Lipsett, Karl Thomas and Karen Lipsett and AIB Group UK PLC
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 22 January 2020 |
| Neutral Citation | [2020] NICA 64 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 22 January 2020 |
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Neutral Citation No: [2020] NICA 64
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC11159
Delivered: 22/01/2020
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DECISION (Commercial List)
________
Between:
KARL THOMAS LIPSETT and KAREN LIPSETT
Plaintiffs/Appellants:
-and-
AIB GROUP UK PLC
Defendant/Respondent:
________
Before: McCloskey LJ, Sir Paul Girvan and Sir Ronald Weatherup
________
PARA 1 OVERVIEW
PARAS 2 – 4 FACTUAL MATRIX
PARAS 5 – 10 THE TWO CLAIMS
PARAS 11 – 18 JUDGMENT AT FIRST INSTANCE
PARAS 19 – 20 THE APPEAL
PARAS 21 – 32 THE CONTRACTUAL PAPER TRAIL
PARAS 33 – 38 THE DISPUTE ERUPTION
PARAS 39 - 48 THE CONTENTIOUS CONTRACTUAL ISSUES
PARA 49 THE PRE-DETERMINATION GROUND OF APPEAL
PARAS 50 OTHER GROUNDS OF APPEAL
PARAS 51 – 55 OMNIBUS CONCLUSION AND DISPOSAL
McCLOSKEY LJ (delivering the judgment of the court)
Overview
[1] The Appellants, Karl Thomas Lipsett and Karen Lipsett (“the Lipsetts/the
Appellants”), are self–representing litigants. They were legally represented at first
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instance. The Respondent is AIB group UK PLC (“the Bank”). The appeal is against
the following two orders of the Queen’s Bench Division of the High Court:
(i) By the first of its orders dated 13 May 2019 in the Order 88 summons
(No 15/063301) the court ordered that the Lipsetts deliver up possession of
21 Ballymather Road, Nutts Corner, Crumlin, County Antrim BT 29 4UL (“the
Crumlin premises”) and remitted the case to the Master to determine whether
any stay on the order for possession was considered appropriate. (The Master
has subsequently adjourned the proceedings generally).
(ii) By the second order dated 13 May 2019 the court ruled that the Bank have
judgment against the Lipsetts on the claim in the Writ action No 16/013357,
wherein they claimed unliquidated damages from the Bank for alleged
negligence et al and that they pay the Bank’s costs to be taxed in default of
agreement.
By this appeal these Orders are challenged on a multiplicity of grounds.
Factual Matrix
[2] The protagonists in the dispute are:
(a) The Appellants who, in substance, were at all times acting
together in their dealings with the Bank.
(b) Cindy Greer, a Bank employee (who died before the trial), with
whom the Appellants had all relevant pre-contract meetings and
discussions.
(c) Barry Pollock, the Bank official who sanctioned the loan
arrangements.
(d) Chris Floyd, a “Mortgage Recovery Officer” employed by the
Bank.
Material dates and events in the litigation are:
(e) The Bank’s Order 88 application was issued on 1 July 2015.
(f) The Appellants’ Writ action was initiated on 12 February 2016.
(g) On 6 May 2016 the Chancery Master made the following order
in the Order 88 proceedings:
“It is ordered that this action be transferred to
the Queen’s Bench Division (Commercial List)
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and heard together with action 2016/13357 [the
Writ].
A substantial quantity of further pleadings and interlocutory activity
followed. To continue:
(h) The trial dates were 4 – 7 February 2019.
(i) Judgment, which was reserved, was given expeditiously, on 11
April 2019.
(j) Each of the final orders at first instance is dated 13 May 2019.
(k) The Notice of Appeal is dated 4 June 2019.
(l) There is a draft amended Notice of Appeal, dated 7 January
2020, whereby the Appellants seek to add one further ground
(see [21] infra).
[3] As the judgment at first instance demonstrates there were significant matters
of dispute between the parties. These concerned, in the main, the interaction and
discussions between the Appellants and one Bank employee in particular
(Ms Greer), preceding the execution of the loan arrangements at the heart of this
dispute. The parties were also – and remain – in dispute about the import and legal
status of certain documents. Notwithstanding this unpromising framework the
court, via a combination of formal directions and considerable coaxing, elicited from
the parties a joint schedule identifying certain factual matters of agreement.
[4] The schedule, in its final form, incorporated a point by point commentary
inserted by the Appellants. Some of these insertions, correctly analysed, were
matters of comment, argument and elaboration, combined with various
irrelevancies, rather than points of material disagreement. The court has refined and
reduced the schedule in the following way:
(i) The Lipsetts first presented to the Bank in January 2007. Thereafter they
dealt mainly with Cindy Greer, described by the Bank as a “Mortgage
Facilitator”.
(ii) Ms Greer’s role was explained in writing on the Questionnaire completed
by the Lipsetts and signed by them on 16 January 2007.
(iii) Ms Greer died tragically in a car accident in October 2018. Ms Greer swore
an affidavit in the action prior to her death. This was admitted in evidence
at first instance.
(iv) The Lipsetts were proposing to buy a residential property on the market for
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