Supreme Court dismisses appeal as moot because the bank account was closed before the appeal could be heard.

THE SUPREME COURT

[Appeal No. 049/2013]

Denham C.J.

Laffoy J.

Dunne J.

BETWEEN

CORNELIUS M. CAGNEY

PLAINTIFF/APPELLANT

AND

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

DEFENDANT/RESPONDENT

Judgment of Ms. Justice Laffoy delivered on 22nd day of October, 2015

This appeal

1. This is an appeal by the plaintiff/appellant (Mr. Cagney) against an order made in High Court proceedings between Mr. Cagney and

the defendant/respondent (the Bank) under Record No. 2012/9028P (the relevant High Court proceedings). Because Mr. Cagney had

instituted other proceedings in the High Court against the Bank (the earlier High Court proceedings), which fact has given rise to a

degree of confusion, it is necessary to consider the process in relation to the relevant High Court proceedings in the High Court and

on the appeal in some detail.

2. Mr. Cagney and his adult daughters, Helene Cagney and Genevieve Cagney, were customers of the Bank in August 2012. The

account at the core of the relevant High Court proceedings was a joint account designated Account No. 11055680. The account

holders had the benefit of an overdraft limit of €15,000 on that account. By letter dated 29th August, 2012 the Bank wrote to Mr.

Cagney and the other joint account holders setting out the debit balance on that account and notifying them that, with effect from a

date twenty one days from the date of the letter, the Bank would terminate the overdraft facility on the account. Further, the Bank

notified them that they should clear the outstanding balance and close the account within twenty one days from the date of the

letter.

3. The plenary summons in the relevant High Court proceedings was issued on 7th September, 2012 naming Mr. Cagney, as a personal

litigant, as plaintiff. In the general endorsement of claim on the plenary summons the reliefs Mr. Cagney was claiming were stated as

follows:

“. . . for an Interlocutory Injunction to preserve the Status Quo and to prevent the Bank . . . in their letter dated 29th

August 2012 . . . from proceeding with their actions and demands as set out in this letter. . . .

Financial Loss/Special Damages

Injury to the Plaintiff’s Reputation/Aggravated Damages.”

4. On 7th September, 2012 Mr. Cagney applied ex parte to the High Court for short service of a notice of motion seeking interlocutory

relief against the Bank. By order of the High Court (White J.) made on that day Mr. Cagney was given leave to issue a notice of

motion returnable for 14th September, 2012. In the notice of motion, which was filed on 11th September, 2012, Mr. Cagney sought

relief in the following terms in paragraph 1:

“Directions seeking an Interlocutory Injunction to preserve the status quo and to prevent [the] Bank from proceeding with

their actions and demands as set out in their letter of 29th August, 2012.”

Certain assertions as to the conduct of the Bank were made in the succeeding numbered paragraphs of the notice of motion but no

other relief was sought. It was stated that the application would be grounded on the affidavit of Mr. Cagney. Mr. Cagney filed the

relevant affidavit, which was sworn on 12th September, 2012, on 12th September, 2012. On 14th September, 2012, the return date,

the matter came before O’Keeffe J. in the High Court. On that occasion the Bank was given the opportunity to file a replying affidavit

and the motion was adjourned to 2nd October, 2012 to facilitate that. Further, the Bank gave an undertaking to the Court that it

would take no action on foot of the letter dated 29th August, 2012 during the adjourned period.

5. Although Mr. Cagney questions this, the motion for an interlocutory injunction came on for hearing in the High Court before Hogan

J. (the trial judge) on 28th November, 2012. There were other applications by Mr. Cagney before the trial judge on that day.

However, on this appeal, the Court is only concerned with the motion identified in the order of the Court dated 28th November, 2012

in the relevant High Court proceedings. That order identifies the relevant motion as seeking an interlocutory injunction to preserve the

status quo and prevent the Bank from proceeding with their actions and demands as set out in the letter dated 29th August, 2012.

The order recites that there was before the Court the affidavit of Mr. Cagney filed with the motion and affidavits of Joe Fennell and

John Ruddy (Mr. Ruddy) filed on 8th October, 2012. While this Court has not had sight of those affidavits, they were clearly filed on

behalf of the Bank. In the curial part of the order it was ordered as follows:

“1. [Mr. Cagney] to write to [Mr. Ruddy] of the Bank of Ireland within one week of the date hereof to meet and engage

with the Bank and

2. the undertaking of the [Bank] in relation to Account No. 11055680 and the overdraft facility of €15,000 will continue

until the 11th day of January 2013 conditional upon [Mr. Cagney] writing to [Mr. Ruddy] . . . as indicated

3. the matter is adjourned to the 11th day of January 2013 for mention.”

6. Mr. Cagney’s motion in the relevant High Court proceedings was adjourned from 11th January, 2013 to 25th January, 2013, when

there was before the trial judge an affidavit sworn by Mr. Ruddy filed on 24th January, 2013 and the exhibits referred to therein. While

that affidavit is not before this Court, counsel for the Bank, without any objection from Mr. Cagney, furnished to the Court on the

hearing of the appeal an exhibit specifically referred to in the order of the High Court dated 25th January, 2013 as “the letter of [Mr.

Ruddy] to [Mr. Cagney] setting out the terms of a proposed settlement” which arose out of a meeting between Mr. Cagney and Mr.

Ruddy. In broad terms, the Bank proposed that, in consideration of Mr. Cagney discontinuing the relevant proceedings, the overdraft

facility of €15,000 would continue in place on the joint account subject to the Bank’s usual terms and conditions including operating in

a normal manner. It was also indicated that the Bank would reconsider a recent loan application by one of the joint account holders if

it was resubmitted. Further, it was open to the customers to apply for an increased overdraft facility which, if the Bank agreed to

provide it, would be on the usual banking terms. The letter envisaged the proceedings being struck out on consent with no order as

to costs. In the curial part of the order made by the trial judge on 25th January, 2013 it was ordered that “the undertaking of the

[Bank] previously given . . . do continue up to and including Friday the 15th February 2015”. Further, the Court gave directions that –

(a) Mr. Cagney write to Mr. Ruddy in response to that letter setting out the points of variance with Mr. Ruddy’s

letter no later than 4th February, 2013, and

(b) Mr. Cagney file an affidavit in reply to Mr. Ruddy’s affidavit on or before 6th February, 2013.

The motion was adjourned for hearing to 15th February, 2013.

7. Before the adjourned date Mr. Cagney filed a notice of appeal in the office of the Supreme Court on 12th February, 2013. In the

notice of appeal he appealed the order of the trial judge dated 25th January, 2013 specifically referring to the order that the

undertaking of the Bank continue to the next adjourned date. The notice further indicated that Mr. Cagney would apply to this Court

to have the trial judge “removed from hearing the case as this case has not been set down for hearing”. In the grounds of appeal it

was alleged that the orders of 28th November, 2012 and of 25th January, 2013 were “invalid”.

The earlier High Court proceedings

8. The earlier High Court proceedings (under Record No. 2012/6977P) were commenced by plenary summons which issued on 17th

July, 2012. An application for an interlocutory injunction was initiated in those proceedings pursuant to an order of the High Court

(McGovern J.) made on 30th July, 2012 which gave directions in relation to the application. That application ultimately came on for

hearing before the trial judge on 28th November, 2012 and a separate order was made by the trial judge on foot of that application.

Moreover, on 28th November, 2012, the trial judge heard a motion issued by Mr. Cagney on 19th September, 2012 seeking to

consolidate the relevant High Court proceedings and the earlier High Court proceedings. By a further order dated 28th November, 2012

that motion was refused. Neither the earlier High Court proceedings nor the application for interlocutory relief brought in those

proceedings nor the application to consolidate those proceedings with the relevant High Court proceedings is of any relevance to the

issues which arise on this appeal.

9. In the interest of clarity, it is appropriate to record that while Mr. Cagney filed a notice of appeal against the order of the trial

judge made in the earlier High Court proceedings on 25th January, 2013 (Appeal No. 48 of 2013), an order of this Court made on 15th

March, 2013 in that appeal records that on that day Mr. Cagney appeared in person before this Court and withdrew that appeal.

Position of the Bank on the appeal

10. The position of the Bank on this appeal is that the effect of the order of 25th January, 2013 appealed against has been overtaken

by events and that the appeal is moot. In their outline written submissions, counsel for the Bank made the point that the order of

25th January, 2013 was made in favour of Mr. Cagney but that, in any event, it is spent in that it was limited in time to 15th

February, 2013. On that basis it was suggested that the appeal is moot. Apart from that, it is disclosed in those submissions that the

trial judge gave his final order on the interlocutory application on 17th June, 2013 and for that reason also the appeal is moot. Finally,

without any objection from Mr. Cagney, counsel for the Bank put before the Court a letter of instructions to the Bank from Mr.

Cagney and the other joint account holders dated 5th June, 2014, wherein provision was made for the discharge of the balance due

on Account No. 11055680 and instructions were given to the Bank to close the account. Mr. Cagney confirmed to the Court that the

balance due on foot of that account has been discharged. However, he took issue with the proposition that the account no longer

exists, because he had received a statement on the account after June 2014, although he acknowledged that the statement showed

that there was no balance due on foot of the account. It is perhaps understandable that receipt of a statement after he had

discharged the balance due on the account and had given instructions that it be closed would create confusion in Mr. Cagney’s mind,

although this Court has not had sight of the statement. However, on the basis of what this Court was told by counsel for the Bank

and by Mr. Cagney, Account No. 11055680 is closed. That being the case, the Bank’s position is that the appeal is moot.

Conclusion on mootness issue

11. As has been outlined earlier, the only relief sought by Mr. Cagney on the motion dated 7th September, 2014 was for an

interlocutory injunction to preserve the status quo and to prevent the Bank from acting on foot of the letter of 29th August, 2012.

The effect of such an order, if granted, would be to restrain the Bank from withdrawing the overdraft facility on and closing Account

No. 11055680 pending the trial of the action, that is to say, the conclusion of the plenary hearing. As Mr. Cagney has closed the

account of his own volition, there is absolutely no basis on which this Court could restrain the Bank from dealing with Account No.

11055680 as envisaged in the letter of 29th August, 2012, because the account no longer exists. Any order made by this Court to

that effect would be utterly meaningless. Therefore, insofar as the objective of Mr. Cagney on the appeal is to pursue his application

for an interlocutory injunction, that application and the appeal are unquestionably moot.

12. Apart from that, in my view, counsel for the Bank are correct in their submission that after 15th February, 2013 the appeal

against the order of 25th January, 2013 was moot. Counsel for the Bank are also correct in stating that the order of 25th January,

2013 was in favour of Mr. Cagney. The Bank was mandated to give an undertaking in the terms sought by Mr. Cagney up to the

adjourned date, 15th February, 2013, and Mr. Cagney was given an opportunity to respond to Mr. Ruddy’s affidavit of 24th January,

2013. The effect of that order and the directions was spent on 15th February, 2013. In any event, it is clear from the papers before

this Court that on subsequent adjournments of Mr. Cagney’s motion for an interlocutory injunction, the Bank was mandated to

continue his undertaking until the interlocutory injunction was finally resolved, which occurred on 17th June, 2013.

13. It is important to emphasise that, having regard to its date and the terms thereof, the notice of appeal filed on 12th February,

2013 only enables this Court to consider whether the order dated 25th January, 2013 should be set aside. If, for instance, Mr. Cagney

was dissatisfied with the final order made on the interlocutory application, the order dated 17th June, 2013, which was perfected on

26th June, 2013, he would have had to bring a notice of appeal against that order in accordance with the Rules of the Superior

Courts 1986, as amended. No such appeal is before this Court. In short, this Court is only concerned with the appeal filed on 12th

February, 2013 against the order of 25th January, 2013 and its terms. For the reasons outlined earlier, there is no basis on which this

Court can give Mr. Cagney the relief he seeks on the appeal against that order.

Order of the Court

13. There will be an order dismissing Mr. Cagney’s appeal.