Everyday Finance DAC and Another v Lohan
|Mr. Justice Binchy
|11 October 2023
| IECA 246
|Court of Appeal (Ireland)
|Court of Appeal Record Numbers: 2019/93
 IECA 246
Court of Appeal Record Numbers: 2019/93
THE COURT OF APPEAL — UNAPPROVED
Summary judgment – Bona fide defence – Settlement agreement – Appellant appealing against orders for summary judgment – Whether the trial judge erred in law in determining that no bona fide defence existed
Facts: The defendant/appellant, Mr Lohan, appealed to the Court of Appeal from an ex tempore judgment, and resulting orders made by O’Regan J on 8th February 2019 whereby: (1) in the proceedings bearing record number 2016/2467S, O’Regan J did, pursuant to a notice of motion for an order for summary judgment, order that the appellant should pay the plaintiff/respondent, Allied Irish Banks Plc, the sum of €1,681,861.89, together with the costs of those proceedings; and (2) in the proceedings bearing record number 2016/2466S, O’Regan J did, pursuant to a notice of motion for an order for summary judgment, order that the appellant should pay the plaintiff/respondent, AIB Mortgage Bank, the sum of €79,059.49, together with the costs of those proceedings. The notices of appeal filed on behalf of the appellant in each case were identical and set out the following grounds of appeal: (1) the judge erred in law in determining that no bona fide defence existed; (2) the judge erred in law in determining that the condition precedent was not waived by the plaintiff in circumstances where no evidence was submitted to support that decision; (3) the judge erred in law in determining that no prior settlement agreement had been reached in circumstances where there was conflicting evidence on the factual matrix of the agreement; (4) the judge erred in law by placing undue deference on the evidence of the respondent, and decided conflicts of facts on affidavit, in particular the judge erred in determining that the agreement of February 2015 was not enforceable despite two deponents averring to it; (5) the judge erred in law in failing to apply the correct test to be employed on an application for summary judgment; and (6) the judge erred in law in failing to consider the appellant’s evidence in its totality. In each case the appellant sought orders setting aside the judgment of the High Court and, inter alia, an order to remit the proceedings to plenary hearing.
Held by Binchy J that, regarding the general assertion that the trial judge failed to apply the correct test applicable to applications for summary judgment, it was not said how the trial judge so failed. Binchy J noted that the trial judge examined the evidence and was satisfied that the settlement agreement relied upon by the appellant in the defence of the proceedings was not binding because the appellant had failed to execute and return the agreement (i.e. the new facility letter(s)) within the period specified in the letter(s). Binchy J held that the affidavit evidence before the trial judge, including that of the appellant, could have led to no other conclusion. Binchy J found that the settlement agreement exhibited by the appellant clearly stated that it had to be signed and returned by the appellant by a specified date; the appellant was reminded of this, before the expiration of that period, by the respondents, and his accountant was also copied with that correspondence. Binchy J noted that, following the expiration of the specified period, the respondents very reasonably afforded the appellant three further opportunities to return the agreement duly signed; when he failed to do so by the expiration of the last date offered by the respondents, they withdrew the offer of the agreement and it was only then that the appellant returned the offer letter(s) signed, offering by way of excuse that it had been mislaid by his secretary. Binchy J held that, in those circumstances, no binding agreement had been entered into between the parties such as to afford the appellant a defence to the proceedings.
Binchy J dismissed the appeal. His provisional order was that the respondents were entitled to an order directing the appellant to pay all of their costs incurred in connection with the appeal.
JUDGMENT of Mr. Justice Binchy delivered on the 11th day of October 2023
. This is an appeal from an ex tempore judgment, and resulting orders made by O'Regan J. on 8 th February 2019 in the above entitled proceedings whereby:
1) In the proceedings entitled Allied Irish Banks Plc, (“AIB”), plaintiff, and Cormac Lohan, defendant (bearing record number 2016/2467S) (“the AIB Proceedings”), O'Regan J., did, pursuant to a notice of motion for an order for summary judgment, order that Mr. Lohan (the appellant in both appeals) should pay AIB the sum of €1,681,861.89, together with the costs of those proceedings and
2) In the proceedings entitled AIB Mortgage Bank (“AIBM”), plaintiff, and Cormac Lohan, defendant ((bearing record number 2016/2466S) (“the AIBM Proceedings”), O'Regan J did, pursuant to a notice of motion for an order for summary judgment, order that the appellant should pay AIBM the sum of €79,059.49, to AIB Mortgage Bank, together with the costs of those proceedings.
. The proceedings in each case were issued by way of summary summons on 21 st December 2016. In the proceedings bearing record number 2467S, AIB sought judgment as against the appellant in the sum of €1,660,531.26. Judgment was sought in respect of six loan facilities said to be advanced by AIB to the appellant. Particulars of each of those facilities are provided in the summary summons, including the date of the facility, the account number, and the sum advanced in each case. In each case it is stated that: “at all material times the plaintiff reserved the right to demand repayment in respect of the loan facility.”
. At paragraph 9 of the summary summons, it is stated that the defendant has defaulted in repayment of the monies due and owing, and that despite demand being made, the appellant has failed, refused and or neglected to discharge the monies due and owing. There is then set out, in tabular form, particulars of the debt claimed by AIB. There are four columns in the table, under the following headings: Loan Account Number, Principal Due, Interest and Charges and Total Sum Due as at 26 th July 2016. The information in respect of each account is then provided under each heading. However, no particulars as to the computation of interest or charges are provided, nor does the summons cross refer to any other document in which this information is provided.
. By notice of motion dated 4 th May 2017, AIB sought judgment against the appellant in the sum of €1,671,488.07 comprising the principal sum of €1,669,545.77 together with continuing interest in the sum of €1,942.93. This motion was grounded upon an affidavit of Mr. Tom O'Neill, who describes himself as a case manager in the AIB. In paragraph 1, Mr. O'Neill deposes:
“I am employed by the plaintiff as a case manager and as such I have access to the computerised and other records of the plaintiff pertaining to these proceedings. I make this affidavit on behalf of the plaintiff and with its authority, from a diligent perusal of its books and records and from facts within my own knowledge save where otherwise appears and where so appearing I believe the same to be true”.
. Mr. O'Neill then proceeds to describe the six loan facilities which he avers were made available to and accepted by the appellant in each case, and he exhibits the offer letters pertaining to each facility. At paragraph 9 thereof, he deposes (in tabular form similar to style in the summons) as to the principal sum due in respect of each loan facility, the interest due in respect of each and the total amount due in respect of each loan facility. Mr. O'Neill exhibits copy statements relating to each of the accounts, and avers that the combined total due as of the date of his affidavit (28 th April 2017) is stated to be €1,671,488.07.
. In an affidavit sworn on 28 th June 2017, the appellant avers that Mr. O'Neill is not a suitable deponent on behalf of AIB to swear the affidavit grounding the application for summary judgment, because he is neither an officer nor a partner of the Bank. He further avers that owing to the uncertainty of the true role of Mr. O'Neill, he is disqualified from availing against the rule against hearsay as provided in the Bankers' Books of Evidence Act 1879, as amended. The appellant further avers that for this reason, the affidavit of Mr. O'Neill should be dismissed insofar as he avers to any matter outside of his direct knowledge, and therefore the notice of motion grounded on the affidavit of Mr. O'Neill should be dismissed.
. The appellant then further avers as to negotiations as between the appellant and AIB in late 2014 and early 2015. He avers that these negotiations culminated in an agreement on 19 th February 2015, witnessed by his accountant, a Mr. Nick Linnane, and a Mr. Shane O'Donoghue and a Ms. Marie Lyons on behalf of AIB. He avers that this agreement was subsequently evidenced in writing, and he exhibits a copy of the same.
. The appellant then proceeds to provide details of the agreement which he avers significantly reduced “the facilities and created new facilities and/or ordered the sale of properties over a certain period of time” and he avers that he has complied with the terms of the agreement and that AIB is estopped from withdrawing or resiling from the terms thereof. The appellant then further avers as to proceedings that he has issued as against both AIB and AIBM seeking specific performance of the agreement. The appellant avers that he has a good defence to the...
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