Bankrupt solicitor seeks to set aside judgment as Judge had bank shares

Brian O’Donnell seeks appeal against €71m judgment on basis that Judge had bank shares

Bankrupt solicitor Brian O'Donnell is seeking to set aside a €71 million judgment granted to Bank of Ireland against him and his wife on foot of claims the judge who made that order, Mr Justice Peter Kelly, was objectively biased due to having shares in the bank.

The O'Donnells also allege objective bias against another High Court judge, Mr Justice Brian McGovern, who is engaged in hearing proceedings against them, on grounds including claims he and his wife had borrowings with the bank.

The Bank contends Mr O'Donnell's application to set aside the judgment entered against him and his wife in December 2011 is an abuse of process, bound to fail and part of a strategy to disrupt its efforts to enforce the judgment and the Supreme Court should refuse the necessary extension of time to allow him appeal the judgment order.

Mr O’Donnell had not outlined in his initial documents to the Supreme Court that he earlier in 2011 agreed terms with the bank which permitted a consent judgment to be entered if an agreement between the sides broke down, which it had, Cian Ferriter SC, for BOI, said. He also queried whether Mr O’Donnell, being a bankrupt, had the legal standing to litigate this matter.

Mr O’Donnell disputed there was a consent judgment and said he has legal standing to bring the appeal on grounds of his personal rights.

He said Mr Justice Kelly held shares in Bank of Ireland for 13 years from April 2000 but the O'Donnells only found that out in July 2014 after which they speedily moved to appeal the judgment order. This, and alleged prejudicial comments made by Mr Justice Kelly in relation to the O'Donnells, amounted to objective bias on the judge's part, it is alleged.

While he had written last July to Mr Justice Kelly about those matters, he received a reply from the Chief Registrar Kevin O’Neill stating the judge would not be replying to his letter, Mr O’Donnell said.

On July 21st last, when the O’Donnells asked Mr Justice Kelly to recuse himself from dealing with proceedings against them, the judge stressed he took serious issue with the legal and factual basis advanced in support of the recusal request.

However, to ensure a speedy hearing and in the context of a 2007 UK court decision stating, even if a judge believed a recusal request should be refused, it could be granted if another judge could be quickly found to hear the case, Mr Justice Kelly said he would send the matter to Mr Justice Brian McGovern. The President of the High Court had said he was happy with that proposed course of action, the judge added.

In a second application to the Supreme Court yesterday, Blake O’Donnell, a son of Mr O’Donnell, said he was appealing, on behalf of himself, his parents and brother Bruce, against Mr Justice Brian McGovern’s refusal to recuse himself from hearing proceedings in which the bank alleges fraud against the four.

The O’Donnells contend objective bias against Mr Justice McGovern on grounds including he and his wife had a mortgage with the bank and the involvement of his wife in litigation in relation to a partnership involving herself and her siblings which had borrowings with Bank of Ireland.

In refusing to recuse, Mr Justice McGovern said he had no involvement with the partnership and all borrowings had been discharged. A mortgage held by him and his wife with the bank, plus another borrowing, had been paid off and he had a current and deposit accounts with the bank but no borrowings or shareholdings, he added.

“Ireland is such a small country that, if everybody who had an account in a bank was asked to recuse themselves, nothing would ever get done,” he said.

Having asked for an outline of their position from the O’Donnells, the bank and counsel for the Official Assignee administering Mr O’Donnell’s bankruptcy, the Supreme Court asked the parties to file written submissions on several legal issues and that the Assignee outline his position.

Mr Justice William McKechnie, sitting with Mr Justice Peter Charleton and Mr Justice John MacMenamin, said the court was anxious to respect the rights of every person who may be involved in this matter and adjourned the matter to mid November.

Bank Of Ireland has sued the O'Donnell parents and sons over allegedly conspiring to put in place a "blatant scheme" to put a London property asset beyond its reach. They deny the claims. Separately, the parents are appealing against being made bankrupt by the High Court here in August 2013 on the bank's petition after it sucessfully opposed their bid for bankruptcy in England.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times

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