First National Commercial Bank Plc v Anglin

• Jurisdiction: Ireland
• Judge: Mr Francis D Murphy
• Judgment Date: 27 June 1996
• Neutral Citation: [1996] IESC 1
• Court: Supreme Court
• Docket Number: [S.C. No. 154 of 1989]
• Date: 27 June 1996

FIRST NATIONAL COMMERCIAL BANK PLC v. ANGLIN

BETWEEN

FIRST NATIONAL COMMERCIAL BANK PLC

Plaintiff/Respondent

AND

JOHN JOSEPH FRANCIS ANGLIN ALSO KNOWN AS SEAN ANGLIN

Defendant/Appellant

[1996] IESC 1

Hamilton C.J.,

Denham J.,

Murphy J.

154/96

THE SUPREME COURT

Synopsis:

PRACTICE

Summary summons

Judgment - Entry - Liberty - Application - Plaintiff's claim for liquidated sum on foot of defendant's guarantee - Motion contested by defendant - Affidavit filed by defendant denying execution of guarantee on the date appearing thereon - No credible basis for defence to summons - Plaintiff given liberty to enter judgment - Rules of the Superior Court, 1986 (S.I. No. 15), order 37, r. 7 - (154/96 - Supreme Court - 27/6/96) - [1996] 1 I.R. 75

|First National Commercial Bank Plc v. Anglin|

Citations:

IRISH DUNLOP CO LTD V RALPH 1961 95 ILTR 70

BANQUE DE PARIS V DE NARAY 1984 1 LLOYDS REP 21

NATIONAL WESTMINSTER BANK PLC V DANIEL 1993 1 WLR 1453

1 Judgment of Mr Francis D Murphy delivered the 27th day of June 1996. [NEM DISS]

2 The proceedings herein were commenced by Summary Summons issued on the 28th of July 1992 in which the Plaintiff claimed as against the Defendant the sum of STG£950,000.00 together with interest on foot of a guarantee dated the 1st day of February 1989 whereby the Defendant purported to guarantee the payment by Thousand Oaks Limited of all or any monies due by that company to the Plaintiff up to but not exceeding the sum of STG£950,000.00 together with interest thereon.

3 The matter came before the Master of the High Court pursuant to Notice of Motion dated the 28th day of October 1994 grounded upon the said summons and the affidavit of Derek William Hawkins sworn therein on the 18th October 1994.

4 In an affidavit sworn on the 20th of January 1995 the Defendant disputed the Plaintiff's claim herein on grounds which included the following:-

5 2 " 3. I firstly beg to refer to the Guarantee which was entered herein dated the 1st February, 1989. I note that the Guarantee is under seal. I also note that my signature is on the Guarantee. I have to say first of all, that I did not sign this Guarantee on 1st February 1989. On that occasion, and for a considerable period of time thereon, I was out of the United Kingdom and in Austria on business during that whole week in February of 1989. I further say that I signed no document in the company of Andrew Axelsen, who is the Company Secretary of the Merrion Group, which was the holding company of Thousand Oaks Limited. Accordingly, I say and believe that the Guarantee which is purported to be entered herein is defective relating to two material aspects.

6 And therefore I say and believe and have been informed by my legal advisors that it is void and inoperative. I say at the very least, that since I could not have signed the Guarantee in the presence or in the witness of the said person, or on the date the Guarantee is purported to be signed, that this matter should go to Plenary hearing."

7 The Master of the High Court directed that the case be placed in the Judges List and prior or subsequent to that direction further affidavits were sworn in the matter before the case came before the President of the High Court on the 20th of February 1996. Costello J. (as he then was) rejected the contention that there was credible evidence of a real bona fide defence to the Plaintiff's claim and held that the Plaintiff was entitled to Judgment in the amount claimed.

8 The agreed note of the ex tempore judgment of the President of the High Court identifies seven possible defences which the Court had distilled from the voluminous documentation submitted to it. Those suggested defences included the following:-

9 1 Fraud by the Plaintiff.

10 2 Forgery by the Plaintiff of the Guarantee.

11 3 The allegation that the Guarantee was not executed until September 1989.

12 4 The defence of "non est factum".

13 5 The absence of independent legal advise for the Defendant as to the effect of the Guarantee.

14 6 That the bank was in breach of a duty to the Plaintiff in respect of security given by the principal debtor.

15 7 That the transaction was an improvident one.

16 On the Appeal to this Court Counsel on behalf of the Appellant/Defendant relied exclusively on the contention that his client had executed the Guarantee not in February but in September 1989. He contended that there was evidence that such was the case and if accepted it followed that the Guarantee was void as having been given for a past consideration. Counsel - rightly in my view - abandoned the other grounds which had been relied upon before the President of the High Court. Not merely were those grounds wholly unsustainable but they involved an allegation that the Defendants were guilty of fraud and that the two distinguished firms of solicitors who acted in the matter were at least guilty of gross negligence if not actual fraud. I would like to think that the potential defence to the effect that the Defendant did not understand the nature of a guarantee or his potential liability on foot thereof was equally improbable.

17 For the Court to grant summary judgment to a Plaintiff and to refuse leave to defend it is not sufficient that the Court should have reason to doubt the bona fides of the Defendant or to doubt whether the Defendant has a genuine cause of action (see Irish Dunlop Company Limited v Ralph 95 I.L.T.R. 70).

18 In my view the test to be applied is that laid down in Banque de Paris v de Naray 1984 1...