Hinde v Pentire Property Finance dac & anor

Factual and Procedural Background

The Plaintiff initiated proceedings by plenary summons on 24th April, 2018, followed by a statement of claim on 18th June, 2018. The Defendants filed a motion on 5th June, 2018 seeking to vacate a lis pendens registered in relation to a residential property and to strike out the Plaintiff's proceedings on grounds that they were frivolous, vexatious, and bound to fail. The motion was supported by an affidavit from the second Defendant sworn on 1st June, 2018. Both parties exchanged affidavits and written submissions, and the motion was heard over two days on 25th and 26th July, 2018. After hearing, judgment was reserved.

Subsequently, the Plaintiff sought to adduce further evidence relating to the relationship between an English company and the first Defendant. An ex parte application for leave to adduce this evidence was made on 30th July, 2018. The Court granted leave to bring a motion on notice to the Defendants. However, due to miscommunication, the Court delivered its judgment on 25th September, 2018 without considering this application. The matter was later clarified, and the Court agreed to hear the Plaintiff's application for leave to adduce further evidence, which is the subject of the present judgment.

Legal Issues Presented

1. Whether the Plaintiff should be permitted to adduce further evidence after judgment had been reserved and in light of the completed hearing.
2. Whether the new evidence concerning the relationship between the English company and the first Defendant is relevant and could have influenced the outcome of the motion.
3. Whether the application to admit new evidence meets the legal test for reopening a concluded hearing and judgment.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff sought to introduce evidence to establish a connection between an English company ("CarVal Investors UK Ltd") and the first Defendant ("Pentire Property Finance DAC").
• The Plaintiff argued that the loan transfer agreement was unenforceable because CarVal was not authorised under UK Financial Services and Markets Act 2000 at the time of acquiring the mortgage from the Bank of Scotland Plc.
• The Plaintiff contended that because the antecedent transfer to CarVal was unenforceable, the subsequent novation to Pentire was ineffective, invalidating Pentire's authority to appoint the second Defendant as receiver.
• The Plaintiff asserted that the relationship between CarVal and Pentire was relevant to her case and requested confirmation that various companies were connected and wholly owned subsidiaries of CarVal.
• The Plaintiff sought leave to adduce further evidence comprising publicly available company records to substantiate the asserted relationship.

Respondent's Arguments

• The Defendants opposed the admission of new evidence on the basis that it was available before the hearing and could have been presented then.
• They argued that the Plaintiff’s case, as pleaded and argued, did not rely on or allege a relationship between CarVal and Pentire affecting the validity of the loan transfer.
• The Defendants contended that the application to admit new evidence was an attempt to introduce a new point after the hearing and judgment, amounting to an abuse of process.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully examined the Plaintiff’s application to adduce further evidence after the hearing and reserved judgment. It noted that the evidence sought to be introduced related to the corporate relationship between two companies involved in the loan transfer chain. The Plaintiff’s pleaded case and written submissions did not rely on or allege such a relationship as relevant to the validity of the transfer or appointment of receiver.

The Court emphasized that the evidence was publicly available and could have been presented before the hearing with reasonable diligence. The absence of explanation for the delay in presenting this evidence was a significant factor against its admission.

Relying on the precedent set by Clarke J. in McInerney Homes Ltd, the Court applied the dual test for admitting new evidence after judgment: the evidence must be credible and likely to influence the outcome, and it must not have been reasonably available at the original hearing. The Court found that the new evidence failed both limbs of this test.

Furthermore, the Court expressed concern that allowing such late evidence would cause procedural chaos and injustice, amounting to an abuse of process. The Court also clarified that its prior judgment did not rest on any assumption regarding the relationship between the companies.

Accordingly, the Court refused the application to admit the further evidence contained in the affidavit of the Plaintiff’s solicitor.

Holding and Implications

The Court REFUSED the Plaintiff’s application for leave to adduce further evidence after the hearing and reserved judgment.

The direct effect is that the Plaintiff’s attempt to introduce new evidence relating to the corporate relationship between the companies involved in the loan transfer was disallowed. No amendment to the pleadings or reopening of the motion was permitted. The Court’s refusal enforces the principle that parties must present their full case at the appropriate stage to avoid procedural abuse. No new precedent was established beyond the application of established principles regarding admission of new evidence post-judgment.