KBC Bank Ireland Plc v Hugh Corrigan

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 18 January 2021
• Neutral Citation: [2021] IECA 9
• Docket Number: Record Number: 2019/417
• Court: Court of Appeal (Ireland)
• Date: 18 January 2021

Between:

KBC Bank Ireland Plc

Respondent

and

Hugh Corrigan

Defendant

and

Anita Corrigan

Appellant

[2021] IECA 9

Whelan J.

Murray J.

Binchy J.

Record Number: 2019/417

THE COURT OF APPEAL

Summary judgment – Prejudice – Amendment – Appellant appealing against summary judgment – Whether the trial judge erred in law by acting in a manner prejudicial to the appellant

Facts: The appellant, Ms Corrigan, appealed to the Court of Appeal from the order of the High Court (Noonan J) of 11 July 2019, perfected on 13 August 2019, wherein the respondent, KBC Bank Ireland plc (the Bank), was granted summary judgment in the sum of €363,445.52 plus costs against the appellant on foot of a notice of motion of 23 March 2017. In her notice of appeal of 9 September 2019, the appellant raised eight grounds. She contended that the trial judge erred in law by acting in a manner prejudicial to her in: (i) making a direction in the absence of the appellant on 23 October 2018 that she file no further affidavits in the proceedings; (ii) permitting the Bank to issue and file an affidavit on 9 July 2019 which was not served on the appellant until she arrived in court on 11 July 2019; and (iii) allowing the presentation of a further authority by the Bank on the morning of 11 July 2019. In the respondent’s notice filed 15 October 2019, the Bank opposed the appeal in its entirety. The appellant’s notice of appeal stated that if successful she sought the following orders: (i) an order setting aside the order of Noonan J; and (ii) an order that the matters at issue the subject of the summary summons be set down in the High Court for full hearing. Following the High Court hearing and service of the notice of appeal, the Supreme Court delivered its judgment on 29 November 2019 in Bank of Ireland Mortgage Bank v O’Malley [2019] IESC 84. Arising therefrom the Bank notified the appellant in writing on 20 July 2020 that it intended to seek to amend the summary summons and to apply to the Court of Appeal to have the proceedings remitted to the High Court for that purpose. The appellant refused to consent. In August 2020 the Bank offered to withdraw its defence to the appeal with no order as to costs, without prejudice to its right to pursue the appellant on foot of the underlying proceedings if its application to amend the proceedings were successful before the High Court. The appellant insisted in continuing with her appeal.

Held by Whelan J that it was significant that the appellant took no issue with the particulars of the claim advanced by the Bank before the High Court and in particular did not contest the considerable detail embodied in the underlying exhibits to the various affidavits sworn in the course of the proceedings. However, in light of O’Malley, counsel for the Bank adopted the position that pursuant to O. 4, r.4 of the Rules of the Superior Courts the Bank would seek leave of the High Court to amend the particulars of the summary summons itself, contending however that on its facts this case falls at the more compliant end of the O’Malley spectrum of cases. The Bank had come to a view that it was required to present a more robust summons and Whelan J was satisfied that it ought to be permitted to do so. She was satisfied that the new arguments launched by the appellant at the hearing of this appeal formed no part of the grounds of appeal advanced on behalf of the appellant and were not addressed in the written submissions filed on her behalf.

Whelan J held that, in light of the affidavit sworn by the appellant on 16 June 2017, in assessing what the appropriate order of the court might be regard must be had to the justice of the case and that same would be fully met on the facts by making an order setting aside the order of Noonan J made on 11 July 2019 which was the relief sought by the appellant in Part 4 of her notice of appeal. Whelan J held that the justice of the case would be fully met by remitting the matter back to the High Court on the basis that the Bank bring an application on notice to amend the special indorsement of claim in the summary summons to include such particulars and details as it may consider appropriate in light of the judgment of the Supreme Court in O’Malley.

Appeal allowed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 18 ^th day of January 2021

Introduction

1 . This is an appeal from the order of the High Court (Noonan J.) of 11 July 2019, perfected on 13 August 2019, wherein the respondent (“the Bank”) was granted summary judgment in the sum of €363,445.52 plus costs against the appellant on foot of a notice of motion of 23 March 2017.

2 . The appellant's notice of appeal dated 9 September 2019 stated that if successful she sought the following orders:-

• i. an order setting aside the order of Noonan J. dated 11 July 2019 as perfected on 13 August 2019, and

• ii. an order that the matters at issue the subject of the summary summons be set down in the High Court for full hearing.

3 . Following the High Court hearing and service of the notice of appeal, the Supreme Court delivered its judgment on 29 November 2019 in Bank of Ireland Mortgage Bank v. O'Malley [2019] IESC 84. Arising therefrom the Bank notified the appellant in writing on 20 July 2020 that it intended to seek to amend the summary summons and to apply to the Court of Appeal to have the proceedings remitted to the High Court for that purpose. The appellant refused to consent. In August 2020 the Bank offered to withdraw its defence to the appeal with no order as to costs, without prejudice to its right to pursue the appellant on foot of the underlying proceedings if its application to amend the proceedings were successful before the High Court. The appellant insisted in continuing with her appeal.

4 . In written submissions dated March 2020 the appellant stated that “this court is asked to apply the law as specified by the Chief Justice and strike out the Order of the High Court”. At the appeal hearing a dismissal of the proceedings was sought.

Background

5 . The first named defendant and the appellant are estranged husband and wife. In 2007 they applied for a joint loan facility from the Bank. The appellant signed the joint facility application form on 11 July 2007. Certain declarations and authorities attached thereto were signed by the appellant on 27 June 2007.

6 . By letter of offer dated 23 July 2007, the Bank offered the appellant and her husband an advance of €333,000 for acquisition of a dwelling house comprised in Folio 32860F, Co. Wexford to be secured on the said property. By form of acceptance signed on 31 August 2007, they accepted the said offer of advance on the terms and conditions set out in the letter of offer or thereby incorporated. The appellant's signature was witnessed by her then solicitor, Macarten O'Gorman of Anthony F. O'Gorman & Co., solicitors.

7 . The joint facility was drawn down by the appellant and her husband on 30 November 2007 on a joint loan account.

8 . By indenture of mortgage dated 4 December 2007, the appellant and her husband granted the Bank a first legal mortgage over the property comprised in Folio 32860F, Co. Wexford. The appellant's execution of the charge was witnessed by Macarten O'Gorman.

9 . By letter dated 16 April 2013, the letter of offer was amended. The appellant accepted this amendment on 18 April 2013.

10 . Defaults occurred and as of 20 May 2014, there were arrears of €35,566.01 on the joint loan account. By letters of demand dated 20 May and 23 July 2014, the Bank demanded that the appellant and her husband pay the said arrears within ten business days.

11 . As of 28 October 2015, the sum of €353,076.07, comprised of principal of €352,836.38 and €239.69 for interest, was due, owing and payable by the appellant and her husband. By letters dated 28 October 2015, addressed to the appellant and her husband, the Bank demanded payment of the said sum.

Summary summons and notice of motion

12 . The within proceedings were initiated by way of summary summons dated 14 July 2016. At para. 26 of the special indorsement of claim, the Bank claimed that, as of 7 July 2016, €354,987.64 remained due and owing by the appellant and her husband with interest continuing to accrue on that sum pursuant to contract. Judgment in the said sum plus interest was claimed against both the appellant and her husband.

13 . The appellant entered an appearance in person on or about 1 December 2016.

14 . By notice of motion of 23 March 2017, the Bank made an application to the Master of the High Court for inter alia:-

• i. an order granting the Bank liberty to enter final judgment against the appellant in the sum of €356,810.44;

• ii. interest pursuant to contract or, in the alternative, pursuant to Statute; and,

• iii. such further or other order as the court deemed fit.

15 . That application was grounded on the affidavit of Shane O'Connor, Head of Corporate Receiverships in the Bank, sworn on 21 March 2017. At para. 22 thereof, Mr. O'Connor averred that interest continued to accrue on the sum claimed at a rate of €7.33 per diem.

Replying affidavit of the appellant

16 . In her affidavit sworn 16 June 2017, the appellant averred at para. 4:-

“…I say I never had any relationship with the Plaintiff. I say that the 1st Named Defendant conducted all the transactions with the entity. I say I was never consulted by the Plaintiff as to my views regarding my spouse's contractual relations with it. I say it now appears I am being asked to accept liability for borrowing to which I received no benefit from in the Plaintiff's quest to expand its loan book. I say the Plaintiff knew or ought to have known the 1st Named Defendant was highly exposed financially at the time this facility was approved and had the financial expertise to prevent the exposure from increasing. I say the 1st...