Allied Irish Banks Plc v Dorey
| Jurisdiction | Ireland |
| Judge | Mr. Justice Holland |
| Judgment Date | 31 May 2022 |
| Neutral Citation | [2022] IEHC 317 |
| Court | High Court |
| Docket Number | [2020/99 S] |
[2022] IEHC 317
[2020/99 S]
THE HIGH COURT
JUDGMENT of Mr. Justice Holland delivered on 31 May, 2022
. On foot of a summary summons dated 18th March, 2020, notice of motion for judgment in default of appearance dated 21st September, 2021 and the grounding affidavit of Stephen Clarke sworn 27th August, 2021, the plaintiff seeks judgment in default of appearance in the sum of €809,531.10 on foot of three loans made in 2008. I part-heard the motion on 23rd May, 2022, the defendant having been called and not having appeared. For reasons which will become apparent, I need say no more of the substance of the action.
. In the summary summons and as to each of the three loans, the plaintiff pleads as follows as to the alleged indebtedness of the defendant:-
“Short particulars of that amount are set out hereunder and full particulars of the Defendant's indebtedness have previously been notified to him by the delivery from time to time of bank account statements in respect of each of the accounts set out below.”
. The issue on which I now give judgment is whether that plea suffices to satisfy the requirements as to particulars to be set out in a summary summons laid down by the Supreme Court in Bank of Ireland Mortgage Bank v O'Malley 1. The plaintiff asked that I give a judgment confined to this issue as it is likely to arise in more than one set of such proceedings. This judgment is given without prejudice to the position of either party as to any other issues which may arise in the motion, which issues stand adjourned pro tem and pending this judgment.
. I should add that I raised with the plaintiff the question whether they wished to rely on the view that they are not obliged to prove, in a motion in default of appearance, the substantive indebtedness it alleges 2 or, indeed, to meet any concerns as to the quality of their pleadings, in the absence of such concerns being raised by the defendant. The Bank has requested that I determine this issue on the assumption that they are obliged to adduce such proofs without prejudice to their arguing later that they are not so obliged. In that sense the issue placed before me is less akin to a motion in default of appearance than to a question in an application for summary judgment whether the plaintiff has adequately pleaded and proved a prima facie case sufficient to require the defendant to surmount the low threshold of showing a defence.
. There are conflicting judgments on the adequacy of a plea such as that set out above. AIB Mortgage Bank v Hayden 3 holds that the plea suffices. It is less clear that Allied Irish Banks v Ahern 4 does. Havbell v Harris 5 holds that it does not. I am grateful for the written submissions of counsel for the plaintiff on this issue. He seeks to distinguish the latter decision.
. It is clear from O'Malley that a plaintiff issuing a summary summons may plead the calculation of the alleged indebtedness by reference to other documents setting out that calculation and previously furnished to the defendant — assuming the content of those documents suffices for the purposes identified in O'Malley. This is an alternative to setting out the calculation in the summons itself. It has therefore since O'Malley become commonplace that, shortly before issuing a summary summons, the intending plaintiff writes to the intended defendant enclosing a full set of statements of the loan account in question from drawdown of the loan to date. Such a statement states the rate of interest applicable from time to time and records each increment of interest applied to the loan.
. It is important to state that the practical purpose of pleading such particulars is to enable the defendant to satisfy himself or herself of the accuracy of calculation of the indebtedness alleged in the specific amount of the sum claimed, so that he or she can properly decide, and be expected to decide, on adequate information, whether to defend the proceedings or submit to judgment.
. It is important also to recall that O'Malley made clear that this obligation to provide information arises at two points in the process: as a matter of asserting – pleading – the debt in the summary summons; as a separate matter of evidence — proof of the debt — by exhibition of the statements in the motion papers seeking judgment. The latter issue does not arise at present in this case.
. While O'Malley 6 is the earliest and most important of the relevant judgments, I will leave its consideration to last.
. In Hayden, summary judgment was granted on foot of various loans. The Defendants resisted judgment, inter alia, in reliance on O'Malley. Meenan J dealt with the pleadings issue briefly and on the basis that the Plaintiff had “ satisfied the “O'Malley test”” (which he recited) by a plea that:
“The particulars of the amount due and owing are calculated as detailed in the bank account statements in respect of loan account no. [blank] and have previously been notified to the defendants by the delivery of same from time to time.”
That plea is in all material respects the same as that made in the present case.
. Meenan J noted that the defendant's replying affidavits were filed before the decision in O'Malley and made no complaint of lack of particularity such as would allow the defendants to decide whether to concede or resist the claim. Meenan J also noted the exhibition by the plaintiff of all relevant bank statements. He was therefore satisfied that the defendants had not established any defence in this regard.
. It is not clear to what extent, if at all, the issue was argued before Meenan J whether the specific feature of reliance on the statements issued periodically over the entire life of the loan sufficed for purposes of pleading particulars of the debt by reference to such statements.
. In Ahern, summary judgment was granted on foot of various loans. The defendants resisted judgment, inter alia, in reliance on O'Malley. The summons had been issued before O'Malley and before O'Malley the plaintiff sought summary judgment on foot of an affidavit which exhibited the relevant bank statements. After O'Malley the summons was amended to comply with O'Malley. As amended, it pleaded the bank statements which the defendants had received regularly over the years and which had been furnished again in the proceedings.
. Notably, that plea in the amended summons differs from that in the present case in that it pleads, not merely the statements sent to the Defendant over the period of the loan, but the statements already furnished again in the proceedings – in other words, those exhibited in the motion for judgment prior to the amendment of the summons. Thus, the amended summons asserted that, on their receipt of the amended summons, the defendants had, by the earlier exhibition of those statements, the necessary information to enable them to decide whether to concede or resist the claim. In a sense this is a reversal of the normal sequence in which pleading precedes evidence: here earlier evidence is being retrofitted, as it were, as pleading. But there seems to me to be nothing wrong with that if it achieves the required practical objectives of justice identified in O'Malley as to the provision of particulars. In my experience, this reflects an approach commonly adopted by Plaintiffs.
. The difference in the present case is the absence of a plea in an amended summons of reliance for purposed of furnishing particulars in an amended summons on statements exhibited before the amendment. The present summons pleads only the statements sent to the borrowers from time to time since the loans were made.
. Barr J in Ahern recorded that O'Malley dealt with two distinct questions. The first concerned the level of detail required for a special endorsement of claim to be compliant with the Rules of the Superior Courts in a case involving a claim for debt on foot of a loan. The second concerned the evidence required to justify summary judgment on a motion to that end. As to the first question, O'Malley decided that the Defendant was entitled to sufficient particulars in the summons to enable him “ to satisfy his mind whether he ought to pay or resist”. Barr J very briefly cited Hayden in considering the particulars adequate to O'Malley requirements 9. Barr J concluded that:
“75. Having regard to the matters pleaded in the amended summons and to the fact that the facility letters and the relevant account statements were furnished to the defendants from time to time during the lifetime of the accounts and having regard to the fact that in the account statements, the rate of interest charged was clearly identified; changes in interest were clearly identified and once the facility limit was exceeded, the amount of interest accruing, but not applied to the account, was clearly stated in a separate box; the court is satisfied that the defendants were given adequate particulars of both the principal sums claimed and the amount of interest constituted therein, together with the amount of interest that had accrued since 4th August, 2016.”
It must be said that, here, Barr J in terms upheld the plaintiff's reliance for purposes of particulars on “ statements ….. furnished to the defendants from time to time during the lifetime of the accounts …”. It can also be said that Barr J did so in the context of a plea which he identified as referring, “to the bank statements, which the defendants had received on a regular basis over the years and which had been furnished again in the course of these proceedings 10.”
. As relevant to the issue before me and his consideration of Havbell v Harris 11, Barr J said:
“72. When one has regard to the essence of the decisions in the O'Malley;...
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