Irish Life & Permanent TSB v Patrick Mcmahon and Another
|Mr. Justice Haughton
|12 May 2015
| IEHC 378
|12 May 2015
 IEHC 378
THE HIGH COURT
Banking & Finance – Default in repayment of loan – Summary judgment – Bona fide defence – Use of summary summons whether denial of fair procedures – Securitisation
Facts: In the proceedings, the plaintiff sought an order for summary judgment against the defendants. The defendants defaulted in repayment of the loan advanced by the plaintiff for funding an investment property. The defendant contended that the use of summary summons breached his right to be heard under European Convention on Human Rights. The defendants also contended that their loan was securitised and hence, there was a change in the relationship of a lender and a borrower.
Mr. Justice Haughton held that the defendants failed to raise any arguable defence except on the issue of securitisation wherein a Mortgage Management Agreement was signed between the plaintiff and the defendants. The Court held that the use of the summary summons by no way impeded the process of justice as adequate opportunities were available to the defendant to submit their assertions through affidavits.
1. This judgment reflects reasons given ex tempore in the course of and at the close of the hearing of this matter before me on 28 April, 2015 for rejecting certain aspects of the putative defences raised by the defendants in their affidavits and in argument on that day. This is an Interim Judgment only as the matter stands adjourned to 15 June, 2015 for further affidavits/arguments in relation to one aspect of the case.
2. In these proceedings brought by summary summons the plaintiff claims against the defendants the sum of €976,360.96 together with continuing interest from 15 th March, 2011 making in total as at 12 th March, 2015 the sum of €1,250,215.64, claimed to be due and owing on foot of a loan Account 990695-90528470. The plaintiff's assistant manager Ms. Niamh McGee in her grounding affidavit sworn on 18 th July, 2013 avers that the monies are due pursuant to a Letter of Offer dated on the 27 th June, 2008, duly accepted by the defendants, under which they were lent the sum of €960,000 repayable over a 17 year period. The purpose of the loan was the financing of an investment property at 17 Shackleton House, Archers Wood, Dublin 15 and to redeem existing borrowings with the Bank of Scotland (Ireland) Ltd. It is averred that the loan went into default on or about 15 th March, 2011, and despite a number of letters notifying of the default and requesting payment the defendants failed to discharge their indebtedness.
3. The defendants made an initial objection that this court did not have jurisdiction to hear this matter.
4. Firstly they suggested that, because they were not served with the originating summary summons, the court did not have jurisdiction. The plaintiff was initially unable to effect service of the originating summary summons, and by order of Mr. Justice Peart dated 27 th June, 2011 it was ordered that service of the summons be effected by serving a copy, together with a copy of the order, by ordinary pre-paid post. A further order was made by the Master on 20 th January, 2012 granting liberty to the plaintiff to amend the summons by amending the address of the defendants from "1 Park Lodge, Castleknock, Dublin 15" to "1A Park Lodge, Castleknock, Dublin 15", and also extending the time for endorsing the particulars of service on the summons by 4 weeks from the date of that order. The affidavit of service of Selina Lacey sworn on the 20 th September, 2011 proves service by ordinary pre-paid post of a true copy of the originating summary summons, and a copy of the order of Mr. Justice Peart dated 27 June, 2011 on both defendants at 1A Park Lodge, Castleknock, Dublin 15 on 30 th June, 2011, and I did not take the defendants to be denying that such substituted service had in fact taken place.
5. It appears that the defendants in fact entered an appearance on 28 January, 2013. This was entered unconditionally. Accordingly, if (and this is not accepted by the plaintiff) there was any defect in relation to the service of the summary summons, I find that that was corrected by the Appearance that the defendants entered, and that they were properly served. The defendants say that they entered the Appearance under "duress". However, while it was made known to the court that the defendants were under great pressure because of the most tragic of family bereavements, there was no evidence put forward to the court from which it could be concluded that there was any duress from any source that could undermine the validity of the Appearance. Moreover both Defendants were present in court before me. I was satisfied therefore that the court had jurisdiction and should hear the plaintiff's motion for summary judgment.
6. The defendants also raised other arguments which they claimed went to jurisdiction, but in the view of the court theses were more properly considered as grounds upon which they maintained that they had a bona fide defence and that the matter should be remitted to plenary hearing.
7. The defendants argued that the use of the summary summons procedure breached their rights under the European Convention Human Rights, and in particular the right to a fair hearing under Article 6, and under the Constitution (although no provision of the Constitution was identified). They complained that unless they were entitled to defend the proceedings fully at a plenary hearing they would be deprived of their right to fair procedures. The court did not accept this argument. It is clear that if there is no bona fide defence - and the threshold for identifying a bona fide defence is a low one - then the plaintiffs are entitled to proceed by way of a motion for a summary judgment. That procedure in itself allows ample opportunity for defendants to set out facts and arguments to persuade a court that there should be a full hearing. No authority was cited to the court to suggest that the summary summons procedure, or a motion seeking a summary judgment in an appropriate case, is not a fair procedure. It should also be noted that...
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Permanent TSB Plc formerly Irish Life & Permanent Plc
...apply in the context of High Court proceedings. He also refers to the decision of Haughton J. in Irish Life & Permanent TSB v. McMahon  IEHC 378 where the court directed that copies of the securitisation documentation should be put on affidavit by the plaintiff and that the defendant......