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2026 IEHC 271

THE HIGH COURT COMMERCIAL [2026] IEHC 271 [Record No. 2010/1491P] BETWEEN DANSKE BANK A/S PLAINTIFF/RESPONDENT AND SEAMUS COYNE DEFENDANT/APPLICANT AND GERARD GILL, OFFICIAL ASSIGNEE IN BANKRUPCY NOTICE PARTY JUDGMENT of Mr Justice Mark Sanfey delivered on the 1st day of May

  1. Introduction. 2
  2. By a notice of motion filed on 18 February 2026, the defendant seeks an order setting aside a judgment awarded against him in the commercial list of the High Court on 25 May 2011 in the sum of €8,225,171.84 plus costs and interest (‘the judgment’).
  3. The proceedings against the defendant commenced on 16 February
  4. The plaintiff sued on foot of a guarantee by the defendant (or ‘Mr Coyne’) of 9 April
  5. This guarantee was proffered by Mr Coyne as security in respect of a primary liability for substantial borrowings by TC Coyne Limited. The judgment of the High Court (Charleton J, [2011] IEHC 234) describes the central issue as whether the guarantee were enforceable; the court found that it was. The court refused a stay pending an appeal to the Supreme Court, holding that there were "no reasonably arguable grounds on which this judgment can be appealed". [para 23]
  6. On 8 February 2013, the plaintiff lodged a petition in bankruptcy against Mr Coyne. By this time the debt had risen due to the application of interest to the sum of €10,217,004.
  7. The acts of bankruptcy relied upon were two returns of no goods by the Sheriff of the County of Westmeath at two separate locations on 12 November 2012 and 22 November
  8. The security held by the petitioning creditor was acknowledged on the petition and estimated at €2,026,
  10. Ultimately the defendant was adjudicated bankrupt by order of the High Court (McGovern J) on 17 June
  11. By operation of law in the usual way, the bankrupt’s estate vested in the Official Assignee in Bankruptcy (‘the OA’) for realisation and distribution among the bankrupt’s creditors. Mr Coyne received his automatic discharge from bankruptcy on 16 June
  12. The present application
  13. The present application was returnable before the court on 23 February 2026, and was heard on 21 April 2026, on notice to the plaintiff (‘the bank’) and the OA. Mr 3 Coyne prosecuted the application himself. He proffered very detailed affidavits in support of his application, and written submissions of a high standard. He explained that he had obtained a degree in law in latter years, and acknowledged that he “had some help” with the submissions, but that no use had been made of artificial intelligence. The authorities to which Mr Coyne made reference were valid and appropriate.
  14. When the matter first came before the court, counsel for the bank, Stephen McCullough BL, indicated that the bank had a preliminary point: that it was inappropriate for Mr Coyne to use the existing proceedings as a means to seek to set aside the judgment. Counsel submitted that this could only be done -if at all - by the institution of fresh proceedings, with all of the procedural benefits which would accrue to a defendant in such an instance; the right to interrogate the plaintiff's claim by requests for particulars, discovery, interrogatories, the facility to deploy particular defences in the circumstances such as laches, estoppel, the statute of limitations, and so on.
  15. I raised the fact that Mr Coyne had been adjudicated bankrupt subsequent to the judgment and queried whether he had locus standi to make the application at all, given that any right of action in relation to his estate would have vested in the OA on his adjudication. It was agreed that the OA should be placed on notice of the application, and given the opportunity to make submissions if necessary.
  16. Mr Coyne's application by notice of motion comprised a root-and-branch attack on the judgment of
  17. He contended that the judgment should be set aside for “fraud and perjury”. In this regard, he argued that the bank’s witnesses had made representations that “valid and effective” security had been finalised prior to drawdown, when this was not the case; he claimed that the bank's representatives had 4 withheld from Mr Coyne and the court “that a prior Ulster Bank charge remained extant, enjoyed priority, and contained a negative pledge clause…"; and that the bank concealed its contemporaneous knowledge of these matters, a state of affairs which Mr Coyne maintains is revealed by “internal banking memoranda subsequently disclosed".
  18. Mr Coyne wants documentation obtained by him in 2024 and 2025 of these matters admitted into evidence. He maintains that the consequences which should flow from a reconsideration of the matter and this evidence in particular are that the personal guarantee “is a nullity" and that the judgment should be set aside; the appointment of a receiver by the bank was unlawful and should be rescinded; and that his bankruptcy, notwithstanding its subsequent discharge, should be annulled.
  19. Council for the OA, Una Nesdale BL, indicated that it was the OA’s view that Mr Coyne did not have locus standi to challenge the judgment, whether by the present notice of motion or otherwise. It was agreed by the parties that, given that, if the OA’s view prevailed, Mr Coyne would be precluded from challenging the judgment, this point should be dealt with first. Mr McCullough accepted that his objection to the format of Mr Coyne’s application should await the outcome of the OA’s application, although he did indicate that the bank was supporting the OA’s position. The law
  20. The OA submits that the power to take action on behalf of the estate of a bankrupt vests solely in him by operation of law. Section 44

(1)of the Bankruptcy Act 1988 as amended (‘the Act’) provides that, on adjudication, “… all property belonging to [the bankrupt] shall on the date of adjudication vest in the Official Assignee for the benefit of the creditors of the bankrupt”. Section 44
(3)provides 5 inter alia that the property to which sub.1 applies includes "… (
  1. a)all powers vested in the bankrupt which he might legally exercise in relation to the property immediately before the date of adjudication… ". 12. The word ‘property’ is defined in s.3 of the Act as follows: ‘property’ (
  2. a)includes money, goods, things in action, land and every description of property, whether real or personal, (
  3. b)includes obligations, easements and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property, (
  4. c)in relation to proceedings opened in the State under Article 3
(1)of the Insolvency Regulation, includes property situated outside the State, and (d) in relation to proceedings so opened under Article 3
(2)of the Regulation, does not include property so situated; …” 13. Section 61 of the Act sets out the functions and powers of the OA pursuant to the vesting in him of property pursuant to s.44 of the Act. Section 61
(2)states that the function of the Official Assignee is “to get in and realise the property, to ascertain the debts and liabilities and to distribute the assets in accordance with the provisions of this Act”. Section 61
(3), in as far as relevant, is as follows: “
(3)in the performance of his functions, the Official Assignee shall in particular, have power – …(
  1. b)to make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging themselves to have any claim present or future, certain or contingent, ascertained or 6 sounding only in damages whereby the bankrupt or arranging debtor may be rendered liable, (
  2. c)to compromise all debts and liabilities capable of resulting in debts and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the bankrupt or arranging debtor and any debtor and all questions in any way relating to or affecting the assets or the proceedings on such terms as may be agreed and take any security for the discharge of any debt, liability or claim, and give a complete discharge in respect thereof, (
  3. d)to institute, continue or defend any proceedings relating to the property, …". 14. Under s.85
(3)of the Act, any property unrealised at the time of the bankrupt’s discharge remains vested in the OA for the benefit of the creditors. Section 85(3A) sets out provisions concerning a discharged bankrupt's family home which are not relevant for the purpose of the present application. 15. The position of the OA therefore is that the right to pursue legal proceedings is a “thing in action” which vests solely in him pursuant to the Act, subject to certain exceptions which the OA contends do not apply in the present case. Section 61
(3)(d) specifically grants the OA power to “institute, continue or defend any proceedings relating to the property…". As the right to institute proceedings vests in the OA, it is submitted that Mr Coyne does not have locus standi to prosecute his challenge to the judgment.
  1. The OA relies on the decision of the Court of Appeal in England and Wales in Heath v Tang [1993] 4 AER
  2. This authority directly addressed the question of 7 whether a bankrupt was entitled to appeal in his own right the judgment on which he was adjudicated, or whether such a challenge had to be brought in the name of the trustee.
  3. The court acknowledged that the equivalent statutory provision in England & Wales vested “things in action” in the trustee on adjudication. Hoffman LJ drew attention to exceptions to this principle involving cases where “damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property"… [at p.697, C-D], and cited actions for defamation or assault as “obvious examples ". He went on to say as follows: “But all other causes of action which were vested in the bankrupt at the commencement of the bankruptcy, whether for liquidated sums or unliquidated damages, vest in his trustee. The bankrupt cannot commence any proceedings based upon such a cause of action and, if the proceedings have already been commenced, he ceases to have sufficient interest to continue them… An illustration of the incapacity of the bankrupt to bring proceedings is Boaler v Power [1910] 2 KB 229, in which an action brought by the bankrupt had been dismissed with costs. The bankrupt then commenced another action to have the judgment set aside on the ground of fraud. The successful party presented a bankruptcy petition based on the unsatisfied order for costs and the bankrupt was adjudicated on the petition. The trustee declined to proceed with the second action. The petitioner then applied to have it dismissed and the judge’s order of dismissal was affirmed by the Court of Appeal. Farwell LJ said (at 232): 8 ‘The right to continue [the action] is a chose in action vested in the trustee, and the bankrupt has no locus standi…’".
  4. The principles in Heath v Tang have consistently been followed by the Irish courts. In Quinn v Irish Bank Resolution Corporation Ltd [2012] IEHC 261, which had been initiated by members of the Quinn family, the defendant bank (‘Anglo’) delivered a defence and counterclaim and was given leave to issue and serve thirdparty notices against a number of parties, including one Seán Quinn (‘Mr Quinn’). Anglo sought an indemnity from Mr Quinn against the plaintiff's claims, and also sought damages against him for misrepresentation, breach of warranty and authority, fraud, negligence and conspiracy. Mr Quinn filed a full defence to Anglo's statement of claim.
  5. Ultimately, Mr Quinn was adjudicated bankrupt in this jurisdiction on the petition of Anglo. An issue subsequently arose as to whether Mr Quinn had an entitlement to defend the third-party proceedings in circumstances where the OA informed the court that he did not intend to defend Anglo's claim against Mr Quinn.
  6. Kelly J (as he then was) found that s.44 of the Act vested the property of the bankrupt in the OA by operation of law, and that s.3 of the Act defined “property” as including “things in action” which included litigation. He referred to the powers granted to the OA in s.61
(3), and commented that the decision of the OA not to defend the third-party proceedings “was made by reference to s.61
(3)(d)… [T]he Assignee was unable to discern any benefit to be derived from Mr Quinn's creditors from defending the third party claim. That was a perfectly proper basis for the Assignee to decide not to defend… " [paras. 25 to 26].
  1. Kelly J considered the decision in Heath v Tang in detail, noting that the principle that a right to prosecute or defend litigation vested in the OA was subject to 9 an exception for "personal" causes of action. Mr Quinn submitted that because of the nature of the allegations against him, the case could be regarded as one of the “personal” types of cases which are not affected by bankruptcy. Kelly J rejected this contention: “
  2. In my view, merely because the allegations against Mr Quinn in the third party proceedings involve allegations of wrongdoing, does not remove the defence of such a claim from the purview of the Assignee. Accordingly, I am of the opinion that this claim for damages against the estate of the bankrupt is not one of those personal claims which do not vest in the Assignee. The defence of such a claim is a matter of the Assignee. This position is not altered because the claim includes allegations of wrongdoing against Mr. Quinn. Insofar as this argument is concerned, therefore, I reject the entitlement of Mr Quinn to represent himself further in this litigation.”
  3. Kelly J went on to reject the propositions that a refusal to allow Mr Quinn to defend the third-party proceedings infringed his constitutional rights, or that his rights under Article 6
(1)of the European Convention on Human Rights are or were likely to be infringed. The decision on whether to defend the proceedings “… is vested in the Assignee. He has declined to defend them and in my view was entitled to so decide” [para. 99].
  1. The approach in Heath v Tang and in Quinn v IBRC was followed in two subsequent decisions of the Supreme Court: AA v BA [2017] 3 IR 498 and the Governor & Company of the Bank of Ireland v O’Donnell [2015] IESC
  2. In the former case, the Supreme Court held that an undischarged bankrupt did not have locus standi to prosecute a motion to set aside a High Court judgment, or the Supreme 10 Court appeal from that judgment, on the grounds of objective bias, as the orders of the High Court and Supreme Court related only to his estate, and not his person.
  3. In O'Donnell, the appellants, two of whom were undischarged bankrupts, sought a stay from the Supreme Court on an order of the High Court, together with a motion by the bankrupts to apply to the Supreme Court for leave to extend time to appeal an order of Kelly J (as he then was) made prior to their adjudication as bankrupts.
  4. The Supreme Court held that the application did not relate to a matter of a personal nature, and that “… it is for the Official Assignee to decide whether to proceed with this litigation, or not, insofar as [the bankrupts] are concerned. [The bankrupts] have no locus standi… " [Denham CJ, para. 11]. The Official Assignee’s position
  5. The OA’s position, as communicated in written submissions and on his behalf by counsel in court, is that, having considered Mr Coyne’s application, the merits of which have been addressed in correspondence and in the various affidavits and exhibits proffered to the court, he considers that there is no benefit to the estate of the bankrupt to pursue the application on the bankrupt's behalf. He is particularly mindful of the conclusion of Charleton J that “there are no reasonably arguable grounds on which this judgment can be appealed”. He does not consider, notwithstanding the “new” evidence which Mr Coyne seeks to adduce, that an application to overturn the petitioning creditor's judgment has any prospect of success.
  6. In Mr. Coyne’s initial letter of 17 November 2025 to the OA requesting the latter's consent to proceed against Dankse Bank, the possibility that the cause of action might be assigned to Mr Coyne by the OA was canvassed. In the present case, having considered the matter, the OA declined to assign any right of action to Mr 11 Coyne. The OA considers that there is no prospect of success in the proposed application; in this regard, he refers to the dicta of Costello J in Litigation Finance Ltd v Lehane [2016] IEHC 527, in which the court refused an application by a third party to compel the OA to assign proceedings originally issued by two bankrupts: "
  7. Public policy is relevant in this context. The courts will not assist in the proliferation of unmeritorious litigation, either by disappointed bankrupts or by third parties, by ordering the Official Assignee to assign unmeritorious cause of action pursuant to s.61
(7)to persons who wish to acquire the causes of action. They must be alert to possible trading in litigation which could give rise to issues of maintenance or champerty, though the sale of the interest of a bankrupt in litigation by the Official Assignee is authorised by statute and therefore does not offend against the rules against maintenance and champerty. The court must consider the proposed proceedings in order to satisfy itself that the assignment of the cause of action could be accepted to be legitimate or in the interests of justice. It must assess, at least in a general way, the prospects of success of the proceedings. At a minimum, the court ought not to order the Official Assignee to assign a claim that is bound to fail as being frivolous or vexatious." Mr Coyne's position 28. At para. 5 of his written submissions, Mr Coyne summarises his case on locus standi as follows: “(i) The right to seek annulment of the bankruptcy under Section 85
(5)of the Bankruptcy Act 1988 is a statutory right vested personally in the Applicant by the Oireachtas. It cannot vest in the Official Assignee. The Official Assignee’s submissions make no reference to this provision whatsoever. 12 (
  1. ii)The cause of action is personal to the Applicant. It arises from alleged wrongs done to him as a natural person and from rights that existed as personal rights belonging to him as an individual guarantor. Those rights did not exist as assets of any estate and did not vest in the Official Assignee on adjudication. (iii) The personal standing exception recognised in Heath v Tang applies directly to this case. The documented consequences of the bankruptcy damage to the Applicant's character and reputation in his community, his children's experience in their formative years, his forced emigration and his family’s separation falls squarely within the body mind and character exception identified by Hoffman LJ. (
  2. iv)The Official Assignee is in a structural and financial conflict of interest and cannot act as a neutral gatekeeper of a challenge to the very bankruptcy OA administers. OA conduct in this matter and the financial relationship between OA office and Danske Bank A/S confirmed that the OA’s opposition was not arrived at through the genuine assessment that the authorities require. (
  3. v)The Applicant's constitutional right of access to the courts under Article 40.3.1 of the Constitution and his rights under Article 6 ECHR require that he be permitted to bring this challenge. To deny standing would be to allow the consequences of the alleged wrong to place that wrong permanently beyond challenge.” The applicant’s “right to seek annulment" 29. Firstly, Mr Coyne's reference to s.85
(5)is erroneous; the correct reference is to s.85C of the Act, which is as follows: "
(1)A person shall be entitled to an annulment of this adjudication — 13 (
  1. a)where he has shown cause pursuant to section 16, or (
  2. b)in any other case where, in the opinion of the Court, he ought not to have been adjudicated bankrupt.
(2)An order of annulment shall provide that any property of the bankrupt then vested in the Official Assignee shall be revested in or returned to the bankrupt, and that order shall for all purposes be deemed to be a conveyance, assignment or transfer of that property to the bankrupt and, where appropriate, may be registered accordingly…" 30. Mr Coyne submits that his notice of motion includes at para. 9 a relief seeking “an order pursuant to s.85
(5)[sic] of the Bankruptcy Act 1988 annulling the Applicant's bankruptcy on the grounds that it ought not to have been made, the underlying judgment and enforcement being tainted by fraud and material nondisclosure ". He says that the right to seek annulment is a statutory right “vested by the Oireachtas in the individual who was adjudicated bankrupt. It is not a commercial cause of action. It is not a chose in action capable of generating a financial return for the estate. It is a right to challenge the adjudication itself…" [para. 12 written submissions].
  1. The application for annulment is made by notice of motion in plenary proceedings in which a final order - which does not appear to have been appealed was made in 2011, i.e. fifteen years ago. The issue is whether it is permissible for Mr Coyne to apply for an annulment of his adjudication on the basis that the judgment subtending his adjudication must be set aside. I propose for the purpose of this judgment to proceed on the basis that Mr Coyne seeks an annulment pursuant to s.85C of the Act. His firm position is that he is entitled to the annulment because he is entitled to have the judgment on which his adjudication is based set aside. It could 14 perhaps be said that annulment is the consequential relief which would follow if Mr Coyne were successful in obtaining the substantive relief which he seeks in his notice of motion: the setting aside of the judgment against him.
  2. Mr Coyne wants to prosecute the present motion with a view to obtaining the substantive relief he seeks. However, it is absolutely clear that his proposed cause of action does not fall within the “personal" exceptions to the vesting of a cause of action in the OA. The judgment against him arose from a contractual arrangement which clearly related to his estate, and not to any “pain felt by the bankrupt in respect of his body, mind or character… ". The fact that Mr Coyne is of the view that the judgment, or his status as a bankrupt, may have damaged his reputation or stained his character or affected his family does not of itself entitle Mr Coyne to regard the present application as an application “personal" to him in the sense of being separate from the affairs of his estate.
  3. It follows therefore that any cause of action such as contemplated by the present motion vests in the OA, and cannot be prosecuted by Mr Coyne in the absence of an assignment to him of the cause of action by the OA. As we have seen, the OA has refused any such assignment.
  4. As the judgment of Kelly J in Quinn v IBRC suggests, the vesting of rights to institute, continue or defend proceedings in the OA does not offend against a bankrupt's constitutional rights, nor is it likely to infringe on his rights pursuant to Article 6 of the European Convention on Human Rights.
  5. The functions of the OA are to get in and realise the property of the bankrupt, to ascertain his debts and liabilities and to distribute his assets in accordance with the provisions of the Act. For this reason, the OA is given extensive powers in s.61 of the Act to get in and manage the bankrupt’s assets, and to deploy them for the benefit of 15 creditors. In those circumstances, the OA is given express and exclusive power to make decisions regarding the institution, continuation or defence of proceedings relating to property vested in him, which must of necessity involve expense which may deplete the property available for distribution. He does not have the power to initiate proceedings that do not involve the “property” of the bankrupt, and consequently the bankrupt may issue proceedings in his own right for “personal" matters such as defamation or personal injuries.
  6. As Kelly J pointed out in Quinn v IBRC: “…It has to be borne in mind that bankruptcy provides considerable advantages for a bankrupt. But protection from creditors comes at a cost. One of those costs is that when a claim of a non-personal nature is made against the bankrupt which may result in a judgment against his estate, the decision on whether or not to defend such a claim resides in the Assignee. Such a wellestablished construction of the bankruptcy legislation does not, in my view, do violence to Mr Quinn's rights”. [Paragraph 83].
  7. Although the issue in that case was whether the bankrupt should be allowed to defend proceedings rather than initiate them, the comments of Kelly J are equally applicable to the present case. Similarly, as Kelly J pointed out in Quinn, a restriction on a bankrupt's right of access to the court is not regarded by the European Court of Human Rights as a violation of Article 6 rights. As that court said in the Luordo v Italy [2003] ECHR 372: "
  8. The Court considers that the purpose of the restriction on the applicant's capacity to take legal proceedings is to assign the role of representing the bankrupt in court in respect of issues arising over the bankrupt’s pecuniary rights to the trustee in bankruptcy as, once the bankruptcy order has been 16 lodged, he is responsible for the administration of the bankrupt’s assets. Indeed, it is self-evident in the Court’s view that disputes over such matters may have major repercussions on the assets and liabilities of the bankrupt’s estate. The Court consequently finds that the restriction is intended to protect the rights and interests of others, namely those of the bankrupt’s creditors. The Court must go on to examine whether the consequences suffered by the applicant were proportionate to the legitimate aim pursued." Annulment of the adjudication
  9. Is Mr Coyne correct in submitting that he is entitled to apply for the consequential relief of annulment, notwithstanding that he would not appear to have the locus standi to apply for the substantive relief which would give rise to the annulment, i.e. the setting aside of a judgment? It would be very difficult to see how this could be so.
  10. As against that, s.85C
(1)(b) does allow a person to apply for an annulment “where, in the opinion of the Court, he ought not to have been adjudicated bankrupt.” The section does seem to envisage someone having the locus standi having to apply for an annulment notwithstanding the vesting of ‘things in action’ in the OA. However, the courts have repeatedly emphasised that - as Fennelly J put it in Gill v O’Reilly & Company Limited [2003] 1 IR 431 at 441- “… The machinery of bankruptcy… cannot be undone without extremely compelling reasons… ".
  1. In that case, the bankrupt brought an application for an annulment over five years after his adjudication without ever having sought to show cause pursuant to s.16 of the Act. The applicant sought to introduce new evidence in the Supreme Court to the effect that he had sufficient assets to pay his debts at the time he was adjudicated bankrupt. 17
  2. The Supreme Court held that the bankrupt could not introduce new evidence, as it comprised material of which he must have been aware at the time of his adjudication. However, the court found that, “even if there were merit in the applicant's case, it would certainly be defeated on the grounds of delay”. The court referred to the decision of Hamilton P (as he then was) in Re Seán Hussey, a bankrupt (Unreported, High Court, 23 September 1987) where there had been a delay of two years before the application for annulment. Although the bankrupt had raised technical defects in the application for adjudication, Hamilton P was satisfied that it was not open to the bankrupt to rely on such defects because “…He did not raise this point on the motion to show cause, allowed the bankruptcy to proceed, allowed the realisation of the assets to proceed, allowed the proof of debt sittings to proceed, allowed the interim dividend herein before referred to to [sic] be paid, negotiations with his creditors for the purpose of making an offer of composition after bankruptcy and generally the bankruptcy to proceed in the ordinary way, and allowed the Official Assignee to continue to fulfil his statutory functions in this regard from the date of adjudication”.
  3. As Fennelly J went on to point out in Gill: “… The machinery of bankruptcy commences with the adjudication and the automatic vesting of the bankrupt’s assets in the Official Assignee. Creditors are restrained from pursuing remedies for their debts other than through the bankruptcy. The applicant submitted his statement of affairs and took no step to show cause against the bankruptcy itself. Matters took their normal course. The realisation of the estate of the applicant proceeded in the normal way. Assets were investigated and creditors proved their debts. The first notice 18 party entered into a contract for the sale of part of the property of the applicant. This cannot be undone without extremely compelling reasons. None exist in this case." [At p. 441].
  4. In in Re Deirdre Dennis, A Discharged Bankrupt [2021] IECA 24, the Court of Appeal considered the court's jurisdiction in relation to section 85C. Costello J (as she then was) provided the following summary: “
  5. It is accepted by counsel for Ms Dennis that the statutory jurisdiction to annul an adjudication of bankruptcy is an exceptional and a limited jurisdiction. In SFS Markets Ltd v Rice [2015] IEHC 42, I gave judgment on an application to annul an adjudication of bankruptcy and I stated as follows: ‘10…Section 85C
(1)reproduces s.85
(5)of the Act of 1988 prior to its amendment. Section 85C
(1)(and s.85
(5)before that) is intended to give statutory effect to the previously existing jurisdiction of the High Court to annul a bankruptcy on equitable grounds or under its inherent jurisdiction. In O’Maoileoin (A Bankrupt) v Official Assignee [1999] IEHC 75 Laffoy J confirmed that the court had an equitable jurisdiction to annul a bankruptcy which had existed for over a century before the coming into effect of the Bankruptcy Act
  1. It is important to note that it is a discretionary jurisdiction in that the court may annul adjudication where in the opinion of the court a person ought not to have been adjudicated bankrupt. In Re Gorham [1924] 2 IR 46 Pimm J identified three circumstances where it would be proper to exercise the inherent jurisdiction of the court to annul a bankruptcy. These were where there was a doubt as to whether the bank was alive at the time of the adjudication, where the bankruptcy 19 had been obtained by fraud or where the bankruptcy was an abuse of the process of the court. In Gill v Philip O’Reilly & Co. Ltd [2003] 1 IR 434 at p.441 Fennelly J held:‘The machinery of bankruptcy… cannot be undone without extremely compelling reasons’.
  2. Thus, in considering the debtor’s application the court is exercising a discretionary equitable jurisdiction such as is normally used in the case of a fraud or abuse of the process of the court and it should not exercise the jurisdiction without extremely compelling reasons.’”
  3. The court concluded that “…
  4. In exercising its discretion whether to annul an adjudication, the courts must have regard to the fact that insolvency proceedings are collective proceedings and have regard to the implications of such an order for all of the creditors of the bankrupt. It must weigh whether it would be just and reasonable to annul the adjudication. On the facts in this case, it would not."
  5. More recently, the “extremely compelling reasons” test was applied by Humphreys J in Re Joseph Lennon, a Bankrupt [2021] IEHC
  6. The court found that the applicant’s grounds for annulment did not “provide adequate, still less exceptional grounds for an order revisiting the adjudication". [para 31]
  7. In none of the foregoing cases did the applicant meet the “extremely compelling reasons” test. In most cases, the delay by the bankrupt, or discharged bankrupt, in making the application was the decisive factor. It therefore falls to examine the facts of the present case. 20
  8. The only evidence before the court is the affidavit evidence of Mr Coyne. Neither the OA nor the bank submitted an affidavit. The essential points are as follows: • On 9 April 2008 Mr Coyne signed a guarantee of the debts of TC Coyne Limited (‘the company’) in favour of Danske Bank A/S; • A receiver (‘the receiver’) was appointed on 25 February 2009 on foot of the bank’s charge over the assets of the company; • On 27 October 2009, the bank called in the guarantee; • On 25 May 2011, the High Court (Charleton J) gave judgment against Mr Coyne in the sum of €8,225,171.84 plus costs and interest; • Mr Coyne was adjudicated bankrupt on 17 June 2013; • In 2015, Mr Coyne emigrated to the US to find work; • Mr Coyne received an automatic discharge from bankruptcy on 16 June 2016; • In 2024 and 2025, Mr Coyne applied for and received “subject access requests” from the bank and the receiver which have caused him to allege that he was the victim in the original proceedings of fraud, perjury and misrepresentation.
  9. It should be said that the parties to the application before me, including Mr Coyne, accepted that the court should not embark on any enquiry as to the truth of Mr Coyne's allegations at this stage. The bank reserved its position in that regard; the receiver, who had not been a party to the original proceedings against Mr Coyne, was not before the court.
  10. It is not clear whether Mr Coyne contested the petition in bankruptcy. There is no suggestion that he sought to show cause against his adjudication pursuant to s.
  11. He does not give a satisfactory explanation as to why he waited until July 2024, 21 over eight years after his discharge from bankruptcy, to press an application to the bank and the receiver as to his affairs prior to the judgment in
  12. Conclusions on locus standi
  13. It is clear that the motion before this Court seeks to set aside the judgment on which Mr Coyne’s adjudication was based. The right to challenge this judgment vests in the OA. The judgment against Mr Coyne related to a contractual liability on his part, and to his estate, which on Mr Coyne’s adjudication vested in the OA. The application which Mr Coyne now seeks to bring is not a “personal” right of action such as would not vest in the OA. This is so notwithstanding the personal consequences for Mr Coyne that ensued following his adjudication.
  14. Mr Coyne seeks to side-step his lack of locus standi by arguing that his right to apply for annulment of his adjudication pursuant to s.85C of the Act is a right personal to the bankrupt; it states that “… [A] person shall be entitled to an annulment of his adjudication…where, in the opinion of the Court, he ought not to have been adjudicated bankrupt”.
  15. Mr Coyne is correct in contending that, on the face of s.85C
(1)(b), he is entitled to apply for an annulment. It is also the case that this subsection is expressed in the widest terms; the only criterion for whether or not the bankrupt is entitled to an annulment is whether or not the court is of the opinion that he “ought not to have been adjudicated bankrupt.” 22
  1. However, there is a number of different factors which will inform the court's discretion in this regard. As we have seen, the court will require that “extremely compelling reasons" be established as to why an annulment should be granted.
  2. Mr Coyne's bankruptcy proceeded and ran its course for its full three-year period (at that time the appropriate period before automatic discharge - the period currently is one year only). His “property”, as defined in the Act, vested in the OA pursuant to s.
  3. Creditors ceased to have any remedy against the bankrupt apart from their rights under the Act, and no proceedings could be commenced against the bankrupt without leave of the court (s.136). No distress could be levied against the goods of the bankrupt after adjudication (s.139). While little evidence of the course of the bankruptcy was presented to the court, it was given to understand that assets of the bankrupt had been realised and distributions made to the appropriate creditors.
  4. Mr Coyne received an automatic discharge from bankruptcy in June
  5. He has advanced no satisfactory explanation as to why it has taken him until February 2026 to bring the present application, or why he did not seek “subject access reports” until
  6. While Mr Coyne considers that the information he has received indicates that fraud, perjury and misrepresentation have taken place, such matters constitute mere allegations at this stage, which would no doubt be strenuously contested if the issues were to proceed to a hearing.
  7. Mr Coyne’s bankruptcy subsisted for three years; over nine further years passed after his discharge before he initiated the present application. In almost all of the cases cited above where annulment was refused, the applicant was an undischarged bankrupt; in the present case, the applicant ceased to be a bankrupt almost ten years ago, and yet seeks annulment of his adjudication in circumstances where his bankruptcy has long since run its course. 23
  8. The fact that the right to apply to set aside the judgment on which the adjudication is based has vested in the OA by operation of law pursuant to s.44 of the Act is in my view a strong reason in itself for refusing an annulment. A debtor has a number of ways in which to resist an adjudication in bankruptcy. They can oppose the petition, and demonstrate that a “real and substantial issue" arises as to whether the petitioning creditor has established that there is a debt owing to the petitioning creditor of more than €20,000: in this regard, see this Court's decision in National Asset Loan Management DAC v Martin [2024] IEHC
  9. If unsuccessful in that regard, the bankrupt can either show cause against their adjudication pursuant to s.16 of the Act, or exercise a right of appeal.
  10. If the bankrupt either exhausts those possibilities, or simply does not avail of them, s.44 applies and his assets vest in the OA, who is best placed to make decisions about how the bankrupt’s assets are to be deployed in order to obtain the maximum return for the creditors. However, in the present case, Mr Coyne argues that, almost thirteen years after his adjudication and almost ten years after his discharge, the vesting in the OA of a decision whether or not to litigate on behalf of the estate should be set aside or ignored.
  11. One could imagine circumstances in which an application by a bankrupt to annul his adjudication might succeed. A bankrupt might be adjudicated without knowledge of the bankruptcy proceedings in circumstance where he could establish that he had not been served or that service was not effected correctly. There might be serious flaws in the process leading to bankruptcy, although one would assume that the bankrupt in such a case would have to explain their failure to draw such flaws to the court's attention at the bankruptcy summons, petition or show cause stages. Where it could readily and promptly be demonstrated that the adjudication had been obtained 24 by fraud or some other impropriety, one imagines that a court would be amenable to annulling an adjudication in those circumstances.
  12. However, it is difficult to see how any such applications could succeed in circumstances where the bankrupt had knowingly allowed the bankruptcy to subsist to the point of discharge of the bankruptcy, much less that almost ten years thereafter would go by before an application for annulment would be made. Application to the court to adduce further evidence
  13. After the hearing on 21 April 2026 of the present application ended, Mr Coyne emailed a “short factual note" with two attachments to the court’s registrar. He wished to address matters relating to the chronology relevant to the issues. It had originally been intended that the court would deliver an ex tempore judgment on Friday 24 April; on Thursday 23 April, the parties were informed that there would be no judgment on the 24th, but that the court would deliver a written reserved judgment on Friday, 1 May
  15. At my request, the registrar of the court wrote to Mr Coyne in the following terms: "Regarding yesterday's email, it is improper and impermissible to communicate unilaterally and directly with the court to convey submissions or other material without the permission of the court, and particularly without notifying the opposing parties in advance and seeking their permission. The court has not read the material submitted by you, and will not do so without the express agreement of all the parties and an application to court setting out why the material was not brought before the court during the hearing, and why it is necessary to do so now”. 25
  16. Mr Coyne then appears to have written to the solicitors for the other parties on 24 April to seek their consent to the “short factual note" being placed before me prior to delivery of my judgment.
  17. The OA’s solicitors, Clark Hill, replied to Mr Coyne's email on Monday, 27 April
  18. Having taken instructions, they refused to agree to submission by Mr Coyne to the court of the “short factual note”, and set out their reasons for the refusal. This email was forwarded by Mr Coyne to the court registrar, apparently without Clark Hill’s agreement.
  19. Given the refusal of consent by the OA, Mr Coyne decided to email a “formal application to the court for leave to place the short factual note before Mr Justice Sanfey before judgment is delivered on Friday, 1 May 2026”. The email, the text of which makes it clear that it was not written by Mr Coyne - at one point referring to Mr Coyne in the third person, “Seamus” – sets out a critique of the response of Clark Hill to the request for consent. There is no suggestion that Clark Hill agreed to the response being sent to the court registrar, and neither that firm nor the solicitors for the bank appear to have issued any further substantive response to Mr Coyne's emails. Mr Coyne indicated in this email that he had intended raising the further points before the court on “Friday, 25 April 2026” [sic], the original intended delivery date of the ex tempore judgment, notwithstanding that the hearing of the application had finished on the 21st and no further submissions would have been entertained.
  20. Notwithstanding Mr Coyne repeatedly putting factual matters - which should always be on affidavit - and submissions before the court after he was told not to do so, and in circumstances where the other parties did not agree to his doing so, I decided that I would read Mr Coyne's note and enclosures subject to allowing the OA and the bank respond to this material if I considered it necessary. I considered that Mr 26 Coyne, notwithstanding his presumptuous submission of material to the court, is a lay litigant and may have acted inappropriately due primarily to his anxiety to ensure that all material he considered to be relevant was before the court.
  21. This “short factual note” makes a number of points. He notes that he was refused a stay on the judgment against him in 2011 by Charleton J. He does not refer to issuing any appeal against this judgment. He says however that he appealed his adjudication of 2013 to the Supreme Court. He exhibits an order of the Supreme Court of 28 June 2013 rejecting his application for a stay on the order of adjudication, but ordering that the appeal be expedited and permitting him to “apply to the Chief Justice for a priority hearing…”. An incomplete copy of his notice of appeal is appended to his note; there is no indication in Mr Coyne's note as to whether the appeal was ever pursued.
  22. The note refers to a “Request to Danske Bank for Information” in
  23. Mr Coyne states that he wrote to Danske Bank “seeking information about the security position and specifically about the payments made to Ulster Bank in connection with the floating charge. Danske Bank refused to provide that information…". This position is not supported by the documentation supplied by Mr Coyne. He encloses an undated letter written from an address in Brighton, Massachusetts, USA. The letter however bears a Danske Bank date-stamp of “3 May 2017”. The letter is addressed to “Data Controller, Danske Bank", and the text of the letter is as follows: "Dear Sir/Madam, I write to you, under the Data Protection Act
  24. I require all data within your procurement, held by your entity. 27 My accounts were held at the Mullingar branch. As I understand you have fourty [sic] days to reply with this request. I enclose €6.35 as prescribed by the statue [sic]. Please send the information required to the above address.”
  25. Mr Coyne supplies the response by Danske Bank of 3 May 2017 to this letter, which is headed “Section 4 Data Protection Act 1988 and 2003”. The substantive part of this reply is as follows: “We acknowledge receipt of your undated letter received at this office on 03/05/2017, requesting information held by the Bank under the provisions of the Data Protection Act 1988 and
  26. Unfortunately, we will be unable to process your request at this time, based on the information provided. If there is any additional information e.g. account numbers previous address etc that you can provide to assist further we will be pleased to re-open the case… Along with the additional information, we will require updated proof of address (copy of utility bill) and copy of photo ID (passport or drivers licence). We await hearing from you in due course."
  27. Mr Coyne’s “factual note” does not record any response by him to this letter. Mr Coyne goes on to refer to his “subject access requests” in 2024 and 2025, pointing out that the proceedings were commenced “within months of receiving those documents”. The “factual note” then goes on to make legal submissions in relation to the lapse of time since the adjudication, to which the OA and the bank have had no opportunity to respond. 28
  28. If anything, Mr Coyne's note and the attachments thereto reinforce the court's view that Mr Coyne has delayed inordinately in seeking to set aside his adjudication. He does not appear to have challenged the original judgment on appeal. There is no indication that he pursued his appeal against adjudication. He did not press his data access requests in 2017 when reasonably asked for basic information in relation to what was being sought. Danske Bank did not “refuse” his request.
  29. In the circumstances, I do not consider it necessary to invite submissions from the OA or the bank in relation to the matters submitted by Mr Coyne to the court. Conclusions
  30. My conclusions therefore are as follows:
(1)The right to challenge the judgment on which Mr Collins’ adjudication was based vests in the Official Assignee in Bankruptcy, who is entitled to decide whether or not to pursue such a challenge, and whether or not to assign the debt to the bankrupt.
(2)The applicant does not have locus standi to challenge the petitioner's judgment as the right to challenge the judgment vests in the OA.
(3)While s.85C of the Act does permit a bankrupt to apply for an annulment of their bankruptcy, such an application must be based on “extremely compelling reasons”.
(4)The applicant has failed to show “extremely compelling reasons" which would justify annulling the adjudication, particularly in circumstances where the bankruptcy has been discharged, and many years have elapsed since the order of discharge. 29
(5)Neither the applicant's constitutional right of access to the courts nor his rights under Article 6 of the European Convention on Human Rights require that the applicant be entitled to apply to set aside the petitioning creditor's judgment. I agree with Kelly J’s decision in Quinn v IBRC that such rights are not infringed by the vesting of a right to institute or defend proceedings for or against the estate in the Official Assignee by virtue of the provisions of the Act. 74. There is one further point. It was suggested by the applicant that the OA is “in a structural and financial conflict of interest and cannot act as a neutral gatekeeper of a challenge [to the bankruptcy] …" [para. 5 written submissions]. This point is entirely without merit. Orders 76, r.19
(1)(g) of the Rules of the Superior Courts requires that the petition of a creditor “contain an indemnity on the part of the petitioner, indemnifying the Official Assignee as to such costs, fees and expenses of the Official Assignee as the court may upon the application of the Official Assignee direct…”. The indemnity is an obligation imposed by law on the petitioning creditor and the invocation or use of the indemnity is subject to the supervision of the High Court. It is a necessary measure in circumstances where it is often the case that the costs, fees and expenses of the OA in a bankruptcy cannot be covered by realisation of the assets of the bankrupt. There is simply no basis for suggesting that it gives rise to any conflict of interest on the part of the OA, who is required by law to carry out his functions in accordance with the Act and under the control of the court: see section 61
(7)of the Act in this regard. 75. The application will be dismissed. I will hear the parties in relation to the making of any ancillary orders, including costs, on Friday, 8 May 2026 at 10:30am.

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.