Cabot Financial (Ireland) Ltd v Hamill and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 12 July 2023
• Neutral Citation: [2023] IEHC 405
• Court: High Court
• Docket Number: [2021 25 S]

Between

Cabot Financial (Ireland) Limited

Plaintiff

and

John Hamill and Brian Hamill

Defendants

[2023] IEHC 405

[2021 25 S]

THE HIGH COURT

Summary judgment – Loan facilities – Transfer – Plaintiff seeking summary judgment – Whether there was insufficient evidence of a transfer of the relevant loan facilities to the plaintiff

Facts: In 2007, loan facilities were entered into between the defendants, Messrs Hamill, and ACC plc. The plaintiff, Cabot Financial (Ireland) Ltd, issued a summary summons on 15 January 2021 seeking judgment in the sum of €899,830.84. The said sum was pleaded to be the total due and owing after all just credits and allowances. The defendants did not dispute: entering the loan facilities in question; agreeing to the terms governing same; drawing down the relevant monies; default in respect of repayment; demand for repayment having been served on them; and that no payment had been made since demand. On 4 June 2021, the plaintiff issued a motion seeking liberty to enter final judgment against the defendants. In opposition to the plaintiff’s application, the defendants asserted the following: (i) insufficient evidence of a transfer of the relevant facilities to the plaintiff; (ii) a failure to comply with s. 28 (6) of the Supreme Court of Judicature (Ireland) Act 1877, in particular, an alleged failure of the assignor to notify the defendants of the transfer; (iii) a statement of account exhibited by the plaintiff could not be considered reliable; (iv) with reliance on Sheehan v Breccia [2018] IECA 286 and Flynn v Breccia [2018] IECA 273, surcharges comprising part of the claim constituted a penalty and for the relevant statement of account to be accurate, the plaintiff would need to inter alia remove any surcharges and/or penalties over the term of the loan.

Held by the High Court (Heslin J) that the defendants did not deny availing of the facility, they did not deny default on their part, they did not deny the validity of the demands, they did not dispute failure to repay, and they did not assert any error in the calculation of the sum claimed. Heslin J held that the plaintiff had demonstrated the assignment to it of the facility and compliance with s. 28 (6) of the 1877 Act. Heslin J held that the defendants had not raised any arguable defence. Heslin J held that the plaintiff was entitled to summary judgment in respect of the principal sum of €495,807.03. Heslin J held that the balance of the plaintiff’s claim should be a matter for plenary hearing concerning only the plaintiff’s entitlement to interest/surcharge interest. For the avoidance of doubt, the issues raised in opposition to the plaintiff’s claim for principal (the transfer of the facility to the plaintiff, compliance with the 1877 Act and reliance on the Civil Law and Criminal Law (Miscellaneous Provisions Act) 2020) were found by the Court not to constitute arguable defences and, therefore, cannot be raised when the interest/surcharge issue is dealt with by way of plenary hearing.

Heslin J held that, having regard to the “normal” rule that “costs follow the event”, and in light of s. 169 of the Legal Services Regulation Act 2015, his preliminary view was that the justice of the situation was best met by an order for costs in favour of the plaintiff, being the “entirely successful” party.

Summary judgment granted.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 12th day of July 2023

Introduction

1 . These proceedings arise out of loan facilities entered into, in 2007, between the Defendants and ACC plc.

2 . The Plaintiff issued a summary summons on 15 January 2021 seeking judgment in the sum of €899,830.84. The said sum was pleaded to be the total due and owing after all just credits and allowances and I will presently look at the contents of the summary summons in greater detail. The claim, as pleaded at para. 16 of the summary summons, comprised the following:

Principal	Interest	Surcharge	Adjustments	Total
€495,807.03	€357,815.50	€53,461.70	-(€7,253.48)	€899,830.84

3 . The Defendants do not dispute:-

(i) entering the loan facilities in question;

(ii) agreeing to the terms governing same;

(iii) drawing down the relevant monies;

(iv) default in respect of repayment;

(v) demand for repayment having been served on them; and

(vi) that no payment has been made since demand.

4 . An appearance was entered on behalf of the Defendants on 4 February 2021.

5 . On 4 June 2021, the Plaintiff issued a motion seeking liberty to enter final judgment against the Defendants.

Applicable principles

6 . The principles which guide this Court's approach to a summary judgment application are well known and it is sufficient for present purposes to quote from para. 9 of Mr. Justice McKechnie's oft–cited decision in Harrisrange Limited v. Duncan [2003] 4 IR 1, as follows:-

“(i) The power to grant summary judgment should be exercised with discernible caution;

(ii) In deciding upon this issue the Court should look at the entirety of the situation and consider the particular facts of each individual case, there being several ways in which this may best be done;

(iii) In so doing the Court should assess not only the Defendant's response, but also in the context of that response, the cogency of the evidence adduced on behalf of the Plaintiff, being mindful at all times of the unavoidable limitations which are inherent on any conflicting affidavit evidence;

(iv) Where truly, there are no issues or issues of simplicity only or issues easily determinable, then this procedure is suitable for use;

(v) Where however, there are issues of fact which, in themselves are material to success or failure, then their resolution is unsuitable for this procedure;

(vi) Where there are issues of law, this summary process may be appropriate but only so, if it is clear that fuller argument and greater thought, is evidently not required for a better determination of such issues;

(vii) The test to be applied, as now formulated is whether the Defendant has satisfied the Court that he has a fair or reasonable probability of having a real or bona fide defence; or as it is sometimes put, ‘is what the Defendant says credible?’, — which latter phrase I would take as having as against the former an equivalence of both meaning and result;

(viii) This test is not the same as and should be not elevated into a threshold of a Defendant having to prove that his defence will probably succeed or that success is not improbable, it being sufficient if there is an arguable defence;

(ix) Leave to defend should be granted unless it is very clear that there is no defence;

(x) Leave to defend should not be refused only because the Court has reason to doubt the bona fides of the Defendant or has reason to doubt whether he has a genuine cause of action;

(xi) Leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence and finally;

(xii) The overriding determinative factor, bearing in mind the constitutional basis of a person's right of access to justice either to assert or respond to litigation, is the achievement of a just result whether that be liberty to enter judgment or leave to defend, as the case may be”.

7 . Commenting on the relevant threshold, Murray J. in the Court of Appeal's 6 October 2022 decision in Feniton Property Finance DAC & Anor v. McCool [2022] IECA 217 stated (at para. 11):-

“ 11. At the same time, while the court must be cautious in granting summary judgment, and while the requirement that a Defendant establish a fair and reasonable probability of the Defendant having a defence is a relatively low threshold, it is a threshold: it is neither in the public interest nor in the interests of the parties that straightforward claims for a debt or liquidated demands should require to be determined by plenary hearing, with the additional delay and cost that such a hearing involves and the additional burden thereby placed on the resources of the courts (see Promontoria (Aran) Ltd. v. Burns [2020] IECA 87 (‘ Burns’ at para. 4). The Defendant must, accordingly, lay a basis on which the court can conclude that there is in truth an issue to be tried, and that that issue is neither simple nor capable of being easily determined (see Prendergast v. Biddle, Unreported, Supreme Court, 31 July 1957)”.

Affidavits

8 . The Plaintiff's application was grounded on an affidavit sworn on 2 June 2021 by Mr. Tom Dillon, a director of the Plaintiff. A replying affidavit was sworn by the Second-Named Defendant, on behalf of both Defendants, on 2 December 2021. A supplemental affidavit was sworn by Mr. Dillon on 25 March 2022. In circumstances which I will presently refer to, Mr. Dillon swore a second supplemental affidavit on 27 June 2023 and, at the conclusion of the hearing which took place on 29 June 2023, I accepted a copy of same de bene esse.

9 . It is fair to say that, in opposition to the Plaintiff's application, the Defendants assert the following:-

(i) insufficient evidence of a transfer of the relevant facilities to the Plaintiff;

(ii) a failure to comply with s. 28 (6) of the Supreme Court of Judicature (Ireland) Act 1877 (“the 1877 Act”), in particular, an alleged failure of the assignor to notify the Defendants of the transfer;

(iii) that a statement of account exhibited by the Plaintiff cannot be considered reliable;

(iv) the Defendants also contend (with reliance on Sheehan v. Breccia [2018] IECA 286 and Flynn v. Breccia [2018] IECA 273) that surcharges comprising part of the claim constitute a penalty and submit that for the relevant statement of account to be accurate, the Plaintiff would need to inter alia remove any surcharges and/or penalties over the term of the loan (see para. 2.17 of the Defendant's written...