Property investors Brian and Mary Patricia O’Donnell have lost their bid to get a High Court judge in London to reverse his decision in December refusing them the right to go bankrupt in the UK, rather than in the Republic.

Mr Justice Guy Newey in the High Court in the Royal Courts of Justice said that only “exceptional circumstances” would justify the reopening of a decision already made, particularly when the issues had been heard at a full trial.

The judge rejected last December 21st an application by the couple lodged in March that they be allowed to become bankrupt in the UK – which was strongly rejected by Bank of Ireland which wants to bankrupt them in the Republic.

“Exceptional circumstances”

The couple returned to court to argue that Mr Justice Newey should set aside his December ruling under section 375.1 of the 1986 Insolvency Act which allowed him to “rescind, review or vary” a judgment if circumstances demand.

However, Mr Justice Newey said such an order could only be made if there were “exceptional circumstances” or if there was a material difference in the information put before the court after a ruling.

On Monday, Mr O’Donnell, who represented himself and his wife, had argued that letters showing they had notified creditors other than Bank of Ireland and Allied Irish Bank of their move to London in late 2011 should be considered by the judge.

The documentation – which included a letter acknowledging a change of address by credit card company MBNA – should have been produced during the seven-day trial in December, but would not have changed the result even if they had, said Mr Justice Newey.

Mr O’Donnell, he said, was required to explain why letters notifying other creditors provided to the court this week could not have been provided during the original trial, but no adequate explanation was forthcoming.

Noting that Mr O’Donnell had blamed his legal team, the judge said “it doesn’t seem to afford a good enough excuse” because Mr O’Donnell was challenged during his evidence about his lack of documentary proof that creditors had been notified.

Indeed, the judge noted that he had himself said the lack of such letters was “very surprising” and Mr O’Donnell’s own counsel had accepted that “if anyone had access” to such letters then they would have been included in the trial bundles.

A week passed between the time Mr O’Donnell was first questioned about the lack of paperwork and closing arguments, which had left him “plenty of time to assemble documents”, particularly since he was a “solicitor of many years experience”.

In any event, it was clear that a Dublin-based construction firm, Shale Construction, which has a judgment of €200,000 against Mr O’Donnell for work done on a building in Dublin, was not told of the couple’s move to London.

Contested invoice

On Monday, Mr O’Donnell said Dublin public affairs lobbyist James Morrissey – who had submitted a contested €50,000 invoice for work done – had been aware that the couple had moved to London

However, Mr Justice Newey said the evidence about Mr Morrissey’s state of knowledge from Mr O’Donnell – based largely on an unsworn statement by Mr O’Donnell’s former PA – was “far from compelling”.

The documentation presented about the creditors “was not without relevance, but on balance I do not think that it justifies reopening the order made in December”, Mr Justice Newey said.

He refused leave to appeal, but Mr O’Donnell indicated that the couple would seek leave from the Court of Appeal. The judge also refused a stay on the court order.