EBS Ltd v William Campbell and Another

JudgeMr. Justice Birmingham
Judgment Date17 April 2013
Neutral Citation[2013] IEHC 154
CourtHigh Court
Date17 April 2013

[2013] IEHC 154


EBS Ltd v Campbell





O TUAMA v CASEY UNREP CLARKE 28.2.2008 2008/51/10869 2008 IEHC 49

AER RIANTA v RYANAIR LTD 2001 4 IR 607 2002 1 ILRM 381 2001/1/68


HARRISRANGE v DUNCAN 2003 4 IR 1 2012/12/2982 2002 IEHC 14



Summary judgment

Defences - Estoppel - Undue influence - Misrepresentation - Deceit - Whether same test applied to appeal and first instance application - Whether arguable defence - Whether grant of adjournment to second defendant where refusal to first defendant permissible - Ó Tuama v Casey [2008] IEHC 49, (Unrep, Clarke J, 28/2/2008) and Ulster Bank Ltd v Roche and Buttimer [2012] IEHC 166, [2012] 1 IR 765 distinguished - Aer Rianta v Ryanair [2001] 4 IR 607 and Danske Bank v Durkan New Homes [2010] IESC 22, (Unrep, SC, 22/4/2010) applied - Harrisrange Limited v Duncan [2003] 4 IR 1 followed - Judgment granted (2011/4592S - Birmingham J - 17/4/2013) [2013] IEHC 154

EBS Ltd v Campbell

Facts: From 2006 onwards, the defendants had been advanced a significant sum of monies from the plaintiff pursuant to three loan facility letters signed between the parties. On the 9 th November 2011, proceedings were issued by the plaintiff as a result of the defendants” failure to repay the outstanding balance which at that time stood at €8,824,152.85. On the 29th March 2012, a request to adjourn proceedings by the first named defendant was refused in the Master”s Court and instead an order was made to allow the plaintiff liberty to enter final judgment against him. The case against the second named defendant was adjourned by consent. The case therefore came before the High Court with the first defendant appealing the order of the Master and the second defendant defending an application for summary judgment brought by the plaintiff.

It was the first defendant”s claim that the plaintiff was estopped from seeking recovery of the balance owed as during 2011, an agreement was reached between him and the plaintiff that the latter would take no further action for the recovery of the outstanding balance for a period of a few years if the defendants provided additional securities. The second defendant claimed that she was subjected to undue influence by her estranged husband which provided enough clear signals to the plaintiff to require them to investigate whether she was making decisions independently.

Held by Birmingham J that in relation to the first defendant”s claim, the correspondence between him and the plaintiff during 2011 indicated that whilst a number of proposals were made between them, a concluded agreement had not been reached that would give rise to an estoppel. It was therefore held that the proposed defence was untenable and that the plaintiff was entitled to summary judgement against him.

In regards to the second defendant, it was held that the allegation of undue influence by the first defendant appeared to be inconsistent with the financial situation of the parties. She gave the impression that she only agreed to the loan facilities as the first defendant had told her they stood to lose their wealth if she did not do so. However, the evidence before the court made it clear that they in fact had substantial assets at the time. It was further clear that the second defendant had acquired significant property interests as a result of the business activities of her husband. Her claim of undue influence was therefore held to lack any supporting evidence with there being no cause for the plaintiff to consider the need for an inquiry into whether she was making decisions independently.

Plaintiff entitled to summary judgment against both defendants.


1. The background to the matter which has now come before the Court is that, pursuant to three loan facility letters, the plaintiff agreed to advance to the defendants a very significant sum by way of loan, made up as €2,500,000 by reference to the first facility letter of the 16 th November, 2006, €3,050,000 by reference to the second facility letter of the 14 th December, 2006, and €3,525,000 by reference to the third facility letter. The defendants, it should be explained, were married to each other but are now estranged.


2. Difficulties developed in relation to the repayment of the loans, indeed it is not seriously disputed, subject to an issue raised by the second defendant, but that the defendants failed to meet their repayment obligations, with the result that a summary summons was issued dated the 9 th November, 2011, claiming the sum of €8,824,152.85, being the amount alleged to have been due as of the date immediately prior to the commencement of the proceedings. Appearances were entered by both defendants and the matter came into the Master's List in the usual way.


3. On the 29 th March, 2012, the Master refused a request for a further adjournment to the first named defendant, the matter having been adjourned on a previous occasion, and instead gave the plaintiff liberty to enter final judgment against the first named defendant in the sum of €8,865,784.10 and by consent adjourned the case as against the second named defendant to the 10 th May, 2012. Subsequently, the case as against the second named defendant was transferred to the Judges' List.


4. The position, therefore, is that the cases as against both defendants have arrived by somewhat different routes and the defendants find themselves in somewhat different positions in that liberty to enter final judgment has been granted against the first named defendant, and he has appealed that order, but no comparable order has been made against the second named defendant. On behalf of the plaintiff it has been argued that this has practical consequences and that the first named defendant bears a positive onus to establish that the order of the Master should be vacated and that liberty to defend be given to him. It is argued that he finds himself at a greater disadvantage than his co-defendant. The case of Ó Tuama v. Casey [2008] IEHC 49, a judgment of Clarke J., of the 28 th February, 2008, was relied on in support of the proposition that the first named defendant's position differed from other defendants, who are seeking liberty to defend, in that he was required to establish not just that he had an arguable defence to the proceedings, but to go further and establish that he had a defence which had a real prospect of success. In my view, the situation that Clarke J. was dealing with is entirely different to the current situation. There, judgment had been given obtained by default and, indeed, as Clarke J. held, had been obtained regularly by default. The proceedings had come to a conclusion in relation to liability until the defendant moved to set aside the judgment and re-open the issues. Here, the situation is quite different, the Master had given liberty to enter final judgment but from that order, as from all orders of the Master, there is a full and unqualified right of appeal. Appeals from the Master, just like appeals from the District Court to the Circuit Court, or from the Circuit Court to the High Court, are by way of re-hearing. Accordingly, I reject any suggestion that the first named defendant is to be regarded as being at any disadvantage. Accordingly, the plaintiff's claim for summary judgment against the first named defendant and the defendant's request to defend and have the case sent for plenary hearing, fall to be considered in accordance with the well established principles applicable to claims for summary judgment. I will address these principles presently, having referred to the arguments that have been advanced by both defendants.


5. However, before doing so, there is one procedural issue that has been raised to which I should refer. One element of the argument advanced by the first named defendant relates to the fact that the Master refused an application from for the first named defendant for a further adjournment of the proceedings while at the same time granting an adjournment to the second named defendant, which adjournment was on consent. It is said this was an unacceptable, indeed, impermissible procedure.


6. In my view, there is no substance in this complaint. The Master was perfectly entitled to differentiate between the defendants. In a situation where the motion for judgment had already been adjourned once, that a further adjournment would not readily be forthcoming was scarcely surprising. In a situation where, notwithstanding that the case had been previously listed, the plaintiff was consenting to an adjournment of the case against the second named defendant who was experiencing ill health, that the case against the two defendants would become separated is hardly at all surprising. Having appealed the decision of the Master, the first named defendant is, as I have already made clear, entitled to a complete re-hearing, a hearing de novo. He has had the opportunity to put the defence that he wishes to make on affidavit and has availed of that opportunity.


7. It is, perhaps, convenient to summarise briefly the case that each defendant advances which it is said is sufficient to see the case go to plenary hearing. I will then address each of the suggested defences in greater detail in the context of the principles that have been established in order to determine whether the case is one for summary judgment or whether these are cases where liberty to defend should be given.


8. The case on behalf of the first named defendant is that throughout 2011 he had, as he puts it...

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