The judgment of Mr Justice Meenan in the case of Friends First Finance By Order Emberton Finance Limited v Aidan Moloney is extremely helpful to all financial institutions that have recently purchased loan books from the country’s pillar banks.
Essentially, the judgment allows for the making of “global” or “omnibus applications” in circumstances whereby there is an application before the court substituting one plaintiff for another. In this particular case, an order for substitution was sought for 365 actions.
Judge Meenan put particular emphasis on safeguarding the rights of the defendant in such applications and noted that “…there is no objection in principle in making the orders sought by way of a “global” or “omnibus” order, provided that the rights of the defendant(s) involved are in no way diminished.”
How to make an “omnibus” application?
Judge Meenan outlined that the affidavit should exhibit separate Schedules for (i) proceedings filed but not served; and (ii) proceedings filed and served.
The solicitor instructed in the matter should swear an affidavit, deposing that in relation to each action listed in the Schedules, they are satisfied that:
- There has been a valid transfer of the loan and/or security involved to the party being substituted as plaintiff; and
- Valid notice has been given by way of “goodbye” and “hello” letters to the persons involved.
This documentation should be exhibited in the grounding affidavit.
Judge Meenan noted that an omnibus application should be limited to no more than 100 cases to avoid errors occurring.
What happens after an order is granted?
Once a “global” or “omnibus” order has been made, the following should occur:
- A copy of the order should be served on each of the defendant(s); and
- The defendant(s) are to be informed of the following in writing:
- A copy of the affidavit and exhibits are available on request;
- An application can be made, on notice, to set aside so much of the order as affects the defendant(s) involved;
- Informing the defendant(s) of their entitlement to contest the transfer of the loan and/or security involved at the hearing of the action.
Judge Meenan also outlined that, considering an application to substitute one plaintiff for another is procedural and can be made on an ex parte basis, a notice of intention to proceed is not required prior to making an omnibus application.
Judge Meenan’s judgement is a step forward in terms of procedures to be applied in the High Court. With the possibility of making block applications, as opposed to separate substitution applications, this will no doubt serve as a mechanism for freeing the court’s valuable time.