Dr Mary Pat O'Donnell, wife of retired solicitor Brian O'Donnell, is entitled to argue she has a right of residence at Gorse Hill in Killiney, Co Dublin, which the family was ordered to vacate, the Court of Appeal has ruled.
Mr Justice Donal O'Donnell, on behalf of a three-judge appeal court, said Dr O'Donnell was entitled to contest an injunction preventing the couple trespassing on Gorse Hill or interfering with a receiver's right to dispose of the property to help meet the O'Donnell's €71m debt to Bank of Ireland.
She was entitled to do so on the basis of an argument advanced on her behalf by her husband, who represented both of them in the case, she had a right of residence in the house, he said.
That claim was based on provisions of the Family Home Protection Act guaranteeing property entitlements to spouses.
It was claimed Dr O’Donnell had not received separate legal advice from her husband when their right of residence in Gorse Hill, subject to two years notice of termination, was agreed in October 2000 as part of a trust vesting the beneficial interest in the property to their children.
It was claimed this had the effect of invalidating a mortgage and security related to the property by an Isle of Man registered company, Vico Ltd, to Bank of Ireland.
The O'Donnells had contested the trespass injunction sought by the Bank of Ireland receiver and lost in the High Court.
The receiver’s central argument was, now the O’Donnells were bankrupt, only the official dealing with their bankruptcy could defend the case or assert right of residence, and that official had chosen not to do so.
The O’Donnells argued the High Court erred on a number of grounds in finding against them.
They alleged breach of their constitutional and European Convention rights including to fair procedures and to contest the trespass injunction and argued the High Court erred in finding the right of residence was a proprietary rather than a personal right.
Mr Justice O’Donnell found their claim the bankruptcy official should not have intervened in the trespass proceedings was misconceived.
However, because the bank sought injunctions restraining the O’Donnells personally, and not the bankruptcy official, from trespassing, the O’Donnells must remain a party to the proceedings for court orders to be effective, he said.
The only question then was what defence the O’Donnells could assert once they were a party to the trespass case.
Mr Justice O’Donnell said, in light of the Family Home Protection Act, an unusual provision designed to provide protection to spouses, it cannot be said this was a property right vesting in the bankruptcy official on adjudication of bankrutpcy.
A right of residence, a “uniquely Irish” concept, was “on its own terms both personal and non-assignable”, he said.
He affirmed the decision of the High Court dismissing claims in relation to invalidity of the original judgment against the O’Donnells and their claims for fraud, deceit and misrepresentation because the right to argue them only belongs to the bankruptcy official.
He said he would except the claims in relation to right of residence and the Family Home Protection Act and the O’Donnells may proceed with those claims in the High Court.