Promontoria (Aran) Ltd v Burns, Promontoria (Aran) Ltd v Burns

JurisdictionIreland
JudgeMs. Justice Baker,Mr Justice Maurice Collins
Judgment Date07 April 2020
Neutral Citation[2020] IECA 87
CourtCourt of Appeal (Ireland)
Docket NumberAppeal Record No.: 2019/189

THE COURT OF APPEAL

Baker J.

Whelan J.

Collins J.

Appeal Record No.: 2019/189

Appeal Record No.: 2019/188

BETWEEN
PROMONTORIA (ARAN) LIMITED
APPELLANT
AND
GERRY BURNS
DEFENDANT
BETWEEN/
PROMONTORIA (ARAN) LIMITED
APPELLANT
AND
ANNE BURNS
DEFENDANT

Summary judgment – Admissibility of evidence – Proof of debt – Appellant seeking summary judgment – Whether evidence was admissible

Facts: The plaintiff/appellant, Promontoria (Aran) Ltd, appealed to the Court of Appeal against the order of Noonan J dated 13 March 2019 following delivery of a written judgment on 13 February 2019: [2019] IEHC 75. The action came on before Noonan J as a motion for summary judgment, and having reserved judgment, Noonan J adjourned the actions to plenary hearing confined to the single issue of the admissibility of the evidence adduced by Promontoria and made directions as to pleadings thereafter. An appeal was lodged by Promontoria against the judgment in both cases. The appeals raised identical issues of law and fact, albeit the amount claimed by Promontoria differed in each case. Noonan J delivered his judgment in the action against the defendant Mr Burns. Baker J would do likewise. The point at issue in the proceedings concerned the admissibility of the evidence adduced by Promontoria in the summary proceedings, and whether it was sufficient to support the grant of judgment. The proof of debt in the appeal was complicated by the fact that the plaintiff was not a bank and was an assignee of the original lender.

Held by Baker J that the trial judge was correct, and there was insufficient evidence of the type of business records carrying indications of reliability, nor evidence sufficient to establish a course of dealings between Promontoria and the defendant to engage the recent authorities which recognise that a court may draw an inference when in the context of an established business relationship a defendant does not deny or otherwise dispute in a concrete and credible way the evidence adduced in proof.

Baker J held that the appeals would be dismissed. Collins J. also handed down a judgment in the matter.

Appeals dismissed.

JUDGMENT of Ms. Justice Baker delivered on the 7 th day of April, 2020
1

This is the appeal of Promontoria (Aran) Limited of the order of Noonan J. dated 13 March 2019 following delivery of a written judgment on 13 February 2019: [2019] IEHC 75. For convenience I will refer to the parties by their names and to the plaintiff as “Promontoria”.

2

The action came on before Noonan J. as a motion for summary judgment, and having reserved judgment, Noonan J. adjourned the actions to plenary hearing confined to the single issue of the admissibility of the evidence adduced by Promontoria and made directions as to pleadings thereafter.

3

An appeal was lodged by Promontoria against the judgment in both cases and this judgment deals with both appeals. The appeals raise identical issues of law and fact, albeit the amount claimed by Promontoria differs in each case. Noonan J. delivered his judgment in the action against Mr. Burns. I will do likewise.

4

The point at issue in the proceedings concerns the admissibility of the evidence adduced by Promontoria in the summary proceedings, and whether it was sufficient to support the grant of judgment. The proof of debt in the present appeal is complicated by the fact that the plaintiff is not a bank and is an assignee of the original lender.

5

The issue of the admissibility of the evidence brings to bear a number of somewhat inconsistent and discordant judgments of the superior courts and more especially the Supreme Court, concerning the hearsay rule of evidence and the reach of the various statutory and common law exceptions to the strictness of its application.

Background
6

The facts may briefly be stated.

7

The proceedings issued on 16 December 2013 by Ulster Bank Ireland Limited with which Mr. & Mrs. Burns and companies associated with them had an ongoing business relationship over many years.

8

The summary summons is in relatively standard form and sets out the particulars of debt, the terms of various loans, the dates they were advanced and the specific amount and accounts into which they were drawn down. The claim against Mr. Burns is in monetary terms largely on foot of various guarantees entered into with Ulster Bank Ireland Limited of the indebtedness of four limited liability companies pleaded to be then in default. No argument is made regarding the particularity of the pleaded claim or the accuracy of the pleaded figures.

9

Ulster Bank made application ex parte for an order amending the title of the proceedings to substitute for it as plaintiff its successor in title Promontoria grounded on an affidavit of Jacinta Conway sworn on 18 December 2015 which exhibited a document called “A Global Deed of Transfer” made on 16 December 2014 by which Ulster Bank Ireland Limited assured certain loan assets as therein defined to Promontoria. The so called “hello” and “goodbye” letters to Mr. Burns and Ms. Burns were also exhibited.

10

On 21 December 2015 O'Connor J. made an order pursuant to 0. 70, r.4 of the Rules of the Superior Courts that the bank should be at liberty within fourteen days to amend the name and title of the plaintiff to substitute Promontoria as plaintiff.

11

Thereafter by motion issued on 13 December 2015 Promontoria sought liberty to enter judgment in the sum of €27m. (the figure for convenience here being stated in round figures) with accrued interest against Mr. Burns, and for a much smaller sum against Mrs Burns pursuant to O. 37, r.1 of the Rules of the Superior Courts, together with interest pursuant to contract and/or to the Courts Act 1981.

12

Mr. Burns represented himself at the hearing in the High Court and on the appeal, and his submissions were received also on behalf of his wife. The trial judge correctly refused to permit Mr. Burns to adduce unsworn evidence or advance matters of fact in the course of his oral submission at the hearing. The evidence was wholly on affidavit and its material elements are set out in the course of this judgment.

13

The trial judge correctly identified the two questions that arise: the validity of the transfer from Ulster Bank to Promontoria, and the admissibility of the evidence of Mr. Harris as proof of the debt.

14

The respondent has not cross appealed the findings of Noonan J. that the transfer from Ulster Bank to Promontoria was established and therefore the sole matter that arises on the appeal is the admissibility and sufficiency of the proofs of the debt.

15

Two separate and not easily reconcilable threads of jurisprudence have evolved in the recent judgments of the superior courts and I consider that jurisprudence in the course of this judgment.

Proofs adduced
16

The application for summary judgment was grounded on the affidavit of Andrew Harris sworn on 11 December 2017. Mr. Harris describes himself as a senior asset manager employed by Link ASI Limited (formerly Capita Assets Services (Ireland)), “the Servicer,” which administers debt collection on behalf of Promontoria. He deposes to his authority to make the affidavit for and on behalf of the plaintiff, and that he does so with its consent.

17

The grounding affidavit of Mr. Harris runs to eighty paragraphs and states the facts concerning the making of each of five facilities and the giving of four separate guarantees by Mr. Burns in respect of the liabilities of four named companies of which he or Mrs. Burns or either of them were directors and/or beneficial owners. He narrates descriptions of a series of transactions since 2002 between Ulster Bank and Mr. & Mrs. Burns or one or both of them and with the companies.

18

Mr. Harris exhibits a number of documents in each case by reference to a copy, not described as a certified copy. He exhibits five facility letters, the earliest dated 9 December 2008, and the latest, 18 October 2010 and the letters of demand in respect of each facility, all made by separate letter on 29 August 2012. The facilities and the demands are with or by Ulster Bank and are dated before the assurance of the debt to Promontoria.

19

Likewise, he exhibits plain copies of guarantees, the earliest made on 23 October 2007 and three on 16 April 2010. The four letters of demand on foot of the guarantees, the earliest dated 19 November 2012 and the latest 28 January 2013, were all made by Ulster Bank.

20

In the final two paragraphs of his affidavit he avers as follows:

“I am advised that the defendant has not a bona fide defence to the plaintiff's claim. I am advised that for that reason any Appearance that may be entered to the within proceedings has been entered purely for the purposes of delay.”

21

He also says that he is advised and believes there is no other reason why the plaintiff would not be entitled to judgment.

22

The transactions are described more fully by the trial judge in the course of his judgment.

23

Mr. Burns swore a short affidavit in response in which he makes the following material averment:

“I say and believe that the deponent Andrew Harris of Link ASI Limited … 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.”

24

In the affidavit Mr. Burns makes reference to the decision of Peart J. in Bank of Scotland v. Stapleton [2012] IEHC 549 which I return to below.

25

At para. 4 of his affidavit he denies that there exists any debt between the plaintiff and himself. Mr. Burns essentially has put the plaintiff on full proof of the debt and in my view the trial judge correctly interpreted the averment at para. 4 as amounting to an assertion that no evidence exists of any debt owed...

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