English v Promontoria (Aran) Ltd (Approved)

Factual and Procedural Background

The plaintiff initiated proceedings arising from several loan agreements entered into with Ulster Bank between 2008 and 2011, secured by a mortgage over a property in Co. Tipperary. The plaintiff challenges the validity of the purported sale and assignment of these loans, facilities, and the mortgage by Ulster Bank to the defendant, disputing the defendant’s rights and powers under those transactions. The plaintiff also contests the appointment of a receiver by the defendant, alleging damage caused by the receiver to the property. The case has a protracted history including two interlocutory judgments by Murphy J. In the first judgment, the defendant failed to prove acquisition of Ulster Bank’s rights, leading to a stay on the receiver’s appointment. In the second judgment, additional evidence was accepted, lifting the stay. The plaintiff was granted limited liberty to amend the statement of claim in October 2019, leading to amendments related solely to a third party's role. An amended defence and counterclaim followed, with court-ordered timelines for delivery of particulars and replies. The plaintiff failed to meet the deadline for an amended reply and defence to counterclaim until November 2020, prompting this application to extend time and seek liberty to rely on the amended pleadings. The amended reply and defence contain numerous new or altered paragraphs, raising issues of whether these amendments should be permitted at this stage.

Legal Issues Presented

1. Whether the plaintiff should be permitted to amend the reply to defence and counterclaim at this late stage under Order 28, rule 1 of the Rules of the Superior Courts.
2. Whether the proposed amendments address the real questions of controversy between the parties.
3. Whether allowing the amendments would cause prejudice to the defendant that cannot be remedied by costs or procedural directions.
4. Whether the plaintiff’s application constitutes an abuse of process, particularly in light of interlocutory judgments previously made.
5. The applicability of issue estoppel and the Rule in Henderson v. Henderson in relation to the amendments.
6. The significance of the plaintiff’s delay and adequacy of explanation for that delay.
7. The permissibility of raising new issues in a reply.

Arguments of the Parties

Appellant's Arguments (Plaintiff)

• The plaintiff seeks to extend time and liberty to rely on the amended reply and defence to counterclaim, arguing the amendments are necessary to clarify and expand on existing issues.
• The plaintiff submits that the amendments are directed to the real issues in controversy and should be allowed under the liberal principles governing amendments.
• The plaintiff undertakes not to seek further particulars or discovery in relation to certain new pleas to limit delay and prejudice.
• The plaintiff contends that the interlocutory judgments do not preclude further challenges to the defendant’s status as successor or assignee.
• The plaintiff accepts some delay but attributes it partly to the Covid-19 pandemic and the necessity of senior counsel involvement.

Appellee's Arguments (Defendant)

• The defendant objects to the amendments, asserting they introduce new claims and cause undue delay and prejudice.
• The defendant argues the plaintiff’s delay in delivering the amended reply and defence was not reasonably explained.
• The defendant submits the application is an abuse of process, particularly given previous interlocutory judgments that found the defendant had acquired Ulster Bank’s rights.
• The defendant relies on issue estoppel and the Rule in Henderson v. Henderson to bar the plaintiff from re-litigating issues already decided.
• The defendant contends that the case management history and potential disruption justify refusal of the amendments.
• The defendant objects to vague and unsupported allegations, such as those relating to champerty and maintenance, which lack factual basis and would cause prejudice.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the liberal principles under Order 28, rule 1, emphasising that amendments should be allowed to determine the real questions in controversy unless significant prejudice arises. The court carefully distinguished between amendments that clarify or expand existing issues and those that introduce radically new claims. It found that minor or housekeeping amendments were permissible.

The court noted that many proposed amendments merely expanded on the plaintiff’s longstanding challenge to the defendant’s status as successor and assignee of Ulster Bank’s rights, which is central to the dispute. These were allowed, subject to a strict condition that a fresh draft be filed promptly to prevent further delay.

Conversely, the court refused permission to include entirely new claims lacking factual basis, particularly vague allegations of champerty and maintenance and the assertion that the mortgage was a chose in possession not assignable. These were deemed frivolous, vexatious, and not necessary to resolve the real issues.

The court addressed the defendant’s abuse of process argument, concluding that interlocutory judgments did not constitute final determinations and therefore did not bar the plaintiff from pursuing relevant issues at trial. The court distinguished this case from precedents where final decisions precluded further claims.

Regarding prejudice, the court acknowledged the significant prejudice to the defendant if delayed amendments impair its ability to exercise mortgagee rights, particularly possession and income from the property. However, it found that general prejudice relating to case management disruption was not sufficiently demonstrated by the defendant to justify refusal.

The court also considered the plaintiff’s delay and inadequate explanation but held that delay alone, without balancing other factors, was not determinative. The court imposed a strict timeline to mitigate further delays.

Finally, the court refused to allow the plaintiff to import pleadings from separate Receiver proceedings, emphasizing the need for clarity and precision in pleadings and the distinct nature of separate actions.

Holding and Implications

The court GRANTED the plaintiff’s application for liberty to amend the reply to defence and defence to counterclaim, with the strict condition that a fresh draft reflecting the court’s exclusions and directions be served and filed within one week.

The court REFUSED permission to amend to include certain entirely new claims and vague allegations that were unsupported and not directed to the real issues in controversy, including pleas relating to champerty, maintenance, and the mortgage as a chose in possession.

The court reserved costs, noting that although the plaintiff was largely successful, he was not wholly so and was guilty of unjustifiable delay and breach of prior directions. Costs submissions were allowed on a defined timetable.

The decision permits the plaintiff to proceed with a substantially expanded case regarding the defendant’s status and related issues, while preventing the prolongation of proceedings by disallowing frivolous or irrelevant claims. No new precedent was established; the ruling applied established principles governing amendments, abuse of process, and interlocutory judgments.