Governor and Company of Bank of Ireland v John Flanagan
| Jurisdiction | Ireland |
| Judgment Date | 19 March 2015 |
| Neutral Citation | [2015] IECA 55 |
| Date | 19 March 2015 |
| Court | Court of Appeal (Ireland) |
[2015] IECA 55
THE COURT OF APPEAL
Kelly J
Peart J.
Mahon J.
BETWEEN
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Summary judgment – Sum outstanding – Overdraft facility – Repayable on demand – Whether argument put forward by defendant credible – Threshold – Need to establish real bona fide defence
Facts The defendant sought to appeal an order of the High Court granting summary judgment to the plaintiff in the sum of €53,576.20 together with costs. The defendant held a current account with the plaintiff in a local branch in County Clare. The account operated from 1999 to 2010. The plaintiff alleged there was a substantial sum due and owing on the account and subsequently instructed their solicitor to write to the defendant demanding payment. The plaintiff alleged the defendant had signed a Form of Acceptance of an overdraft facility and that said facility was repayable on demand. The defendant denied the signature was by his own hand. An ex tempore judgment was delivered by O”Neill J. He said if the defendant had not signed the facility letter, the plaintiff was not entitled to pursue him in relation to the amount owing; however, he acknowledged the defendant had availed of the overdraft facility and used it quite actively. He indicated that even if the plaintiff had agreed to consolidate the loans of the defendant, this would not relieve the defendant of his liability to repay the amount owing on the current account overdraft. He stated the defendant had fallen well short of the threshold required in order to establish a credible, bona fide defence.
Held The funds provided by way of overdraft facility were acknowledged by the defendant. He used them for his own use and benefit. The arguments put forward by the defendant in support of his contention that the plaintiff was not entitled to judgment against him for the amount claimed were not credible. The judge concluded the defendant had failed to meet the threshold in establishing a real bona fide defence.
–Appeal dismissed
Judgment of the Court delivered on the 19th day of March 2015
1. This is the Defendant's appeal from an Order of the High Court dated 14 th March 2011 (and perfected on 21 st March 2011), which granted summary judgment to the Plaintiff in the sum of €53,576.20, together with the costs of the proceedings. A helpful note of the ex tempore judgment of O'Neill J. delivered on 14 th March 2011 has been made available to this Court.
2. The Defendant maintained a current account with the Plaintiff (Account No. 54817817) at its branch at Ennistymon, Co. Clare. This account operated from 1999 and on 19 th July 2010 it was claimed by the Plaintiff that there was a principal sum due and owing on the account in the sum of €53,405.78, together with €77.01 in interest. On 19 th July 2010 the Plaintiff's solicitors wrote to the Defendant demanding payment of the sum of €53,171.28, being the amount outstanding as of 19 th July 2010. This was in fact an incorrect figure; it should have been €53,482.79. The Plaintiff maintains that the Defendant has no defence to the claim.
3. In the course of the proceedings before the High Court, a number of affidavits were sworn by the Defendant. A perusal of these affidavits indicate that the Defendant's opposition to the Plaintiff's claim can be usefully summarised as follows:-
i i. While it is accepted that the current account number 54817817 has a debit balance of €53,405.78 (as of 19 th July 2010), it is denied that such sum is due and owing to the Plaintiff.
ii ii. The said current account "was maintained and operated under verbal agreement for the purposes of lending financial support to other commercial facility agreements entered into between the Plaintiff and the Defendant and/or his partners and/or co-directors."
iii iii. If the amount owing on the said current account became repayable on demand (which is denied), the term providing for such repayment "was replaced by the discussions and agreements in or around October/November 2009 on the consolidation of all connected commercial facilities of your deponent with the Plaintiff."
iv iv. Discussions relating "to the consolidation of the commercial facilities " has "not progressed and finalised."
v v. The facility letter dated 8 thJuly 2008 was not accepted by the Defendant, and it is not accepted that the signature thereon is the signature of the Defendant.
vi vi. The issue relating to the current account intrinsically linked to commercial accounts numbered 40136260 and 70896877.
4. It is noteworthy that the said accounts numbered 40136260 and 70896877 are in the joint names of the Defendant and Mr. Gerard Lillis (who, with the Defendant is a co- Defendant in a related Appeal against a separate summary judgment in favour of the Plaintiff), whereas the account number 54817817, (the subject matter of this Appeal), is in the Defendant's sole name.
5. Twenty one grounds of appeal were submitted by the Defendant in his Notice of Appeal...
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