Allied Irish Banks Plc v Jeremiah Ahern and Veronica Ellen Ahern (Otherwise Veronica Ellen O'Reilly)

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 06 May 2021
• Neutral Citation: [2021] IEHC 311
• Docket Number: [Record No. 2017/696 S.]
• Court: High Court
• Date: 06 May 2021

Between

Allied Irish Banks Plc

Plaintiff

and

Jeremiah Ahern and Veronica Ellen Ahern (Otherwise Veronica Ellen O'Reilly)

Defendants

[2021] IEHC 311

[Record No. 2017/696 S.]

THE HIGH COURT

Summary judgment – Credit facility – Statute barred – Plaintiff seeking summary judgment – Whether the defendants had raised arguable defences to the plaintiff’s claim against them

Facts: The plaintiff, Allied Irish Banks PLC, applied to the High Court for summary judgment in the sum of €387,500.67, alleged to have arisen on foot of credit facilities which had been made available by the plaintiff to various accounts connected with the defendants, Mr and Ms Ahern, and also pursuant to guarantees signed by the defendants in respect of the said accounts. The first defendant raised the following points in his defence: (i) he maintained that there was no evidence that he accepted the terms of the credit facility allegedly afforded to him by the plaintiff, as set out in its letter to him dated 11th December, 2012 and in a further facility letter concerning an overdraft facility on one of his accounts dated 13th December, 2012; (ii) he maintained that the plaintiff’s action against him in respect of one of the accounts was statute barred, because there was no evidence of any payment by him into that account in the six years prior to issuance of the summary summons on 19th April, 2017; and (iii) he maintained that the particulars set out in the amended summary summons dated 25th November, 2020, were inadequate and did not comply with the requirements set down by the Supreme Court in Bank of Ireland v O’Malley [2019] IESC 84. The second defendant adopted the objections raised by the first defendant. In addition, she relied on the following grounds of defence: (i) she stated that a transfer into one of the accounts the subject matter of the claim, was from a joint account held by her and her former husband and was made without her consent; and (ii) it was maintained that the guarantees signed by her were not legally binding on her, due to the fact that she did not have independent legal advice prior to signing them. On the basis of those matters, each of the defendants maintained that it was not appropriate to mark summary judgment in the matter because they had raised arguable defences to the plaintiff’s claim against them. Instead, they asked the court to make an order remitting the matter to plenary hearing.

Held by Barr J that the plaintiff had established in evidence that the defendants were indebted to it in respect of the sums claimed in the amended summary summons. The defendants had not persuaded the court that they had an arguable defence to the plaintiff’s claim, or to any portion thereof, even having regard to the low threshold applicable to applications resisting summary judgment. Barr J held that the defendants had not satisfied the tests set down in Aer Rianta v Ryanair Limited [2001] 4 IR 607 and Harrinsrange v Duncan [2003] 4 IR 1.

Barr J held that the plaintiff was entitled to summary judgment against the defendants, jointly and severally, in the sum of €387,500.67.

Application granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 6th day of May, 2021

Introduction

1 This is an application for summary judgment in the sum of €387,500.67, alleged to have arisen on foot of credit facilities which had been made available by the plaintiff to various accounts connected with the defendants and also pursuant to guarantees signed by the defendants in respect of the said accounts. The full breakdown of the constituent parts of the total sum claimed, will be dealt with later in the judgment.

2 The defendants were husband and wife, but have since divorced. The first defendant objects to summary judgment being marked against him on a number of grounds. He maintains that he has an arguable defence to the sum claimed by the plaintiff in these proceedings. He has submitted that the court should direct that the action proceed to plenary hearing.

3 In particular, the first defendant raises the following points in his defence:-

• (i) He maintains that there is no evidence that he accepted the terms of the credit facility allegedly afforded to him by the plaintiff, as set out in its letter to him dated 11th December, 2012 and in a further facility letter concerning an overdraft facility on one of his accounts dated 13th December, 2012;

• (ii) the first defendant maintains that the plaintiff's action against him in respect of one of the accounts is statute barred, because there is no evidence of any payment by him into that account in the six years prior to issuance of the summary summons on 19th April, 2017;

• (iii) the first defendant maintains that the particulars set out in the amended summary summons dated 25th November, 2020, are inadequate and do not comply with the requirements set down by the Supreme Court in Bank of Ireland v. O'Malley [2019] IESC 84.

4 In resisting this application, the second defendant has adopted the objections raised by the first defendant. In addition, she relies on the following grounds of defence to the plaintiff's claim against her:-

• (i) She states that a transfer into one of the accounts the subject matter of the claim, was from a joint account held by her and her former husband and was made without her consent;

• (ii) it is maintained that the guarantees signed by her are not legally binding on her, due to the fact that she did not have independent legal advice prior to signing them.

5 On the basis of these matters, each of the defendants maintains that it is not appropriate to mark summary judgment in the matter because they have raised arguable defences to the plaintiff's claim against them. Instead, they have asked the court to make an order remitting the matter to plenary hearing.

The evidence

6 The plaintiff's application for summary judgment is grounded on an affidavit sworn by Mr. Brian McGuinness on 28th March, 2018. He is a manager employed by the plaintiff in its litigation management department. He stated that the plaintiff made available to the defendants, jointly and severally, a credit facility dated 11th December, 2012 in the sum of €150,000 in substitution of existing facilities on an account known as the “Evergreen Credit Line Account” bearing number 93543312131193 (hereinafter referred to as the ‘193 account’). He exhibited a copy of the facility letters dated 11th December, 2012, which had been sent to each of the defendants.

7 Mr. McGuinness went on to deal with a separate account. He stated that at all material times, the plaintiff provided banking and credit facilities for the defendant's company, Ahern Livestock Services Limited. The plaintiff made available to the company a credit facility dated 11th December, 2012 in the amount of €200,000 in substitution for the existing facilities on the account. This was subject to the terms and conditions of the facility, including letters of guarantee which had been signed by the defendants on 16th June, 2008 in respect of the indebtedness of the company on the said account. The credit facility was the subject of account number 93543311918160 (hereinafter referred to as ‘the 160 account’). He exhibited a copy of the relevant facility letter.

8 By guarantees in writing dated 16th June, 2008 the defendants had guaranteed the existing and future indebtedness of the company to the plaintiff. The guarantees were subject to a limit of €250,000 together with interest at the plaintiff's lending rate from date of demand. A copy of the guarantees signed by each of the defendants was exhibited to the affidavit.

9 In respect of a third account, Mr. McGuinness stated that the plaintiff made available to the first defendant an overdraft facility dated 13th December, 2012 in the amount of €50,000 in respect of the first defendant's account bearing number 93543311878000 (hereinafter referred to as ‘the 8000 account’). A copy of the facility letter was exhibited to the affidavit.

10 By a guarantee in writing dated 10th June, 2008, the second defendant guaranteed the indebtedness of the first defendant to the plaintiff on foot of the said account subject to a limit of €50,000, together with interest at the plaintiff's lending rate from the date of demand. A copy of the guarantee signed by the second defendant was exhibited to the affidavit.

11 In paras. 12 – 16 of the affidavit, Mr. McGuinness set out the demands that had been made by or on behalf of the plaintiff in respect of repayment of each of the credit facilities afforded to the account holders. He also set out the demands that had been made for payment on foot of the guarantees. Each of the demand letters was exhibited in the affidavit.

12 At para. 17 he exhibited the statements of account in respect of the 193, 160 and 8000 accounts. He concluded the affidavit by stating that the sum of €387,500.67 remained due and owing by the defendants as of the date of swearing of the affidavit. He stated that he believed that appearances had been entered to the summons by the defendants solely for the purposes of delay and that they did not have a bona fide defence to the plaintiff's claim against them.

13 On 12th June, 2018, the first defendant swore an affidavit in response to the plaintiff's application for summary judgment against him. In that affidavit, he pointed out that the company had been incorrectly named in Mr. McGuinness's affidavit and that the wrong account number had been given in respect of the 8000 account. These grounds of objection have subsequently been withdrawn.

14 The first defendant went on to state that he had never accepted the terms of the credit facility letter dated 11th December, 2012. He did not believe that the second defendant had accepted its terms either. He went on to state that he did not believe that the former credit facility was replaced by the terms of the...