Bank of Ireland (UK) Plc v Corcoran
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 20 December 2017 |
| Neutral Citation | [2017] IEHC 822 |
| Docket Number | [2014 No. 1838 S.] |
| Court | High Court |
| Date | 20 December 2017 |
[2017] IEHC 822
THE HIGH COURT
Meenan J.
[2014 No. 1838 S.]
Banking & Finance - Monies owed - Bona fide defence - Summary judgment - Plenary hearing - Issue of discovery
Facts: The plaintiff sought an order for summary judgment against the defendant together with the interest for monies owed by the defendant to the plaintiff on foot of a facility letter. The key issue was whether the plaintiff was entitled to the summary judgment against the defendant for the amount sought or whether the defendant had established a bona fide defence. The defendant contended that the loan was with the predecessor in title/Bank and that there was no sufficient evidence of its transfer to the plaintiff. The defendant also argued about the plaintiff's right to bring the proceedings before the Court in the present jurisdiction.
Mr. Justice Meenan granted an order in favour of the plaintiff. The Court held that the plaintiff was entitled to the judgment in the amount claimed. The Court stated that none of the grounds of defence amounted to a real or bona fide defence. The Court applied the test laid down in Aer Rianta c.p.t. v. Ryanair Ltd [2001] 4 IR 607 for the disposal of applications for the summary judgment.
The plaintiff's claim is for judgment against the defendant in the sum of €257,039.39 (together with continuing interest) being monies due and owing by the defendant to the plaintiff on foot of a facility letter dated 16th October, 2007 between the defendant and the governors and company of the Bank of Ireland ('the Bank').
The purpose of the loan was to assist the defendant in the purchase of shares in Custom House Capital (CHC) Munich Parkstadt Property to the amount of €250,000. In addition, there was an arrangement fee of €2,500. The loan was up to a maximum term of five years. However, the facility letter also stated that the loan was to be subject to the general terms and provisions of the Bank. These general terms and provisions provided, inter alia:-
'10. The bank reserves the right to terminate the facility immediately by notice and to call for repayment of all of the indebtedness on demand at any time in its entire discretion especially (but not only) if one or more of the following events shall occur
10.1.1. There shall be any breach of any term, condition, covenant, representation or warranty outlined in these general terms or in any document; or
10.1.2. The borrower shall fail to repay the indebtedness when due or if any interest is in arrears and unpaid for seven days after the date fixed for payment thereof; or
10.1.3 The indebtedness or any other obligation of the borrower becomes due and payable or liable to be preformed prior to the specified due date thereof of as a result of any default or is otherwise not paid or preformed when due…'
As security for the said loan, the facility letter provided that the Bank would have security by way of a first and only legal charge over the shares in Custom House Capital Munich Parkstadt Property fund.
The facility letter and the general terms were to be governed and interpreted in all respects in accordance with the laws of England.
By order of the High Court of England and Wales (Henderson J.) dated 29th October, 2010 the business of the Bank specified therein was transferred to the plaintiff pursuant to part IIV of the Financial Services and Markets Act 2000.
By letter dated 15th October, 2013 the plaintiff informed the defendant that he was in breach of the terms of the said facility letter and, in particular, in breach of clause 10.1.2, set out above. Therefore, according to the plaintiff, the loan was due for repayment.
By a notice of motion dated 16th November, 2015, returnable before the Master of the High Court, the plaintiff sought liberty to enter final judgment against the defendant in the sum of €257,039.39 together with continuing interest.
The notice of motion was adjourned before the Master of the High Court from time to time. However, on 15th February, 2017, following an exchange of affidavits between the parties, the plaintiff made an application to transfer the matter for judgment to the judges list for hearing. The Master of the High Court refused the application and dismissed the notice of motion. He did so on the grounds that the affidavit of Mr. Jenkins, sworn 22nd October, 2015, was defective because the address at which it was sworn was not specified in the jurat.
In the course of the exchange of affidavits between the parties the defendant sought and obtained leave from the Master to issue a notice of motion seeking discovery from the plaintiff. On 16th February, 2016 the Master granted the defendant's application for discovery.
Both the Master's order dismissing the plaintiff's motion for liberty to enter final judgment and the order for discovery have been appealed to this Court. Therefore, the following are the reliefs sought by the plaintiff:-
1. an order pursuant to O. 63 r. 9 of the Rules of the Superior Courts, discharging the order of the Master of the High Court made on 15th February, 2017 dismissing the plaintiff's notice of motion for liberty to enter final judgment;
2. an order pursuant to O. 37 of the Rules of the Superior Courts, granting the plaintiff summary judgment against the defendant in the sum of €257,039.39, together with continuing interest thereon.
3. an order pursuant to O. 63 r. 9 of the Rules of the Superior Courts, discharging the order of the Master of the High Court made on 15th February, 2017 dismissing the plaintiff's notice of motion to discharge the order for discovery made by the Master of the High Court on 16th February, 2016.
In the course of the hearing before the Master there were a number of affidavits filed on behalf of both the plaintiff and the defendant.
Although there are a number of applications before this Court, the central issue that must be decided is whether the plaintiff is entitled to summary judgment against the defendant for the sum sought or whether the defendant has established a basis for defending these proceedings thus requiring the Court to direct a plenary hearing. It is only in the event of a plenary hearing that the issue of discovery would arise.
A number of defences to the plaintiff's claim have been put forward by the defendant both on affidavit and in submissions. I will deal with each of these defences.
The Master held that the jurat of the affidavit of Mr. Jenkins, sworn 22nd October, 2015 was defective because the address at which it was sworn was not specified in the jurat. At the hearing before the Master, counsel for the plaintiff confirmed to the Master that the address at which the affidavit was sworn was the same as the address of the solicitor specified in the jurat. The Master was requested to exercise his discretion under O. 40 r. 15 of the Rules of the Superior Courts whereby an affidavit sworn for the purpose of being used in any cause or matter may be received notwithstanding any defect in the jurat. The Master declined to do so.
In light of the explanation given and the nature of the mistake in the jurat, I am satisfied, pursuant to the provisions of O. 40 r. 15, to receive the affidavit of Mr. Jenkins.
In his affidavit sworn 22nd October, 2015, grounding the application for liberty to enter finial judgment, Mr. Jenkins deposed that:- 'I am employed by the plaintiff as a director of business banking…' This was not correct and was relied upon by the...
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