Bank of Scotland Plc v Beades

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 29 July 2019
• Neutral Citation: [2019] IESC 61
• Court: Supreme Court
• Docket Number: [S:LE:IE:2012:000425]
• Date: 29 July 2019

Between/

Bank of Scotland plc

Plaintiff/Respondent

AND

Jerry Beades

Defendant/Appellant

[2019] IESC 61

O'Donnell Donal J.

O'Donnell Donal J.

Dunne J.

O'Malley Iseult J.

[S:LE:IE:2012:000425]

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Summary judgment – Procedure – Evidence – Defendant seeking to appeal against the judgment and order of the High Court granting the plaintiff’s application for summary judgment as against the defendant together with costs – Whether the trial judge correctly set out the test to be applied on an application for summary judgment

Facts: The defendant, Mr Beades, appealed to the Supreme Court against the judgment and order of the High Court of 20 July 2012 granting the application of the plaintiff, Bank of Scotland plc, for summary judgment as against the defendant in the sum of €9,684,987.04 together with costs. On appeal, the arguments focussed primarily on technical matters in relation to procedure, the admission of evidence, and the swearing of the affidavits.

Held by O’Donnell J that, so far as the substance of the matter was concerned, he was satisfied that the trial judge dealt comprehensively with such assertions as were made by Mr Beades by way of possible defence to the claim; he correctly set out the test to be applied on an application for summary judgment, and applied it both carefully and accurately. O’Donnell J held that the underlying unspoken assumption that if the case had proceeded on a different day before a different judge, the decision would have been different and judgment would not have been granted, was without substance. He held that the contention that there was no admissible evidence of the arrangements between the bank, its predecessor, and the defendant, or of indebtedness by the defendant to the bank, was misconceived. O’Donnell J held that Mr Beades had not explained why evidence of delivery of a letter of demand was a necessary proof in this case. O’Donnell J noted that evidence was given by Ms Tracey from her personal knowledge as to Mr Beades’s indebtedness, which was not in any way dependent on the evidence of Ms Wrightson, or the swearing of her affidavit; this emphasised the distance between the matters raised on this appeal and the substance and merits of the claim.

O’Donnell J held that the appeal would be dismissed.

Appeal dismissed.

Judgment of O'Donnell J. delivered the 29th day of July, 2019.

Introduction

1 The defendant (‘Mr. Beades’) appeals against the judgment and order of the High Court of 20 July 2012 granting the plaintiff's application for summary judgment as against the defendant in the sum of €9,684,987.04 together with costs (see [2012] IEHC 328). The appeal to the Supreme Court was initially transferred to the Court of Appeal consequent upon the establishment of that court and the division of the backlog of cases in the old Supreme Court between this court and the new Court of Appeal. That order in turn was cancelled by this court as part of an initiative designed to reduce the backlog of cases in the Court of Appeal arising from the limited number of judges initially appointed to that court and the severe strain on its resources. Mr. Beades's application for a stay on the judgment was refused in the High Court, and no application for a stay was made to any appellate court. It does not, however, appear that any steps were taken to enforce the judgment in the period since the delivery of the judgment of the High Court.

The proceedings

2 In his judgment of 20 July 2012, Kelly J. set out a detailed procedural history of the case, which, for reasons which will become apparent, it is necessary to recapitulate here. A summary summons was issued on 4 January 2012. A substituted service was permitted by order of Peart J. on 20 February 2012, and was effected. An application was brought for entry of the case to the Commercial List, which was granted. Mr. Beades was granted a generous period within which to deliver a replying affidavit. He was permitted until 18 May to do so, and the case was fixed for hearing for 23 May 2012. However, no affidavit was delivered, and the hearing on 23 May was vacated. Mr. Beades was given a further period until 15 June 2012 to deliver his affidavit, and the bank was permitted a further week (until 22 June 2012) to reply if desired. A date for hearing of the summary summons was fixed for 26 June 2012.

3 Once again, Mr. Beades did not deliver a replying affidavit within the time allowed. In the event, a replying affidavit was sworn on 21 June 2012. The affidavit (but not the exhibits) was served on that day. The bank notified Mr. Beades of its intention to seek an adjournment, and applied on 25 June 2012, that is, the day before the intended hearing. Mr. Beades did not appear and was not represented on that occasion. Kelly J. acceded to the application for an adjournment and fixed a further hearing before him on 6 July 2012.

Facts

4 The underlying facts of this matter are set out in the comprehensive judgment delivered by Kelly J., which is available to any interested party or member of the public, and it is sufficient for the purposes of the appeal to set out the salient matters. In essence, the plaintiff's claim was made on foot of four facility letters, the first of which was dated 18 May 2005, and the last dated 11 February 2008. The loans were made by Bank of Scotland (Ireland) Ltd., which as of 31 December 2010 merged with the plaintiff herein, Bank of Scotland plc (‘the bank’), in a cross-border merger by absorption pursuant to Directive 2005/56 on cross-border mergers of limited liability companies (‘the 2005 Directive’). Under the terms of that merger and on foot of an order of the Court of Session in Scotland made pursuant to the 2005 Directive and the implementing regulations, all of the assets and liabilities of Bank of Scotland (Ireland) Ltd. transferred to the bank.

5 Two grounding affidavits were sworn in support of the plaintiff's application for summary judgment. The first was sworn by Caoimhe Tracey on 16 March 2012. Ms. Tracey described herself as an official of Certus of 124 to 127 St. Stephen's Green, Dublin 2. Certus was appointed by Bank of Scotland plc to provide customer support and administration services to the bank and to support the management of its customers in Ireland and Northern Ireland. In para. 1 of her affidavit, she stated that ‘[i]n this regard, I make this affidavit to swear as to the facts of this case’, and further stated that Clare Wrightson of Bank of Scotland plc would swear a further affidavit seeking the relief sought in the notice of motion. At para. 2 of the affidavit, Ms. Tracey stated, ‘I make this affidavit from facts within my own knowledge and from perusal of the plaintiff's books and records, save where otherwise appears and where so otherwise appearing I believe the same to be true and accurate. For the sake of completeness, I should point out that the various individuals referred to in the following paragraphs were at the time of the various communications employees of Bank of Scotland (Ireland) Ltd., and now, where indicated, are employees of Certus.’ It is apparent from the terms of the affidavit that Ms. Tracey was personally involved with the management of the bank's relationship with the defendant. Thus, for example, at para. 44 of the affidavit she refers to a meeting held by Certus with the defendant on 17 August 2011, and continues that ‘on 18 August 2011, I sent a letter to the defendant which recorded what was discussed at the meeting on 17 August 2011’, exhibiting a copy of that letter.

6 Ms. Wrightson described herself as a senior credit risk manager with the Ireland Business Support Unit of Bank of Scotland plc of the Mound, Edinburgh, EH1 1YZ, Scotland. She states that she is duly authorised by the bank to make the affidavit on its behalf. In addition, she records the fact that Certus is an Irish-registered unlimited liability company, and provides customer support and administration services to the bank in relation to the management of the former assets of Bank of Scotland (Ireland) Ltd. She states that most of the employees of Bank of Scotland (Ireland) Ltd. have transferred to Certus. For those reasons, she considered it both necessary and appropriate that a representative of Certus – in this case Ms. Tracey – should swear a grounding affidavit in respect of the proceedings on the basis that Certus, having assumed the customer management functions of Bank of Scotland (Ireland) Ltd., has first-hand and intimate knowledge of the defendant's loan facility, all events and details relating to the loan facilities, and the obligations and liabilities of the defendant in connection with and/or under the loan facilities. She continues, ‘I have had an opportunity to read the grounding affidavit in advance of the swearing hereof and I confirm, on behalf of the plaintiff, that I am satisfied that the averments of the deponent therein are true and accurate’. There was therefore evidence from two sources: one a current employee with knowledge of the affairs of the bank, and the other a former employee now engaged by a separate company dealing with debt recovery, with personal knowledge of and involvement in the dealings with Mr. Beades. Ms. Wrightson's affidavit was sworn by her on 21 March 2012, at Augustine House, Austin Friars, EC2N 2HA London, before a Mr. Jack Sheehy, described as ‘a practising solicitor’.

7 The defendant herein swore a replying affidavit on 21 June 2012, setting out certain complaints he had with the performance of Bank of Scotland (Ireland) Ltd. In addition, he asserted that the affidavit sworn by Claire Wrightson was ‘fraudulent’, apparently on the basis that Jack Sheehy was not a registered solicitor in England or Wales (in fairness to Mr. Beades, it should be recognised that he was initially informed by a representative of the Incorporated Law...