal Record No. 2014/602

High Court Record No. 2012/26S

O’Donnell J.

Dunne J.

O’Malley J.

BETWEEN/

BANK OF SCOTLAND PLC

PLAINTIFF/RESPONDENT

AND

JERRY BEADES

DEFENDANT/APPELLANT

Judgment of O’Donnell J. delivered the 10th day of December, 2019.

1. On the 20th of July, 2012, the High Court granted liberty to the plaintiff (“the Bank”) to

enter final judgment against the defendant (“Mr. Beades”) in the sum of €9,684,987.04.

Mr. Beades appealed against that judgment to this court. The case was initially

transferred to the newly established Court of Appeal pursuant to Article 64 of the

Constitution. However, in the light of the workload of the Court of Appeal in its initial

years, Article 64 directions were cancelled in a number of cases to permit the appeals to

proceed in the Supreme Court. This court duly heard Mr. Beades’s appeal against the

judgment of the High Court and, in a decision delivered on the 29th of July, 2019,

dismissed the appeal.

2. The application for costs and any ancillary orders was adjourned, and listed for hearing on

the 16th of October, 2019. On the day before the hearing, Mr. Beades sought to issue an

application for a stay of the judgment. Such an application could not be issued since

there was insufficient notice to the other party and no application was made for

abridgment of time. Accordingly, the court heard argument on the 16th of October,

2019, on the question of costs and awarded the costs of the appeal to the successful

respondent, but put a stay on both the judgment and the order of costs until the 24th of

October, 2019, to permit the issuance of a motion seeking a stay on the judgment

including the order for costs, and gave directions in relation to the delivery of any

affidavits and the exchange of written submissions. The court has been furnished with

succinct and helpful submissions.

3. The apparent basis upon which Mr. Beades seeks a stay on the judgment is that on the

27th of September, 2019, he lodged an application with the European Court of Human

Rights (“ECtHR”, with some authorities and submissions referring to such as the “ECHR”)

at Strasbourg through a lawyer practising there. In his grounding affidavit, he argued

that the plaintiff would not be prejudiced by the grant of a stay because the

“plaintiff/respondent had a valuation carried out on the property and the value attributed

Page 2 ⇓

to the property attributed to zero”. He further states that if a stay was not granted it

would jeopardise his business and the employees of the company. He acknowledged that

the application was not standard, “if not even ground breaking”. In the written

submissions delivered, Mr. Beades appears to have adopted verbatim portions of the text

of the judgment delivered by this court and argues, however, that the principles in

respect of a stay of administrative proceedings enunciated in Okunade v. Minister for

Justice [2012] IESC 49, [2012] 3 IR 152; and the principles applicable pending a

reference to the European Court referred to in Data Protection Commissioner v. Facebook

[2018] IEHC 236, (Unreported, High Court, Costello J., 2nd of May 2018) were applicable.

4. It must be said that it is rather difficult to follow the contentions by Mr. Beades in this

regard. First, the judgment obtained was a judgment obtained against him personally,

and, therefore, does not directly affect any property or company. Moreover, it is

apparent that the application for a stay pending a resolution of complaint to the European

Court of Human Rights raises formidable problems.

5. In the first place, the decision of the Supreme Court on any appeal is, by virtue of Article

34.5.6°, “in all cases final and conclusive”. Accordingly, the principles applicable to the

grant of stay pending the determination of proceedings or pending an appeal, or pending

a reference to the Court of Justice of the European Union are not and cannot be

applicable. Those principles are predicated on the possibility that proceedings or the

appeal, as it may be, may be resolved in favour of the applicant for a stay, and thus a

court must consider the balance of convenience in circumstances where the proceedings

have not been finally resolved and may yet be resolved in favour of the applicant. Plainly,

this is not possible once a final decision has been made by the Supreme Court. There is

no further appeal or process which can set aside or overturn the decision which is final

and conclusive subject only to the exceptional jurisdiction of the Supreme Court to set

aside its own judgment (Re.: Greendale Developments Ltd. [2000] 2 I.R. 514) which, in

any case, is not invoked here. See, in this regard, Practice Direction SC17 of the 9th of

July, 2018.

6. A related point is that an application to the European Court of Human Rights is not an

appeal against the decision of the Supreme Court. It is an application to the court

established by the High Contracting Parties as members of the Council of Europe under

Article 19 the European Convention of Human Rights (“the Convention”) to determine

claims that a Contracting Party is in breach of the Convention. Such a complaint can be

made by other states or individuals, but the respondent is always a Contracting Party to

the Convention. Even, therefore, if that complaint were resolved in Mr. Beades’s favour,

it would not, and could not, result in a reversal of the decision of the Supreme Court. It

would, at best, result in relief against the State, but the judgment against Mr. Beades as

and between the Bank of Scotland and Mr. Beades would still remain final, binding and

conclusive as a matter of Irish law and neither the Supreme Court nor any other body

could interfere with that judgment.

Page 3 ⇓

7. In the helpful submissions on behalf of the Bank, Mr. Stephen Byrne has drawn the

court’s attention to judgments of the High Court of England and Wales which have had to

consider a similar issue. In Locabail (U.K.) Ltd. v. Waldorf Investment Corporation (No.

4) [2000] H.R.L.R. 623, Evans-Lombe L.J. stated, at p. 628:-

“I do not accept, that if Mrs Emmanuel succeeds in the ECHR, the result will be to

render the judgment of the deputy judge unlawful. The ECHR is not constituted

[as] a further court of appeal from the courts of this country … Mrs Emmanuel’s

proceedings in the ECHR will be against the United Kingdom for failing to provide a

court to decide her case which conformed to her rights as defined by Article 6(1).

The ECHR will not determine what equitable rights (if any) [she] has in the two

properties in question. Those issues were determined by the deputy judge and his

decision has been effectively affirmed by the Court of Appeal so as to make it final.

A favourable decision of the ECHR in favour of Mrs Emmanuel will have no effect on

that judgment.”

8. Similarly, in Westminster City Council v. Porter [2003] Ch. 436, an application was made

akin to the application in this case to stay a monetary judgment entered against the

applicant. In refusing the application, Hart J. stated at p. 449:-

“So here, subject to any appeal from it, my judgment today will remain

determinative of the obligations of the first defendant to the claimant. The fact that

the first defendant may make a successful claim to the Court of Human Rights

against the United Kingdom government will have no effect on that judgment. It

would only, as it seems to me, be if this court could be presented with a real

probability of the enactment of legislation by the United Kingdom parliament which

would reverse the effects of my judgment today, that I should begin to consider the

question of whether it would be right with that prospect in mind to stay

enforcement in the meantime. However, nothing that has been urged on the first

defendant’s behalf persuades me that any such prospect exists.”

9. Finally, in Deutsche Bank A.G. v. Sebastian Holdings [2017] EWHC 913, [2017] 6 Costs

L.R. 1003, His Honour Judge Waksman, Q.C., sitting as a deputy judge of the High Court

of England and Wales concluded, at 1007:-

“It is therefore plain that in the usual course, the fact that there is a pending claim

to the ECHR is not a basis for a stay of enforcement of the underlying judgment

unless, at the very least, there is a real prospect of a change in legislation as a

result of success in the ECHR which would directly affect the judgment in question.”

These principles appear applicable to the present circumstances, save that it is doubtful

that any legislation could reverse the outcome of a case finally decided, particularly a

decision to which Article 34.5.6° applied.

10. Mr. Beades, for his part, has argued that a stay is appropriate because “the outcome of

my application to the ECHR would directly affect the judgment as it would establish that I

Page 4 ⇓

had an arguable case and it should not have been dealt with summarily”. This, however,

is incorrect. The issue for the ECtHR, if the case is deemed admissible, would not involve

a consideration of whether Mr. Beades had an arguable defence to the Bank’s claim. It

would, instead, involve consideration of whether Irish law was compatible with the

Convention. In that regard, while the application appears to complain about the

existence of a summary procedure for judgment, it is not entirely clear if it is contended

that the existence of such a procedure is itself contrary to the Convention. However, Mr.

Beades also referred to Sparks v. Harland [1997] 1 W.L.R. 143, where he argued the

court “effectively” stayed or suspended the underlying order so as to await the outcome

of an ECtHR claim. The claim there related to a contention that the plaintiff’s claim was

statute-barred and reference was made to separate proceedings (which were, in fact, the

authority binding on the High Court judge that the claim was statute-barred) where a

complaint had been made to the ECtHR and where under the then-applicable procedure

the Commission had made a decision that the complaint was admissible and a decision

from the ECtHR was imminent. It was argued that if the ECtHR upheld the complaint

(and in the event it did not) that a consequence would be retroactive legislation which

would, or could, have the effect of benefitting the plaintiff. Sedley J. observed that the

Court had power to stay proceedings rather than strike them out, and did so. It does not

appear that the case has established any principle. It is, moreover, apparent that this is

a rather different scenario to the present: it is perhaps possible that a court may decide

not to proceed to judgment where an issue is before the ECtHR where the outcome of

that case might affect the domestic case where, for example, it was contended that a

particular rule of law had to be interpreted compatibly with the Convention or where it is

alleged that legislation is incompatible with the Convention. In such circumstances,

depending on the view a court takes, it might adjourn the proceedings and refrain from

entering a final judgment. However, that is only of limited assistance here where no

Convention (or Constitutional) issue was raised in the proceedings, and a final decision

has been made which is now res judicata as between the parties.

11. It is not necessary to hold that there are no circumstances in which a court could grant a

stay on its judgment pending a complaint to the ECtHR. The fact is that the Supreme

Court has general power to grant a stay and does so, for example, to allow the parties a

short time to organise their affairs, but even that jurisdiction involves a consideration of

what the parties would or could do during the period of the stay. It is apparent here,

however, that the application is based on the misconception that the determination of the

European Court of Human Rights would, itself, overturn the decision of this court. If,

therefore, there is a jurisdiction to grant a stay in circumstances where an application has

been made to the European Court of Human Rights, it must be in circumstances which

can truly be said to be exceptional and unusual. It is accordingly necessary to briefly

consider the terms of the complaint made to the European Court of Human Rights.

12. It is apparent from a perusal of that complaint that it raises different complaints in

respect of two separate proceedings. The present proceedings form only part of the

application made to the ECtHR. The essential complaint, as formulated, appears to be

one relating to the procedure for the grant of summary judgment if it is determined that

Page 5 ⇓

there is no arguable defence, and secondly, that Mr. Beades appeared in these

proceedings without legal assistance. It is also asserted that he raised a defence that

“notwithstanding the written terms of the original loans” the agreement was “subject to

the bank’s undertaking to continue funding the development until the apartments would

be completed” and that the Supreme Court “failed to give reasons concerning whether the

defence was arguable or not. Indeed, it did not specify the basis of such defence as set

out in the defendant’s affidavit or in submissions to the court”.

13. While this might be a matter for the ECtHR in due course, the judgment of the 29th of

July, 2019, sets out and addressed what Mr. Beades had argued on the appeal. As

observed, he studiously refused to acknowledge receipt of the loans, although that

appears now to be admitted by him for the purposes of his application to the ECtHR. He

also raised what was described as a “vestigial” counterclaim and conducted an extensive,

if fruitless, examination of the transcripts of all the applications and hearings before the

High Court. Finally, he raised certain procedural points which were determined. It is

noteworthy that he did not raise any issue of fact in relation to legal aid or assistance, or

raise any contention of law relating to the availability of legal aid or to the law relating to

applications to enter final judgment, whether by reference to the Constitution of Ireland

or to the European Convention of Human Rights Act 2003. It is not immediately apparent

that Mr. Beades has raised any issue that casts doubt on the finality of the judgment. If,

however, he were to succeed in the ECtHR, that court has power to grant him a remedy,

which would by definition be a remedy for the breach which he now alleges, and therefore

the existence of those proceedings is not in itself a good reason to take the exceptional

step of imposing an indefinite stay on a judgment that is final and conclusive.

14. Finally, it is noteworthy that, consistent with the position of the European Court of Human

Rights as a court which can entertain complaints made against Member States, that court

has power to issue interim measures restraining action by the Member State pending a

determination of an issue before the ECtHR. It does not appear that this jurisdiction was

invoked in this case.

15. In all the circumstances, it is sufficient to conclude that the facts of this case do not reach

the level where the court might have to consider whether, and exceptionally, a stay could

be granted on a final and conclusive judgment because a party has made a complaint to

the European Court of Human Rights. Accordingly, the application for a stay is dismissed.

The Court will, however, grant a short stay to permit Mr. Beades to arrange his affairs, if

that is possible, and address the consequences of the judgment. The Bank has not been

particularly active in pressing this claim and, accordingly, it does not appear that a short

stay could prejudice the Bank. Having regard, however, to the fact that the substantive

judgment was delivered almost three months ago, a significant period has already

elapsed, during which Mr. Beades could have taken any steps to put himself in a position

to satisfy the judgment and/or negotiate with the Bank, and it is appropriate to grant a

further 4-week stay as and from today’s date.

Result: Appeal dismissed