Tuesday 16 October 2018

Priory Hall developer Thomas McFeely refused further appeal over bankruptcy extension

Bankrupt Priory Hall developer Thomas McFeely. Photo: Collins Courts
Bankrupt Priory Hall developer Thomas McFeely. Photo: Collins Courts

Tim Healy

The Supreme Court has refused to hear a further appeal by Priory Hall developer Thomas McFeely over the near five year extension of his bankruptcy.

Mr McFeely (69) was due to exit bankruptcy in July 2015 but, as a result of the extension, will not do so until March 30th 2020.

The extension was granted over what the High Court described as "deliberate and persistent" failures to co-operate with official assignee Chris Lehane, including by not disclosing his interest in 12 apartments in Dublin.

Representing himself, but assisted by an English lawyer, Mr McFeely applied to the Supreme Court for permission to appeal the Court of Appeal's rejection last February of his appeal over the extension.

In a published determination, a three judge Supreme Court noted Mr McFeely's core argument was the extension deicsion was dependent on evidence which was inadmissible because it was obtained as a result of an unauthorised and illegal search by a bankruptcy inspector of offices of Coalport Building Company at Dublin's Holles Street.

Mr McFeely was a director of Coalport until he resigned some years before his bankruptcy.

The Supreme Court said the High Court had held the extension decision was not dependent on that evidence. The evidence obtained as a result of the search was "only a portion of a wide range of evidence" available to the High Court in deciding to extend the bankruptcy, it said.

The effect of this was, even if Mr McFeely won his core point, that would not result in a successful appeal and a reversal of the deicisons of the High Court and Court of Appeal, it ruled.

The Supreme Court also said both the High Court and COA applied "familiar law and established legal principles" in concluding no constitutional right of Mr McFeely's was involved arising from the Coalport premises search. 

Read More: Priory Hall developer McFeely threatened to slit woman's throat, court told

Mr McFeely had claimed he owned the freehold of the Holles Street premises which he leased to Coalport, a separate legal entity. Mr Lehane denied the claims of unlawful entry for reasons including his agents were invited onto the premises by the receiver of Coalport and ownership of the material seized was already vested in him as official assignee.

In its judgment last February, the COA noted the High Court had found a warrant obtained under Section 27 of the Bankruptcy Act 1988 did not authorise that search and the warrant should have been sought under Section 28, allowing a court direct a bankruptcy inspector to seize any property of the relevant bankrupt.

Because there was no cross appeal against that finding, the appeal court said it would approach the case on that basis and the Supreme Court did the same. 

The Supreme Court said the COA had held, for reasons including the Coalport premises was not a residence or property of Mr McFeely himself and no constitutional right of his was breached as a result of the search, the High Court had discretion to find the evidence arising from the search was admissible for the bankruptcy extension application.

Any rights invaded by the search were of Coalport's and any rights inherent in materials found on the premises had been vested in Mr Lehane as being part of the bankrupt's estate, it said.

The appeal court said unlawful entry by State agents onto business premises is "always a serious matter" and, if the bankruptcy inspector entered premises occupied by Mr McFeely himself, the conclusion the evidence was admissible would be different.

The COA also ruled there was "ample evidence" for findings of non co-operation by Mr McFeely with Mr Lehane, including his failure to disclose his interest in 12 apartments and to provide his address or addresses and a "proper" statement of affairs.

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