Cabot Financial (Ireland) Ltd v Andrew Wilson
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 10 June 2021 |
| Neutral Citation | [2021] IEHC 443 |
| Docket Number | [RECORD NO: 2018 564 S] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 443
[RECORD NO: 2018 564 S]
THE HIGH COURT
EX-TEMPORAE RULING of Mr. Justice Mark Heslin delivered on the 10th day of June, 2021
The following emerges from an examination of the pleadings which are before the Court. On 8 May 2018 “Cabot Asset Purchases (Ireland) Ltd”, or “CAPI”, issued a summary summons naming Mr Andrew Wilson as defendant. The special indorsement of claim pleaded that pursuant to an 18 September 2009 facility letter between “Ulster Bank Ireland Ltd”, (or “Ulster Bank”), on the first part, and the defendant, on the second part, (i.e. “the facility”) €201,646 was borrowed by the defendant.
It was also pleaded that Ulster Bank provided an overdraft to the defendant in respect of account 40307020 (i.e. “the overdraft”).
It is pleaded that the defendant defaulted on his repayment obligations in respect of both the facility and the overdraft and that Ulster Bank demanded €174,591.10, by letter of 20 September 2012, which sum the defendant failed to pay.
It is also pleaded that CAPI acquired the legal and beneficial rights in respect of the facility and the overdraft pursuant to the terms of a “Portfolio Acquisition Deed”, dated 24 April 2017, and a “Global Deed of Transfer”, dated 23 June 2017, made between Promontoria (Oyster) DAC, (or “Promontoria”), of the first part, and CAPI, of the second part, following a previous transmission of legal and beneficial rights in respect of the facility and overdraft, from Ulster Bank to Promontoria, pursuant to the terms of a “Global Deed of Transfer” made between Ulster Bank and Promontoria, on 19 December 2016.
The special indorsement of claim goes on to plead that the plaintiff, through its solicitors, messrs Belgard, made a demand, by letter of 2 October 2017, and that the defendant has failed to make any payment on foot of that 7-day demand, and that €123,011.73 is owing by the defendant.
Judgement against the defendant in the aforesaid sum is sought, with the total figure said to comprise €116,753.97, in respect of the facility, and €6,257.76 in respect of the overdraft. In an affidavit sworn on 12 June 2018 by a Mr Eamon MacEoin, it is averred that personal service was effected on the defendant on 31 May 2018. A memorandum of appearance is recorded as having been entered, in person, by the defendant, on 13 July 2018.
On 5 September 2018, Belgard solicitors for the plaintiff issued a motion seeking liberty to enter final judgement against the defendant in the sum of €123,011.73, which motion was grounded on an affidavit sworn by Mr Niall Purcell, a director of the plaintiff, CAPI. In that affidavit, reference was made to the aforesaid 24 April 2017 Portfolio Acquisition Deed, between Promontoria and the plaintiff, and to what was said to be the previous transmission of interest, from Ulster Bank to Promontoria.
The first of the exhibits to Mr Purcell's affidavit comprised the aforementioned Global Deed of Transfer, dated 23 June 2017, between Promontoria and the plaintiff. The exhibited copy contains certain redactions said to result from commercial sensitivity, data-protection or banker/client confidentiality issues. The second of the exhibits comprised a copy of the facility and a copy of Ulster Bank's general conditions. The third exhibit comprised the aforementioned, 20 September 2012 demand letter from Ulster Bank to the defendant. The fourth exhibit comprised the aforesaid 2 October 2017 seven day demand letter from Belgard solicitors to the defendant. The fifth and final exhibit comprised Ulster Bank statements of account for the facility and overdraft, (specifically a four-page statement in respect of account number 10224585, covering the period from 21 June 2010 to 7 April 2017; and a 30-page statement in respect of account number 40307020, covering the period from 14 June 2010 to 7 April 2017) both accounts being in the name of the defendant the latter being described as a current account.
On 16 November 2018 the defendant swore a 6-page replying affidavit in opposition to the plaintiff's motion. Among other things the defendant asserted that there was no evidence of any transfer from Ulster Bank nor was any deed of transfer to Promontoria exhibited and the defendant asserted that summary judgement could not be granted as there was no proof of the plaintiff's title to the loans allegedly due. A variety of assertions were made in that regard. Further assertions were made with reference to the statements which had been exhibited by Mr Purcell. Among these was the assertion that, as of the date of the portfolio acquisition deed, i.e. 24 April 2017, and as of the date of the deed of transfer, i.e. 23 June 2017, there was a “zero balance” in respect of account 1022 4585 and a “nil balance” in relation to account 4307020, as at 7 April 2017. In para. 7 (iii) of his affidavit, the defendant averred that, as of 7 April 2017, both accounts relied upon by the plaintiff in seeking judgement “had nothing due upon them”.
A range of further assertions were made, including with reference to Ulster Bank's general terms and conditions. Among these was the assertion that any proceedings in respect of the debt allegedly due should have been issued, at the earliest, prior to 18 February 2018 and that, in circumstances where proceedings issued on 8 May 2018, the proceedings were issued outside of what was said to be the relevant six-year period and, thus, it was asserted that the proceedings are statute barred.
In particular it was asserted that, as regards the facility, the entire amount due became payable on 18 February 2012 and, as regards account 40307020, it was asserted that the last credit was on 30 March 2012, also outside what was described as “the 6-year limitation period”.
A copy of an order made by the Master on 22 March 2019 and perfected on 25 March of that year is exhibited in the pleadings and states as follows:
“The summary summons herein coming on for hearing this day pursuant to notice of motion dated the 5th day of September 2018 for an order granting the plaintiff liberty to enter final judgement against the defendant in the sum of €123,011.73; And said counsel for the plaintiff seeking to adjourn the said summons; The court doth refuse said adjournment. Whereupon and on hearing the plaintiff's counsel and on reading said Summons said Notice of Motion, Affidavit of Niall Purcell served with the said Notice and filed on the said date and Affidavit of service of the said Notice and Affidavit and on hearing said Solicitor for the Defendant, IT IS ORDERED that the said Motion be and the same is hereby dismissed AND IT IS ORDERED that the plaintiff do pay to the defendant the costs of this motion and an order for taxation”
On 29 March 2019 the plaintiff's solicitors issued a notice of motion which was initially returnable for 13 May 2019 seeking an order by way of an appeal setting aside the whole of the Master's order dated 22 March 2019 and seeking if necessary an extension of time for the bringing of that application (something which is unnecessary given that the present motion was issued within time) as well as seeking an order granting the plaintiff liberty to enter final judgement in the sum of €123,011.73.
The plaintiff's motion was grounded on an affidavit sworn, on 27 March 2019, by Mr Kevin Callan, solicitor for the plaintiff. At paragraph 5 of his affidavit, Mr Callan avers, inter alia, that: “… when the matter came before the Master…on 22 March 2019, counsel for the plaintiff applied to adjourn the matter, which application the Master refused”. He goes on to aver “In the circumstances the plaintiff was not in a position to proceed in any event in circumstances where the motion before the Master was contested”.
It is appropriate to observe, at this juncture, that it is not in dispute that the plaintiff's motion came before the Master on 22 March 2019 and that, firstly, as of that date, it was an application which was fully contested; secondly, on that date, the plaintiff was not in a position to proceed with its motion; thirdly, the plaintiff signalled no intention to abandon its application. On the contrary, the plaintiff initially sought an adjournment and, when that was not forthcoming, the plaintiff sought that the matter go to the Judge's List. It does not appear to me that anything turns on the precise point at which the plaintiff made an application for the matter to go to the Judge's List. There is no dispute about the fact that such an application was made by the plaintiff's counsel.
To return to the contents of Mr Callan's 27 March 29 affidavit, he goes on, in paragraph 5, to aver that: “ The Master then struck the motion out and awarded costs in favour of the defendant to be taxed in default of agreement before the plaintiff could apply to have the matter transferred to the judges list. When the plaintiff attempted to apply for same the Master indicated that in circumstances where the plaintiff indicated they could not proceed with their application today the matter stood struck out.”
In paragraph 6 of his affidavit, Mr Callan says that he is advised and believes that: “…in the circumstances the Master acted outside of his jurisdiction in striking the contested motion out and ought to have properly transferred the within matter to the Judges List to be dealt with by this Honourable Court in the usual course.” A similar averment is made in paragraph 7 and, in paragraph 8, Mr Callan avers that he is advised by the plaintiff and believes that the sum of €123,011.73 remains due and owing by the defendant. At paragraph 9, he avers that he believes the defendant has no defence and, at paragraph 10, he seeks relief as per the motion.
Earlier in this Ruling, I quoted the Master's 22 March 2019 Order, verbatim...
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