Promomtoria (Aran) Ltd v Burns

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 13 February 2019
• Neutral Citation: [2019] IEHC 75
• Docket Number: [2013 No. 4227 S.]
• Court: High Court
• Date: 13 February 2019

[2019] IEHC 75

THE HIGH COURT

Noonan J.

[2013 No. 4227 S.]

BETWEEN

PROMONTORIA (ARAN) LIMITED

PLAINTIFF

AND

GERRY BURNS

DEFENDANT

Summary proceedings – Admissibility of evidence – Debts – Plaintiff seeking liberty to enter judgment for the sum of €27,644,377.23 together with further accrued interest – Whether the plaintiff’s evidence was admissible

Facts: The plaintiff, Promontoria (Aran) Ltd, applied to the High Court for liberty to enter judgment for the sum of €27,644,377.23 together with further accrued interest. The application was grounded upon the affidavit of Mr Harris sworn on the 11th December, 2017. There were in substance two points in this case. The first was whether the plaintiff’s evidence was admissible and if so, whether it established the plaintiff’s title to the debts in question. Without prejudice to the first point, Noonan J was satisfied that the documentary evidence did establish the plaintiff’s title to the loans and guarantees in question. Beyond a bare assertion that it had not made out its title, the defendant, Mr Burns, did not seek to challenge, by way of submission or otherwise, the Global Assignment Deed and it seemed to Noonan J that it must be regarded as prima facie, and thus sufficient for the purposes of the application, evidence of the plaintiff’s title in the absence of specific challenge.

Held by Noonan J that what remained was the sole issue of the admissibility of the plaintiff’s evidence. He held that there was no material distinction arising between the facts of this case and those in Criminal Assets Bureau v Hunt [2003] 2 IR 168, Bank of Scotland v Stapleton [2012] IEHC 549 and Ulster Bank Ireland Ltd v Dermody [2014] IEHC 140. The plaintiff had therefore not satisfied Noonan J that Mr Harris was a person who could swear positively to the facts, being the prerequisite stipulated by O. 37 r. 1 of the Rules of the Superior Courts. Noonan J held that the evidence as it stood was insufficient to enable the court to grant judgment for the plaintiff. Noonan J noted that there was only one issue arising in this case and it was an issue which may be capable of being easily remedied by a further affidavit or affidavits from the plaintiff. Noonan J also bore in mind that beyond a bare denial of the debt, the defendant had not contested any of the factual averments made on behalf of the plaintiff. In that circumstance, Noonan J thought it would be unjust to dismiss the claim without affording the opportunity to the plaintiff to put further evidence on the issue before the court, should it wish to do so. By the same token, Noonan J thought there was little to be gained by adjourning the matter for plenary hearing when the issue arising was capable of ready resolution by the court without the necessity for the parties incurring the substantially greater costs arising in a plenary hearing.

Noonan J proposed to discuss further with the parties whether they wished to put any further evidence before the court confined to that single issue.

Judgment approved.

JUDGMENT of Mr. Justice Noonan delivered on the 13th day of February, 2019

1 In these summary proceedings, the plaintiff's application is for liberty to enter judgment for the sum of €27,644,377.23 together with further accrued interest.

Facts

2 The application is grounded upon the affidavit of Andrew Harris sworn on the 11th December, 2017. In this affidavit, Mr. Harris describes himself as a senior asset manager employed by Link ASI Ltd (formerly known as Capita Asset Services (Ireland) Ltd), to which he refers as the Servicer. In the first two paragraphs of the affidavit, Mr. Harris avers:

‘1. I am a senior asset manager employed by the Servicer. The Servicer provides loan administration and asset management services in respect of the loans of the defendant that are owned by the plaintiff. I am duly authorised to make an affidavit for the plaintiff and on the plaintiff's behalf.

2. I make this affidavit with the consent and authority of the plaintiff and do so from facts within my own knowledge save where otherwise appears and where so appearing, I believe the same to be true and accurate in every respect.’

3. Mr. Harris then goes on to set out in his affidavit the background to the claim and exhibits a large number of documents including facility letters, guarantees and letters of demand.

4. In brief summary, the claim relates to a number of transactions that occurred between the defendant and Ulster Bank Ireland Ltd (‘Ulster’). Between 2008 and 2010, Mr. Burns received five loans from Ulster on foot of various facility letters, some in common with his wife, Mrs. Ann Burns, who is separately sued. In addition, it is alleged that between 2006 and 2010, Mr. Burns executed four guarantees in respect of the liabilities of four different companies.

5. All of these transactions appear to have related to commercial property purchase and development in one form or another. Mr. Harris avers that all the loans were called in by letters of demand dated the 27th August, 2012 from Ulster. Similarly, Ulster called in the guarantees by various demand letters issued between November 2012 and January 2013. Mr. Harris further avers that the plaintiff acquired Ulster's rights under the facility letters and guarantees with the defendant by way of a deed of transfer called the Global Assignment Deed which is dated the 12th March, 2015 and he exhibits a redacted copy.

6. The summary summons in these proceedings was issued on the 16th December, 2013 by Ulster. In December 2015, an ex parte application was made to this court to amend the title as it now appears above. That order was made by the court on the 21st December, 2015. The notice of motion now before the court was issued on the 13th December, 2017.

7. In response to the plaintiff's claim, the defendant, who represents himself, swore a short one-page affidavit. At para. 2 he says:

‘(2) I say and believe that the DEPONANT ( sic) Andrew Harris of Link ASI Ltd (formally ( sic) Capita Asset Services) is not directly employed by the plaintiff and is not a party to the within proceedings and cannot make any averments on behalf of the plaintiff. He has no first-hand knowledge of any of the events to which he refers and is relying on hearsay. Hearsay evidence is no evidence (see Bank of Scotland v. Stapleton [2012] IEHC 549).’

8 In the third paragraph of his affidavit, the defendant says that the plaintiff has failed to validate the debt and by this, I understand the defendant to mean that the plaintiff has not proved its title to the loans and guarantees in issue.

9 In paragraph 4 he makes the bald assertion that he denies any debt as existing between the plaintiff and himself. The basis for this is that he claims there is no evidence of any debt existing which again appears to be related to the same point about transfer of title.

10 The only other evidence in the case is a supplemental affidavit of Mr. Harris sworn on the 21st February, 2018 in response to the defendant's affidavit. He makes identical averments at para. 1 and 2 in this affidavit to those appearing in his principle affidavit. He goes on to say that the matters raised in the defendant's affidavit are matters for legal argument rather than additional affidavit evidence. He reiterates that the debts were transferred to the plaintiff as outlined in his first affidavit and moreover the defendant was notified of this fact in writing by letter dated the 12th March 2015 which he exhibits.

11 At the hearing of the application, in addition to the matters raised in his affidavit, the defendant purported to make a number of submissions which were by way of purporting to give unsworn evidence himself. I indicated to him that the only evidence to which I could have regard was that contained in the affidavits to which I have referred.

12 Accordingly, there are in substance only two points in this case. The first is whether the plaintiff's evidence is admissible at all and if so, whether it establishes the plaintiff's title to the debts in question. Without prejudice to the first point, I am satisfied that the documentary evidence, as far as it goes, does establish the plaintiff's title to the loans and guarantees in question. Beyond a bare assertion that it has not made out its title, the defendant did not seek to challenge, by way of submission or otherwise, the Global Assignment Deed and it seems to me therefore it must be regarded as prima facie, and thus sufficient for the purposes of this application, evidence of the plaintiff's title in the absence of specific challenge.

Is the Plaintiff's Evidence Admissible?

13 What remains therefore is the sole issue of the admissibility of the plaintiff's evidence. As O. 37 r. 1 of the Rules of the Superior Courts and the cases that have considered it make clear, a motion for judgment in summary proceedings such as this must be ‘supported by an affidavit sworn by the plaintiff or by any other person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed and stating that in the belief of the deponent there is no defence to the action.’

14 As noted above, the defendant places express reliance on Stapleton. That was a Circuit Appeal in which the plaintiff obtained an order for possession in the Circuit Court against which the defendant appealed. In that case, as noted in the judgment of Peart J., the plaintiff (‘BOS’) had no physical presence in this country following the transfer of the assets and liabilities of its subsidiary, Bank of Scotland (Ireland) Ltd (‘BOSI’) to BOS.

15 From the 1st January, 2011, BOS outsourced the management of its loan portfolio to an independent service company called Certus and the affidavit grounding the application for possession before the Circuit Court was sworn by an employee of Certus, Joanne Finnegan. In her affidavit, she described Certus as...