Promontoria (Gem) Dac v Redmond
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 09 June 2020 |
| Neutral Citation | [2020] IECA 151 |
| Docket Number | Court of Appeal Record No. 2018/251 |
| Date | 09 June 2020 |
| Court | Court of Appeal (Ireland) |
AND
[2020] IECA 151
Costello J.
Court of Appeal Record No. 2018/251
High Court Record No. 2017/2260S
THE COURT OF APPEAL
Leave to adduce new evidence – Summary judgment – Plenary hearing – Appellants seeking leave to adduce new evidence – Whether the appellants had shown special circumstances which justified the court granting them each leave to adduce new evidence
Facts: The High Court, on 2 May 2018, granted the plaintiff/respondent, Promontoria (Gem) DAC, judgment against the defendants in the sum of €3,896,000 and remitted the balance of the claim, €676,662.91, to plenary hearing ([2018] IEHC 231). The first and second defendants, Mr Redmond and Mr O’Neill, did not defend the proceedings. The third and fourth defendants/appellants, Mrs Norton and Mr Crean, appealed the decision of the High Court. Pending that appeal, Mrs Norton and Mr Crean applied to the Court of Appeal for leave, pursuant to O. 86A, r. 4 of the Rules of the Superior Courts, to adduce new evidence comprising of two letters: (i) a letter of demand issued by Anglo Irish Bank Corporation Limited dated 14 December 2009 (the December 2009 demand), and (ii) a letter of demand issued by Anglo Irish Bank Corporation Limited dated 1 February 2010 (the February 2010 demand). Mrs Norton’s application was grounded on an affidavit sworn by her solicitor, Mr Cunningham. Mr Cunningham said that Mrs Norton acted on legal advice which was based upon the “incorrect” letter of demand provided by Promontoria to Mrs Norton. He said she was not at fault as it was the duty of Promontoria to produce the evidence of the demand when suing for judgment in respect of a liquidated demand. He said she was unaware of either the December 2009 or February 2010 demands, prior to the decision of the High Court. He said both letters were sent to the address of the first defendant and not to her address, despite the fact that she was an addressee of each letter. He said she discovered the December 2009 demand through a data access request of a predecessor in title of Promontoria, and she only became aware of the February 2010 demand when Mr Crean swore his affidavit to ground this application. Mr Crean also swore an affidavit to ground his application to admit new evidence. He said he discovered the February 2010 demand when he reviewed his files on this loan. He said it was in his possession all along. He said he searched his files in response to Mrs Norton’s discovery of the December 2009 demand. He explained his failure to search his files prior to the trial in the High Court on the grounds that, up until late February 2018, he bona fide believed that the claim against him had been compromised. He said he was “caught off-guard” by the proceedings which came on in a very short time frame, with the result that he did not have adequate time to perform a thorough review of all his documents in relation to the matter. He said that, due to the age of the file, some of the documents were in storage and were not readily accessible; the trial judge accepted this explanation and the fact that he was, through no egregious fault of his own, not fully prepared to defend the claim and remitted the claim to €676,662.91 to plenary hearing.
Held by Costello J that both Mrs Norton and Mr Crean had shown special circumstances which justified the court granting them each leave to adduce the letters of demand of 14 December 2009 and 1 February 2010 into evidence. She was satisfied that they had each met the three criteria for such leave set out in Murphy v Minister for Defence [1991] 2 I.R. 161.
Costello J directed that they each swear a short affidavit, within 21 days of this judgment, setting out the circumstances in which the two documents came to their attention and exhibiting them.
Motion granted.
On 2 May 2018, the High Court granted the plaintiff (“Promontoria”) judgment against the defendants in the sum of €3,896,000 and remitted the balance of the claim, €676,662.91, to plenary hearing ( [2018] IEHC 231). The first and second named defendants did not defend the proceedings. The third and fourth named defendants have appealed the decision of the High Court. Pending that appeal, the third and fourth named defendants (“Mrs. Norton” and “Mr. Crean” respectively) have applied to the court for leave, pursuant to 0.86A, r.4 of the Rules of the Superior Courts, to adduce new evidence comprising of two letters: (i) a letter of demand issued by Anglo Irish Bank Corporation Limited dated 14 December 2009 (“the December 2009 demand”), and (ii) a letter of demand issued by Anglo Irish Bank Corporation Limited dated 1 February 2010 (“the February 2010 demand”). This is my decision on the joint application.
Promontoria commenced these proceedings by way of a summary summons issued on 11 October 2017. The defendants are sued as a partnership practising under the style and title of the NORC Partnership. In the special endorsement of claim, it is pleaded:-
“7. The liabilities of the Defendants the subject of the within proceedings concern loan facilities provided to the Defendants by Irish Bank Resolution Corporation Limited (in liquidation) when acting under its former name Anglo Irish Bank Corporation plc (the Bank) pursuant to a Facility Letter dated 20 December 2004 and accepted in writing by the Defendants by the (sic) signature on 5 January 2005 (the Facility Letter).”
It is pleaded that the Bank made loan facilities available to the defendants, and that under the provision of the National Asset Management Agency Act 2009, National Asset Loan Management Limited (“NALM”) became legally and beneficially entitled to the facilities and other rights connected with the facilities. At para. 9. Promontoria pleads:-
“… By way of a Deed of Transfer (otherwise global assignment deed) dated 27 January 2017 and made between NALM and the Plaintiff NALM transferred all remaining rights, title, interest and benefit held by NALM in or pursuant to the Facility to the Plaintiff.”
It is pleaded that the Bank agreed to advance a loan facility in the amount of €3,896,000 to the defendants. The facility was repayable on demand. The liabilities of the borrowers were joint and several. At paras. 15 and 16, it is pleaded:-
“15. The Defendants failed to pay the principal and interest when due and owing in accordance with the Facility Letter and, accordingly, the Plaintiff exercised its right to call for immediate repayment of the sums due thereunder.
16. By letter of demand to the Defendants dated 15 June 2017, the Plaintiff demanded the sum of €4,545,502.53 then due and owing under the Facility Letter.”
It will be noted that the demand relied upon is one issued by Promontoria and not any of its predecessors in title. It is pleaded that on 24 July 2017, it appointed Mr. Ken Fennell as a receiver over certain assets of the defendants pursuant to a mortgage dated 14 September 2005 made between the defendants and the Bank over property which had been provided as security “for all sums due by the Defendants to the Bank.” Promontoria pleaded that all rights, title, interest and benefit in the facility and the mortgage was now held by it and that, as of close of business on 25 September 2017, the property had not been sold nor any surplus income derived from the property.
Promontoria brought an application to have the proceedings admitted into the Commercial List of the High Court and for summary judgment against the defendants grounded upon an affidavit of Ms. Lisa Burns, sworn on 9 November 2017. Ms. Burns averred that she was an associate director employed by Link ASI Limited, formerly known as Capita Asset Services (Ireland) Limited, (“the Servicer”). She averred that the Servicer provides loan administration and asset management services in respect of the loans of the defendants that are owned by Promontoria, and that she was authorised to make the affidavit for and on behalf of Promontoria. At para. 2 she avers:-
“I make this Affidavit from facts within my own knowledge save where otherwise appears and whereso otherwise appears I believe the same to be true and accurate in every respect.”
She gives no indication of the books or records which were provided to her in relation to the transaction, the subject of the proceedings. Neither does she aver that she had sight of the books and records of Promontoria, whatever they may comprise. As the appeal is pending before the court, I confine myself to saying that Ms. Burns exhibits five documents in her affidavit; the facility letter of 20 December 2004, a redacted copy of the global assignment deed of 27 January 2017, the letter of demand of 15 June 2017, the deed of appointment of the receiver, dated 24 July 2017, and statements of account of Promontoria commencing in February 2017, in respect of two accounts. While a deed of appointment of the receiver is exhibited, the mortgage is not.
Mrs. Norton's then solicitor, Mr. Patrick Flynn, swore an affidavit on her behalf opposing the application for summary judgment. He stated at para. 3 that he had been asked to assist her in the matter “since April 2011”, that is, more than a year after the letters at issue in this application were sent. At that time, she was aged seventy-four years and “not in great health.” Over the last number of years, her health and hearing have “deteriorated a great deal further.” He describes having discussions with the National Assets Management Agency (“NAMA”) and said that “[t]hese discussions were most difficult as NAMA were less than efficient in the provision of the necessary and relevant paperwork.” He said that, at the time during these...
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