Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF

BRIAN O’DONNELL AND MARY PATRICIA O’DONNELL

BETWEEN

Result: The Court grants leave to the Applicants to appeal to this Court from the Court of Appeal.

Reasons Given:

1. The facts in this case are set out in detail in a judgment of the High Court (Costello J.) of the 16th April, 2015, and an ex tempore judgment of the Court of Appeal (Finlay Geoghegan J; Ryan P and Peart J concurring) of the 10th December, 2015, (approved on the 10th May, 2016) and in the application for leave in the respondents notices. The applicants’ application for leave and notice of appeal and the respondent’s notice are also available on this website. Accordingly it is not considered necessary to set out the facts in any greater detail. The proceedings concerned an application to the High Court by the applicants in this Court (Brian and Mary Patricia O’Donnell) pursuant to s.85C of the Bankruptcy Act 1988 as inserted by s.157 of the Personal Insolvency Act 2012, to annul an adjudication of bankruptcy in their cases.

2. The petitions to adjudicate the debtors bankrupt were grounded upon a judgment obtained by the Bank of Ireland in summary proceedings commenced in December 2010. The debtors were legally represented. An eight page settlement agreement was entered in to between the Bank of Ireland and the debtors on the 4th March, 2011. It was a condition of the settlement agreement that if the debtors defaulted in the scheduled payments, then they would consent to judgment in the sum then shown to be due. Default was duly made, and the Bank of Ireland re-entered the proceedings and on the 12th December, 2011, the High Court (Kelly J.) entered judgment against the debtor in the sum of circa €71.5 million. The judgment was not appealed, and although complaint was subsequently made by the applicants as to service, no application was made at the time to seek to set aside the judgment. The debtors were examined as to their means before the High Court for over five days. Thereafter the debtors applied to be adjudicated as bankrupts in England and Wales, and for that purpose admitted the indebtedness to the Bank of Ireland. The bank resisted the application in England and Wales, and the High Court of Wales refused the debtors application on the grounds that England was not the debtors centre of main interest (“COMI”). An appeal against this determination was unsuccessful. The Bank of Ireland had in the meantime instituted petitions in bankruptcy in Ireland which were adjourned pending the decision in the UK. Those petitions were then heard over a four day period by Charleton J, and the debtors were adjudicated bankrupt on the 2nd September, 2013.

3. The present proceedings concern an application to annul the adjudication and certain ancillary matters. All applications were dismissed by Costello J. in the High Court and the appeal was dismissed in turn by the Court of Appeal. The bankrupts now seek leave to appeal to this Court.

4. It is axiomatic that an applicant for leave to appeal to the Supreme Court must now establish that the appeal involves a point of law of general public importance which it is in the public interest should be the subject of a matter of an appeal to this Court. The applicants identify four such matters which they contend satisfy the constitutional test:

(I) A clarification of the general test for annulment of a bankruptcy under s.85(c);

(II) Clarification of the Bankers Books Evidence Act 1879-1959;

(III) Clarification of the law relating to the handling of an application such as these where a number of applications were dealt with;

(IV) Clarification of the power to award costs personally against bankrupts.

5. There is no question of the interests of justice in this case requiring an appeal to this Court on the merits of the application. The applicants have had a hearing in the High Court and a full appeal through the Court of Appeal. In the normal course of events this is what the administration of justice contemplates and requires. It is therefore necessary for the applicants to establish that the matter concerns a point of law of general public importance. While the determination of that point may often lead to a clarification of the law, any such clarification is a consequence of the determination of the point involved in the appeal, and not an object in itself. It is not the function of this Court to clarify the law in general, but rather to seek to do so in the context of and for the purposes of an appeal defined by facts found and issues raised in the courts below. The application here was fully considered by the High Court, and the application of the law considered by the Court of Appeal.

6. The petitions here were not based upon a disputed debt, but rather upon a judgment of the High Court which was, for the purposes of the application, final and conclusive and which was in itself based upon a settlement entered into by the applicants. The Court is satisfied that no issue of general and public importance arises in respect of the manner in which the court dealt with the application to annul the bankruptcy in these cases.

7. In relation to the Bankers Books Evidence Act the applicants contend that “in order to obtain judgment the bank must produce the bankers’ books to prove the debt. In the case herein BOI does not in fact possess any bankers books and is using the books of Bank of Ireland Private Banking (which is not a bank) to prove its debt which is not permissible on the Bankers Books of Evidence Act – the books must be the ‘ordinary books’ of BOI which they are not. No one from Bank of Ireland Private Banking gave any evidence in the case herein regarding Bank of Ireland Private Bank BOI’s records”.

8. It is difficult indeed to see how this issue arises in truth on an application to annul a bankruptcy which was itself based upon a judgment of the High Court. Furthermore, the point made here appears to be in part to be a variant of a complaint made elsewhere in these proceedings (and in other proceedings) by the applicants as to the identity of the party with whom they dealt. In the circumstances of this case, the issue does not properly arise and cannot therefore be considered to be an issue of general public importance.

9. Third, it is argued that the High Court directed that several preliminary motions and the main motion were all heard together in what the applicants describe as a “hotchpotch manner”. The manner in which an application is heard by the High Court, is a matter primarily for the High Court itself and certainly does not raise any matter of general public importance which requires an appeal to this Court.

10. The applicants also raise a point in respect of the order of costs made against the bankrupts personally, outside the bankruptcy estate in circumstances where there is no legislative or common law authority. The Court considers this issue does raise a point of some general importance and accordingly the Court is prepared to grant leave to appeal to this Court on the sole ground identified on paragraph 8 of s.6 of the application for leave, namely that:

“The High Court and Court of Appeal erred in law and in fact in holding that they could award costs against the appellants outside their bankruptcy estates.”

And it is hereby so ordered accordingly.