Crowley v Allied Irish Banks Plc T/A AIB Credit Card Services

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date18 March 2016
Neutral Citation[2016] IEHC 154
Docket Number[2015 No. 594 J.R.]
CourtHigh Court
Date18 March 2016

[2016] IEHC 154

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 594 J.R.]

BETWEEN
JOHN CROWLEY
APPLICANT
AND
ALLIED IRISH BANKS PLC T/A AIB CREDIT CARD SERVICES
RESPONDENT

Banking & Finance – Summary judgment – Discovery of documents – Non-compliance of order – Failure to disclose relevant material – Fair procedures

Facts: The applicant sought an order of certiorari for quashing the order of the Circuit Court affirming the order of the District Court granting an order for summary judgment and refusing the applicant's application for striking out the respondent's claim on the basis of non-compliance with an earlier order for discovery made by the said District Court. The applicant contended that the District Court had erred in law while making an order for summary judgment as the applicant had not been provided certain documents as required by the respondent in compliance with an earlier order of discovery.

Mr. Justice Richard Humphreys granted liberty to the applicant to amend his statement of grounds in order to seek an order of certiorari for quashing both orders for summary judgment and execution of that judgment on the basis that the impugned orders had been made in breach of fair procedures and natural justice. The Court held that in an application for judicial review, the Court had to determine whether the case could appropriately be dealt with by an appeal if the question of merits not legality was involved. The Court held that the failure by the respondent to inform the Court about the unavailability of the original agreement was an error that went to the procedure of fairness and legality. The Court observed that the liability of the applicant to pay the amount accrued on the credit card flowed directly from the original agreement and reliance on statements was not sufficient in that regard.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 18th day of March, 2016
1

In or about July 1989, the applicant made an application to the respondent bank for an AIB credit card. His original application form or agreement has been lost with the passage of time.

2

As of October 2008, the balance on the credit card was €160.74. However, in the period following that date, a substantial balance was built up.

3

On 29th February, 2012, the bank's solicitors wrote to the applicant seeking the balance of €17,955.88, which they stated was due at that time. On 23rd March, 2012, an ordinary civil bill was issued seeking an order for payment in this amount. The civil bill was issued to an incorrect address, although the applicant did, in fact, receive it, which one can be confident about because he entered an appearance on 5th April, 2012.

4

On 16th October, 2014, a motion was issued seeking summary judgment.

5

On 17th November, 2014, the applicant made an application under the Data Protection Act 1988 for his data as held by the bank.

6

On 6th January, 2015, he was told this documentation was available for collection. On 18th February, 2015, he attended at AIB Patrick Street, Cork and collected the material.

7

On 9th March, 2015, the Cork County Registrar made an order for substituted service to allow the applicant to be served by ordinary post. On 16th April, 2015, a notice of motion seeking summary judgment was served on the applicant. In response to this, the applicant issued his own motion for various reliefs including the production or discovery of documents, dated 15th May, 2015.

8

That motion was the subject of an order of His Honour Judge David Riordan on 19th May, 2015, favourable to the applicant. The order provided, inter alia, that documents be sent by the bank to AIB College Road, Cork, for collection by the applicant. It is not clear to me that all participants in that process were fully aware that such material as the bank in fact had had already been furnished. Such omissions as existed in the applicant's data pack as previously furnished appear to have arisen more from the non-existence or non-availability of documents, in particular the original agreement, rather than from a failure to disclose them. Following the making of that order, the bank did not immediately take any particular steps to implement it.

9

On 20th July, 2015, the applicant brought a motion seeking to strike out the proceedings for failure to furnish documentation in accordance with the order of Judge Riordan.

10

Perhaps stimulated by this motion, the bank then wrote to the applicant on 24th July, 2015, stating that documents would be available for collection.

11

On 28th July, 2015, His Honour Judge Seán Ó Donnabháin dealt with both of the motions, refusing the applicant's motion to strike out the proceedings and granting summary judgment on the bank's motion.

12

An execution order was issued dated 3rd September, 2015. The applicant then brought a motion in Cork Circuit Court dated 28th September, 2015, seeking to set aside the order of 28th July, 2015. This motion was heard and refused by Judge Riordan on 6th October, 2015.

13

The applicant now seeks leave to apply by way of judicial review for reliefs challenging the orders of the Circuit Court.

Should time be extended for bringing the leave application?
14

The present ex parte application for leave to seek judicial review was commenced on 2nd November, 2015, slightly out of time as regard the order of Judge Ó Donnabháin, but in relation to that the applicant says on affidavit that he was not given a copy of the order when he sought it (para. 32 of his affidavit of 22nd February, 2016) which I would accept as a sufficient explanation of the delay (combined with his effort to set aside the order, which was not altogether unreasonable given that the key point being made was that the court had not been given full information at that hearing or that there was a want of fair procedures) for the purposes of O. 84, r. 21(3) that there be good and sufficient reason for extending time and the circumstances that resulted in failure to make the application within time were either outside the control of the applicant or could not reasonably have been anticipated by the applicant. I would therefore extend time for the present application. As I have said in a judgment in F.G. v. Child and Family Agency (unreported, 18th March, 2016), being delivered today, an order extending time made inter partes is very different to such an order made ex parte, and is intended to enure to the benefit of the applicant as a res judicata at the substantive hearing rather than being open to renegotiation at the suit of a respondent at that stage for the reasons outlined in that judgment.

Is an appeal the appropriate remedy?
15

Where an applicant is dissatisfied with a decision that is subject to both appeal and judicial review, as in this case, the court is entitled at the leave stage to ask whether judicial review is, in fact, the most appropriate remedy. (See G. v. D.P.P. [1994] 1 I.R. 374per Finlay C.J. at pp. 377 to 378).

16

The rough dividing line between points suitable for judicial review and those suitable for appeal is that between legality and merits (see Sweeney v. Fahy [2014] IESC 50 (31st July, 2014) per Clarke J. at paras. 3.8 to 3.15). Any argument that the impugned decision is incorrect on the evidence is one as to merits. For the matter to be appropriate for judicial review, it must raise a ground going to legality, such as a breach of natural justice.

17

In the present case, the applicant did not appeal the order of 28th July, 2015, either within time or at all, or apply for an extension of time in that regard. During the hearing of the leave application, given the history of the proceedings and the nature of the complaints made, as well as the question of whether finality of the matter could be achieved, I suggested to the parties that consideration might be given to facilitating an extension of time for appeal, rather than pursuing the present application. Commendably, by letter dated 19th February, 2016, the bank made an open offer in this regard. The applicant however has insisted on his right to pursue his complaints by way of judicial review.

18

In written submissions, Mr. Daniel Donnelly, B.L. for the respondent argued that ‘ the applicant's failure to seek [to appeal] cannot have the effect of making judicial review appropriate where it would not otherwise be so’ (para. 25). That formulation has a powerful economy and force which reflects the correctness of the proposition it embodies. But it seems to follow that the other side of that coin is that an applicant's failure to pursue an option of appeal that is made available to him does not mean that a point that is genuinely appropriate for judicial review ceases to be so.

19

On that basis, it seems to me, that even if the applicant's failure to take up the bank's offer could be viewed as unreasonable, that is not automatically a ground to refuse leave if a point genuinely appropriate for judicial review is made out. However, that refusal may be relevant to the question of costs, because in that context, the court can always have regard to the conduct of the parties in relation to the litigation in terms of reasonableness or otherwise. However, that is not a matter that arises at this stage.

20

The applicant, who appears in person, has set out ten grounds in an amended statement dated 22nd February, 2016. The first ground, which is numbered ‘1’ (as is the second ground), is...

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