Failure to disclose the existence of a possession order not a bar to obtaining a protective certificate

Summary

This matter related to a High Court appeal brought by two high profile debtors against a Circuit Court order made in favour of Tanager Designated Activity Company (Tanager) which allowed Tanager to enforce an order for possession notwithstanding the fact that a protective certificate was in place in respect of the debtors.

The application in the Circuit Court had been made by Tanager pursuant to Section 96(3) of the Personal Insolvency Act 2012. The decision by the High Court deals with the obligations of a debtor to disclose certain information when applying for a protective certificate.

Facts

In early 2019 Tanager sought to repossess the debtors’ family home as a result of a €1.2 million mortgage debt. The debtors' mortgage was originally with Bank of Scotland (Ireland) prior to the transfer of the loan to Tanager. In March 2019 the debtors consented to an order for possession, which was subject to a four month stay. The property was to be handed over to Tanager in July of this year.

Mr. Ryan, one of the debtors, subsequently claimed that he was not aware of his options in relation to personal insolvency arrangements at the time he consented to the order for possession and on 25 June 2019, he obtained a protective certificate in the Circuit Court. A protective certificate affords a debtor (and their assets) protection from the continuation or issuance of legal proceedings by creditors while the debtors are applying for an insolvency arrangement. This protection remains in force for 70 days, but it may be extended in some circumstances. Upon being notified of the existence of the protective certificate in this case, Tanager made an application under s96(3) in the Circuit Court for leave to enforce and execute the order for possession. In August 2019, after hearing that Mr Ryan did not disclose the existence of the possession order when he applied for the protective certificate, Judge Linnane granted the leave sought by Tanager. This was appealed by the debtors.

In the High Court in October 2019, Mr Justice Simons delivered his decision which centred on whether the debtor was entitled to avail of the protective certificate in circumstances where he had not disclosed the existence of the possession order when seeking same.

In the High Court appeal hearing, Counsel for Tanager stated that Mr. Ryan had engaged in an abuse of process, and further argued that the debtor's failure to disclose the existence of the possession order breached the duty of candour owed to the Court. Counsel for Mr. Ryan argued that there had been no material non-disclosure, and, notwithstanding the existence of the possession order, the debtor met the eligibility criteria for a protective certificate, pursuant to Section 91 of the Personal Insolvency Act .

Decision

In his decision, Mr Justice Simons stated that the principal relief sought in the appeal was for Tanager to be allowed to enforce the possession order, despite the existence of the protective certificate. Mr. Justice Simons found that the omission of the possession order ''does not constitute a material non-disclosure'' and further noted that ''even if the existence of the order for possession had been disclosed - as it should have been - this would not have affected the outcome of the application for a protective certificate'' as the debtor met the eligibility criteria under the relevant provisions of the Personal Insolvency Act.

Mr Justice Simons added that it would be "disproportionate to the gravity of the non-disclosure" to sanction Mr Ryan by allowing Tanager to enforce the possession order. Mr Justice Simons said to do so would have been inconsistent with one of the underlying objectives of the Personal Insolvency Act, which makes special provisions for a debtor's principal private residence.

Tanager were ordered to pay Mr. Ryan's costs of the appeal hearing.

Commentary

This decision is significant as the Court found that Mr Ryan's failure to disclose the existence of the possession order in his application for the protective certificate was an omission which was considered ''immaterial''. As a result, the debtors can now seek Court approval for the debt proposal put forward by a Personal Insolvency Practitioner, acting on the debtors' behalf. 

As an aside, Mr Ryan's personal insolvency arrangement has been voted against at the creditors' meeting and is now under appeal to the courts.

Tanager Dac v Ryan & Anor [2019] IEHC 659

Tanager DAC v Ryan [2019] IEHC 674

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For more information on the topics discussed in this article, please contact Clíodhna Walsh, Gavin Anderson or your usual Beauchamps contact.