Rory Ennis v Allied Irish Banks Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 15 March 2021
• Neutral Citation: [2021] IESC 12
• Court: Supreme Court
• Docket Number: [RECORD NO.: 29/19]
• Date: 15 March 2021

Between:

Rory Ennis

Defendant/Appellant

and

Allied Irish Banks Plc

Plaintiff/Respondent

[2021] IESC 12

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

[RECORD NO.: 29/19]

THE SUPREME COURT

Summary judgment – Admissibility of evidence – Arguable defence – Appellant seeking to introduce new arguments and evidence – Whether the new material afforded an arguable defence

Facts: The respondent, Allied Irish Banks plc (the Bank), brought summary judgment proceedings against the appellant, Mr Ennis. The High Court granted judgment to the Bank. The appellant appealed to the Court of Appeal where he sought to introduce new arguments and evidence. That Court dismissed the appeal, holding that the introduction of this new material at that stage was not permissible and that, even if it had been permitted and then considered as part of the appellant’s case, the material would not have afforded an arguable defence such that the matter should have been transferred for plenary hearing. In the Supreme Court, the appellant’s case was that the Court of Appeal erred in its judgment, by adopting the incorrect approach.

Held by MacMenamin J that the balance of justice required that the Court recognise the reality of the situation; that reality was that the appellant had presented issues which indicated that he did, at least, have an arguable defence, where there was, apparently, relevant documentary evidence, and points were made in the Court of Appeal which should have been made in the High Court, but were not. MacMenamin J held that he would allow the appeal, and set aside the judgment and order of the Court of Appeal.

MacMenamin J held that even were the motion remitted for further consideration by the Court of Appeal, or the High Court, the reality was that, even if the Bank were to adduce further arguments of evidence, there would still be real legal issues to be considered, and conflicts of evidence which could only be resolved at plenary hearing. In those circumstances, MacMenamin J held that he would direct that the case be transferred to the High Court for plenary hearing in substitution for the order of the Court of Appeal. MacMenamin J held that the appellant would be allowed three weeks from the date of this judgment to file his defence.

Appeal allowed.

Judgment of Mr. Justice John MacMenamin dated the 15th day of March, 2021

Background

1 This judgment deals with the approach an appeal court should adopt when there is an application to allow argument on new points, or to admit new evidence, in an appeal against a summary judgment. In this case, the respondent Bank (“the Bank”) brought summary judgment proceedings against the appellant, Mr. Ennis. The High Court granted judgment to the Bank. The appellant appealed to the Court of Appeal where he sought to introduce new arguments and evidence. That Court dismissed the appeal, holding that the introduction of this new material at that stage was not permissible and that, even if it had been permitted and then considered as part of the appellant's case, the material would not have afforded an arguable defence such that the matter should have been transferred for plenary hearing. In this Court, the appellant's case is that the Court of Appeal erred in its judgment, by adopting the incorrect approach.

2 Up to the year 2009, the appellant ran what was a highly successful business as a glazier. Later, on the 23rd March, 2011, he signed a credit agreement with the Bank. He provided security in the form of lands which he had purchased earlier. He fell behind in repayments and the Bank brought summary proceedings on the security. The High Court (Baker J.) determined that the Bank was entitled to an order directing the appellant to deliver up possession of lands which he held, comprised in Folio 49514F County Kildare (2015 No. 283 SP). The Court of Appeal, in an ex tempore judgment, dismissed the appeal. In his application for leave to appeal to this Court, the appellant contended that the material which he had by then adduced before the Court of Appeal showed that he had an arguable defence to the claim, supported by documentary evidence, and that the High Court judgment should not have been affirmed as it was. But the Court of Appeal was not persuaded by these arguments of the appellant, then a litigant-in-person. This Court granted leave to appeal ( [2019] IESCDET 225). The sole issue identified in this Court's determination granting leave concerned the approach to be adopted on applications to make a new case in appeals for judgment in summary proceedings. The panel observed that these issues had been discussed in the context of an appeal in plenary proceedings in the judgment of this Court in Lough Swilly Shellfish Growers Co-operative Society Ltd. and Anor. v. Bradley and Anor. [2013] IESC 16; [2013] 1 I.R. 227 (“ Lough Swilly”). Having represented himself both in the High Court and the Court of Appeal, the appellant decided to retain solicitors and counsel for his appeal to this Court.

3 At the outset of this appeal, however, counsel for the appellant raised an issue not mentioned in the determination. She submitted that, not only had the Court of Appeal erred in law in reaching its conclusion, but that her client should be seen as a “victim”, having been denied rights under Article 6 of the European Convention on Human Rights (“the ECHR”; “the Convention”)) which, insofar as material, provides that in a determination of civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Save in exceptional circumstances, parties in an appeal are confined to arguing only the issues identified by the Court at the leave stage. Even though the issue was not raised in this Court's determination, it is necessary to deal briefly with the fair procedures question, as, if an order was made in denial of fair procedures, it would be invalid.

Fair Procedures

4 The appellant claimed that the High Court hearing was procedurally flawed. Additionally, perhaps the case made might imply a violation derived from the absence of legal representation in the courts below. But, as well as not having been identified in the determination, any such case made is constitutionally impermissible. Insofar as it is sought directly to invoke an ECHR protection, it would run counter to provisions of the Constitution, relevant statute law, and decided authority. Article 29.6 affirms the primacy of the Constitution. It provides that “[n]o international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas”. (Emphasis added). The Convention is not directly effective in our law. Rather, it operates through the filter of the European Convention on Human Rights Act, 2003. This well-established point is emphasised in the judgments of this Court (see, McD v. L [2009] IESC 81; [2010] 2 I.R. 199, at para. 322; and, more recently, Simpson v. Governor of Mountjoy Prison [2019] IESC 81, at paras. 6, 7 and 62).

5 But, even if seen beyond those limitations, such a contention faces further difficulties. A question arises as to the extent to which any fair procedures point was, in fact, raised in the courts below, and as to the nature of any such point actually made. Insofar as any such issue was, in fact, raised, it was apparently only on a very narrow basis. In the High Court, the appellant applied to cross-examine the Bank's deponent. Acting within her discretion, the High Court judge refused that application. She was entitled to do so as there was no conflict of fact in the case. The same point was mentioned in the appellant's notice of appeal from the High Court. The judgment of the Court of Appeal dealt briefly with the same issue, correctly holding that the High Court judge's decision did not involve any denial of fair procedures (see, Delany, McGrath and McGrath, Delany and McGrath on Civil Procedure (4th edn., Round Hall 2018), at para. 21–104 and the cases cited there). But, with that exception, it is unclear how, otherwise, it is claimed the appellant was denied a right to fair procedures.

6 Lest it be thought a potentially important issue was dismissed without due consideration, I must also refer here to the context in which the point is made, and the fact that the constitutional right to fair procedures has a number of aspects. In this case, any such issue must be seen in light of the fact that the appellant, a legally competent person, decided to represent himself in the courts below. As the law stands, that was his entitlement. If he had wished to raise some other point on fair procedures, there was a duty on him, as on any represented or unrepresented litigant, to do so in the High Court and Court of Appeal.

7 The question of legal representation in litigation is not devoid of authority. The courts have had occasion to consider whether the requirements of justice rendered it necessary that impecunious or disadvantaged parties be legally represented in complex proceedings on a number of occasions (See, Hogan, Whyte, Kenny and Walsh, Kelly: The Irish Constitution (5th edn, Bloomsbury Professional 2018) at paras. 7.3.187 to 7.3.190). Ward-of-court applications are one example. But there is no evidence that this appellant came within a category of person who could claim an entitlement or right to legal representation, or that he ever took steps to obtain the services of a lawyer or applied for legal aid. There is no evidence that he was prevented from retaining a lawyer through impecuniosity. In fact, material which the appellant had obtained on a Freedom of Information application to the Bank, which is referred to later, disclosed that, at least in the period prior to the proceedings, he owned a number of properties of substantial value. The appellant did not lack...