High Court dismisses bankruptcy dismissal application and orders adjudication against debtor for failing to pay debt.

THE HIGH COURT

BANKRUPTCY

[2026] IEHC 100

Record No. 5884 P, 6272 S

IN THE MATTER OF THE BANKRUPTCY ACT 1988, AS AMENDED, AND

IN THE MATTER OF A BANKRUPTCY SUMMONS BY MARS CAPITAL

FINANCE IRELAND DAC AGAINST ALAN PHELAN

JUDGMENT of Mr Justice Liam Kennedy delivered on 23 February 2026.

1. This judgment deals with an application to dismiss a bankruptcy and the application for adjudication. I will refer to the parties as the Petitioner and Debtor. The Debtor sought the dismissal of the bankruptcy summons (“the Summons”) on the basis that: (a) the debt was overstated; (b) the Petitioner was not proven to be entitled to demand payment;

(c) the proceedings were an abuse of process because the petition was brought for an improper purpose. I have concluded, for reasons set out below, that I should refuse to dismiss the Summons and should make an order of adjudication. The Debtor has not established that the debt was overstated in the Summons. Nor has he advanced cogent evidence as to a real or substantial issue for trial or established that the proceedings are an abuse of process.

The Petition

1. The Petition alleged that; (a) the Debtor owed the Petitioner €800,534.05 (“the Debt”) on foot of an order of the Master of the High Court (“the Judgment”) in favour of AIB Mortgage Bank on 6 May, 2016 which the Petitioner was entitled to execute on foot of the 26 February 2024 Order of Barr J ("the Substitution Order") substituting it as Plaintiff and giving leave to enforce the Judgment; (b) the Debt remained due and was calculated as follows: “Consent Order made Before the Master of the High Court for judgment in the sum of €800,534.05”; (c) the Debtor committed an act of bankruptcy within three months of the petition’s presentation by failing to pay the sum claimed in a duly served bankruptcy summons. The petition also detailed a mortgage held over two properties with an estimated aggregate value of €645,000 - 660,000 and contained the other pleas, including as to the Debtor’s centre of main interests (“COMI”), necessary to ground such a petition.

2. The context is as follows and, save as noted, these points appeared uncontroverted, or have been resolved by a related Court of Appeal judgment: a. from 2000 to 2007 AIB advanced substantial sums to the Debtor on foot of seven loan facilities1. The loans fell into arrears and AIB appointed a receiver on 23 January 2015. The Debtor disputed the validity of his appointment (but the Court of Appeal has now rejected the Debtor’s contentions). b. In 2015 AIB issued proceedings against the Debtor and subsequently issued an application for summary judgment, claiming €800,534.05, plus ongoing interest and costs (“the Summary Proceedings”).

Although the loans subsequently transferred to AIBMB it is not necessary for present purposes to distinguish between AIB and AIBMB.

c. Between July and November 2015, the Receiver collected €6,650 in rent (“the Rent”) from the charged properties and AIB’s solicitors informed the Debtor’s solicitors accordingly on 2 March 2016. d. On 29 April 2016, the Debtor and AIB agreed settlement terms (“the Agreement”) under which the Debtor agreed, inter alia, to; (i) pay €65,000 (the Payment) to AIB (“the Payment”); and (ii) consent to the judgment in the terms sought in the then pending notice of motion for summary judgment with costs and interest pursuant to the Courts Act.

The Agreement provided for a four month stay on the Judgment, offering the Debtor an opportunity to advance proposals to restructure his debts or to implement a Personal Insolvency Arrangement (“PIA"). e. The Debtor duly made the Payment on 29 April 2016, the day of the Agreement. On 6 May 2016, by consent, the High Court entered judgment for AIB against the Debtor in the sum of €800,534.05, subject to the stay. No payment has been received since then, nor has there been any attempt to appeal, set aside or vary the Judgment, but the Debtor says that the Debt (which grounds the Summons and the petition) overstates his indebtedness as it does not allow for the Payment (€65,000) or the Rent (€6,650) (“the Offsets”).

He maintains that he should have been given credit for them and that his actual debt is less than the Judgment figure. f. After the Judgment, the parties duly engaged, sometimes acrimoniously and consistently unsuccessfully, to negotiate a proposed debt restructuring, including by means of a PIA. g. By letters dated 3 and 28 February 2017 in the context of the restructuring negotiations, the Debtor’s solicitors suggested that the amount due should reflect the Payment. No response from AIB has been exhibited, but it appears from the 28 February 2017 letter that AIB’s solicitors must have refused to countenance any deduction.

Nevertheless, the Debtor submits that the heading of a 9 June 2017 letter from AIB’s Solicitors implies its acceptance that the Judgment figure was wrong. h. By deed dated 30 April 2021, AIB transferred the Debtor’s loans and security to the Petitioner, including the benefit of the Judgment. i. On 20 April 2022, the Debtor issued High Court proceedings against AIB, the Petitioner and the Receiver (the “2022 Proceedings”), delivering a Statement of Claim on 10 June 2022. j. On 26 February 2024, following a contested hearing, the High Court (Barr J) substituted the Petitioner as Plaintiff in lieu of AIB in the Summary Proceedings, granting it leave to execute (“the Substitution Order”).

No stay was sought from the High Court. The Debtor appealed the Substitution Order. k. On 25 March 2024 the Debtor applied to the Court of Appeal for a stay on the Substitution Order. Costello J allowed the application to proceed but refused the stay2. l. On 4 April 2024, the Petitioner served on the Debtor Particulars of Demand and Notice Requiring Payment of the Debt “(Particulars”). m. I gave leave to issue a bankruptcy summons on 1 July 2024. The Summons incorporated particulars of debt in the same terms as the Particulars. n. The appeal against the Substitution Order was heard on 29 July 2024; judgment was pending at the time of the hearing before me. o.

On 29 July 2024, I extended time for the service of the summons and gave leave for substituted service. Service was then effected accordingly.

The Debtor says that this was because the Court anticipated that the appeal would be resolved before the bankruptcy proceedings, but the Petitioner says that Costello J also refused the relief because no stay had been sought in the High Court, and because she did not consider that the appeal stood any prospect of success.

p. On 21 August 2024 the Debtor issued the application for dismissal of the Summons, denying that he owed the Petitioner any sum in excess of €20,000.00, the figure required to ground bankruptcy proceedings. No payment having been forthcoming, the plaintiff issued the current petition. q. I accommodated initial requests for adjournments as the Court of Appeal was understood to be imminent. However, I was not prepared to do so indefinitely and directed that the application to dismiss the summons and for adjudication should both proceed to hearing on 28 April 2025. r. On 23 May 2025 the Court of Appeal dismissed the appeal. That judgment is considered below. s. The inclusion of mandatory Courts Act interest was not specifically referenced in the Particulars, the bankruptcy summons or the petition although the Agreement specifically provided for Courts Act interest. The effect of section 22 of the Courts Act 1981 is that, by law, interest was automatically payable on the Judgment at a rate of 8% from 6 May 2016.

3. This judgment focuses on key issues raised before me. There was no suggestion of any other controversy (such as, for example, as to the summons, petition or proofs, or as to service of any document or the Debtor’s COMI). Save as noted, most facts are largely undisputed. Specifically, there is no dispute as to the facts that: (i) the Debtor entered into the Agreement with AIB; (ii) the terms of that document; (iii) the terms of the 2016 Judgment or the fact that there was never any application to appeal or vary or set it aside; (iv) the Receiver did collect the Rent in 2015; (v) the Debtor made the €65,000 Payment immediately after entering the Agreement and more than a week before the Judgment; (vi) both sides knew the facts in respect of both Offsets prior to the Judgment; (vii) the figure in the Judgment did not in fact credit either sum (and nor was there any suggestion prior to February 2017 that it should have been).

The controversies as to the characterisation, implication, interpretation and consequences of key points are considered below, specifically, whether the Debtor is entitled to credit for the Offsets and whether Courts Act interest should be considered when determining whether the figure claimed in the Summons was overstated.

The Documents

4. I will consider certain key documents before the affidavits. The original facility letters and associated documents were exhibited. The Debtor did not deny entering into them, nor did he seriously dispute the arrears as quantified in the summary judgment application. AIB’s notice of motion sought liberty to enter final judgment for €800,534.05 “the amount including interest due as of 4 January 2016”, plus contractual interest from then and/or “interest pursuant to statute” and costs.

The Agreement and Judgment

5. The Agreement took the form of a letter dated 29 April 2016 from AIB’s solicitors to the Debtor’s solicitors (“the Agreement”). Personally signed by the Debtor, it evidently followed engagement between the parties’ solicitors and provided:

“The plaintiff will agree the following:

1. Mr Phelan will consent to judgement in the terms of the notice of motion with costs to be taxed in default and interest pursuant to the Courts Act.

2. There will be a 4 month stay on entry and execution from the 29 April 2016.

3. The bank will instruct the receiver to take no further steps in the receivership for the

4 months. Possession will remain with the receiver and Mr Phelan will co-operate with the receivership.

4. Mr Phelan acknowledges that the receiver will have accrued costs and that he will be responsible to pay same within 21 days of same being vouched.

5. Mr Phelan will do whatever is needed to immediately transfer €65,000 from the monies in the company AIB account … to the plaintiff, and will provide evidence that those monies are irrevocably in train prior to any consent order being advised to the Master.

6. Mr Phelan will undertake that there will be no disposal, charging or divesting of any interest or rights in any assets in which he has an interest of any nature, however that interest is held, save for ordinary day to day expenses, save with the consent of the bank.”.

The Judgment

6. The Judgment was in the following terms:

“…upon hearing Counsel for the Plaintiff and Counsel for the Defendant BY CONSENT IT IS ORDERED AND ADJUDGED that

1. the Plaintiff do recover against the Defendant the sum of €800,534.05 and the costs of these proceedings and an Order for taxation

2. entry and execution on foot of said Judgment and costs Order be stayed for a period of four months commencing on the 29ᵗʰ day of April 2016”.

The 2017 Correspondence

7. I will consider in detail three 2017 letters which the Debtor relies on, and which also illuminate the path of the unsuccessful restructuring attempts following the Judgment.

8. A 3 February 2017 letter from the Debtor’s then solicitors to AIB’s solicitors: a. referred to previous negotiations resting with the latter’s 9 January 2017 letter rejecting the Debtor’s 13 September 2016 proposal, claiming that the latter remained hopeful of a mutually satisfactory resolution, since AIB’s last correspondence he had sought additional finance from lending institutions and private equity funds so as to advance a new proposal for full and final settlement. b. Reminded AIB that “our client discharged the sum of €65,000.00 in partial discharge of the outstanding sum due and owing on the day that judgement was obtained against him by consent. This leaves a net amount due to your client of approximately €735,000.00”. c. Outlined the funding secured or being secured and the proposal, noting that time would be required to obtain finance that in the meantime his properties should be “withdrawn from any purported sale or receivership situation”.

d. Added that

“our client is using his best endeavours to bring the entire matter to a

conclusion. He has recently been advised by his employer that due to a shortage in the level of work in his particular field, his income may be reduced in the very near future and he is anxious to advance these negotiations while his income remains at a sustainable level to secure the finance. While we have advised our client to obtain the independent advice of a Personal Insolvency Practitioner, he is most reluctant to do so and remains hopeful that he will be able to resolve the current difficulty through the course of these negotiations. On a separate note, our client has been contacted by representatives of the Receiver who were unaware that negotiations were ongoing between the parties. Mr. Brian Jones of PWC spoke with our Kevin McElhinney recently and indicated that they had received no instruction to stand down with the Receivership. We have taken the liberty of copying Mr. Jones to this correspondence, in the anticipation that this proposal will be acceptable to all interested parties”.

9. The Debtor’s solicitors 28 February 2017 letter to AIB’s solicitors: a. complained about AIB’s refusal to accept the adequacy of the Debtor’s financial disclosure or his offer, adding that:

“Our client is not in a position to pay the entire judgement as suggested by you. We enclose herewith letter of loan offer which has been furnished by a very close friend of our client and which sets out the maximum amount which has been extended to him in an effort to discharge the judgement obtained on the part of your client.” b. Referred to the circumstances which led to the original arrears and the Debtor’s attempt to address them, explaining why he agreed to the Judgment:

“Our client has facilitated those proceedings and was advised during the course of those discussions that the bank would be "more willing" to advance negotiations where Judgement is accepted against him, avoiding any protracted legal arguments and costs on the part of your client. Our client went further than simply accepting the Judgement being marked against him, paying the significant sum of €65,000.00 in partial discharge of his liability as a gesture of his bona fides in seeking to reach agreement with your client. Despite this gesture of goodwill, there has been no reciprocation”.

10. In response to an allegation in correspondence (which has not been exhibited), the Debtor denied obstructing the Receiver, stating that:

“He is trying to protect the assets which he has worked for a long number of years to amass and which you appear intent on taking, regardless of the position set out herein and heretofore. In order to ensure repayment capacity for the loan which has been approved to our client, he has located a tenant within the property at Swanward Court and we are making the Receiver aware of this position by furnishing a copy of this letter to him. Our client has not made any payment since Judgement was obtained as he was looking to constructively engage in relation to an overall settlement, a process which has been frustrated by your ongoing refusal to consider what are extremely positive and significant proposals. In addition, the Judgement amount does not appear to credit the €65,000.00 which was paid on behalf of our client and as a consequence we should be obliged if your client would revert with details of the current outstanding liabilities in relation to each of the properties for review. Turning to your comment regarding the Receiver, there has been no misrepresentation of any position at any time. Our client is extremely anxious to bring this matter to a

conclusion and has made it clear at all times that he wishes to retain the properties which he has built up over the years. Our client is using all of his best endeavours to formulate payment terms which will result in the immediate discharge of significant lump sum payment to your client without the necessity for enforcement of the Judgement obtained, not to mention the requirement for further proceedings in relation to possession and sale of the properties which, if advanced, will bring our client into an insolvency situation. Commercially, pushing our client to insolvency will not benefit your client and will in fact result in a significant reduction on the financial proposal set out on behalf of our client herein”.

11. In view of the Debtor’s claims of abuse of process, it may seem ironic that that the letter threatened negative publicity if AIB enforced the Judgment.

AIB’s 9 June 2017 letter

12. The Debtor relies on the heading of AIB’s Solicitors 9 June 2017 letter, which provided as follows:

“AIB Mortgage Bank v Alan Phelan

High Court Record Number 2015/3935

Judgment 6 May 2016: €800,534.05 plus taxed costs and interest

Balance at 9 February 2017 including Interest: €776,964.92”.

13. The terms of the letter bear consideration. It: a. denied failing to respond to previous correspondence, noting that the Debtor’s solicitors had overlooked AIB’s solicitor’s response, confirming the rejection of the Debtor’s proposal and the continuation of the receivership.

b. Expressed serious concerns about the adequacy of the Debor’s financial disclosure and the bona fides of his offer. It characterised the disclosure as “wholly deficient to allow any consideration of any write off”, noting that previous communications also failed to ensure financial transparency from the Debtor and that:

“at the most basic of levels no personal bank account statements or credit card statements are provided. No statement of affairs has been provided since May 2015.The offer from Tim Kelly Group of a loan of €580k is not likely to be acceptable given that your client valued the properties in a lower market in May 2015 at 850k. The circumstances of this loan raise concerns that this is simply your client introducing his own funds into the transaction in a way designed to force a write off while retaining all the security. This has been the strategy from the outset and has been rejected on all occasions to date”. c. Enclosed a statement of affairs for completion by the Debtor noting that the previous statement:

“listed a property in Marbella, Spain but no detail ls provided, or any reference to related bank accounts, or current accounts, or credit card accounts etc. Nor, indeed, is there any mention of selling the Spanish property as part of the proposal”.

The Particulars

14. The 4 April 2024 Particulars of Demand and Notice Requiring Payment demanded payment of €800,534.05 due on foot of the Judgment and Substitution Order. The Summons was in the usual terms, demanding payment of the debt while warning of the consequences unless that sum was paid (or secured or compounded for) within 14 days or the Debtor applied to dismiss the summons or obtained the protection of the Court.

The Affidavits

15. The affidavits included inappropriate legal submissions. I will summarise salient points without rehearsing in detail undisputed matters, irrelevant matters, submissions, or points covered elsewhere in this judgment or resolved by the Court of Appeal.

16. Along with customary averments, the affidavit of debt averred that the Debtor was indebted “in the sum of €800,534.05 for a debt that arises on foot of the following order of this Honourable Court of the 06 May 2016 and perfected on the same date”. It referenced the consent order and the Petitioner’s entitlement to enforce the same in accordance with the Substitution Order. (Although the Debtor took issue with the Substitution Order and the Petitioner’s title to sue, that issue has now been resolved by the Court of Appeal decision). It alleged an act of bankruptcy within the requisite period in that the Debtor had failed to pay any of the sum referred to in the Summons or to secure or compound for the Debt, noting that “the Debtor is retaining and not waiving its rights in regard to the interest on the debt.”

17. Without referring to either the Judgment or the Substitution Order, the Debtor’s affidavit grounding the application to dismiss denied being indebted to the Petitioner “in any sum amounting to more than €20,000”. His first supplemental affidavit advanced a different case. It: a. acknowledged the Judgement and his Agreement to consent the judgment “in respect of debts due to the bank” and “to make a payment in the sum of €65000 to AIB thereafter” and confirmed that following agreement to the judgment he duly made the Payment “in partial satisfaction” of his debt. b. Complained that the Payment was never credited against the Debt and that “the monies were misplaced by AIBMB” and not acknowledged for over 18 months.

c. Reiterated that the figure in the summons was incorrect as it did not reflect the Payment made “in partial discharge of the judgment debt” or the Rent collected by the Receiver in 2015. d. Also took issue in general terms with figures in the affidavit of debt but the payment and the rent were the only specific issues advanced. While it denied owing the Petitioner “€800,534.05 as demanded”, the Debtor did not say what, if anything he owed to the Petitioner and, if so, the figure acknowledged to be due. e. Referred to the 2022 Proceedings, claiming to have suffered loss and damage due to the receiver's actions, including loss of rental income and diminution of property values. He summarised the background, noting the receiver’s January 2015 appointment, taking points subsequently rejected by the Court of Appeal, including criticising the Receiver’s actions. He said he was “procuring an actuarial report” to quantify his losses, and advanced broad claims of lost rental and diminution of value, exhibiting a valuer’s report. f. Stated that the full extent of his loss had yet to be ascertained but included loss in respect of his mental health and wellbeing and loss of earnings “suffered as a result of the sheer nightmare visited upon me by the actions of the defendants” and that if his claims were successful, “the damages I believe I am entitled to would, in the very least, act as a considerable set off as against any monies which may ultimately be deemed lawfully due and owing to Mars Capital”. g. Asserted that the proceedings were an abuse of process or brought for a collateral purpose, to undermine his appeal from the Substitution Order or the 2022 Proceedings and exert undue pressure on him.

18. The Petitioner’s replying affidavit: a. noted that the Debtor neither disputed the validity of the Judgment to which he consented, nor offered a basis whatsoever to go behind it, nor put forward cogent evidence that called into question the reliability or fairness of the Summary Proceedings or the Judgment. Nor did he allege fraud, mistake, or circumstances of fundamental unfairness such that the Judgment should be set aside. Nor did he identify facts whereby the interests of justice might necessitate a revisiting of the Judgment, which was never appealed and nor was there any application made to set it aside or otherwise revisit it. b. Took issue with the Debtor’s characterisation of the Agreement and his portrayal of the Payment as "partial' satisfaction, noting that the Agreement (which he exhibited) required the Debtor to both make the Payment and to consent to judgment in the specified sum. Accordingly, the Payment did not amount to partial satisfaction, and the Debtor offered no explanation as to why, after making the Payment, he consented to Judgment for €800,534.05. c. Notes that in an affidavit opposing the Substitution Order, the Debtor alleged that the receiver’s “unlawful trespass was used to force me to sign the compromise agreement, without legal advice, and to take €65,000.00 from my company account to pay over to the Plaintiff herein, which I did to much personal and professional detriment." In fact, the Debtor actually did have solicitors at the time of the Agreement, and his current position contradicted previous affidavits. d. Noted that the Debtor never challenged the Agreement, or resiled from the contractual obligations therein, or substantiated any suggestion that the Payment could be regarded as partial satisfaction.

e. Stated that the Debtor was rehashing assertions and arguments unsuccessfully advanced on the Substitution Application before Barr J and on the stay application in the Court of Appeal. f. Attributed the delay in enforcing the Judgment to accommodations of the Debtor by AIB, including the placing of the receivership on hold and the Debtor’s unsuccessful PIA application (and the Pandemic). g. Noted that, despite not having sought a stay in the High Court, the Court of Appeal permitted the Debtor to seek a stay on the Substitution Order but refused to grant it, concluding, inter alia, that the appeal was bound to fail. h. Claimed that the Debtor had sought to delay and/or seek to prevent the execution of the Judgment to which he consented with the benefit of legal advice and that his averments as to the Rent were a further attempt (without evidence) to retrospectively invalidate the Judgment. i. Noted the “factual disconnect” between the Debtor’s supplemental affidavit and his First Affidavit which denied being indebted to the petitioner “in any sum amounting to more than €20,000”, whereas his supplemental affidavit appeared to acknowledge that he owed the Debt once it was reduced to reflect the Offsets. j. Stated that the 2022 Proceedings did not make substantive allegations against the Petitioner, failed to connect the Petitioner to the Replying Affidavit’s allegations as to loss or damage as a result of the Receiver’s actions, and did not provide a basis to look behind the Judgment. k. Said that the Debtor's allegations in respect of the Properties’ valuations (which do not relate to the Petitioner) were inconsistent with his pleadings. l. Noted that the Debtor’s allegations of loss, for which he purported to hold the Petitioner responsible, without any justification in his pleadings, were supported by nothing other than a report “procured one day prior to the swearing of the Affidavit opposing this application and is indicative of an attempt to take whatever steps are necessary to attempt to evade the effects of the Judgment, to which he consented.”

19. The Debtor’s second supplemental affidavit covered similar ground and, inter alia: a. denied that the Debtor had not alleged mistake as to the Judgment and asserting that, notwithstanding the Judgment, he did not owe the Petitioner “the amount stipulated in the papers…” b. Reiterated that the Payment should have been credited against the Debt, as it would have been “entirely at odds with logic and common sense” for him to pay €65,000 more than the debt alleged at the time. He would not have countenanced doing so. c. Referred to AIB’s solicitors’ 2 March 2016 letter acknowledging receipt of the Rent, which was not deducted either, and noted AIB’s evidence in the summary proceedings that the amount due on the facilities totalled €800,534.05:

“…the documents … show no credit for the rents … being applied to any of the

7 accounts despite same being received prior to the swearing of the affidavit (grounding the summary judgment application).” d. Insisted that: “It was always agreed and understood by the parties that the payment of €65,000 was a payment against my liabilities on the 7 accounts”. e. Referred to his former solicitors’ 3 and 28 February 2017, adding that “… the net amount is stated (without any subsequent contradiction from the other side) to be, €735,000,00” but noting that that figure does not take into account the Rent. f. Noted that the agreement did not contain an 'entire agreement clause and paraphrased legal advice suggesting that, absent such a clause, “extraneous discussions, representations, and intentions leading to the agreement remain admissible evidence for interpreting the parties' obligations. All parties understood the €65,000 payment to be a part payment of my liabilities, as reflected in correspondence between my former solicitors and Beauchamps (e.g., the letter dated 9th June 2017)”. g. Responded to criticisms of his earlier affidavits by noting that he was unrepresented at the time and apologising “unreservedly” for “any deficiencies in my ability to articulate my position as clearly as I ought to have done.” He accepted that he had legal advice when entering into the Agreement. However, he now queried the adequacy of that advice:

“what I had intended to say was that I believed at the time of swearing that affidavit that I did not have adequate legal advice. Whilst I do not wish to cast aspersions on my former solicitors, my position in that regard is reinforced by the fact that in the letter dated 3rd February 2017 from my former solicitors to Beauchamps, as exhibited above, did not take into consideration the rental payments in the sum of €6,550 received by the impugned receiver, and should have been referenced therein. Thus, the figure stated in the said letter should have been €735,000 minus the aforesaid rental payments.” h. Suggested that both parties accepted that the Payment was part payment of his liabilities and should have been credited against them. He stated that the 9 June 2017 letter from AIB’s former solicitors alleged that as of 9 February 2017 “the balance including interest was alleged to have been €776,964.92. This sum is entirely at odds with the sum on the Bankruptcy Summons”. He suggested that since that letter postdated the Agreement, it showed that the Judgment amount was not owed at the time, and that monies had been credited against his liabilities under the Judgment Order.

The Court of Appeal Judgment

20. On 23 May 2025 the Court of Appeal dismissed the Debtor's appeal against the Substitution Order. The judgement noted that the notice of appeal raised eleven grounds of appeal, three of which were pursued at the hearing. Delivering the Court’s judgment, Binchy J dismissed all grounds of appeal, the most relevant for present purposes being whether the High Court wrongly applied a prima facie evidence test in respect of the transfer of AIB’s interest to the Petitioner. The Debtor submitted that, as there would be no further opportunity to review the validity or effectiveness of the deed of transfer, the Court should have applied the balance of probabilities test, in accordance with Bank of Scotland v McDermott [2019] IECA

142. Binchy J stated:

“22. It was submitted on behalf of the appellant that the High Court judge applied the incorrect test to this application, in circumstances where, if the application is granted, and if leave to execute under O. 42 is simultaneously granted, there would be no further opportunity to review the validity of the transfer of the appellant’s loan facilities to the respondent. … While it is well established that, where such applications are made ex parte, the assessment is undertaken on a prima facie basis, this is not so where the assessment is being undertaken on notice and at a later stage, and in circumstances where there would be no further opportunity to challenge the interest of the applicant in the subject matter of the proceedings, in this case being the appellant’s loan facilities with the original plaintiff. In these circumstances, it is submitted that it is well established that the applicable threshold is the balance of probabilities, and the appellant refers to the judgment of this Court in Ulster Bank Ireland Ltd. & Anor v. Quirke in which, giving judgment for the Court, I stated, at para. 48: - “Applications under O.17, r.4 will in some cases be made before judgment, and in others after judgment. In contrast, all applications under O.42, r.24 are, of their very nature, post judgment. There will be no trial of the action at which the title of the assignee can be tested. … This suggests to me that an order made under O.42, r.24 should be treated as a final order, and should only therefore be made if the court is satisfied, on the balance of probabilities, that the applicant is entitled to the order sought…”

21. Having considered the competing submissions Binchy J stated:

26. At the hearing of this appeal, there was no dispute between the parties that the standard to be applied to the application is that of the balance of probabilities. That being the case, it seems to me that the appropriate approach for this Court to take in these circumstances is to consider whether or not the conclusion reached by the trial judge in the passage quoted above is one that was open to him on the balance of probabilities, even if he did not explicitly state that that was the test he was applying.

In my view, there can scarcely be any doubt that this is so. …

29. I would add that in any case, the choice of words used by the High Court judge in giving his decision on this issue were unequivocal and he quite clearly did not reach his conclusion on this issue on a prima facie basis. In arriving at his conclusion on this issue, he expressed himself in unambiguous terms and was manifestly satisfied that the Deed of Transfer was effective to assign the appellant’s loans and the Order to the respondent. I would therefore dismiss this ground of appeal.”

22. The Court also rejected the suggestion that cross-examination should have been permitted – no conflict of fact had arisen which required cross-examination.

23. The other grounds concerned whether the judge erred in accepting the Petitioner’s explanations for the delay in execution and in refusing an adjournment. The Court considered that there was no basis for the adjournment and that the delay in enforcement had been satisfactorily explained, on the basis of evidence as to the reasons, including the post judgement settlement discussions as evidenced by a letter from the Debtor's solicitors dated 28 September 2017 (which was not in evidence before me) and the unsuccessful personal PIA process.

Legal Principles

24. There was no real disagreement between the parties as to the statutory provisions or authorities. I agree with the direct citations in each party’s submissions. The issue is the application of those authorities here. The key principes are as follows:

a. having complied with s.8(1) of the Bankruptcy Act 1988 (as amended) (the “Act”), a creditor may apply to the Court for the issuance of a bankruptcy summons. Unless they successfully apply for the summons to be dismissed, a debtor who fails to pay (or compound for) the figure claimed in the summons within the specified period will have committed an act of bankruptcy which can ground a petition seeking an order adjudicating them bankrupt. b. The statutory safeguards to protect debtors include the right to apply to dismiss the summons and to contest the bankruptcy petition itself. In particular, s.8(6) stipulates that the Court may dismiss the summons and shall dismiss it if an issue would arise for trial. Accordingly, I must dismiss the summons if an issue arises for trial, failing which my decision is discretionary. At the hearing of the petition itself, the Court must dismiss the petition if the statutory requirements have not been complied with or if an issue arises for trial. c. The test for dismissing a bankruptcy summons is uncontroversial. The Debtor must satisfy the Court that there is a real and substantial issue for trial which is at least arguable with some prospect of success. See, Minister for Communications v Wood [2017] IESC 16 (“Wood”) and Gladney v Tobin [2023] IESC 3 (“Tobin”). d. It is fatal if the summons overstates the amount due. In such circumstances, there is no obligation to pay the amount claimed and any failure to respond cannot constitute an act of bankruptcy. See, for example, Murphy v Governor and Company of Bank of Ireland and Others [2014] IESC 37 (“Murphy”), in which Dunne J referred to the penal nature of the regime and the need for “strict compliance with the bankruptcy code … before an individual can be adjudicated a bankrupt”.

e. In Tobin, Dunne J emphasised at para. 72 that:

“an overstatement of the sum actually due cannot amount to an act of bankruptcy. The creditor is required to set out the particulars of the debt due which is required to be paid by the Debtor, if he or she is to avoid committing an act of bankruptcy, with accuracy. An individual cannot commit an act of bankruptcy by not paying a sum demanded which exceeds the amount of the debt due. Hence, the requirement for strict compliance with the Bankruptcy Code. It is impossible, in my view, to read into s.7(1)(g) or s.8(3) a suggestion that all that is required for an act of bankruptcy to be committed is that the sum due by the Debtor to the creditor is more than the threshold amount required for the issue of a bankruptcy summons.” f. While acknowledging that, if satisfied that an issue would arise for trial, the Court has no discretion and must dismiss the summons, Dunne J. also reiterated in Wood that “a mere assertion” was insufficient but:

“evidence of fact which would, if true, arguably give rise to an issue that requires to be litigated outside the bankruptcy proceedings would be sufficient to establish that the bankruptcy summons should be dismissed.” g. The decision of Dunne J in Marketspreads Ltd. v O'Neill and Rice [2014] IEHC 14 (“Marketspreads”) is similar to these proceedings: i. in brief, two executives sought to set aside bankruptcy summonses served by their former employer which had obtained substantial judgments against them. The judgment debt was reduced but not eliminated when they relinquished their shareholding in the employer in accordance with the agreement that led to the consent judgments. ii.

However, in the bankruptcy proceedings issued in respect of the balance of the debt, the executives said the judgment figure was misstated because the employer had assured them that if they consented to the judgment and relinquished their shares, it would not pursue them for balance due under the judgment. Both denied that they would have agreed to the settlement if they were left exposed after surrendering their shares. They issued proceedings seeking, inter alia, rectification or rescission and an order setting aside the judgment or marking it as satisfied (although they denied seeking to look behind the judgment). iii.

The employer denied telling the executives that it would not seek the balance of the debt. The terms of the judgment and the agreement and the contemporaneous documents supported the employer’s position. The judgment was not appealed or challenged prior to the bankruptcy proceedings and no sums were recovered on foot of the judgment save from the redemption of the shares. iv. Applying the “real and substantial” test, Dunne J concluded that the summons should be dismissed if the Court considered that any issue was unreal, illusory, not arguable or had no prospect of success.

While the Court could not adjudicate the merits, it did have to satisfy itself that there was, in fact, an issue: “an unreal or illusory issue …will not give rise to the dismissal of a bankruptcy summons”. v. Dunne J noted the analogy with summary judgment applications, citing Delaney and McGrath on Civil Procedures in the Superior Courts (3rd. Ed.)’s reference to McGrath v. O’Driscoll [2007] 1 ILRM 203 in which Clarke J. observed that: “a mere assertion of a defence is insufficient but any evidence of fact which would, if true, arguably give rise to a defence will, in the ordinary way, be sufficient to require that leave to defend be given so that that issue of fact can be resolved."'

vi. Dunne J also noted GE Capital Woodchester Ltd. v. Aktiv Kapital Asset Investment Ltd. [2009] IEHC 512, which recognised that it was not open to a defendant on a summary judgment application to make a vague and generalised contention which would amount to nothing more than an assertion that something might turn up on discovery:

“… where a defendant satisfies the court that there is a credible basis for asserting that a particular state of facts might exist which state of facts, if same were in truth to exist, could be established by appropriate discovery and/or interrogatories, then such defendant should be entitled to liberty to defend. It should, again, be emphasised that mere assertion is insufficient. A credible basis for the assertion needs to be put forward even if it is not, at the stage of the motion for summary judgment, possible to put before the court direct evidence of the assertion concerned."' vii.

Dunne J added that the circumstances in which a judgment obtained by consent between legally represented parties can be set aside were “few and far between” and, while it was not suggested that there was any basis upon which the Court can go behind the judgment, the plenary proceedings sought an order setting aside the judgment. However, no evidence of any facts which could give rise to such relief had been put before the court and much of the information before the Court concerned “an element of dispute as to the correctness of the judgment and the figures contained therein”. viii.

Dunne J concluded that it would not be appropriate to look behind a valid and binding judgment which had not been the subject of an appeal, where no basis was shown upon which it could be set aside. The executives had not raised a real and substantial. Having reviewed the agreement, she was not persuaded by the executives’ contention that they would never have entered it if they thought that their employer could pursue them for the full judgment. She rejected their evidence as to their understanding because the agreement made clear that there would be an outstanding balance after the share transfer:

“their contentions are contradicted by the signed agreement entered into by them”. In view of the valid and binding judgment and the agreement signed by the debtors in terms which contradicted their contentions as to the agreement, she was not satisfied that any real and substantial issue arose that was, at least, arguable or had any prospect of success. h. In Launceston Property Finance Dac v David Wright [2018] IEHC 574 (“Wright”), a Debtor seeking dismissal of a bankruptcy summons impugned the underlying judgment, alleging that the High Court should have considered certain evidential issues at hearing of the application for judgment.

Costello J. stated that the Debtor had the opportunity to raise that issue in the High Court but had not done so:

“All litigants are required to bring forward all of their arguments and evidence at the trial of the action. Litigation is not to be conducted in a piecemeal fashion. This is a fundamental requirement of orderly litigation and fairness of procedures to other litigants. The debtor failed to adduce this evidence or advance these arguments in the appropriate court at the appropriate time. He cannot now seek to evade that obligation at this point in the litigation between the parties.” i. In Doherty v Blessville [2023] IEHC 543 (“Blessville”) O’Higgins J: i. reiterated that it would only be possible to look behind a judgment debt in “exceptional cases” such as, possibly:

“where a debtor puts forward cogent evidence that calls into question the reliability or fairness of the earlier proceedings. For instance, were a debtor to establish prima facie proof that the earlier judgement was procured by fraud or mistake, or in circumstances of fundamental unfairness such that it should be set aside, then the interests of justice might necessitate at least a revisiting of the earlier Order.” ii. Added that, to look behind a judgment, a debtor would have to “establish prima facie proof that the earlier judgement was procured by fraud or mistake, or in circumstances of fundamental unfairness such that it should be set aside.” j. In Murphy, the Supreme Court held that a bankruptcy summons was valid although it did not give credit to the Debtor for certain payments after the judgment; it also failed to allow for accruing statutory interest and thus, in the aggregate, the figure in the bankruptcy understated the debt. Dunne J concluded:

“The sum demanded was not in excess of that actually due and there was nothing in the Bankruptcy Summons which could have confused or misled the Appellant as to what he was required to do in order to avoid committing an act of bankruptcy. Had the appellant paid the sum sought on the Bankruptcy Summons, he would not have committed an act of bankruptcy”. k. In Wright, Costello J noted that, absent of a stay, a pending appeal was not a reason to dismiss a bankruptcy summons or to refuse to proceed with an adjudication, noting that the High Court should enforce orders which were not stayed, even if they were under appeal:

“15. … I cannot go behind the decision of the judge who gave the judgment. In particular, I cannot look at the evidence which either was or was not led in the hearing before the High Court. It follows that no issue could arise for trial in respect of the bankruptcy summons based upon the judgment of the 5th October, 2017 such as to satisfy the test set out by the Supreme Court in Minister for Communications v. Woods and Wymes. Either the credit has already been afforded to the debtor or he had ample opportunity to raise the point and adduce his own evidence prior to the trial in the High Court but elected not to do so.

16. … there is a valid extant order of the High Court which is not the subject of a stay. It is therefore not only enforceable but clearly no issue can arise in this court within the meaning of s. 8 (6) (b) of the Act of 1988 as explained by the Supreme Court in Minister for Communications v. Wood and Wymes. The fact that there is an appeal pending before the Court of Appeal does not alter this…”

Analysis

The Debtor’s evidence

25. I have reservations as to aspects of the Debtor’s evidence including, most importantly, the lack of a satisfactory explanation for his consent to the Agreement and the Judgment or for his subsequent failure to take steps to correct the Judgment or even to confirm his intention to take such steps. I also note his first affidavit’s bald denial of owing the Petitioner more than €20,000 – a position which evolved in subsequent affidavits in which it appeared that his denial of liability was confined to (a) the overstatement issue, which would, at best, reduce the debt, but not to €20,000 or less; (b) his “reservation of his position” on the assignment and his then pending appeal against the Substitution Order; and (c) his claim in the 2022 Proceedings. If those were the grounds for the bald averment in his first affidavit, then he should have said so. However, the Debtor was unrepresented when he swore his first affidavit; I would have been more critical if he had been represented. Even with the benefit of legal representation, his subsequent affidavits were opaque as to the extent to which, and basis on which, he disputed the Judgment debt (above and beyond the overstatement issue). Nor was I greatly impressed by other unsubstantiated, assertions, such as, for example, that AIB "misplaced" the €65,000 payment and that it was not acknowledged for over 18 months. Perhaps he regards the 9 June 2017 letter from AIB's solicitors as the “acknowledgment”, but he does not make that clear. Nor did his affidavits consistently align with his submissions.

26. It was also concerning that the Debtor’s earlier affidavit opposing the Substitution Application wrongly stated that he was unrepresented in the negotiation of the Agreement. Nor was I impressed by his explanation and “apology” (that he meant to say that he had no adequate legal advice, a self-serving claim, made years after the event, which appears disingenuous in the absence of substantiation, including an explanation for his own responsibility for signing the Agreement and transferring the Payment. It stretches credulity to suggest that he signed the Agreement or consented to the Judgment without understanding their implications. He was as well placed as his lawyers to understand that the Offsets had not been deducted. Accordingly, no real and substantial issue arises from any suggestion that his acceptance of the Agreement and the Judgment was due to his being poorly advised or that he entered the Agreement under duress. It was unfair that the Debtor should cast such aspersions against his former advisors without disclosing all details of the negotiations. Furthermore, if there was any issue– and I have no reason to believe that there was – it would be a matter between him and his lawyers rather than a basis to impugn the Agreement or Judgment. Such criticisms should be treated with care as the solicitors had no opportunity to respond. Even if such criticism was justified - and I make no such finding - it would not give rise to a real and substantial issue in these proceedings.

27. The Debtor relies on his solicitor’s 3 February 2017 letter as evidencing the basis on which the Payment was made in April 2016, but the letter is inaccurate in that regard. Furthermore, the letter suggests that the Debtor was urging AIB to accept a restructuring offer without delay while the Debtor had finance available because anticipated changes to the Debtor's employment would reduce its ability to obtain such finance in future. It would not reflect well upon the Debtor if he was seeking to enter into arrangements with new lenders in circumstances in which he might not be able to service them and in circumstances in which he was disregarding advice to consider a PIA.

Alleged Overstatement

28. As the authorities make clear, a petitioner must strictly comply with statutory requirements. A summons will be dismissed if it overstates the debt, (even if the debt still exceeds the statutory threshold). No issue arises if the debt is understated. It is, however, difficult for a debtor to assert that an issue arises for trial or the figure claimed is overstated when it is grounded on Court orders. The Debtor maintained that he was not seeking to look behind the Judgment and he has certainly not established the exceptional circumstances in which it may be possible to do.

29. I agree with the Debtor’s submission that if the Petitioner can enforce the Judgment, he must do so on the same basis as AIB. If AIB was obliged to give credit for the Payment and the Rent, then the Petitioner would be subject to the same obligation. There is no dispute as to the facts of the Offsets or their value. The issue is whether the Judgment should have reflected those figures. The case is analogous to Marketspreads, with the Debtor seeking to reinterpret an agreement and judgment in the light of a vague “understanding”. The Petitioner says that the Debtor cannot look behind the Judgment and – in the alternative – that the summons understated the debt in any event because its undisputed statutory entitlement to interest accruing since the Judgment would outweigh the Offsets, meaning that the undisputed debt remains greater than the stipulated figure (as in Murphy).

30. The parties agreed that authorities such as Tobin (where the application to dismiss failed) confirmed the essential requirements: (a) strict compliance with the bankruptcy code;

(b) the summons must accurately set out particulars of the debt and (c) it must not demand a figure greater than the actual debt. The Petitioner says (and I agree) that the summons met these requirements on the basis of the Judgment.

31. The Debtor sought to distinguish Blessville on the basis that the facts in respect of the Offsets were undisputed and they were not considered in determining the amount due so the figure in the Order “does not mean that the amount is owed in full”. He argued that the Credits should have been applied “at all material times” to the Debt and that the Petitioner cannot insist that the full judgment sum is due in the face of clear evidence that the original debt was lower than the Judgment figure, adding that; (a) the summary judgment application claimed €800,534.05 without allowing for the Offsets, so the balance claimed should have reduced to account for them; (b) AIB’s solicitors 2 March 2016 letter, predating the 2016 Judgment, confirmed collection of the Rent but the Debtor was never credited accordingly; (c) the Debtor’s solicitors’ February 2017 letters to AIB’s solicitors confirmed that the Debtor made the Payment “in partial payment” of the sum due and owing on the day that judgement was obtained against him by consent, leaving circa €735,000.00 due. (In fact, the Payment was made more than a week before the Judgment); (d) the heading of AIB’s solicitors 9 June 2017 letter stated that the balance as of 9 February 2017, including interest, was €776,964.92, a recognition that the 2016 Judgement did not reflect the actual balance due.

32. AIB’s solicitors’ letter confirming the Rent details was sent on 2 March 2016, after the issuing of the summary judgement application but before the Agreement. Accordingly, when they entered into the Agreement and consented to the Judgment, both parties knew the position as to both Offsets (and had legal advice). The Debtor signed the Agreement and consented to judgement in the sum of €800,345.05 without deduction. If they had wished, the parties could have stipulated that the Debt should be reduced to take account of the two Offsets. They did not do so. To the contrary, the Debtor committed to consent to the Petitioner’s application for judgment in the agreed amount and duly did so. I do not see any basis on which he can now revisit that commitment.

33. This conclusion is reinforced by the fact that the Debtor has known at least since February 2017 that the Judgment did not account for the Offsets. Having failed to apply to set aside or vary the 2016 Judgment for eight years he cannot now ask this Court to disregard it.

The February 2017 Correspondence

34. The Debtor seeks to interpret the 2016 Agreement and Judgment in the light of correspondence from his solicitors in 2017. However, he has not exhibited the entire correspondence or even AIB’s responses to the letters which he cites. Later correspondence cannot generally be relied upon to interpret earlier documents. Even leaving aside any issues as to their accuracy (for example, they are wrong in respect of extremely important details such as the timing of the Payment) the February 2017 letters do not advance matters in the absence of a response from AIB accepting the Debtor’s assertions or proposals and/or an application to the Court to vary the order. Unless AIB conceded the unilateral assertions in his solicitor’s letters (which has not been suggested), the February 2017 letters prove nothing and do not change the position – they are mere assertions on the Debtor’s behalf in the context of his unsuccessful attempts persuade AIB to entertain restructuring proposals. Even if AIB had accepted the point made in correspondence – and there is no evidence that it did - an application to vary the 2016 Judgment, on consent, would have been necessary to vary the obligations placed on the Debtor by the Judgment. Meanwhile, the Judgment stands.

35. The Debtor has presumably reviewed the inter partes correspondence encompassing:

(a) the summary proceedings including the summary judgment application; (b) the negotiation of the Agreement and the Judgment; and (c) the correspondence thereafter in respect of the proposed PIA and restructuring. He exhibited three letters, but it appears that he has not exhibited the chain of correspondence. The lack of evidence as to AIB's response to the February letters undermines any reliance on those letters as suggesting a common understanding. Although AIB's solicitors’ response to the 3 February 2017 letter was not exhibited, it must have refused to reduce the amount claimed on foot of the Judgment to take account of the Payment because the 28 February letter stated that the Debtor "is not in a position to pay the entire judgement as suggested by you". Accordingly, the issue had been addressed in the February 2017 correspondence. While the February 2017 letters sought to characterise the payment as having been "in partial discharge" of the Debt, it appears that AIB rejected that proposition and the debtor did not press the point in subsequent correspondence. If the debtor was dissatisfied with AIB's position, it should have brought the appropriate application.

36. When read in isolation, the two letters in their entirety, are examples of advocacy rather than agreement, efforts to persuade AIB to a significant debt write down. Despite the Debtor’s solicitors’ efforts, AIB was unconvinced, perhaps unsurprisingly in view of the sentiments in its correspondence. The Debtor’s solicitor’s assertions in 2017 establish a mutual intention when the Agreement was negotiated a year earlier.

The June 2017 letter

37. The Debtor relied upon AIB’s solicitor June 2017 letter as demonstrating a mutual understanding that the Offsets were to be deducted from the Judgment figure. Its heading is certainly confusing as it references the Judgment and its full amount but also references a lower figure, €776,964.72. The letter was only referenced and exhibited by the Debtor in his third affidavit, which would seem surprising if he relied upon it as an acknowledgement that the Judgment was overstated. In fact, he does not say that he interpreted the letter in that way. Although he makes blanket unsubstantiated assertions as to the parties’ understanding, without explaining why the Judgment figure was not amended accordingly either on 6 May 2016 or in a subsequent slip rule application, he does not suggest that he interpreted the 9 June 2017 letter as an acknowledgement by AIB that either offset should be permitted. He simply says that the figure in the letter is inconsistent with AIB’s reliance on the full amount of the Judgement debt, a different thing altogether, however I consider that it must be seen as a figure advanced in the context of the negotiations rather than for the purposes of enforcement of the Judgment.

38. It seems to me that the ambiguous heading is a slender and unconvincing basis to depart from the plain words of the Agreement and the Judgment. The June letter, like the February 2017 correspondence, was in the context of ongoing (unsuccessful and evidently fluid) PIA and debt restructuring negotiations. While the basis for the figure is unclear, it is not obvious that it implied AIB’s acceptance of the need to allow for the two Offsets. The position is further confused because there were parallel tracks to the engagement – at one level the Debtor and his solicitors were putting together restructuring proposals, which, if agreed, would have involved AIB writing down its debt as part of a restructuring. On the other hand, the Judgment preserved AIB’s rights if the restructuring negotiations failed.

39. The June 2017 letter does not suggest to me that AIB was conceding that its entitlements under the Judgment (should it have to enforce them) were being reduced. There is no evidence from the Debtor that, at the time he and his representatives received the letter, its heading led them to conclude that AIB accepted that the Judgment debt should be reduced by the value of the Offsets, irrespective of the outcome of the negotiations. Nor is it apparent that the numbers would support such an interpretation in any event. If the Offsets had been deducted, then the net figure should have been significantly lower.

40. Perhaps the Debtor might say that the reduction in the letter due to the Offsets was counterbalanced by accumulating interest. However, there is no evidence that such an interpretation would explain the figure in the letter. I expect that if AIB had agreed to deduct the offsets from the Judgment sum it would have said so explicitly and the parties would have agreed to vary the Judgment. It would be unsafe to make assumptions from an isolated and ambiguous reference in a single letter in the context of protracted and ultimately fruitless debt restructuring negotiations. The letter does not change the legal obligations which the Debtor assumed under the Agreement and which were confirmed by the Judgment.

41. Furthermore, while the Debtor has adduced no evidence to suggest that the figure in the June 2017 letter reflected the 2016 Judgment less the two Offsets but with the addition of accruing interest, any such explanation would reinforce the Petitioner’s submission, that even allowing for the Offsets, the summons was not overstated, as the letter would demonstrate the mutual awareness that statutory interest continued to accrue – if such interest is allowed, the Summons cannot be regarded as overstated, irrespective of the Offsets.

42. If the Debtor wished to assert a real and substantial issue based on a divergence between the documents and the parties’ understanding at the time of the payment (and assuming that such evidence was admissible), then cogent evidence would have been required, rather than vague retrospective, subjective, assertions or correspondence in a different context months after the settlement was reached. For example, he and his former solicitor could have explained, if necessary, by reference to contemporaneous notes and correspondence, how and by whom the negotiations were conducted and whether the questions of the Rent and the Payment and their possible deduction from the Judgment were expressly discussed. The 2017 letters do not fill that lacuna. I see no basis to look behind the Agreement or the Judgment.

43. Although as in Marketspreads, the Debtor disavowed any intention of looking behind the Judgment, that is precisely what he seeks to do. However, to borrow O’Higgins J’s evocative phrase in Blessville, he cannot “unring the bell”. The High Court Judgment stands. The application is analogous to that in Marketspreads. The absence of an “entire agreement” clause does not afford a sufficient basis to distinguish Marketspreads. I do not agree that, absent such a clause the Court may have regard to extrinsic evidence as to the parties’ intentions when the words of the Agreement and the Judgment are clear. As Dunne J made clear, the circumstances in which the Court will look behind a valid and binding judgment obtained with the consent of legally represented parties are few and far between.

44. For completeness, I note my disagreement as the Debtor’s suggestion (advanced in on affidavit rather than in submissions) as to the significance of the absence of an “entire agreement" clause. He declared that extrinsic evidence would be admissible in the absence of such a clause. Certainly, his position would have been even more difficult if there had been such a clause (as in Marketspreads). Furthermore, the absence of such a clause might have assisted the Debtor if, for example, he was relying on alleged representations as having induced his entering into the contract or asserting a collateral contract. However, he has not advanced such pleas. I do not accept that the absence of an entire agreement clause means that subjective oral evidence is generally admissible to determine the construction of a contract. While the factual matrix is relevant and extrinsic evidence may, for example, be relied upon to resolve ambiguity, I have not identified any ambiguity or any other circumstance which would permit the introduction of such extrinsic evidence in this case. Nor would retrospective assertions of subjective intentions be admissible in any event.

45. It could have been different if the Offsets postdated the 2016 Judgment (as was suggested by the Debtor’s solicitors’ correspondence) or if the facts in relation to the Offsets were not known to the parties at the time of the Agreement or the Judgment. The Offsets were received by AIB (and were known by the Debtor and his solicitors to have been received) before the Judgment. If they understood, as the Debtor now asserts, that credit should have been given then they would have said so. Accordingly, the Debtor is bound by the Judgment.

46. The Debtor’s submissions criticised the Petitioner for

“relying on the judgment sum as if it is fixed, immutable, and unquestionably owed, but that judgment sum does not reflect the actual amount due to AIB at the time (or indeed if anything is due to the Petitioner at all – a matter which Mr Phelan takes issue with and has reserved the right to challenge)”. I do not understand the basis for the complaint that the Petitioner treats the Judgment figures as “fixed, immutable, and unquestionably owed”; that is the point of a final order as both the Debtor and his lawyers would have appreciated when they consented to it. It is untenable to belatedly object that the Judgment does not reflect the actual Debt. The cryptic reservation in the Debtor’s submissions (para. 29) as to whether anything at all was due to the Petitioner was presumably a reference to the then pending appeal and his purported reservation of his entitlement to challenge the validity of the assignment. That argument was rendered untenable by the Substitution Order. The Court of Appeal decision rendered the coup de grace. However, insofar as any meaning can be attached to the first part of that submission, it must be understood as an impermissible and unjustified attempt to look behind the 2016 Judgment. If the Debtor believed the Judgment was incorrect, then his remedy was to apply to the High Court without delay to vary or set it aside. Having known of the issue since at least 2017 he cannot ask the Bankruptcy Court to disregard the Judgment in circumstances in which he has not sought at the appropriate time to vary it or set it aside (assuming he ever had any basis to do so). To the extent that the Debtor seeks to assert the right to challenge the assignment of the Judgement, his position appears to be the opposite of the case advanced on his behalf in the Court of Appeal and is undercut by the Court of Appeal ruling, which accepted that a balance of probabilities test was applied by Barr J and was required to be applied because there would not be a further opportunity to challenge the assignment.

47. For completeness, I should address the Debtor’s submission that his evidence was to be preferred because the Petitioner was not a participant in the negotiations (which predated the loan sale) and thus could not give first hand evidence. Two points arise as to this submission. Firstly, the Debtor has not sought to adduce his own detailed testimony as to how the discussions were conducted or even to disclose the extent of his own involvement - whether he negotiated directly or whether his lawyers negotiated on his behalf, reverting to him for instructions or precisely what was said by or to him or his representatives at the crucial time. Instead, he advanced broad, unsubstantiated assertions as to what both parties “understood”, without explaining the basis for his retrospective contention as to such contemporaneous understanding. If he is contending that the parties understood that the debt would be reduced by the amount of the Offsets, then he would need to disclose the detail of the negotiations, including the communications between the parties and their representatives, including communications between him and his lawyers in respect of the negotiations. Such contemporaneous evidence would be required to support any allegation of mistake or to support a rectification plea. Mere assertions, years later, that he would not have agreed to the Judgment, fall far short of the evidence which would justify looking behind, setting aside, varying or rectifying an order (and similar assertions received short shrift in Marketspreads).

48. However, there is an even more fundamental flaw in the Debtor’s submission that the Petitioner is not in a position to testify as to the terms of the Agreement or Judgment – those issues turn on the construction of a written contract and a Court Order. There is no necessity for oral evidence as to interpretation nor is such evidence generally admissible, save for limited circumstances which have not been established. The Debtor’s broad assertions speculating as to what the parties would have thought or understood when they entered into the Agreement and consented to the Judgement do not constitute admissible evidence (and would be accorded little weight in the absence of substantiation in any event). Contractual documents (or Court orders) must be interpreted in accordance with the plain words of such documents (read in their factual matrix). The Debtor’s retrospective assertion of his subjective understanding is not evidence. Nor would it suffice to ground a rectification claim. Nor, in the absence of ambiguity, can it assist with the interpretation of either document.

49. It is significant that the Debtor was legally represented throughout: (i) the original summary proceedings; (ii) the negotiations that led to the Agreement; (iii) the May 2016 hearing before the High Court at which the Judgment was made on consent; and (iv) the unsuccessful debt negotiations. Furthermore, before entering into the Agreement and when the Debtor consented to the Judgment, both parties knew of the amount claimed in the proceedings and the facts as to the two Offsets. The Debtor agreed to consent to judgment in the terms sought in the summary judgment application without seeking or securing a deduction. There is no suggestion that the 2016 Judgment was achieved by fraud nor any attempt to seek rectification. Nor is there any evidence of any fundamental mistake. The Debtor’s retrospective denial, years later, that he would have agreed to such terms and his belated claim as to his understanding are mere assertions which do not provide a basis to look behind the Agreement or the Judgment.

50. If the Debtor wished to challenge the Judgment, then he should have applied to the Court when AIB failed to concede the point in February 2017. In the absence of any restructuring agreement or a PIA, he remained bound by the Judgment unless it was appealed, varied or set aside. No application ever having been made to that end, it remains in full force and effect, and the Offset issues are neither real nor substantial.

51. I have considered whether the plain and ordinary interpretation of the Agreement and Judgment would lead to a bizarre result. Such a scenario might call into question the plausibility of any such interpretation, in which case event extrinsic evidence might be appropriate. However, the Debtor has not established that the obvious interpretation of the documents is implausible. Based on the difficulties experienced by distressed borrowers at the time of the summary proceedings (and the Debtor was scarcely the only borrower in difficulties at the time), there are obvious possible commercial explanations for the terms:

a. the settlement may have been intended to prevent the continued escalation of legal costs in circumstances in which the Debtor and his advisors may have seen the outcome of the summary judgment application as inevitable. b. There may have been a trade-off between credits and debits - AIB’s entitlement to seek costs and additional interest which had accrued versus the Offsets. c. The February 2017 letters suggest that the primary motivation for the Debtor to enter the Agreement and consent to the Judgment was to secure AIB’s facilitation of and engagement in the anticipated debt restructuring and PIA negotiations, including its agreement to a stay of enforcement of the Judgment or progressing the receivership. Such concessions would presumably not have been forthcoming otherwise. It does indeed appear from the correspondence and the affidavits that the Debtor’s commitment to the Agreement, his promise to make the Payment and his consent to the entry of judgment were intended to assure AIB of his good faith and to encourage its constructive engagement in the subsequent discussions3. AIB’s insistence on the entry of judgment but with a stay is unsurprising, ensuring that it was protected if the negotiations were unsuccessful as ultimately proved to be the case; in that scenario both parties would have understood that AIB could enforce on the Judgment. In any event, the agreed terms reflected the possibility that AIB could enforce the Judgement on its face (once the stay expired). d. Securing the stay may have been a greater priority for the Debtor than the figure in the consent order because, in the absence of a PIA or restructuring deal, the Debtor evidently did not have the resources to satisfy his debt to AIB with or without the Offsets. The Offsets were not the tipping point. Accordingly, since he was under While the correspondence records the Debtor’s dissatisfaction with the stance adopted by AIB in the subsequent negotiations and AIB’s concerns about the Debtor’s approach, I do not need to resolve that issue. Suffice to note that there is no basis on the evidence before me to suggest a real or substantial issue as to whether AIB engaged in good faith or acted reasonably. Its position was clearly articulated in its June 2017 letter.

severe financial pressure and in a weak position, the final figure agreed with AIB may have been less important than securing AIB’s good will and winning the stay to allow him a chance to put a restructuring deal or PIA together.

Accordingly, while I need not determine the Debtor’s actual motivation for entering into the Agreement and consenting to the Judgment, there are obvious commercial reasons, and the terms cannot be regarded as absurd.

52. While years later, the Debtor denies that he would have accepted such an arrangement, that is exactly what he did. Of course, his options were limited. Absent an agreement, AIB would presumably have sought summary judgement, opposed a stay, refused to negotiate and immediately pursued enforcement up to and including bankruptcy. It would also have sought more interest from January 2016. Accordingly, the Agreement represented a stay of execution and a chance of engagement. In those circumstances, making the Payment as a gesture of good faith (irrespective of whether it was credited) and consenting to judgement without any Offsets (or debits for any additional interest) may have well reflected a prudent decision to accept terms which, though unpalatable, may have been the best deal on offer. I need not determine that issue. However, the commercial context and the practical exigencies at the time are important elements of the factual matrix and confirm that there is no basis to assume that the Agreement and Judgment were absurd or reflect a mistake. Plausible commercial reasons may explain the deal. While not a great outcome from the Debtor’s perspective, it may have been the best available.

53. I need not determine the parties’ subjective motivation or what the Debtor, years later, says he understood. What matters is that two legally represented parties who knew all material facts (including as to the “Offsets”) agreed to compromise pending litigation and to enter Judgment in agreed terms. The Debtor signed the Agreement, and his legal representatives consented to the entry of judgment on his behalf. I have seen no evidence which could possibly justify allegations of fraud, undue influence or fundamental mistake. The position might have been different if the Debtor had been misled (or if, for example, the receipt of Rent had been concealed) but no such allegation has been advanced.

54. As I have noted, if at any stage the Debtor genuinely believed in 2017 that there had been a mistake or he had been misled and that the figure in the Judgment was overstated, he should have applied promptly to set it aside or vary it. Such an application would have been simple and straight forward if AIB had agreed; conversely, if AIB disagreed, then they could have litigated the issue. However, despite knowing all material facts, the Debtor never pursued the issue, perhaps because he or his solicitors were not satisfied they had grounds to do so, or perhaps because he could not satisfy the Judgment even if the Offsets were allowed for. Whatever the reason, the Judgment stands, and the Debtor cannot look behind it.

55. The Debtor has neither sought rectification nor to set aside the 2016 Judgment nor has he committed to do so. The need for rectification could only arise if Agreement and Judgment did not reflect what, objectively speaking, the parties intended at the time. Since the Debtor has known of the issue since, at the latest, February 2017, the Petitioner would presumably argue that it was too late to seek rectification. That is not for me to determine now. I simply need to determine whether the Debtor has established a real and substantial issue for trial. He has not done so. His averments essentially boil down to self-serving, retrospective and unconvincing assertions. More cogent evidence would be required.

56. The situation might have been different if, for example, the parties discussed the amount of the judgment and agreed that the Rent and the Payment should be deducted but subsequently overlooked the need to do so or if, as the Debtor’s solicitors incorrectly asserted, the Payment had been made after the Judgment (rather than a week earlier). However, there is no evidence of communications between the parties (including their advisors) prior to the Agreement which would support the assertion of such a contemporaneous understanding. Without such evidence I cannot conclude that a real and substantial issue has been identified which would allow the Court, let alone the Debtor, to look behind the 2016 Judgment.

57. In the circumstances, the Petitioner need not rely on his alternative submission, that the summons was not overstated because the Courts Act interest to which he was entitled would exceed the Offsets in any event. In oral submissions the Debtor’s counsel appeared to concede the exposure to Courts Act interest and did not take any issue as to its quantum but argued that the bankruptcy summons and the particulars on which it was grounded were based on the judgment debt simpliciter and did not encompass interest. He cited Dunne J’s observation in Tobin that the creditor must set out “the particulars of the debt” in the bankruptcy summons. Such an argument might have had a superficial attraction based on the wording of the particulars of debt, which were reflected in the bankruptcy summons and petition, but the same issue arose in Murphy, where the debtor had consented to judgment in a particular amount. In that case there were modest payments after the judgment, putting the debtor in a stronger position than the Debtor here. The particulars of debt and the bankruptcy summons referred to the judgment debt figure without allowing for subsequent payments, and the summons would have overstated the debt but for the accrual of Courts Act interest (which, as in this case, was not explicitly mentioned in the particulars of debt grounding the summons). The Courts Act interest meant that the petition did not overstate the debt because the statutory interest more than cancelled out the payments. The Supreme Court upheld the refusal to dismiss the summons. Accordingly, on the basis of Murphy, I would conclude that even if, contrary to my

conclusion, the Debtor was entitled to demand the two deductions, the summons would still not overstate the debt due to the accruing Courts Act interest.

58. In summary on the overstatement issue, if the Judgment did not reflect the intended arrangement, then the Debtor needed to take steps without delay to appeal it, apply for rectification or to vary it set it aside. It could have been dealt with simply and quickly if both parties were in agreement. However, despite knowing of the issue since at least February 2017, the Debtor took no steps to correct the Judgment, by consent or otherwise. In the circumstances, he has no basis to ask the Bankruptcy Court to disregard the Judgment. He cannot ask the Court to look behind the Judgment, nearly a decade after he consented to it, particularly as it has not been challenged or appealed, nor has he ever indicated any intention to bring any such appeal or other application.

59. I also agree that even if the Offsets were accepted, the sum due exceeds the figure sought in the Summons. While the Particulars, Summons, petition and affidavit of debt focussed on the Judgment rather than to Courts Act interest, the affidavit of debt did stipulate that the petitioner was "retaining and not waving its rights in respect in regard to the interest on the debt". If I had considered that the Debt should have taken account of the Offsets, the amount due would still not be overstated because the amount which the Debtor was obliged to pay had been increased by the automatic accrual of interest since the Judgment so, as in Murphy, the figure in the Summons was not overstated because the interest more than cancelled out the credits.

60. The Debtor’s situation is identical to that considered by the Supreme Court in Murphy where the figure in the bankruptcy summons failed to take account of payments which should have been created against the debt. However, the balance due was still far in excess of the figure in the summons because interest had accrued. The Supreme Court majority reiterated that strict compliance with the bankruptcy code was necessary before an individual could be adjudicated bankrupt and that the debtor served with us bankruptcy summons must know the amount, he was required to pay in order to avoid committing an act of bankruptcy and should not be confused or misled as to the requirements made of him. Dunne J, delivering the majority ruling, added that the requirement for strict compliance was to ensure that an individual was only adjudicated bankrupt in respect of a sum which was actually due. That requirement could not be used for the benefit of a debtor where the sum demanded on the bankruptcy summons was less than the figure actually due. In Murphy the particulars of debt and the bankruptcy summons focused exclusively on the judgement debt without reference to interest, but the petitioner was entitled to argue that the summons was not overstated because interest had accrued automatically by virtue of section 26 of the Debtors (Ireland) Act 1840, as amended by sections 19 and 20 of the Courts Act 1981. Accordingly, the Debtor’s actual indebtedness far exceeded the judgement debt. While noting the dissenting judgement, I am bound by the majority ruling (with which I respectfully agree in principle in any event.) Dunne J observed:

“[19] Having set out what was asserted on behalf of the bankrupt, and what resulted when interest was calculated on the judgment amount, the trial judge concluded that the sum demanded for legal purposes, in both the notice of demand and in the bankruptcy summons actually understated, rather than overstated, what the full indebtedness of the appellant was. In this regard he said (see [2011] IEHC 541 at para. 29) ‘that even allowing for the credits due to the applicant, his debt to the Bank considerably exceeds the sum demanded of him, both at the date of the demand and the date of the bankruptcy summons’. Being of that view, authorities such as O'Maoileoin v. Official Assignee [1989] I.R. 647 and In the Matter of Gerard Sherlock [1995] 2 I.L.R.M. 493 were not on point as these cases related to excessive demands. That was not the situation which the trial judge was facing; rather the contrary was the position in light of the accrued interest. Accordingly, neither case could be considered authority for the proposition that, by claiming a sum that was less than that actually due, such could give rise to a valid ‘cause shown’ on an application under s. 16 of the Act of 1988. In these circumstances and for this principal reason, the trial judge, who also rejected the claim that by the nature of its demands the Bank had waived its right to interest, dismissed the application and affirmed the order of adjudication.

…

[98] In the present case, there is no doubt but that the Bank would be entitled to issue execution against the appellant in the amount of the judgment together with interest thereon pursuant to the provisions of the Debtors (Ireland) Act 1840 and costs. In executing the judgment, credit would have to be given for the sum of €4,425 but clearly the Bank would be entitled to execute for a sum far in excess of that actually claimed in the bankruptcy summons herein. McGovern J. in his concluding remarks observed:- ‘26. In the course of the hearing, counsel were unable to cite any case which dealt specifically with this point, namely, whether an understatement of the amount actually due brought a debtor within the ambit of In the Matter of Gerard Sherlock [1995]2 I.L.R.M. 493 and the cases referred to therein.

27. I am satisfied that the jurisprudence established by In the Matter of Gerard Sherlock [1995] 2 I.L.R.M. 493 developed in order to protect debtors from the rigours of bankruptcy following a demand for payment which was excessive, even if the excess was minimal, and arose due to an oversight or innocent mistake.

28. That judgment is not authority for the proposition that a claim for a liquidated sum, which is less than the sum actually due, gives rise to a “cause shown” against the validity of an adjudication of bankruptcy under s. 16 of the Act, and where no mistake or carelessness has been shown in the computation of the figures set out in the notice of demand or the bankruptcy summons.’ … [99] I consider the approach of McGovern J. to be correct. The sum demanded was not in excess of that actually due and there was nothing in the bankruptcy summons which could have confused or misled the appellant as to what he was required to do in order to avoid committing an act of bankruptcy. Had the appellant paid the sum sought on the bankruptcy summons, he would not have committed an act of bankruptcy. [100] Thus, in circumstances where the sum actually due is significantly in excess of that sought on the bankruptcy summons, it is difficult to see how the appellant can contend that the amount claimed in the bankruptcy summons was excessive by failing to give credit for the sum of €4,425 as against the sum of €495,938.87 which had accrued due for interest as set out above.

[101] It has been noted time and again that the consequences of adjudication in bankruptcy are penal in nature and for that reason strict compliance with the bankruptcy code is necessary before an individual can be adjudicated a bankrupt. The requirement of strict compliance is to protect debtors from being adjudicated in respect of a sum that is not due but it is difficult to see how the requirement for strict compliance could be relied on to annul an adjudication in bankruptcy because of an apparent failure to give credit for a payment made in reduction of the overall sum due when the sum actually due is greater than the sum demanded on the bankruptcy summons. As I have said, the purpose of the requirement of strict compliance is to ensure that an individual is not adjudicated bankrupt in respect of a sum which is not due. It is difficult to see how that requirement could be used for the benefit of a debtor and to the detriment of a creditor in circumstances where the debtor was not asked to pay more than was due but, in fact, was asked for less than was due.”

61. As of 31 March 2025, Courts Act interest on the Judgment would have been €142,604.72, more than double the value of the Offsets. That interest calculation was not verified on affidavit, but nor was it challenged (in which case it could have been addressed on affidavit) and it is scarcely controversial since the figures for the Judgment and the Offsets are established as is the rate of Courts Act interest and the relevant period. The Debtor did not quibble with the calculation or deny that allowance for statutory interest would outweigh the Offsets but argued that the particulars of debt did not reference the accrual of such interest. The Debtor does not deny the accruing Courts Act interest or its impact if taken into consideration but notes that the particulars of debt on which the Summons was grounded did not refer to interest and focussed specifically and exclusively on the Judgment figure.

The 2022 Proceedings

62. The pleadings in the 2022 Proceedings (as opposed to the way the claim was characterised by the Debtor on this application) while opaque, primarily challenged AIB’s appointment of the Receiver. The basis for naming the Petitioner as a defendant was unclear, although the proceedings sought reliefs against all defendants. The main plea in the Statement of Claim directed against the Petitioner is that it knew (or should have known) that the Receiver’s appointment was invalid “and should have alerted the Second and First Defendants to that fact" (para. 26).

I am satisfied that those Proceedings do not raise a “real and substantial” issue for the following reasons: a. The plea directed that the Petitioner knew (or should have known) that the Receiver’s appointment was invalid “and should have alerted the Second and First Defendants to that fact” does not withstand scrutiny since it had no interest in the matter until the loan sale, six years after the Receiver’s appointment. b. Nor do the pleadings deal with the Agreement, the Judgment, or the Debtor’s subsequent engagement with AIB and the Receiver, all of which appear irreconcilable with his attempt to challenge the validity of the receiver’s appointment years later.

Nor do they address the loan sale to the Petitioner which had occurred prior to the launch of the proceedings. c. No credible basis is advanced for the damages claimed – a fanciful figure is advanced of €300,000.00 for stress and anxiety) but there are no meaningful particulars as to how the Petitioner’s wrongful acts may have caused such anxiety or stress or as to the computation of that figure. d. The 2022 Proceedings do not appear to have progressed. The Debtor did not explain the lack of progress which in itself calls into question the claim’s bona fides.

If the Debtor had had a genuine claim, it should have been issued immediately after the receiver’s appointment in 2015 and pushed to trial without delay. The Debtor must bear the consequences of his failure to agitate the issue save as a prophylactic. e. Even leaving aside the fact that the proceedings seem to be premised on an attack on the receivership, an attack which appears to be inconsistent with the Agreement, the Judgment and the engagement between the parties as evidenced in the correspondence, it appears untenable in view of the Court of Appeal decision. f.

There is no affidavit of verification in respect of the allegation in the proceedings, nor any assessment of their chances of success, nor any credible assessment as to the likely damages even if they should succeed. On the face, and leaving aside the potential limitation issues, the pleadings do not inspire confidence in the claim.

63. In exceptional circumstances, it may be appropriate to suspend bankruptcy proceedings pending the resolution of substantive litigation between the parties. This is not such a case. There is a saying that “paper will not refuse ink” and the mere issuing of poorly pleaded proceedings making broad allegations and demanding substantial unparticularised figures does not suffice to establish a real or substantial issue or to prevent enforcement, including bankruptcy proceedings. Otherwise, a plenary summons could effectively paralyse the statutory bankruptcy regime (and any other step to enforce a Court order).

64. The Debtor’s first supplemental affidavit noted that the 2022 Proceedings were drafted without legal assistance and purported to reserve the right to seek leave to amend. No basis for any amendments was identified, but if there were grounds to seek to amend then that would be an issue for the Court dealing with those proceedings. That theoretical possibility does not affect my analysis any more than the possibility of a future quantum report can be accorded any credence. I am considering whether an issue arises for trial on the basis of the current pleadings. The vague possibility of future unidentified amendments which may or may not be sought on a basis which has yet to be explained does not assist the Debtor in his attempts to demonstrate a real and substantial issue for trial at this point.

65. The Debtor could have brought the 2022 Proceedings to trial long before now and should have done so if they had any substance. Accordingly, the Petitioner cannot be criticised for pressing on with the bankruptcy proceedings. No adequate reason for the delay has been identified nor has the Debtor demonstrated a real and substantial issue to be tried. If, however, there is a factual or legal basis to justify the pursuit of such litigation then the official assignee would be entitled pursue the claim if so advised.

66. Although going beyond the pleadings, the Debtor’s affidavits still fail to articulate a coherent claim against the Petitioner. I am not satisfied that a real or substantial issue arises for trial between the parties to these proceedings in respect of the matters alleged in the 2022 Proceedings. The claims in those proceedings are generalised, unsubstantiated, assertions principally directed at other parties. It is unclear how the claim could give rise to a liability on the Petitioner’s part, still less one that would materially impact the Judgment debt. There has been no satisfactory explanation as to the legal rationale for any claim against the Petitioner, even as AIB’s assignee. It is impossible to discern a case which has a realistic chance of success, let alone a likelihood of a significant award against the Petitioner.

67. Furthermore, the Debtor’s submissions entirely ignored factual and legal challenges facing the 2022 Proceedings such as, for example; (a) how those Proceedings can be reconciled with his entry into the Agreement and his consent to the 2016 judgement, and his response to the inevitable defences of, among others, accord, satisfaction and estoppel based on the Agreement and the Judgement; (b) the fact that the Agreement and his consent to the 2016 judgment and the subsequent restructuring negotiations postdated the receiver’s appointment;

(c) statute of limitations and delay/laches defences.

68. In order to raise a real and substantial issue sufficient to prevent the progress of the petition, the 2022 Proceedings would need to have the potential to result in a liability on the Petitioner’s part which could realistically reduce the debt to €20,000 or less. The evidence adduced does not suggest that that scenario is plausible. The damages figure in the current pleadings is an unparticularised claim to €300,00 for stress and anxiety. Even leaving aside the obvious issues arising with that asserted number and allowing for other unquantified heads, the claim, on its face, does not appear likely to reduce the Debtor’s liability to the Petitioner sufficiently. Nor can I attach weight to the Debtor's boast that he is “currently” procuring an actuarial report. The Receiver’s appointment dates back to 2015. I would have expected litigants who genuinely believed in the merits of the claim to have undertaken such quantification long ago.

69. The central claim in the 2022 Proceedings seems to be that the Receiver was appointed by Allied Irish Bank plc rather than by AIBMB, a point rejected by the Court of Appeal, undermining the central plank of the 2022 Proceedings. In any event if such points had been pursued in 2015, and if it had any merit, then the mortgagee’s obvious response would have been to have the correct entity (re)appoint the receiver, an easy fix, so issues of waiver and estoppel would arise. Accordingly, the Debtor’s suggestion that he has been prejudiced by unlawful acts for many years ignores his own responsibility for failing to pursue the 2022 Proceedings at the appropriate time and also ignored the reality that a Receiver would inevitably have been appointed one way or another.

70. The Debtor’s affidavits and submissions state that if his claim in the 2022 Proceedings is successful then his damages could act as “a considerable set off” against any monies ultimately deemed to be lawfully due and owing to the Petitioner. However, there is no evidence before me to suggest that the Debtor had any reason to believe or has been advised that his claims in the plenary the proceedings are likely to be successful or that he is likely to recover substantial damages as against the Petitioner (let alone damages of such a magnitude that, assuming a right of set off, they would extinguish his debt under the 2016 Judgment or at least reduce it to €20,000 or less.

71. Having reviewed the exhibited pleadings from the 2022 Proceedings, I am satisfied that it was not an abuse of process for the Petitioner to issue a bankruptcy summons or petition. Those proceedings have not progressed, nor does the Debtor explain how he reconciles his claims against AIB and the Receiver (and indeed the Petitioner) with his settlement of the summary proceedings by entering into the Agreement and consenting to the 2016 Judgment, after the Receiver was appointed. I do not express any conclusion on the factual or legal merits of the claims articulated in the 2022 Proceedings save to note that the evidence before me does not convince me that there is a substantial or real issue, let alone one which would give rise to a right to a sufficiently large set off to affect the Petitioner’s ability to seek adjudication.

Abuse of Process

72. I disagree with any suggestion that it was an abuse of process for the summons to be issued before the resolution of the Substitution Order. No stay was sought from Barr J, and the Court of Appeal refused a stay. As appears from Wright, in the absence of a stay, a pending appeal is not a basis upon which a bankruptcy summons or petition should be dismissed adjourned. There was no obligation to defer enforcement action. I note the competing explanations for the Court of Appeal’s refusal of a stay. Costello J may have refused a stay for several reasons, including the failure to apply the High Court, her doubts as to the merits of the appeal and the balance of convenience point identified by the Debtor. In any event, I am bound by the Court of Appeal ruling. No stay applies to the Substitution Order.

73. The Debtor contended that the proceedings constituted an abuse of process to the extent that they were motivated by personal animosity or ill-will, but this did not go beyond bare assertion. There is no reasonable basis to suggest a collateral purpose or improper motivation. To the contrary, the route adopted by the Petitioner appeared entirely appropriate. While the Debtor makes unsubstantiated assertions as to the Petitioner’s motivation, the latter had more than 800,000 reasons to enforce the Judgment and bankruptcy proceedings were an obvious route. If it was not already foreseeable that such steps might be taken to enforce the debt following the loan sale (and I suspect it was), the Petitioner’s application for substitution and leave to enforce certainly telegraphed its intentions. The Petitioner argues that the 2022 Proceedings and the Debtor’s current application are simply devices by the Debtor to obstruct enforcement action. I do not need to determine that point. What matters is that there is no evidence before me to suggest that these proceedings constituted an abuse of process on the Petitioner’s part or that they are being pursued for collateral purposes. The likely explanation is that they are the chosen, entirely legitimate and unremarkable route to enforce a long outstanding judgement. The Debtor cannot reasonably complain about enforcement of a long unsatisfied Judgment to which he consented.

Petitioner’s entitlement to enforce the debt

74. Although the Debtor purported to reserve the right to challenge the transfer to the Petitioner and hinted at disputing its title to sue, he has not articulated a plausible basis to do so. Nor did he explain why any such challenge – if it was to be brought – had not already been initiated. He submitted that the grant of leave to execute was procedural and did not constitute a substantive finding as to the Petitioner’s rights on an alleged change of interest. He argued that because his pending appeal only concerned the procedural issue of the substitution of the Petitioner as the plaintiff in the proceedings giving it leave to enforce, even if his appeal was unsuccessful (as it subsequently was) he could still contest the Petitioner’s standing in future proceedings. I was unconvinced by this submission as matters stood at the time of the hearing before me in the light of the circumstances and terms of the Substitution Order. However, the submission has been rendered even more untenable by the Court of Appeal judgment.

75. The situation is different when one plaintiff is substituted for another following an assignment and before trial (often in a loan sale context). In that scenario, the Court is simply making a procedural ruling on the basis of prima facie evidence. The substituted plaintiff must still prove the claim at trial, including the assignee’s title to sue, which raises the question of the validity of the assignment. The situation is different where judgment has already been entered, as in this case. The substantive issue in the proceedings has already been resolved. No further hearing is needed to determine liability or quantum. Nor does the Substitution Order envisage such an additional step. That is why Barr J proceeded, as the Court of Appeal confirmed, on the basis of satisfying itself on the balance of probabilities, rather than merely accepting prima facie evidence. The High Court has determined the Petitioner’s entitlement to be substituted as the Plaintiff and to enforce the judgment. The Court of Appeal rejected the Debtor’s appeal. There is no suggestion of seeking leave to appeal to the Supreme Court. Accordingly, the Petitioner’s right to enforce the Judgment has been determined. It is entitled to rely on the Judgment.

The Discharge of the Receiver

76. For completeness, I should note that the Debtor’s final affidavit appeared to attach significance to steps apparently taken by the Petitioner to discharge the Receiver. I fail to see the relevance of any such development, nor was the issue pressed in submissions.

Conclusion

77. I am satisfied that the Bankruptcy Summons did not overstate the debt. It reflected the terms of the Judgment. There was no suggestion of payments or credits since the Judgment, nor can the Debtor look behind the Judgment to seek credits in relation to the two Offsets, issues which he was aware of when he entered the Agreement and consented to the Judgment. If he believed that the figure in the Judgment was wrong, then he should have taken steps in 2017. I see no basis to look behind the Judgment at this stage and on the basis of the evidence and submissions advanced by the Debtor. Accordingly, the Bankruptcy Summons was valid and the Debtor committed an act of bankruptcy by failing to respond appropriately.

78. There is no cogent evidence to support the Debtor’s assertion that the bankruptcy proceedings are an abuse of process or motivated by a collateral purpose by virtue of the then pending appeal or the 2022 Proceedings. The evident motivation for the application is to permit the official assignee to liquidate the Debtor’s estate so as to discharge his debts. That is exactly what the what legislation provides for.

79. I would have concluded in the light of the evidence including, most importantly, the terms of the Substitution Order, that the Debtor had not established any real or substantive basis upon which to take issue with the validity of the assignment to the Petitioner. The Court of Appeal decision copper fastens that conclusion. I will dismiss the Debtor’s application.

80. As far as the substantive petition is concerned, the Petitioner’s affidavits establish a strong prima facie case based on the unsatisfied Judgement. As noted above, there was no issue with regard to service, COMI or any other requirements of the bankruptcy code save for the issues dealt with above in the context of the application to dismiss the bankruptcy summons. The Debtor committed an act an act of bankruptcy by failing to pay compound or secure sum demanded in the Summons within the requisite period and he has not raised any real or substantial issue. I have rejected the contention that the petition is an abuse of process either by virtue of the previously pending appeal or by virtue of the 2022 proceedings or for any other reason. There appears no basis to contend that a PIA or debt settlement arrangement to bankruptcy would be appropriate. Having had regard to the provisions of the Bankruptcy Act 1988, as amended, particularly sections 11 and 14, I am satisfied that I should make an order of adjudication in respect of the Debtor.

Representation

Gerard Martin Byrne BL, instructed by GN & Co Solicitors, for the Debtor. Gary Hayes BL, instructed by O’Connor Solicitors, for the Petitioner.