Everyday Finance dac v Woods

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 19 July 2019
• Neutral Citation: [2019] IEHC 605
• Docket Number: [2019/324 S]
• Court: High Court
• Date: 19 July 2019

BETWEEN

Everyday Finance Designated Activity Company

PLAINTIFFS

AND

Enda Woods

and

Ciaran McNamara

DEFENDANTS

[2019] IEHC 605

McDonald J.

[2019/324 S]

THE HIGH COURT

COMMERCIAL

Summary summons – Production of documents – Loan facilities – Defendants seeking an order that the plaintiffs produce certain documents – Whether the production of the documents was necessary in order to dispose of the application for summary judgment fairly

Facts: The plaintiffs, Everyday Finance dac, claimed payment of just over €4m alleged to be due on foot of a loan facility or a number of loan facilities advanced by Allied Irish Banks plc to the defendants, Ms Woods and Mr McNamara. The plaintiffs claimed to be the successors in title to Allied Irish Banks by virtue of a Deed of Transfer dated 2nd August 2018, as amended and restated by a Deed of Amendment dated 22nd October 2018. The defendants vehemently disputed the entitlement of the plaintiff to make demand and said that the demand was contrary to an arrangement which they reached with Allied Irish Banks in 2010 as to how the loan accounts were to be conducted and which they contended they had honoured fully such that no entitlement to make a demand had accrued. The defendants also disputed the plaintiffs’ title to sue them. The defendants did not accept that the Deed of Transfer and Amendment Deed were effective. The defendants suggested that the very fact that the Deed of Amendment was required in October 2018 gives rise to a question as to the effectiveness of the transfer and they asked why a second deed was required. The defendants applied to the High Court for an order pursuant to Order 31, Rule 18 that the plaintiffs produce certain documents referred to in the indorsement of claim on the Summary Summons.

Held by McDonald J that, concerning the order sought at paragraph 1(i) of the Notice of Motion, he could not see any basis on which it could be said that the inspection of the mortgage was necessary in order to dispose of the application for summary judgment fairly. He held that no order was required in respect of paragraph 1(ii) as the defendants had been given the terms and conditions in question. He refused the order sought at paragraph 1(iii) as he was of the view that the defendants had not satisfied the test of necessity. Concerning the matters set out at (iv) and (v) of paragraph 1, in circumstances where the plaintiffs moved for judgement as successor in title to Allied Irish Banks and where the defendants contested their title, it seemed to him that it was necessary in the interests of disposing fairly of that issue that the defendants should see the relevant parts of those deeds which evidence the transfer of their loans and security from Allied Irish Banks to the plaintiff; however, the cases showed that the Courts have consistently taken the view that it is only those provisions evidencing the assignment of the relevant loans and the security which are relevant in this context and that it was reasonable for the balance of the documents to be redacted.

McDonald J held that, concerning the documents set out at paragraphs 2(i), (ii) and (iii), the Statements of Account provided were incomplete; the accounts for the previous five years are missing. In circumstances where the missing pages had not been addressed in any notice served under Order 31, he did not believe that he could make any order under Order 31, Rule 18.

Application granted in part.

EX-TEMPORE JUDGMENT of Mr. Justice Denis McDonald delivered on 19 July, 2019

1 This is an application in Summary Summons proceedings for an order pursuant to Order 31, Rule 18, that the Plaintiff produce certain documents which are referred to in the indorsement of claim on the Summary Summons. There are a number of documents identified in the Notice of Motion which I will consider individually in a moment. Before doing so, it is necessary to set out some of the relevant facts, the first being that this is a claim for payment of just over €4m alleged to be due on foot of a loan facility or a number of loan facilities advanced by Allied Irish Banks plc to the Defendants.

2 The Plaintiffs claim to be the successors in title to Allied Irish Banks by virtue of a Deed of Transfer dated 2nd August 2018, as amended and restated by a Deed of Amendment dated 22nd October 2018. Notice of the assignment was given to the debtors on the

8 th August 2018, that is to say prior to the Deed of Amendment of 22nd October 2018. The Letters of Demand were subsequently issued by Link Asset Services on behalf of the Plaintiff on the 16th January 2019. The Defendants vehemently dispute the entitlement of the Plaintiff to make demand and say that the demand is contrary to an arrangement which they reached with Allied Irish Banks in 2010 as to how the loan accounts were to be conducted and which they contend they have honoured fully such that no entitlement to make a demand has accrued.

3 The Defendants also dispute the Plaintiffs title to sue them. On affidavit, it was said that this was because they claim that Allied Irish Banks had no entitlement under the contractual arrangements with them to assign the loans or the underlying security over Blackrock House. But this was expanded upon in submissions yesterday to say that title to sue was in issue more widely such that the Defendants do not accept that the Deed of Transfer and Amendment Deed were effective. In making that submission, the Defendants suggested that the very fact that the Deed of Amendment was required in October 2018 gives rise to a question as to the effectiveness of the transfer and they ask why was a second deed required. That is a very brief overview of the basic background to the application.

4 It is next necessary to consider very briefly the legal test that an applicant for an order under Order 31, Rule 18, must meet. The test is set out in sub rule 2:

‘An order shall not be made under this rule if and insofar as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.’

The test essentially is: is the production of the document necessary to dispose fairly of the cause or matter. I am not sure that it is really necessary to put any gloss on those words but the case law suggests that disclosure will be necessary where

(a) it will give litigious advantage to the party seeking inspection and

(b) where the information is not available to the party seeking inspection by some other means.

The case law also shows very clearly that the party seeking inspection has the burden of satisfying the Court that inspection is in fact necessary in the sense described.

5 Bearing that test and bearing also that burden in mind, I now turn to the individual documents the subject matter of the present application. Paragraph 1(i) of the Notice of Motion seeks a copy of a mortgage dated 11th August 2005. A copy mortgage dated the 12th August 2005 has been provided but the date of the mortgage which is referred to in the indorsement of claim is stated to be the 11th August 2005. It may seem at first sight that, if a Plaintiff has chosen to refer to a document in the indorsement of claim, then the document must be relevant and should be produced, but that ignores the test that applies under Order 31, Rule 18(2) and the burden on the moving party which I have earlier described. These are Summary Summons proceedings to recover a debt. Although the mortgage is referred to in the indorsement of claim it is not in fact relevant to the debt claim and the Plaintiff has confirmed in the course of the hearing that it does not rely on it to advance its claim. In those circumstances, I cannot see any basis on which it could be said that the inspection of the mortgage is necessary in order to dispose of the application for summary judgment fairly. Yesterday, Mr. Howard suggested that the mortgage might possibly contain a term that, in some way, supports the case his clients seek to make about the arrangement entered into with Allied Irish Banks in 2010 but that seems to me to be pure speculation on his part. No reasoned argument was advanced to support the speculation and more importantly, as paragraph 6 of Mr. McNamara's affidavit makes clear, the basis of the Defendants' defence is an arrangement said to be arrived at in 2010, such that it is impossible to see how the provisions of the mortgage executed in 2005 can be said to be relevant to that arrangement. I therefore refuse the order sought at paragraph 1(i) of the Notice of Motion.

6 The second relief which is set out in paragraph 1(ii) of the Notice of Motion is described as ‘Terms and conditions dated 4th February 2008.’ And that refers to paragraph 10 of the indorsement of claim. But, in fact, what paragraph 10 of the indorsement of claim says is that the Defendants signed their acceptance of the terms and conditions dated 4th February 2008. That is borne out by the exhibit at page 61 of Book A, which shows that the acceptance form was signed by the Defendants and is dated 4th February 2008. The Defendants have been given the terms and conditions in question and therefore, no order is required in...