Supreme Court: Unjust enrichment judgments upheld

About this case:

• Citation:
  [2026] IESC 30
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Donal O'Donnell

Delivering judgment for the Supreme Court, Chief Justice Donal O’ Donnell remarked: “It was both discourteous and imprudent of the Bank not to inform the Court either at the hearing on 5 December 2024, or thereafter, of the proposed transaction or its completion.”

Background

In 2003 and 2007, the second defendant entered loan agreements with Bank of Ireland Mortgage Bank (BOI). The monies were secured on the defendants’ family home.

BOI commenced proceedings in 2013 for the balance of monies advanced and paid into the defendants’ joint account, together with interest.

BOI obtained judgment in full against the second defendant in the sum of €202,233.02 in respect of principal and interest, and obtained an award of 50 per cent of its costs against her.

The claim for the same amount on a joint and several basis as against the first defendant, the second defendant’s husband, was defended on the basis of non est factum, with the first defendant asserting that the purported signature on the loan and security documents was not his.

The High Court

Relying on inter alia the logs of the first defendant’s fishing boat, the High Court was satisfied that BOI had not demonstrated that the first defendant had signed the 2003 and 2007 documentation.

Accordingly, BOI could not succeed in its claim against the first defendant on foot of the loan agreements and the charge on the family home was void as it could not be shown that the first defendant had consented to the charge as required by s.3 of the Family Home Protection Act 1976.

However, the judge found that the first defendant was not wholly ignorant of the fact that the couple had made exceptional purchases which could only be referrable to the loan monies, and in those circumstances BOI was entitled to claim for unjust enrichment as against the first defendant.

The first defendant argued that if BOI was permitted to maintain a claim for unjust enrichment, it would circumvent the provisions of the Consumer Credit Act 1995.

The High Court considered that the advance was not a home loan but that s.38 of the 1995 Act applied, which provided that the cooling-off notice requirement was not fatal if a court was persuaded that it would be just and equitable to dispense with that requirement.

In those circumstances, BOI succeeded in its claim for unjust enrichment against the first defendant, limited to the principal outstanding in the sum of €132,355.63.

The first defendant challenged this on the basis that the loan was a home loan and that the monies had been paid into a mortgage account before being transferred to the joint current account.

The trial judge found that this did not undermine the decision as the claim made out against the first defendant was not one in contract, but rather in restitution because she had been satisfied that the first defendant had the benefit of the monies and was unjustly enriched.

Appeals

On appeal, the Court of Appeal and the Supreme Court dismissed the appeal and upheld the judgment of the High Court.

It later transpired that on 3 December 2024, two days prior to the hearing of the Supreme Court appeal, BOI had agreed to transfer its loan book to Pepper Finance Corporation (Ireland) DAC.

The loan sale agreement completed on 25 April 2025. The first defendant contended that at the time of the hearing on 5 December 2024, BOI had limited locus standi.

The first defendant also contended inter alia that BOI improperly adopted various legal positions, subsequently sent letters to him treating the loan as subsisting against him, and purported to transfer the invalid charge over the family home to Pepper.

The defendants brought an application to set aside the judgment on grounds that it constituted an abuse of process and applied to vary or rescind the judgment pursuant to Practice Direction SC 17.

The Supreme Court

The Chief Justice observed: “There is, I think, little doubt that aspects of the case were handled clumsily and worse by the Bank, and the inconsistency and confusion surrounding the Bank’s own view of its legal position is unimpressive.”

The Court expressed dissatisfaction with BOI’s failure to inform the Court, at hearing or thereafter, of the transfer or its completion where the transaction was “at least capable” of affecting the appeal, and where the application now before the Court could have been avoided.

The first defendant argued inter alia that if the transfer agreement had been disclosed, he might have argued that the transfer of the loan and/or the restitutionary claim had the effect of removing any loss on the part of BOI, and therefore precluded it from bringing an unjust enrichment claim.

The Chief Justice considered the effect, if any, of the transfer on the claim, noting: “If it affected in some significant way any of the legal issues being considered in the appeal, then non-disclosure, particularly if deliberate, would become very relevant and the other matters raised might acquire heightened importance particularly if they suggested a deliberate policy of concealment.”

Finding that there was no question of the emergence of a matter which affected the underlying claim, rather that the only issue was the party entitled to argue that claim, the Chief Justice explained that it was difficult to conceive of any outcome that could have been of benefit to the first defendant if the transfer had been raised at the hearing of the appeal.

The Court noted that if it had been sought to join Pepper as a party to the appeal and the first defendant had successfully argued that there had been no legal assignment, BOI would have remained the proper plaintiff, and if Pepper had been substituted as respondent to the appeal, that would not have improved its position on the appeal or worsened the first defendant’s position.

Finding that the transfer had not, in any event, taken effect on 5 December 2024 and that BOI was the proper party to maintain a claim for unjust enrichment, the Court further highlighted that the locus standi issue was misconceived where that concept is more appropriate to a public law claim.

The Court outlined: “The only question in civil proceedings, is whether the plaintiff has sufficient title to sue…Here, the Bank undoubtedly had title to sue when it commenced proceedings, and indeed when the matter was appealed to this Court. Furthermore, as observed in argument, the Bank’s title had not been put in issue either in the proceedings, or in the appeal.”

The Court also pointed out that the argument to the effect that the transfer meant that BOI no longer suffered a loss was also misconceived, that it had not been suggested that a claim for unjust enrichment, still less a judgment in that regard, is not capable of being assigned.

The Court rejected an argument that the first defendant was deprived of the opportunity to argue that the appeal was moot, finding that the mere assertion of “lost opportunity” was insufficient and if there was an issue which could have been relied upon as a basis for succeeding on appeal or setting aside the judgment, then that issue could have been raised and determined on the motion before the Court.

The Chief Justice considered that the only argument of any substance was that if the loan judgment against the second defendant was with Pepper, and if the unjust enrichment judgment against the first defendant somehow remained with BOI, there was a theoretical possibility of excessive recovery.

However, Pepper and BOI had expressly accepted that it would not be possible to seek execution of both judgments in full and that credit would have to be given against the judgment debtor for any recovery against the other, and so the Court determined that that argument could not be a basis for setting aside the judgment or to permit further argument to be advanced.

Conclusion

Accordingly, the Supreme Court upheld the decisions of the High Court and Court of Appeal.

As to costs, the Court awarded BOI 50 per cent of its costs of the Supreme Court appeal where same might not have been necessitated if BOI had taken more care in relation to the execution of documentation, and made no order as to costs in relation to the defendants’ application.

Bank of Ireland Mortgage Bank v Brian Murray and Attracta Murray [2026] IESC 30