B of I 'unfair ' to seek €69.5m judgment

A DUBLIN solicitor and his wife have argued before the Commercial Court that it is “unfair” and “unreasonable” of Bank of Ireland to seek €69.5 million summary judgment against them over unpaid property loans and guarantees.

Brian O’Donnell and Dr Mary Pat O’Donnell, Vico Road, Killiney, Co Dublin, also claim the bank’s action is very ill-considered and has devalued the couple’s international property portfolio because of the negative publicity the case has received internationally.

Mr O’Donnell claims there was a “tacit” agreement with the bank it would continue to roll-up interest and support facilities until he could make the necessary sales “to regularise the position”.

However, Paul Gardiner SC, with Cian Ferriter, for Bank of Ireland argued yesterday the couple have advanced no credible or arguable defence to justify a plenary hearing of the bank’s proceedings against them and disentitle the bank to summary judgment.

There was no dispute the various loans were made and there was default on those loans for more than two years and it would be doing no injustice to the couple to enter summary judgment, Mr Gardiner added.

This was “not a situation of unequal bargaining power”. Mr O’Donnell did not “shy away” from saying he was an expert in property transactions and had reminded the court on several occasions that he was involved in many property transactions which had made lots of money until more recently.

In exchanges with Mr Gardiner, Mr Justice Peter Kelly noted that Mr O’Donnell, who has his practice Brian O’Donnell Partners at Merrion Square, Dublin, had described himself as one of Ireland’s leading corporate lawyers.

Mr Gardiner said that while Mr O’Donnell argued that the bank had assured him it would be “flexible” in relation to the facilities entered into and was complaining it was not as flexible as he wished, the court had to ask what flexibility he was seeking.

What Mr O’Donnell wanted was, in light of the financial crisis that had affected the globe and consumed many of his investments, the bank should “simply not call in the money”.

The bank claims default for some time of interest payments on various facilities and also alleges the couple had failed ultimately to advance acceptable proposals to address their indebtedness.

The defendants contend they have raised an arguable defence on various grounds, including that the bank had acted unfairly and unreasonably and in breach of its fiduciary duty to them in bringing the summary judgment proceedings and should have given them a proper opportunity to service and refinance the loan facilities.

They have also counterclaimed for breach of implied terms of agreement and for reputational damage arising from the bringing of the summary judgment claim.

Maurice Collins SC, for the O’Donnells, said yesterday bringing the action was very ill-advised and destructive in relation to the value of their property portfolio. The reporting of the case had done untold damage to Mr O’Donnell’s business interests and practice, he added. The case continues.