THE HIGH COURT has allowed an appeal brought by Ronan Ryan, husband of former Miss Ireland and TV presenter Pamela Flood, against a Circuit Court decision allowing a financial fund to repossess the couple’s home in Dublin.

The appeal was against a decision by the Circuit Court in August, which allowed Tanager DAC to possess 136 Mount Prospect Avenue, Clontarf.

Ryan had argued that the fund was not entitled to possession because he had obtained a protective certificate which gave him a period of protection from his creditors as part of his application for a personal insolvency arrangement.

In a judgement delivered today, Mr Justice Garrett Simons said he was not prepared to allow the fund Tanager DAC to enforce an order for possession of the couple’s home or to sell the €900,000 property.

Ryan, the judge said, was entitled to avail of the benefit of the protective certificate.

The judge also said he was satisfied to set aside the Circuit Court’s decision, made last August, in favour of Tanager.

Tanager could not execute the possession order in respect of the couple’s home and the protective certificate granted to Ryan “continues in force”.

Personal Insolvency Act

Ryan, a well-known restaurateur, has a €1.2m mortgage debt on the property. His wife was a notice party to the proceedings.

He had consented last March to the making of an order for possession in respect of the house in favour of Tanager, subject to a four-month stay on the execution of that order.

The house was to have been vacated by 9 July. However, Tanager claimed the couple and their family did not leave.

Instead, Ryan brought proceedings under the Personal Insolvency Act and obtained a protective certificate from the Circuit Court in late June.

The certificate prevented Tanager from executing the possession order against the couple’s home, pending the determination of the application of a personal insolvency arrangement.

Tanager, which acquired the loan Ryan took out on the property, opposed the appeal and had argued that it was fundamentally unfair if the existence of the protective certificate was allowed derail its order for possession.

It argued that he should not be allowed to go behind the consent order made in March.

His conduct in seeking a protective certificate, it was argued, represented an abuse of process.

This was because Ryan had failed to disclose the existence of the possession order when seeking the protective certificate.

Ryan, represented by Keith Farry Bl instructed by solicitor Eugene Carley, argued that there had been no material non-disclosure by him and, despite the existence of the possession order, that he met the eligibility criteria for a protective certificate.

Unexecuted order

In his ruling, Mr Justice Simons said that while it was unsatisfactory that the existence of the possession order was not disclosed to the Circuit Court the omission did not constitute a material non-disclosure.

The existence of the possession order, the judge said, would not have affected the outcome of the application for a protective certificate.

The possession order, the judge said, is not a bar to the restructuring of secured debt by way of an insolvency arrangement.

The fact that Tanager has the benefit of an unexecuted order for possession does not preclude the possibility of the restructuring of debts as envisaged under personal insolvency laws.

Ryan, the judge added, met the eligibility criteria for the protective certificate.

The judge also said that the Personal Insolvency Act makes special provisions for debtors principal private residence, and allows for the possibility of courts approving measures to allow debts to keep their homes.

The house in Clontarf, he said, is occupied by Ryan, Flood and four children.

The judge said that it would be disproportionate to sanction Ryan over the non-disclosure and allow Tanager to enforce its security before the application for a personal insolvency arrangement had been determined.

The judge added that he accepted that there may well be cases where the protective certificates will be set aside due to material non-disclosure.

However, it would undermine the objective of insolvency legislation if creditors were routinely to make applications seeking to set aside orders based on inaccuracies or omissions which are immaterial.

A proliferation of such applications would, he said, take up scare court time and ultimately delay the final determination of the insolvency process.

The Personal Insolvency Act provides ample safeguards for creditors at the stage of application to confirm or approve a personal insolvency arrangement.

These protections will in most cases make a separate application to set aside a protective certificate unnecessary, he added.

The judge adjourned the matter to next week to allow the parties to fully consider his decision.

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