Judge rejects O’Donnells’ latest claims in bankruptcy case

A High Court judge has rejected arguments by retired solicitor Brian O’Donnell and his wife that they do not have the necessary information to enable them provide statements of affairs.

After being adjudicated bankrupt by the High Court in September 2013, Mr O’Donnell and his wife Dr Mary Patricia were required to file statements of affairs in the High Court central office and also provide those statements to the trustee administering their bankruptcy, Official Assignee Chris Lehane, Ms Justice Caroline Costello said.

The couple failed to file the statements in the prescribed form and argued they could not do so because they did not have certain information, including detailed financial information from Bank of Ireland concerning their precise debt to, and facilities with, that institution. They also argued they were entitled to certain information from Mr Lehane.

Both he and the bank disputed the information was necessary for completion of statements of affairs and refused to provide it.

Mr Lehane said the debts and liabilities of the O’Donnells could be estimated and they should compete statements of affairs to the best of their ability based on the information available to them. They have been able to do that since they were adjudicated bankrupt and, when filing for bankruptcy in London in 2012, provided statements of affairs, he said.

They had not attempted to utilise the information available to them to comply with the equivalent Irish court rules, he argued.

Ms Justice Costello said much of the information sought by the O’Donnells is not in fact necessary for them to complete and file statements of affairs.

The High Court had entered judgment for some €71 million against the couple in 2011 after a settlement agreement with the bank broke down, she said. The debt due to the bank is the judgment sum, together with Courts Act interest from the date of judgment, and is “readily ascertainable”, she said.

The bank’s solicitors told the O’Donnells in March 2013 the sum then due, after some realisations, was some €74.4 million. That meant, six months before they were adjudicated bankrupt, the couple could state the exact figure due to their major creditor with the only changes to that to come from any realisations by the bank of their property and continuing interest, she said.

A statement of affairs is intended to reflect the position of a bankrupt at the date of their adjudication as bankrupt, she said. Matters concerning proof of debt need not concern a bankrupt when preparing statements of affairs as proof of debt issues were for the Official Assignee.

In any event, solicitors for the bank informed the O’Donnells on June 3rd 2015 the bank was claiming some €70.4 million was the sum then due, she noted.

The couple are in a position, and have been since they were adjudicated bankrupt, to swear and file a statement of affairs as they are obliged to do under the Bankruptcy Act, the judge ruled. It has always been acceptable to include estimates of debt or valuations when precise figures are not known, she added.

The couple had clearly breached an agreement with the Official Assignee to file statements of affairs and had established no basis for the court to make orders against the bank and official assignee, the judge concluded.