Skeletons In The Closet: An Analysis Of The Recent Case Of Promontoria (GEM) DAC -v- The NORC Partnership

Published date08 July 2020
Subject MatterLitigation, Mediation & Arbitration, Law Practice Management, Trials & Appeals & Compensation, Facilities
Law FirmRonan Daly Jermyn
AuthorMs Ashling Walsh, Hilda Mannix and Marie Therese Collins

The recent decision of the Court of Appeal in Promontoria (GEM) DAC v Ciaran Redmond, Michael O'Neill, Clody Norton and Peter Crean T/A "The NORC Partnership"1demonstrates to loan purchasers the importance from a statute of limitations perspective of being aware (and disclosing to the Court) whether previous demands have been issued by the relevant loan purchaser's predecessors in title. It also provides a useful analysis of the criteria adopted by the Court of Appeal in considering any application for the admission of new evidence on appeal.


The case involved an appeal by the Third and Fourth Named Defendants ("Mrs. Norton" and "Mr. Crean" respectively) of a decision of the Commercial Division of the High Court whereby judgment was entered against them in May 2018 in favour of Promontoria GEM Designated Activity Company ("Promontoria") for the sum of ?3.8 million with the balance of the claim (valued at ?676,662.91) remitted to plenary hearing. The underlying loan facilities the subject of the proceedings were originally advanced to the Defendants by Irish Bank Resolution Corporation Limited (in liquidation)("IBRC") acting under its former name Anglo Irish Bank Corporation plc ("Anglo"). Subsequently, those loan facilities were acquired by NAMA and ultimately acquired by Promontoria by deed of transfer dated 27 January 2017. Pending the appeal, Mrs. Norton and Mr. Crean applied to the Court for leave pursuant to Order 86A Rule 4 of the Rules of the Superior Courts2 to adduce new evidence, namely a letter of demand issued by Anglo Irish Bank Corporation Limited dated 14 December 2009 and a letter of demand issued by Anglo dated 1 February 2010. The demand relied upon by Promontoria in the substantive application was one issued by it on 15 June 2017 and none of the demands issued by its predecessors in title were referenced. Mrs. Norton's solicitor swore an affidavit on her behalf opposing the application for summary judgment on the basis that she was seventy four years old and "not in great health" but he acknowledged that during discussions with NAMA, the debt was accepted as due and owing. However, he opposed the application for entry on the basis that there had been engagements with NAMA for a period of five years since 2011 and that given the age and health concerns of his client and the ongoing engagement, the application was not appropriate to be admitted into the Commercial List. Mr. Crean opposed the application for judgment on a number of grounds, including an assertion that there was a prior binding agreement between himself and Promontoria to compromise the claim against him.


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