Mars Capital Finance Ireland Designated Activity Company v Kane and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 03 July 2025
• Neutral Citation: [2025] IEHC 379
• Court: High Court
• Docket Number: RECORD NO. 2023/205S

Between

Mars Capital Finance Ireland Designated Activity Company

Plaintiff

and

Gary Kane and Andrea Kane (Otherwise Andrea Spyrou)

Defendants

[2025] IEHC 379

RECORD NO. 2023/205S

THE HIGH COURT

Summary judgment – Liberty to enter final judgment – Credible defence – Plaintiff seeking liberty to enter final judgment against the defendants – Whether the defendants had put forward a credible defence

Facts: The plaintiff, Mars Capital Finance Ireland Designated Activity Company, having issued a summary summons on 16 June 2023, sought summary judgment against the defendants, the Kanes. The plaintiff’s claim concerned a loan advanced to the defendants by its predecessor in title, for which the defendants gave security by way of a mortgage over their property. Whilst the plaintiff had brought separate proceedings in the Circuit Court seeking possession of that property, this application to the High Court was for judgment in relation to a specific sum, arising from the defendants’ failure to repay the loan in accordance with the terms of same. On 9 August 2023, the plaintiff issued a motion seeking liberty to enter final judgment against the defendants on a joint and several basis in the sum of €665,830.74 together with interest pursuant to contract and/or statute.

Held by Heslin J that, in light of the averments made and the contents of the documents exhibited on behalf of the plaintiff, he was satisfied that, consistent with the principles outlined in Bank of Ireland Mortgage Bank v O’Malley [2019] IESC 284, the plaintiff had put forward prima facie evidence of the defendants’ indebtedness to it, in the sum claimed; thus, the question was whether the defendants had put forward a credible defence. Heslin J found that what the defendants had ‘put up’ in opposition to the application comprised of no more than technical arguments, and ‘bald’, or mere, assertions, which were entirely undermined by the plaintiff’s evidence. Heslin J held that there was no conflict of fact disclosed in the affidavits and no dispute which required a plenary hearing to resolve. Heslin J held that there were no issues of law which required fuller argument or greater thought in order to be determined fairly.

Heslin J was satisfied that, having carefully considered the evidence and submissions, it was very clear that there was no defence; hence, the appropriate outcome was to grant liberty to enter final judgment in accordance with the plaintiff’s application. Given the reference to certain payments made by the defendants following the commencement of the proceedings, Heslin J held that the plaintiff should provide to the defendants, and furnish to the Registrar, by 12 noon on 14 July 2025, an affidavit which confirms the current liability of the defendants, for the purposes of the Court’s order, i.e. giving all due ‘credit’ for payments made by the defendants. Having regard to O. 99 of the Rules of the Superior Court and s. 169 of the Legal Services Regulation Act, Heslin J held that the plaintiff had a presumptive entitlement to their costs, as the entirely successful party, and he could see no factor which would justify a departure from the normal position that ‘costs’ should ‘follow the event’. Therefore, Heslin J’s preliminary view was that the plaintiff should be awarded its costs, to include any reserved costs.

Application granted.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 3 ^rd day of July 2025

Introduction

1 . Having issued a summary summons on 16 June 2023, the plaintiff seeks summary judgment against the defendants.

2 . Briefly put, the plaintiff's claim concerns a loan advanced to the defendants by its predecessor in title, for which the defendants gave security by way of a mortgage over their property. Whilst the plaintiff has brought separate proceedings in the Circuit Court seeking possession of that property, this application is for judgment in relation to a specific sum, arising from the defendants' failure to repay the loan in accordance with the terms of same.

3 . The plaintiff was represented by Mr. Martin BL. The first named defendant made submissions on behalf of both defendants. For reasons explained in an ex tempore ruling, I refused the defendants' adjournment application, which was made at the commencement of the hearing on 29 May 2025.

4 . Before looking at the claim, in detail, it is necessary to refer to certain legal principles. This is particularly important given that the defendants have chosen not to avail of legal representation.

Prima facie evidence of debt

5 . In an application of this type, the plaintiff has to discharge the burden of placing before this Court prima facie evidence of the debt claimed. If that burden is discharged, the focus shifts to the defendants, their obligation being to put forward a credible defence. The foregoing is clear from the guidance given by Clarke C.J. in Bank of Ireland Mortgage Bank v. O'Malley [2019] IESC 84; 2 IR 487 (“ O'Malley”), wherein the learned judge emphasised (at para. 24) that “… there is an obligation on any plaintiff to produce prima facie evidence of their debt if they wish the court to grant summary judgment …”. The then Chief Justice went on to make clear that “ where a prima facie claim to a debt is established and the defendant wishes to put forward a positive defence….” it is necessary for the Court to assess “… whether what is said to amount to a defence amounts to mere assertion or meets the threshold for entitling the defendant to a full or plenary hearing”. At para. 25 in O'Malley, the learned judge stated:

“There are, therefore, two questions. The first is as to whether the plaintiff has put sufficient evidence before the court to establish a prima facie debt. If the answer to that question is no, then the plaintiff cannot be entitled to summary judgment in any event. If, however, the answer to that question is yes, then the court must go on to consider, in accordance with the established jurisprudence, whether the defendant has put forward a credible defence.” (emphasis added).

A credible defence

6 . As to the correct approach to the question of whether a credible defence has been put forward, in Harrisrange Ltd. v. Duncan [2003] 4 IR 1; [2002] IEHC 14 (“ Harrisrange”) Mr. Justice McKechnie conducted an analysis of prior jurisprudence, following which he identified (at para. 9 of his decision) 12 applicable principles, as follows:-

“(i) The power to grant summary judgment should be exercised with discernible caution,

(ii) In deciding upon this issue the Court should look at the entirety of the situation and consider the particular facts of each individual case, there being several ways in which this may best be done,

(iii) In so doing the Court should assess not only the Defendant's response, but also in the context of that response, the cogency of the evidence adduced on behalf of the Plaintiff, being mindful at all times of the unavoidable limitations which are inherent on any conflicting Affidavit evidence,

(iv) Where truly, there are no issues or issues of simplicity only or issues easily determinable, then this procedure is suitable for use,

(v) Where however, there are issues of fact which in themselves are material to success or failure, then their resolution is unsuitable for this procedure,

(vi) Where there are issues of law, this summary process may be appropriate but only so, if it is clear that fuller argument and greater thought, is evidently not required for a better determination of such issues,

(vii) The test to be applied, as now formulated is whether the Defendant has satisfied the Court that he has a fair or reasonable probability of having a real or bona fide defence; or as it is sometimes put, “is what the Defendant says credible?”, — which latter phrase I would take as having as against the former an equivalence of both meaning and result,

(viii) This test is not the same as and should be not elevated into a threshold of a Defendant having to prove that his defence will probably succeed or that success is not improbable, it being sufficient if there is an arguable defence,

(ix) Leave to defend should be granted unless it is very clear that there is no defence,

(x) Leave to defend should not be refused only because the Court has reason to doubt the bona fides of the Defendant or has reason to doubt whether he has a genuine cause of action,

(xi) Leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence and finally,

(xii) The overriding determinative factor, bearing in mind the constitutional basis of a person's right of access to justice either to assert or respond to litigation, is the achievement of a just result whether that be liberty to enter Judgment or leave to defend, as the case may be.”

7 . For the benefit of the defendants, it is appropriate to say that the legal principles concerning whether this Court should grant judgment on foot of a summary application such as this, or should send the claim (be it in whole or in part) to plenary hearing, are not in doubt. These principles are well settled and, for present purposes, the ‘ Harrisrange principles’ lay down the correct approach.

8 . I am particularly conscious that this Court's power to grant judgment at the summary stage must be exercised with “discernible caution”. Taking nothing away from the foregoing, “ mere assertion” will not amount to a bona fide, or credible, defence. The principle articulated at (ix) in Harrisrange seems to encapsulates matters succinctly, i.e. “ Leave to defend should be granted unless it is very clear that there is no defence”. This echoes the approach by Hardiman J. in Aer Rianta Cpt v. Ryanair Ltd (No.1) [2001] 4 IESC 94, wherein the learned judge posed the question: is it ‘ very clear’ that the defendant has no...