EBS Ltd v Dempsey
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 31 October 2019 |
| Neutral Citation | [2019] IECA 277 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2017 580 |
| Date | 31 October 2019 |
[2019] IECA 277
THE COURT OF APPEAL
Irvine J.
Baker J.
Donnelly J.
Record Number: 2017 580
Judgment in default of appearance – Summary summons – Loan – Appellant seeking to appeal against the refusal of the High Court to set aside a judgment obtained by the respondent against the appellant in default of appearance – Whether the appellant had been properly served with summary summons
Facts: The appellant, Ms Dempsey, appealed to the Court of Appeal against the refusal of the High Court to set aside a judgment obtained by the respondent, EBS Ltd, against the appellant in default of appearance in the amount of €860,485.75 plus costs in the amount of €384.00 (the default judgment). The proceedings were initiated by summary summons issued on the 18th December, 2013. EBS sought judgment against the appellant on foot of the terms of a loan facility letter dated 18th April, 2005 pursuant to which EBS advanced to the appellant a loan in the amount of €860,000. The default judgment was entered in the Central Office of the High Court on the 7th July, 2014. Two issues arose for consideration on the hearing of the motion in the High Court. These were: (a) whether the appellant had been properly served with summary summons; and (b) whether the appellant had a good defence to the claim of EBS. At the hearing of this appeal those two points were pursued but the good defence claimed by the appellant was entirely different to that advanced in the High Court. It was acknowledged by EBS that if there had been no proper service of the summary summons, then the default judgment should be set aside without any need to establish an arguable or good defence.
Held by Donnelly J that, in seeking an order to set aside the judgment obtained in default in the Central Office by EBS, the onus lay on the appellant to satisfy the court that (a) service of the summons was irregular or (b) that she had a good and arguable defence to these proceedings. In circumstances where there was a clear conflict on the affidavits concerning the central issue in the motion, that is whether the professional summons server had actually served the appellant, Donnelly J held that the trial judge was correct in finding that this issue was impossible to decide without oral evidence. In circumstances where the appellant had not sought to cross-examine the professional summons server and the solicitor for EBS, Donnelly J held that the appellant had failed to discharge the onus of proof. In relation to the grounds of defence raised in the High Court, Donnelly J held that the trial judge correctly concluded that these did not, on the facts, amount to a good defence. In relation to the points raised at the eleventh hour in this appeal, Donnelly J held that those points did not disclose a good or arguable ground of appeal.
Donnelly J held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal against the refusal of the High Court to set aside a judgment obtained by EBS Limited (“EBS”) against the appellant in default of appearance in the amount of €860,485.75 plus costs in the amount of €384.00 (the “default judgment”).
The proceedings were initiated by summary summons issued on the 18th December, 2013. EBS sought judgment against the appellant on foot of the terms of a loan facility letter dated 18th April, 2005 pursuant to which EBS advanced to the appellant a loan in the amount of €860,000. The default judgment was entered in the Central Office of the High Court on the 7th July, 2014.
Two issues arose for consideration on the hearing of the motion in the High Court. These were: -
(a) Whether the appellant had been properly served with summary summons; and
(b) whether the appellant had a good defence to the claim of EBS.
At the hearing of this appeal those two points were pursued but it should be noted that the good defence claimed by the appellant was entirely different to that advanced in the High Court. It was acknowledged by EBS that if there had been no proper service of the summary summons, then the default judgment should be set aside without any need to establish an arguable or good defence.
The affidavit of service upon which judgment was given was initially sworn by Colum Smith on the 7th February, 2014. In that affidavit he averred as follows: -
“At the time of such service aforesaid, I showed the original of the said summons to the defendant who identified herself to me.”
That affidavit was re-sworn on the 27th May, 2014. That affidavit contained handwritten additions inserted into the original. The new paragraph three now reads as follows: -
“At the time of such service aforesaid, I showed the original of the said summons to the defendant whose appearance I was acquainted with.”
According to the solicitor for EBS, the affidavit was re-sworn because when it was presented to the Central Office of the High Court by the solicitors for EBS, they were informed of a change in protocol. This meant the Central Office would no longer accept an affidavit of service which merely specified that the party being served had identified themselves to the party effecting service. Instead, in order to mark judgment in default of appearance, the Central Office now requires all affidavits of service to specify that the appearance of the party being served was known to the party effecting service at the time such service was effected.
In her affidavit grounding her application to set aside judgment, the appellant averred that she did not identify herself to Mr. Smith, nor was he acquainted with her appearance on the 27th January, 2014. She said he did not personally serve her at Oasis Florists, her business, on the said date as she was not at the premises at that date. She said she was at the house of one of her sisters for an annual event with her sisters and did not return home until late that evening. She said that when she was not in attendance at her florist shop, another employee, Aisling Fanning, worked alone on the premises with the exception of busy periods such as St. Valentine's Day. She stated she believed that on the 27th January, 2014 Aisling Fanning was working alone in Oasis Florists. She said that given the nature of the business of being a florist she maintained a daily business diary and retained copies of orders. She exhibited the daily business diary from the 25th January, 2014 to the 1st February, 2014. This did not contain any information relevant to the proceedings.
Aisling Fanning also swore an affidavit saying that on the 27th January, 2014, she was working alone in Oasis Florists for the entire day as the defendant was away. She said that Mr. Smith did not attend Oasis Florists on the 27th January, 2014 and that in the circumstances, he did not serve any documents on the defendant on that date.
Mr. Smith, a professional summons server, swore an affidavit in reply to the motion. Having set out the circumstances in which his affidavit of service had come to be amended, he went on to describe the manner in which service was effected. He said that he first tried to serve the summons on the 15th January, 2014. Before trying to effect service he had noted various images of the appellant from a Google search of her business website, her association with Terenure Traders Association and her Facebook public profile. He said that he had attended her private residence, and he spoke with a young man who identified himself as her son. He called back at the time he was advised she would return, but there was no answer. On that date, he also attended the business of Oasis Florists and was advised by a female member of staff that the appellant would be likely to return around 4pm. He returned after that time but the appellant did not appear to be in attendance. He then described that between the 15th January, 2014 and 23rd January, 2014, he made a number of further attempts to effect personal service on the appellant at her place of residence. There was no response on each occasion.
On the morning of the 23rd January, 2014, Mr. Smith attended personally outside the appellant's residence and waited there for almost two hours in the hope he might encounter her. Ultimately, he was told by another woman that the appellant had already left but he was not given an answer as to what time the appellant ordinarily left the property. He stated that on the basis of those matters, he formed a view that the appellant was deliberately evading service of the proceedings.
Mr. Smith said that in those circumstances he attended personally with his wife at the appellant's business premises on the afternoon of the 23rd January, 2014. Mr. Smith and his wife indicated they were planning a large event and sought to speak to the appellant directly. They were advised that the appellant was not present. Subsequently, Mr. Smith's wife contacted the shop looking to speak with the appellant and was told the appellant would be present at the business premises on the 27th January, 2014 if she wished to call in.
Mr. Smith said that he called to the premises at approximately 3 pm and effected personal service on the appellant. He said he was acquainted with her appearance from the Google search. He said that as he was effecting service on the appellant, she identified herself to him and stated “you have been looking for me” or words to that effect. He said in those circumstances he has no doubt but that he effected personal service of the summary summons on the defendant on the 27th January, 2014 in the manner detailed in his affidavit of service.
He disputed the relevance of diary entries. He made a general comment that it would be unusual for a party to record the fact...
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