IESC 30.2026 BOI v Murray & anor

AN CHÚIRT UACHTARACH THE SUPREME COURT S:AP:IE:2024:000064 [2026] IESC 30 O’Donnell C.J. Woulfe J. Hogan J. Murray J. Collins J. Between/ BANK OF IRELAND MORTGAGE BANK Respondent/Plaintiff -andBRIAN MURRAY Appellant/First Named Defendant -andATTRACTA MURRAY Second Named Defendant -andPEPPER FINANCE CORPORATION (IRELAND) DAC Notice Party Judgment of Mr. Justice O’Donnell, Chief Justice delivered on the 13th day of May

2. The execution of standard documents relating to the advancement of monies by the Plaintiff Bank in 2003 and 2007, and the execution of the charge in respect of a family home in 2003, has given rise to considerable controversy in these courts. The transactions were the subject of a detailed and careful judgment in the High Court (Baker J., 12 April 2019, [2019] IEHC 234), a further judgment of Baker J. of 16 August 2021, and a final ruling of 3 March
3. Thereafter, the case was the subject of a comprehensive judgment in the Court of Appeal (Binchy J.; Costello and Flaherty JJ. concurring) of 19 January 2024 ([2024] IECA 11). Leave to appeal to this court was granted, resulting in three judgments in this Court, Dunne and Collins JJ. (for the majority) and a joint dissenting judgment (Woulfe and Hogan JJ.), all delivered on 4 June 2025 ([2025] IESC 24). No useful purpose would be served by returning once again to the detail of these transactions which has been so carefully considered in the judgments of the Superior Courts, and accordingly, I will not attempt to do more than set out a basic outline of the facts sufficient to understand why an eighth judgment is, it appears, necessary.
4. The Plaintiff Bank, the respondent to the present applications, (hereinafter “the Bank”) commenced proceedings in 2013 for the balance of monies advanced and paid into the joint account of the Defendants, Mr. and Mrs. Murray, together with interest accrued. The Bank obtained judgment in full against Mrs. Murray in the sum of €202,233.02 in respect of principal and interest, and also obtained an award of 50 percent of its costs against her on an undefended basis. Although 2 Mrs. Murray appeared in the High Court, and represented herself, she did not appeal the judgment, and nothing further needs to be said about this aspect of the Bank’s claim.
5. The claim for the same amount on a joint and several basis against Mr. Murray, has however been the subject of heated contest. Mr. Murray was at all material times a fisherman based in Killybegs, County Donegal. It appears that Mrs. Murray was responsible for the household finances, an arrangement which is common in Killybegs, which is a centre of the fishing industry, and where many of the fishermen, like Mr. Murray are away at sea for a considerable portion of the year. In simple terms, Mr. Murray, while not disputing execution of the documents by his wife, maintained that his purported signature on the documents creating both the loan agreement in 2003, the security agreement under which the family home was charged to secure that loan and any future loans, and the subsequent loan documentation in 2007, was not his and had not been authorised by him. This was a classic defence of non est factum.
6. Certain documentation purported to be witnessed either by a solicitor acting for the Murrays, or a commissioner for oaths, or officials of the Bank. None of these witnesses had any clear memory of the transactions. The evidence of attestation of Mr. Murray’s signature in his absence, particularly by the commissioner for oaths, gave the Judge considerable disquiet. The High Court Judge found Mr. Murray's own evidence difficult to reconcile, not persuasive and showed signs of having been tailored to reflect objectively verifiable facts, principally the logs of his boat which showed the dates on which he was at sea. In this unsatisfactory evidential wasteland, the Judge relied on the logs of Mr. Murray's fishing boat 3 as objective and reliable information, together with the fact that the Bank bore the onus of proof of demonstrating that Mr. Murray had executed the documentation. Ultimately, she concluded that the Bank had not demonstrated on the balance of probabilities that Mr. Murray did indeed sign the 2003 and 2007 documentation, or authorise its execution.
7. The consequence of this conclusion was significant. It meant in the first place, that although not directly an issue in the proceedings, it appeared that the charge on the family home was void and of no effect because it could not be shown that Mr. Murray executed it, and while it was clear that Mrs. Murray did do so, it was also void against her because in that absence of proof of execution by Mr. Murray it had not been shown that her spouse had consented to the charge as required by s. 3 of the Family Home Protection Act
9. A second consequence of the Court’s finding in respect of the execution or nonexecution of the documentation was that the Bank could not succeed on its claim against Mr. Murray on foot of the loan agreements themselves. However, the Judge found that the monies had been paid into a joint account, the benefit of which had been received by Mr. Murray (paragraph 168). He had shown a degree of financial acumen and was not wholly ignorant of the fact that the couple had made exceptional purchases which could only be referrable to the loan monies. In those circumstances she considered that the Bank was entitled to maintain a claim for unjust enrichment against Mr. Murray. However, that claim was limited to the amount of principal outstanding and the Bank could not maintain any claim for interest. Accordingly, judgment was granted against Mr. 4 Murray for the sum of €132,355.
10. As and between Mr. Murray and the Bank, the Judge made no order as to costs.
11. In coming to this conclusion, the High Court Judge had to address the argument, that if the Bank was permitted to maintain a claim for unjust enrichment that would circumvent the provisions of the Consumer Credit Act 1995, which, on the assumption that the agreement had not been executed by Mr. Murray, had not been complied with. The High Court Judge considered initially that the advance was not a home loan but that s. 38 of the Act, which provided that failure to meet the statutory cooling-off notice requirement was not fatal if a Court was persuaded that it would be just and equitable to dispense with that requirement, applied. If so, there was no question of circumventing the requirements of the Act. Subsequent to the delivery of the judgment, Mr. Murray sought to challenge the decision that the loan did not constitute a home loan under the Consumer Credit Act
12. The trial judge accepted that the evidence when analysed showed that monies had been paid into a mortgage account before being transferred into a joint current account. To that extent, s. 38 of the Act would not have been available had the Bank sought to proceed on foot of the loan agreements themselves and, therefore, was not relevant even at the hypothetical level of considering whether non-compliance with the provisions of the Act should preclude recovery for unjust enrichment. The trial judge considered however, that this did not undermine the decision to which she had come: that was because the claim made out against Mr. Murray was not one in contract, as the essential factual elements of a contract were never established by the Bank, but rather in restitution because she had been satisfied that Mr. 5 Murray had had the benefit of the monies advanced and was unjustly enriched. Accordingly, she did not set aside the judgment against Mr. Murray.
13. That decision was appealed to the Court of Appeal, and in a further comprehensive judgment, that Court (Binchy J.; Costello and Faherty JJ. concurring) dismissed the appeal and upheld the judgment of the High Court. This Court granted leave to appeal, and by a majority (judgments of Dunne and Collins JJ., Murray J. concurring; Woulfe and Hogan JJ. dissenting) this Court dismissed the appeal. It is perhaps of some significance to record that neither the High Court Judge, nor the Court of Appeal, granted a stay on the judgment so that the position at all stages of the appeal before the Court of Appeal and this Court was that there was a judgment in favour of the Bank against Mr. Murray.
14. This necessarily truncated outline of the facts of a case with a complex and contentious history should suffice for present purposes. Before considering the arguments which now arise, it may be useful to make three more general observations. An appellate court’s power to review findings of fact made by a trial judge is limited: Northern Bank v Charlton [1979] IR 149; Hay v O’Grady [1992] 1 IR
15. The High Court Judge’s analysis of the evidence in this case was clear. It is apparent that such viva voce evidence as was advanced, showed an absence of memory at best or was decidedly unsatisfactory at worst. In those circumstances, the case was essentially decided by reference to the burden of proof. It had not been shown by the Bank that Mr. Murray had executed or authorised the execution of the relevant documentation. 6
16. Second, the conclusion to which the High Court came was beneficial to both Mr. Murray and Mrs. Murray. The charge on the family home was held to be void even against Mrs. Murray. The judgment against Mr. Murray was significantly less than the full amount which might have been recovered had it been held that the loan agreement was enforceable.
17. Third, the decision of this Court, whether by majority or unanimity, is a final decision of the Supreme Court which pursuant to Article 34.5.6° of the Constitution, is binding and conclusive, save in very exceptional cases, in which it can be said that, in truth, the decision of the Court was not a valid decision, by reason of some fundamental failure in the administration of justice: Re Greendale Developments Ltd. (No. 3) [2000] 2 IR 514 (“Greendale”).
18. The present controversy arises because of matters which have emerged, or at least were debated, after the judgment of this Court was delivered, and when this Court was considering submissions in respect of the final order, and any issue of costs. The appeal in this case was heard on 5 December 2024, and judgments delivered on 4 June
19. It transpired, and is not now in dispute, that on 3 December 2024, two days prior to the hearing of the appeal, the Bank had reached an agreement to transfer its loan book to the Governor and Company of the Bank of Ireland, for onward transfer through a Cayman Island company, to Pepper Finance Corporation (Ireland) DAC, (“Pepper”). The loan sale agreement completed on 25 April
20. This much is not in dispute although there is a live debate as to the effect of this agreement on the judgment against Mrs. Murray and more particularly the claim and later the judgment against Mr. Murray. Mr. Murray contends that the effect of the loan sale 7 agreement meant that at the time of the hearing on 5 December 2024 the Bank had limited locus standi (perhaps more accurately title to sue) and none after 25 April
22. Mr. Murray also relied on the conduct of the Bank outside court, which was said to be inconsistent with the Bank's stance in the proceedings. In this regard Mr. Murray relied on the fact that it emerged that the Bank had written to Mr. Murray on 10 February 2025 stating that his “Loan Account” was the subject of a sale agreement between Bank of Ireland and funds managed by AB CarVal and would be transferred to Pepper (although it should be said that Mr. Murray contended he had not seen this letter until a data subject access request in September 2025). By this time the Bank had accepted the finding of the High Court that it had not been shown that Mr. Murray had executed any loan agreement. Again, it appeared that the Bank had written to Mr. Murray on 28 April 2025 stating that his loan account would be transferred to Pepper. This letter was, it was said, first seen by Mr. Murray in late May 2025 after being abroad. In addition, Pepper had written to Mr. Murray on 16 May 2025 in respect of the purported transfer of the loan to Pepper. Again, it was said that Mr. Murray had only seen this letter on his return from abroad in May
23. This treatment of the loan as subsisting (albeit in standard form correspondence) was not consistent with the conclusion of the High Court that the loan agreement had not been shown to have been executed by or on behalf of Mr. Murray and was therefore not valid against him, or indeed that the Bank had obtained a judgment against him in respect of unjust enrichment. Finally, in this regard, it was pointed out that the Bank had purported to transfer the charge to Pepper and that Pepper had been registered as the owner of the charge on 24 July 2025, even 8 though the consequence of the High Court judgment was that the charge was invalid.
24. Mr. Murray also points to the fact that in subsequent correspondence during these proceedings, the Bank has taken different positions on what it contends is the legal position. Initially, the Bank had maintained that the transfer agreement only transferred the benefit of the loan vis-a-vis Mrs. Murray, that the references to Mr. Murray were in error, and that the restitutionary claim remained with the Bank. However, subsequently it was stated on behalf of the Bank, and maintained at the hearing, that the legal position as far as it was concerned, was that the transfer had the effect of transferring the benefit of the restitutionary claim (and subsequently the judgment obtained). The Bank also contended that notice of that transfer was provided through the Bank’s correspondence with the solicitors for Mr. Murray, it having been contended, correctly, that no particular formality is necessary for the provision of notice to the debtor of assignment of a chose in action. None of this gives an impression of efficiency or consistency and coming in the aftermath of the Bank’s dealing with the Murrays as explored in the High Court, it is perhaps unsurprising that Mr. Murray was suspicious of the Bank’s assertion that none of this required investigation.
25. Arising out of these matters, Mr. Murray demanded and obtained a wide range of documents relating to the transfer agreement for the benefit of Pepper, and also the Bank’s internal documentation showing its dealing with Mr. and Mrs. Murray. After the exchange of further written submissions, Mr. and Mrs. Murray brought an application to set aside the judgment on the grounds that it constituted an abuse of process, and made an application to vary or rescind the 9 judgment pursuant to Practice Direction SC
26. That Practice Direction sets out a procedure under which this Court considers any application to vary or rescind a final judgment in accordance with the jurisprudence first identified in Re Greendale Developments (No. 3) [2000] 2 IR
27. There are limited circumstances in which such an application can be made. While the factual circumstances in which such a claim may be made can vary considerably, it only arises in very limited circumstances where it can be said that a party, as through no fault of their own, has been subject to such a fundamental breach of their constitutional rights so that it can be said that in effect there was no valid decision. Because of the requirements of finality set out in Article 34.5.6°, it will only be in an exceptional case where such an order could be made, and to entertain or permit a hearing simply on the application of a party would itself run counter to the requirements of finality in Article 34.5.6°. SC 17 sets out a procedure under which the Court will first consider whether there are statable grounds for bringing a motion to set aside a judgment on these grounds. However, because Mr. Murray had already brought an application to set aside the judgment on the grounds of abuse of process, it was considered convenient to address both matters together.
28. It is not here necessary to decide if a court has greater latitude to set aside a judgment before a final order has been made than when an order has been made and it is sought to invoke SC
29. In this case, it is suggested that the matters relied on constitute an abuse of process on the part of the Bank and were such as to satisfy the Greendale test. The fundamental question is whether this is so. 10
30. There is, I think, little doubt that aspects of the case were handled clumsily and worse by the Bank, and the inconsistency and confusion surrounding the Bank’s own view of its legal position is unimpressive. It was both discourteous and imprudent of the Bank not to inform the Court either at the hearing on 5 December 2024, or thereafter, of the proposed transaction or its completion. Discourteous, because a transaction which affected the loan account by reference to which the claim for unjust enrichment arose, and the claim for unjust enrichment itself, was at least capable of affecting the appeal. It therefore ought to have been anticipated that particularly in the circumstances of this case the Court would wish to be apprised of any transaction, and to ensure that the other party receive the relevant information, and was in a position to make any submissions it considered appropriate. It was moreover imprudent not to address this matter not least because if that course had been taken, it is possible that the present elaborate and contentious application could have been avoided. If the issue was how the parties handled the transactions or the litigation, then the Bank deserves little credit, and it might be reasonable for that to be reflected in the costs of the proceedings. However, Mr. Murray goes much further, and argues that the Bank has been guilty of an abuse of process such that the Court should set aside the judgment obtained by the Bank.
31. Mr. Murray’s case in this regard relied first on the nondisclosure – characterised by Mr. Murray as “reckless” – of the fact of the agreement for transfer of the restitutionary claim when the case was argued on 5 December
32. In addition, it was argued that the Bank had been guilty of continuing failure to provide information and documentation sought by and on behalf of Mr. Murray once the transaction became known. These arguments were supported by references to 11 the inconsistent position adopted by the Bank as to the effect of the transfer agreement. It was also argued that the fact that the loan agreement had not been disclosed deprived Mr. Murray of the opportunity of making submissions on issues which it was contended might have affected the outcome of the appeal. In this respect it was argued that Mr. Murray might have argued that the transfer of the loan and/or the restitutionary claim, had the effect of removing any loss on the part of the Bank, and therefore precluded it from bringing an unjust enrichment claim. In addition, it was said that the Bank had succeeded in persuading the Supreme Court to entertain its cross-appeal against the finding of the High Court that the loan did not constitute a housing loan under the Consumer Credit Act
33. This, it was said was a substantial benefit to the Bank and lenders more generally, and the non-disclosure by the Bank of the existence of the loan transfer agreement had the effect that Mr. Murray had been precluded from arguing that this issue was moot in the light of the transfer of the restitutionary claim in respect of Mr. Murray and/or the loan to Mrs. Murray. It was also argued that the net effect of the transfer, if effective, was to remove the Bank’s locus standi to participate in the appeal or obtain judgment. It was said that the Bank had only limited locus standi to argue the appeal on 5 December 2024, and no locus standi to receive the judgment in June
34. These arguments were vigorously advanced, reflecting perhaps the lengthy and contentious history of these proceedings. However, notwithstanding the vehemence with which the arguments were made, and the voluminous documentation adduced, the Appellants’ arguments are in my judgement, misplaced. The weight and substance of the legal issues raised when analysed is out of all proportion to the voluminous documentation submitted and the 12 vehemence with which it was contended that an abuse had been perpetrated on the Court and an injustice upon the Appellant.
35. These arguments are intertwined and to some extent assume the correctness of each other. The arguments in respect of abuse of process, and SC 17 depend in turn on there being strong, indeed winning arguments, that ought to have been available to Mr. Murray and which he was deprived of, by his, and more particularly the Court’s, lack of knowledge of the transfer agreement. An essential first step is to consider therefore the effect, if any, of the transfer on the claim in these proceedings. If it affected in some significant way any of the legal issues being considered in the appeal, then non-disclosure, particularly if deliberate, would become very relevant and the other matters raised might acquire heightened importance particularly if they suggested a deliberate policy of concealment.
36. Although this aspect of the case was not argued in the detail which might have been desirable, I consider that the position in principle is reasonably clear. It is important to recall that the only issue here and the alleged culpable nondisclosure is one of assignment of a claim and judgment, consequent title to sue and the proper party to the proceedings. There is no question here of the emergence of a matter that goes to the underlying claim, such as might suggest for example that neither of the Murrays executed the agreement, that monies were never provided or that there was some undisclosed conspiracy or fraud and the Bank had become aware of such matters in advance of the appeal hearing but had not disclosed them to the Court. The merits of the underlying claim are not affected in any way; the only issue is the party entitled to argue that claim, 13 and more precisely the appeal. It is either the Bank or Pepper or possibly both, but in any case, the issue remained whether Mr. Murray having received the Bank’s monies would be unjustly enriched if he were allowed to retain them. The decision of the High Court, the Court of Appeal and this Court was that he would have been unjustly enriched if allowed to retain those monies. In those circumstances, it is not so much a case of the Bank and/or Pepper seeking some unfair advantage as a case of Mr. Murray hoping that the purported transfer might by some happy chance result in his being able to retain the monies and avoid the judgment on the basis of the party to the appeal becoming somehow disentitled to maintain it.
37. The Bank pointed to the terms of the loan asset sale agreement which has been supplied in redacted form excluding matters of commercial sensitivity such as the allocated purchase price. The loan assets are defined as meaning all and any of the seller’s rights, title, interest and benefit in and to the finance documents, the principal amounts, accrued interest, accrued fees, and other amounts outstanding, all of the other commitments, advances and claims and other rights of the seller entity in respect of or included in the underlying loans and/or the finance documents and at subparagraph (d) “the Ancillary Rights and Claims”. Those ancillary rights and claims are defined in turn as:“… all claims, suits, causes of action (in contracts, tort or otherwise), judgments, … and any other right of the Seller whether known or unknown, against any Obligor … or any other person that is … based upon, arises out of or is related to assets referred to in the definition of Loan Assets … including all claims (in contract, tort or otherwise), suits, 14 causes of actions, … judgments and any other right of the Seller against any … other person arising under or in connection with the Finance Documents … ”.
38. Although there was at times a lack of clarity about this, it was Mr. Murray’s position that this provision was ineffective to transfer the Bank’s claim (and indeed the judgment) against Mr. Murray to Pepper. It was said that the Court should proceed on the basis that the alleged claim against Mr. Murray did not form part of the assets transferred on 3 December 2024 under clause 2.1 of the loan sale agreement. I confess to some frustration with the Appellant's argument, since if it were established that there was some defect in this agreement which had the effect of not transferring the claim and judgment, or the terms of the clause did not cover either the claim or the judgment, the only consequence would be that the claim (and the judgment) remained with the Bank, and the proceedings were properly constituted at every point. It followed therefore, that an essential component of any claim that there was an abuse of process or grounds to set aside the judgment under SC 17, was that the effect of the agreement was to transfer any restitutionary claim against Mr. Murray, and any judgment obtained.
39. What was the effect of a transfer such as this, on title to sue and/or defend this appeal? It is in the first place necessary to consider the position on the assumption that the loan sale agreement had taken effect before the commencement of the proceedings. On this basis and on the further assumption that the transfer agreement did include the restitutionary claim against Mr. Murray, then if notice was not given of the transfer to Mr. Murray, then the 15 transfer effected an equitable assignment of a chose in action. If so, then the Bank remained the appropriate plaintiff (and respondent to the appeal) although with an obligation in equity to hold the proceeds of any such claim on trust for the assignee, and to transfer them to the assignee in due course. If, however, the reference in the correspondence was effective to constitute notice of the assignment for the purposes of s. 28