Court of Appeal: Judge blasts litigant for appeal that was ‘a complete waste of time and money’

About this case:

• Citation:
  [2022] IECA 169
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Senan Allen

Delivering judgment in the case, Mr Justice Senan Allen noted that the motion was abandoned by the defendant in the High Court and therefore the appeal fell away. Notwithstanding these events, the defendant insisted on arguing the appeal, which was held to be “from start to finish, a complete waste of time and money”.

Background

In October 2019, Bank of Ireland issued summary proceedings seeking judgment of approximately €2.7 million against Balford Construction Limited. The monies were said to be payable on foot of demand loan facilities. In November 2019, the Supreme Court delivered Bank of Ireland Mortgage Bank v. O’Malley [2019] IESC 84, which necessitated an amendment to the bank’s indorsement of claim.

In February 2021, the bank issued a motion to amend its special indorsement of claim and for judgment in the sum of €2.7 million. The motion was listed for June 2021. The weekend before the motion was heard, the defendant’s solicitor issued a motion pursuant to Order 19, Rule 27 RSC seeking to strike out the pleadings in the special indorsement of claim that the loans were repayable on demand.

The defendant proposed that its motion (listed for November 2021) would be heard before the bank’s motion, but this was not agreed. Instead, following submissions to the court, both motions were transferred to the Non-Jury List by Mr Justice Michael Hanna. The court held that it was clear that the motions were not suitable for a Monday list. The defendant had argued that it would be prejudiced if its motion was not heard first, but did not explain this point.

The matter came before Mr Justice Charles Meenan in the Non-Jury List in July 2021. The matter had been before the court twice previously but there had been non-attendance by the defendant. The third time, there was again no appearance by the defendant and the court made directions for the exchange of affidavits. The motions were listed for hearing in March 2022.

Later, the defendant appealed the order of Mr Justice Hanna that the motions should travel together in the Non-Jury List. It was claimed that the transfer was incorrect because it was done “without the consent of the common law listing judge”. It was also claimed that the motions should not travel together.

The matter came before the Court of Appeal directions list, where it was noted that the court would be very slow to interfere with the listing of cases in the High Court. However, the defendant insisted on the appeal.

The substantive motions were heard by the High Court in May 2022. A week before the hearing, the defendant abandoned its motion. A written judgment was delivered in June 2022 where the bank was successful in amending its pleadings and obtained summary judgment.

Subsequently, the bank suggested that the appeal against Mr Justice Hanna’s decision should be struck out, since the defendant’s motion was abandoned. The defendant initially did not respond and later insisted that the appeal be heard. This was despite the bank and the appeals listing judge raising the issue of mootness and wasted costs orders.

Court of Appeal

Mr Justice Allen observed that the defendant’s written submissions merely restated the progress of the High Court proceedings and appeal. It was not explained why the defendant objected to the transfer of the cases to the Non-Jury List.

Seeking to summarise the defendant’s point, the court said: “Doing the best I can, the proposition seem to be that the defendant was entitled in principle to have its later motion heard before the Bank’s earlier motion and that the refusal of the High Court to facilitate that render the defendant’s motion ‘ineffective’.”

It was held that this argument was “utterly without merit” and that neither party could “dictate the progress of litigation against the wishes of the other”. It appeared that the defendant’s motion was “conceived as a cunning plan to thwart the progress” of the case. It was therefore the case that Mr Justice Hanna’s order was entirely correct.

The court agreed that the appeal fell away when the defendant’s motion was abandoned in the High Court. It was a completely untenable position to pursue the appeal in the circumstances, the court said.

The court held that the appeal was moot, having regard to the legal principles in Lofinmakin v. Minister for Justice [2013] 4 I.R. 274. The court stated: “It is not necessary to dwell on the considerations that might justify the making of an exception to the general rule. This appeal has already wasted enough time and effort.”

The appeal was “misconceived from the start”. It was noted that Mr Justice Hanna had not made any order regarding the sequencing of the motions, but this was precisely the issue that was taken by the defendant. The defendant could have still argued that its motion should be heard first when listed in the Non-Jury List.

Conclusion

The appeal was dismissed.

The Governor and Company of the Bank of Ireland v. Balford Construction Limited [2022] IECA 169