Allied Irish Banks Plc v Joanna Sloan
| Jurisdiction | Ireland |
| Judge | Mr Justice Maurice Collins |
| Judgment Date | 21 May 2021 |
| Neutral Citation | [2021] IECA 156 |
| Docket Number | Court of Appeal Record No: 2019/117 |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 156
Donnelly J.
Collins J.
Binchy J.
Court of Appeal Record No: 2019/117
High Court Record No: 2017/861 S
THE COURT OF APPEAL
CIVIL
JUDGMENT of Mr Justice Maurice Collins delivered on 21 May 2021
The Defendant, Ms Sloan, appeals from the judgment and order of the High Court (Noonan J) of 12 March 2019 giving Allied Irish Banks plc (“ the Bank”) summary judgment against her in the amount of €1,594,616.10 plus costs.
Ms Sloan had denied any liability to the Bank and had resisted its application for summary judgment on a number of grounds. All of those grounds were rejected by the High Court Judge for the reasons set out in detail in his judgment of 12 March 2019 ( [2019] IEHC 270).
The claim made by AIB relates to facilities said to have been advanced to Ms Sloan on foot of a Facility Letter dated 28 June 2007. That letter provided for two facilities. The purpose of the first facility – in the sum of €2,617,000 – was to fund the purchase of 2 office units (Units A & C) in the Apex Centre in Sandyford Industrial Estate (€1.863m) and to provide an equity release for investment purposes (€0.754m). The second facility was also by way of equity release and amounted to €805,000. In respect of each of these facilities, repayment was stated to be “Interest only for 2 years with review/repayment at that stage”. The facilities were to be secured by legal charges executed by Ms Sloan over Units A & C, as well as a guarantee for €3,422,000 (representing the combined total of the facilities) to be provided by Simon Kelly, Ms Sloan's husband.
It appears that the €1,863,000 facility was first agreed in July 2006 by way of a Facility Letter dated 24 July 2006. That Facility Letter appears to have been superseded by the Facility Letter of 28 June 2007.
The Facility Letter of 28 June 2007 was directed to Ms Sloan at an address in Portmarnock which Ms Sloan says has “ nothing to do with” her. The copy originally exhibited by AIB was not signed by Ms Sloan. A further copy, apparently bearing her signature, was subsequently exhibited by the Bank but Ms Sloan says that the signature on the document is not hers and, more broadly, she says that she knew nothing of the loan. That is one of the grounds of defence relied on by Ms Sloan and it will be necessary to come back to this issue in due course.
It is not disputed that Ms Sloan executed two deeds of mortgage over Units A & C. The first is dated 22 September 2006 and specifically references the Facility Letter of 24 July 2006. The second deed (described as a mortgage and charge) is dated 9 July 2007. It secured Ms Sloan's “ Secured Liabilities” to the Bank (as defined in broad terms in the deed). Each of these deeds appears to be signed by Ms Sloan and, as I have indicated, she does not dispute their execution by her.
Various bank statements are included in the material before the Court which were sent to Ms Sloan at the address where she resides. There is no dispute about the correctness of that address. It seems from the evidence that different account numbers were given to the different elements of the facilities. The statements relating to the part of the first facility advanced for the purchase of Units A and C contain an error in the header in that they refer to a €11.863m (rather than €1.863m) facility. I agree with the Judge that this is obviously a typographical error and nothing turns on it. AIB's evidence was that these statements, along with annual statements issued each year at the end of January, were issued to Ms Sloan at the address shown on the statements, (Affidavit of Madeline Murray sworn on 5 March 2018, at para 13), which Ms Sloan accepts is her home address.
The documents exhibited by the Bank also includes correspondence between it and Ms Sloan in relation to the facilities. On 4 February 2009, the Bank wrote to Ms Sloan at her home address referring to the facilities and complaining that Ms Sloan had not yet mandated the rental income from Units A & C to the Bank. The letter went on to demand payment of €270,435.69, which was the interest owing as of 3 February 2009. Ms Sloan and her husband (who was, it will be recalled, guarantor of the facilities) replied jointly on 19 February 2009 explaining that the rental payments had not been made due to a clerical error and stating that payments had since been made and re-assuring the Bank that further payments would be made as rent was received. The letter appears to be signed by Ms Sloan (as well as by Mr Kelly).
AIB demanded repayment of the facilities by letter of 13 April 2017, sent by registered post to Ms Sloan at her home address.
No payment having been made on foot of that demand, proceedings were issued on 17 May 2017.
As already mentioned, the Judge rejected all of the grounds of defence advanced on Ms Sloan's behalf. The first was that the letter of sanction had not been signed by Ms Sloan and that, in fact, she had “ no knowledge” of the loan which, she asserted was not for her benefit but for the benefit of her husband. She also said that she had not received any independent advice in relation to the transaction. The Judge regarded the suggestion that Ms Sloan had not known about the loan as “ simply not credible in the light of the documentary evidence which in my view is all to the contrary.” The Judge noted in this context that there were “ obvious conflicts” in Ms Sloan's own affidavits and also placed reliance on the failure of Ms Sloan to explain how she had executed mortgages in respect of a loan about which she claimed to know nothing, as well as her failure to raise any issue as to her knowledge of the loan on receipt of demands for repayment. 1
As regards the assertion that Ms Sloan had not received any legal advice before entering into the loan agreement, Noonan J observed that no authority had been identified which supported the proposition that the absence of such advice affected the enforceability of the agreement and he regarded any such proposition as unstateable. 2 This ground of defence was not pursued on appeal, at least as a separate ground (it was, Mr Ryan suggested, part of the background against which the Court should assess the specific grounds advanced in the appeal).
The third defence addressed by Noonan J was to the effect that the Bank's claim was statute-barred. The Judge dismissed that defence on the basis that the principal sum sought to be recovered by the Bank was secured by a mortgage or charge and therefore, by virtue of section 36(1)(a) of the Statute of Limitations 1957, the applicable limitation period was 12 years rather than 6 years (the Judge citing AIB v Norton [2018] IEHC 628 in this context). In the Judge's view, that position was not affected by the fact that the secured properties had subsequently been sold (citing on that point the decision of the House of Lords in West Bromwich Building Society v Wilkinson [2005] UKHL 44. [2005] 1 WLR 2303). In the circumstances, it was apparent that the claim was not statute-barred and it was not necessary for the Court to determine when time began to run for the purposes of the 1957 Act. 3
While Ms Sloan challenged this aspect of the High Court's Judgment in her notice of appeal and in the written submissions delivered on her behalf, that challenge was not pursued at the hearing of the appeal and, accordingly, it will not be necessary to refer further to the Statute of Limitations issue.
The final ground of defence advanced in the High Court – and the principal ground advanced in this appeal – was to the effect that the Bank had (so it was said) compromised claims against other debtors in respect of related liabilities connected with acquisition of the Apex Centre so that (it was said) Ms Sloan was entitled to rely on section 35(1)(h) of the Civil Liability Act 1961 (“ the 1961 Act”) as a defence to the Bank's claim. The Judge considered that this argument was “ entirely misconceived”, observing that it was not merely a “ bare assertion” but was “contradicted by all of the documentary evidence that is available.” Those findings are challenged on this appeal.
As appears from the above narrative, two potential grounds of defence fall for consideration on this appeal.
Before addressing those two grounds, I should briefly note that there was no dispute or debate between the parties as to the proper approach to an application for summary judgment such as this is. The principles have been seen in very many decisions of the Superior Courts, including Harrisrange Ltd v Duncan [2003] 4 IR 1 and Irish Bank Resolution Corporation (in Special Liquidation) v McCaughey [2014] IESC 44, [2014] 1 IR 749. Ms Sloan drew the Court's attention to a number of decisions, including the decision of the High Court (Clarke J) in Chadwicks Ltd v P Byrne Roofing Ltd [2005] IEHC 47, to the effect that where a point of law arises in an application for summary judgment, the court may, but is not obliged to, determine the point within the confines of the summary procedure. That assessment will largely depend on whether the point is a straightforward one.
No suggestion was made that the Judge failed to apply the correct principles.
Mr Ryan BL (for Ms Sloan) placed greatest emphasis on this ground and so I will address it first.
Section 35 of the 1961 Act provides for a series of deemed identifications for the purposes of assessing contributory negligence. Section 35(1)(h) is in the following terms:
“where the plaintiff's damage was caused by concurrent wrongdoers and after the occurrence of the damage the liability of one of such wrongdoers is discharged by the...
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