Bank of Ireland v Egan

• Jurisdiction: Ireland
• Judge: Ms Justice Bolger
• Judgment Date: 24 April 2023
• Neutral Citation: [2023] IEHC 198
• Docket Number: [Record No. 2021/100 S.]
• Court: High Court

Between

The Governor and Company of the Bank of Ireland

Plaintiff

and

Brian Egan

Defendant

[2023] IEHC 198

[Record No. 2021/100 S.]

THE HIGH COURT

Summary judgment – Debt – Particularisation – Plaintiff seeking to enter summary judgment against the defendant – Whether the plaintiff had failed to sufficiently particularise the debt

Facts: The plaintiff, the Governor and Company of the Bank of Ireland, applied to the High Court to enter summary judgment against the defendant, Mr Egan, in the amount of €748,480. The plaintiff relied on a letter of offer dated 5 September 2013, which made four facilities available to the defendant to restructure previous loans and an overdraft. The letter also provided the defendant with the option of selling a property which had been provided as security for the debt in return for which the plaintiff agreed to write off some of the debt. If that option was not availed of by the defendant, the facilities remained repayable on demand. The property was not sold due to problems with title which the defendant claimed were the fault of the plaintiff. The defendant had previously consented to strike out separate proceedings against the plaintiff in relation to that issue. The defendant made no repayments which, in turn, entitled the plaintiff to make demand on the defendant which it did by letter dated 19 July 2018. The demand letter outlined the sums due inclusive of interest, but the plaintiff ultimately decided not to claim any interest when it issued the proceedings by summary summons dated 23 February 2021. The defendant sought to rely on a number of issues which he claimed meant it was not “very clear” that he had no case (i.e. the test for granting summary judgment as per the Supreme Court in Aer Rianta v Ryanair [2003] IESC 62). However, ultimately, his opposition to the application came down to a claim that the plaintiff had failed to sufficiently particularise the debt so that the defendant would know the case they had to meet and satisfy themselves whether they should “pay or resist”, as required by the decision of the Supreme Court in Bank of Ireland Mortgage Bank v O’Malley [2019] IESC 84. The plaintiff argued that their obligation to particularise the debt was satisfied by the detail in the summary summons in relation to the four accounts identified in the 2013 letter, which was to restructure earlier loans dating back to 1994 and which had been previously restructured on a number of occasions over that time.

Held by Bolger J that the defendant had made an arguable case as to the veracity of the calculations leading to the sum claimed in the proceedings and in the absence of particulars of the claim by way of information on the transactions on his loan accounts prior to 2013, he had satisfied Bolger J that the plaintiff had not made it very clear that there was no defence to the claim. Bolger J held that the defendant had also established how discovery may assist him in his defence, in the absence of the plaintiff’s agreement to furnish him with the information he sought in his letter of November 2021.

Bolger J was satisfied that the defendant was entitled to proceed to a plenary hearing. Therefore, Bolger J refused the plaintiff’s application to enter summary judgment. Bolger J’s indicative view on costs was that the costs of the motion should be treated as costs in the cause.

Application refused.

JUDGMENT of Ms Justice Bolger delivered on the 24 ^th day of April 2023

1 . This is the plaintiff's application to enter summary judgment against the defendant in the amount of €748,480. For the reasons set out below, I refuse the application.

Background

2 . The plaintiff relies on a letter of offer dated 5 September 2013, which made four facilities available to the defendant to restructure previous loans and an overdraft. The letter also provided the defendant with the option of selling a property which had been provided as security for the debt in return for which the plaintiff agreed to write off some of the debt. If that option was not availed of by the defendant, the facilities remained repayable on demand. The property was not sold due to problems with title which the defendant claims were the fault of the plaintiff but, as the defendant had previously consented to strike out separate proceedings against the plaintiff in relation to that issue, I am not satisfied that this could be relevant in deciding whether the plaintiff is entitled to enter summary judgment.

3 . The defendant has made no repayments which, in turn, entitled the plaintiff to make demand on the defendant which it did by letter dated 19 July 2018. The demand letter outlined the sums due inclusive of interest, but the plaintiff ultimately decided not to claim any interest when it issued these proceedings by summary summons dated 23 February 2021.

4 . The defendant sought to rely on a number of issues which he claimed meant it was not “very clear” that he had no case (i.e. the test for granting summary judgment as per the Supreme Court in Aer Rianta v. Ryanair [2003] IESC 62, [2001] 4 I.R. 607). However, ultimately, his opposition to this application came down to a claim that the plaintiff has failed to sufficiently particularise the debt so that the defendant will know the case they have to meet and satisfy themselves whether they should “pay or resist”, as required by the decision of the Supreme Court in Bank of Ireland Mortgage Bank v. O'Malley [2019] IESC 84, [2020] 2 I.L.R.M. 423.

5 . The plaintiff argues that their obligation to particularise the debt is satisfied by the detail in the summary summons in relation to the four accounts identified in the 2013 letter, which was to restructure earlier loans dating back to 1994 and which had been previously restructured on a number of occasions over that time. Because the plaintiff has chosen not to seek interest on the 2013 debt, it says the defendant cannot be confused by any absence of calculations, as no calculations were necessary, and the computation of its claim is readily ascertainable. It describes its claim as “based on a straightforward analysis of the indisputable facts in this case” and emphasises the defendant's acceptance of the 2013 letter and the fact that he does not challenge the validity of that agreement. The plaintiff says the defendant is bound by the 2013 letter in spite of the defendant's concern that some of the interest charged prior to 2013 may not have been properly calculated. The plaintiff relies on the decision of the Court of Appeal in Governor and Company of Bank of Ireland v. Flanagan [2015] IECA 56, where a loan designed to refurbish the previous loans, which did not advance new or additional funds to the borrower, was enforceable, and where the court rejected the defendant's attempts to rely on the absence of the transfer of any cash to resist the Bank's application for summary judgment and held that consideration had been given by the Bank agreeing to give up its entitlement to enforce the previous loan agreement.

6 . The defendant also points to the decisions of this court in AIB Mortgage Bank & ors v. Hayden & ors [2020] IEHC 442 and O'Connell & ors v. Moriarty [2022] IEHC 565, where there was no dispute that monies were advanced under a number of loan agreements, the particulars of which were described in bank statements exhibited in the affidavit ( Hayden) and by the defendant accepting the...