Wednesday 22 November 2017

Four O'Donnell children don't have resources to fight Commercial Court case

Tim Healy

THE four adult children of solicitor Brian O'Donnell do not have the resources to fight a case in the big business division of the High Court, the Supreme Court heard.

Two of them are students, one a job seeker and the fourth a non-practising solicitor, Ross Maguire, counsel for Blake, Bruce, Blaise and Alexandra O'Donnell, told the court today.



Mr Maguire SC was making submissions in relation to an appeal before the court against a decision permitting the fast-tracking to the Commercial Court of a legal action by Bank of Ireland against them over ownership of the contents of the family's luxury home in Killiney, Dublin.



Mr Maguire had applied to the Supreme Court for a stay on the Commercial Court proceedings pending the hearing of a full appeal against the order fast-tracking the case.



The matter was put back until next month after Mr Maguire agreed to a suggestion from the three judges of the Supreme Court that he should first apply for an adjournment of the Commercial Court case.



Counsel argued that because Commercial Court matters are usually brought by organisations such as banks which have substantial resources, and are usually dealt with very quickly, it was impossible for his clients to be ready to deal with it within a timeframe as short as four weeks because they are not commercial entities.



His clients were two students (Blake and Alexandra), a job seeker (Blaise) and a non-practising solicitor (Bruce) and could not fund the substantial costs of litigation a Commercial Court case required, he said.



Mr Maguire suggested the case could be put into the High Court non-jury list which is flexible in the way it deals with cases.



This case concerned the transfer of ownership of the family home contents to the four by their father Brian O'Donnell, a solicitor and developer, who along with his doctor wife Mary Patricia, are being pursued by Bank of Ireland for a €75m judgment against the couple in relation to unpaid loans mainly for property investments.



Mr Maguire said ownership of the contents of the house, Gorse Hill in Killiney, were transferred in trust in 2000 to an Isle of Man-registered company, Chancery Trust Ltd, the shares in which are held by the four O'Donnell children. Brian O'Donnell put the contents of the house as an adjunct to a trust he created in return for right of residency for him in the house, counsel said.



Bank of Ireland had argued this transfer was a sham and had got court orders allowing its representatives to enter the house to take an

inventory of the contents, counsel said. Since then, his clients had

given an undertaking not to dissipate any of those assets pending the hearing of the court action by the bank.



Given the circumstance of his clients, Mr Maguire said they were severely prejudiced by the case being fast tracked into the Commercial Court list and there is no need for it.



Blaise O'Donnell said in an affidavit, on behalf of her and her siblings, that they did not have the resources to bring a Commercial Court action to a conclusion which could happen before the end of July, Mr Maguire said.



Asked by Mr Justice Adrian Hardiman, who was sitting with Mr Justice Nial Fennelly and Mr Justice Liam McKechnie, if Ms O'Donnell had applied for free legal aid, counsel replied "no".



Mr Maguire also argued a stay on the proceedings should be granted because a breach of court rules in relation to the communication of certain correspondence between the bank's solicitors and the Commercial Court in advance of the application to have the case transferred to that court's list.



Mr Maguire said certain documents supplied to the Commercial Court registrar, which he said were then passed on to the judge, Mr Justice Peter Kelly, had not been copied to him as required by the rules.

When he raised this with Mr Justice Kelly, it was rejected "out of hand" by the court, he said.



The Supreme Court judges agreed the appeal could be put back for three weeks to allow Mr Maguire an opportunity to apply for an adjournment in the Commercial Court to give the defendants time to prepare their case more fully.



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