National Asset Loan Management Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 19 December 2013
• Neutral Citation: [2013] IEHC 606
• Court: High Court
• Date: 19 December 2013

[2013] IEHC 606

THE HIGH COURT

[No. 1997 S/2013]

[No. 155 COM/2013]

National Asset Loan Management Ltd v Coyle

BETWEEN

NATIONAL ASSET LOAN MANAGEMENT LIMITED

PLAINTIFF

AND

TOM COYLE

DEFENDANT

DANSKE BANK v DURKAN NEW HOMES & ORS UNREP SUPREME 22.4.2010 2010/10/2392 2010 IESC 22

FIRST NATIONAL COMMERCIAL BANK PLC v ANGLIN 1996 1 IR 75

PARIS v DE NARAY 1984 1 LLOYDS 21

PRACTICE AND PROCEDURE

Summary judgment

Application for summary judgment for loan - Loan to fund investment ventures - Sum not repaid despite demand - Estoppel - Representation that loan would not be called in - Date of representation - Subsequent agreement - Consolidation of accounts - Conflict of interest - Option to obtain legal advice - Interest - Conflict of fact - Whether arguable defence - Whether bona fide defence raised - Whether representation too vague to amount to a legally binding representation - Whether consolidation of accounts altered liability - Whether overcharged interest - Danske Bank a/s v Durkan New Homes [2010] IESC 22, (Unrep, SC, 22/4/2010); First National Commercial Bank plc v Anglin [1996] 1 IR 75 and Banque de Paris v de Naray [1984] 1 Lloyd's Rep 21 considered - National Asset Management Agency Act 2009, (No 34) - Summary judgment for principal sum granted; issue of interest remitted to plenary hearing (2013/1997S & 2013/155COM - McGovern J - 19/12/2013) [2013] IEHC 606

National Asset Loan Management Limited v Coyle

Facts: The plaintiff demanded payments of the sum due on foot of a facility granted pursuant to an application for summary judgment. The defendant had not paid the sums due but claimed estoppel in defence on foot of a representation made. He also claimed that various loans had been consolidated without authority. He further claimed that there was a conflict of interest in respect of a facility advanced.

Held by McGovern J. that the plaintiff was entitled to summary judgment in respect of the principal sums lent on foot of the facility letter and the Court would remit for plenary hearing the issue as to the amount of interest payable. The defendant had not denied that he had received the monies on foot of the facility letter or that they were repayable. Any decision about the selling on the loans was a matter for the plaintiff not the defendant.

1 JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 19th day of December 2013

2 1. This is an application for summary judgment against the defendant in the sum of €51,818,991.51 and Stg. £10,567,723 which sums include interest up to 12 ^th December, 2013. The sums are claimed on foot of a facility letter of 20 ^th July, 2010 ("the facility letter") issued by Anglo Irish Bank Corporation Ltd. and accepted by the defendant on 5 ^th August, 2010. The sums referred to in the facility letter were a renewal of two earlier facilities of 15 ^th July, 2008, and 17 ^th July, 2009. The facilities in question were offered to fund various UK and Irish commercial investment ventures engaged in by the defendant.

3 2. The plaintiff is a subsidiary of the National Asset Management Agency ("NAMA") and was established pursuant to the National Asset Management Agency Act 2009 (the "2009 Act") for the purpose of the acquisition, holding and management of loan assets from, amongst others, Anglo Irish Bank Corporation Ltd. ("Anglo"). By special resolution dated 14 ^th October, 2011, Anglo became the Irish Bank Resolution Corporation Ltd. ("IBRC") pursuant to a change of name duly registered with the Companies Registration Office.

4 3. The facility was repayable on demand and, without prejudice to the demand nature of the facility, was to be repaid on or before 31 ^st December, 2010. The facility was acquired by the plaintiff on 1 ^st November, 2010, in accordance with Part 6 of the 2009 Act. After the facility was acquired, the plaintiff appointed IBRC to manage the facility on its behalf and NAMA subsequently appointed Capita Asset Services (Ireland) Ltd. to manage the facilities on its behalf on 12 ^th August, 2013.

5 4. By letter dated 30 ^th January, 2013, the plaintiff demanded payment of the sums due on foot of the facility granted plus additional interest accruing in accordance with the facility to the date of payment at the rate provided for in the facility. The defendant has not paid the sums due and owing on foot of the facility despite the said demand.

6 5. As this is an application for summary judgment, I will set out briefly the legal principles which apply. In Danske Bank v. Durkan New Homes [2010] IESC 22, Denham J. (as she then was) distilled the relevant law as follows:

7 2 "13. Order 37 r. 7 of the Rules of the Superior Courts, 1986 provides:-

8 'Upon the hearing of any such motion by the Court, the Court may give judgement for the relief to which the plaintiff may appear to be entitled or may dismiss the action or may adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings or discovery or settlement of issues or otherwise as may be appropriate, and generally may make such order for determination of the questions in issue in the action as may seem just'.

9 14. Several cases were opened before the Court which have addressed this jurisdiction. These included Bank of Ireland v. Educational Building Society [1999] 1 I.R. 220 where Murphy J. emphasised that it was appropriate to remit a matter for plenary hearing to determine an issue which is primarily one of law where a defendant identified issues of fact which required to be explored and clarified before the issues of law could be dealt with properly. He stated at p. 231:-

10 'Even if the position was otherwise, once the learned High Court Judge was satisfied that the defendant had 'a real or bona fide defence', whether based on fact or on law, he was bound to afford them an opportunity of having the issue tried in the appropriate manner'.

11 15. In Aer Rianta c.p.t. v. Ryanair Limited [2001] 4 I.R. 607, Hardiman J. reviewed Irish cases and concluded at p. 623:-

12 'In my view, the fundamental questions to be posed on an application such as this remain: is it 'very clear' that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendant's affidavits fail to disclose even an arguable defence?'

13 16. In McGrath v. O'Driscoll [2007] 1 ILRM 203, Clarke J. described the law as follows, at p. 210:-

14 'So far as questions of law or construction are concerned the court can, on a motion for summary judgment, resolve such questions (including, where appropriate, questions of the construction of documents), but should only do so where the issues which arise are relatively straightforward and where there is no real risk of an injustice being done by determining those questions within the...