Taite v Beades
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott,Mr. Justice Kelly |
| Judgment Date | 30 September 2013 |
| Neutral Citation | [2013] IEHC 440,[2012] IEHC 328 |
| Court | High Court |
| Date | 30 September 2013 |
[2012] IEHC 328
THE HIGH COURT
BETWEEN
AND
EEC DIR 2005/56
HARRISRANGE LTD v DUNCAN 2003 4 IR 1
AER RIANTA CPT v RYANAIR LTD 2001 4 IR 607
DANSKE BANK A/S (T/A NATIONAL IRISH BANK) v DURKAN NEW HOMES & ORS UNREP SUPREME 22.4.2010 2010/10/2392 2010 IESC 22
MCGRATH v O'DRISCOLL & ORS 2007 1 ILRM 203 2006/35/7529 2006 IEHC 195
Banking - Loans - Arrears - Demand for repayment of outstanding sums in respect of number of loan facilities - Application for summary judgment by Bank
Facts: The plaintiff had lent substantial sums to the defendant sums in respect of four loan facilities over the period of 2005 to 2008. Following the defendant falling into arrears, a demand for repayment in full was made in 2011. The plaintiff having issued proceedings, now applied for summary judgment. The defendant sought to resist the application.
Held by Kelly J, that the defendant would be allowed to reply on his replying affidavit notwithstanding his failure to comply with earlier orders in the matter. In addition to these procedural failures, the Court deprecated the defendant's willingness to make serious allegations of wrongdoing against both legal representatives and third parties, said allegations lacking any substance.
The Court considered the relevant guidance on applications for summary judgment, and stated the threshold of proof for defendants to meet in order to resist such applications was low. Harrisrange Ltd. v Duncan [2003] 4 IR 1 and McGrath v O'Driscoll [2006] IEHC 19 applied, Danske Bank v Durkan New Homes [2010] IESC 22 followed.
The Court noted that the defendant did not deny agreeing the facilities, or indeed receiving the sums issued under them. The defence submitted appeared to have little to do with the matter before the Court, and lacked detail as well evidence to substantiate the allegations made therein. The defence therefore did not meet the threshold described above, and the application for summary judgment would therefore succeed.
1. In these proceedings, the plaintiff (the Bank) seeks to recover summary judgment against the defendant (Mr. Beades) for a sum of €9,684,987.04. The claim is made on foot of four facility letters, the first of which was dated 18 th May, 2005, and the last, 11 th February, 2008. The loans were made by Bank of Scotland (Ireland) Ltd., which, as of 31 st December, 2010, merged with the Bank in a cross-border merger by absorption pursuant to EU Directive 2005/56. Under the terms of that merger and on foot of an order of the Court of Session in Scotland made pursuant to that Directive and its implementing Regulations in this jurisdiction and in the United Kingdom, all of the assets and liabilities of Bank of Scotland (Ireland) Ltd. transferred to the Bank.
2. The summary summons was issued on 4 th January, 2012.
3. On 20 th February, 2012, Peart J. made an order permitting service of the summons on Mr. Beades to be effected by ordinary pre-paid post. That was done.
4. On 23 rd March, 2012, the Bank issued a motion seeking to transfer this litigation to the Commercial List and also sought summary judgment.
5. I heard that application on 16 th April, 2012, and Mr. Beades appeared in person. He opposed the application for entry to the List. Notwithstanding his opposition, I was satisfied that it was a case that ought to be transferred and I so ordered. He sought a longer than usual time within which to file a replying affidavit to the summary judgment application and I afforded him that opportunity. I gave him until 18 th May, 2012, to do so and I fixed the hearing of the application for summary judgment for 23 rd May, 2012.
6. The motion for summary judgment came on before Peart J. on 23 rd May, 2012. Notwithstanding my order of 16 th April, 2012, Mr. Beades failed to file a replying affidavit. Peart J. gave him a further opportunity to do so in support of his defence and possible counterclaim. He was given until 15 th June, 2012. The Bank was given until 22 nd June, 2012 to respond to such affidavit. Peart J. fixed 26 th June, 2012, as the date for the hearing of the Bank's application for summary judgment.
Notwithstanding that order of Peart J., Mr. Beades again failed to file a replying affidavit within the time allowed. Ultimately, a replying affidavit was sworn by him on 21 st June, 2012. At that stage, the week afforded to the Bank within which to respond would have expired after the date fixed for the hearing of the application for summary judgment. Furthermore, whilst Mr. Beades served his affidavit on the Bank, he did not furnish it with the exhibits. Indeed, the exhibits were not furnished to the Bank until during the hearing of the application for summary judgment which has given rise to this judgment.
8. Given this unsatisfactory state of affairs, the solicitors for the Bank wrote to Mr. Beades at the address within the jurisdiction which he had supplied to them, indicating to him that they would make an application to me on 25 th June, 2012, in respect of his failure to comply with the order of Peart J. and the consequent inability of the Bank to have its replying affidavit filed prior to the hearing which was to take place the following day. Mr. Beades did not appear on 25 th June, 2012. Counsel for the Bank applied for one of two orders on that occasion. He asked either to have the hearing date of 26 th June, 2012, vacated and an opportunity provided to the Bank to respond to Mr. Beades' affidavit or, alternatively, sought that the hearing would proceed as scheduled and that Mr. Beades would be disallowed from relying on his replying affidavit. I took the view that to proceed with the hearing on the following day and to disallow Mr. Beades from relying on his replying affidavit would not be in the interests of justice and might work hardship on him notwithstanding his failure to comply with two previous orders. In those circumstances, I vacated the hearing date of 26 th June, 2012, and re-fixed the matter on a peremptory basis for Friday 6 th July, 2012. I allowed the Bank a week within which to file and serve any response to Mr. Beades replying affidavit. I also directed the solicitors for the Bank to write to Mr. Beades at his address within the jurisdiction and also at an address which he gave in his replying affidavit in Stoneyford Road, Lisburn, County Antrim, Northern Ireland to inform him of this order.
9. The Bank availed itself of the opportunity to swear and file a replying affidavit to that of Mr. Beades.
10. The application for summary judgment was heard by me on 6 th July, 2012. This is my judgment on that application.
11. Before departing from this narrative of the proceedings, I ought, for the sake of completeness, to refer briefly to what occurred at the outset of the application on 6 th July, 2012.
12. Apparently, before the case was called on before me, Mr. Beades applied to Kearns P. asking him to direct that the application not proceed before me, but rather that it should be listed before Peart J. That application was made on two bases. First, it was asserted that Peart J. had seisin of the case, and second, Mr. Beades alleged subjective bias on my part. His application was refused by Kearns P. and he was told that if he wished to make it, he should make it to me.
13. I heard Mr. Beades fully in respect of his application and gave a ruling upon it. It is not necessary that I rehearse the details of that ex tempore ruling, save to say that during the course of it, I pointed out that Peart J. did not have seisin of the case. On 23 rd May, 2012, he had done no more than provide Mr. Beades with a further opportunity to file a replying affidavit and he also re-fixed the date for the hearing of the application for summary judgment. That hearing could not go on on that date because of Mr. Beades' failure to comply with the order of Peart J. The case then returned to be dealt with by me as the judge in the charge of the Commercial List.
14. On the allegation of bias, Mr. Beades, alleged that this subjective bias was evidenced by "comments and actions" of mine on 16 th April and 25 th June, 2012. Mr. Beades was in Court on 16 th April, 2012, and was heard fully on that occasion. His request for a longer than usual time within which to file a replying affidavit was granted. He put no evidence of any sort before me to support his allegation of bias on that occasion.
15. Insofar as the events of 25 th June, 2012, were concerned, he, of course, admitted that he was not in Court then. He indicated, however, that he had been "told by people who were" that I had said or done something to indicate actual bias. He gave no evidence or information of what it was alleged I had said or done. In the course of my ruling on this allegation, I pointed out that on 25 th June, 2012, I had, in fact, in ease of him, not acceded to the Bank's application to disallow his affidavit and to proceed with the application for summary judgment the following day. On the contrary, I had re-fixed the hearing so that he would be able to rely on the contents of his affidavit. That was hardly indicative of bias against Mr. Beades. For these and the other reasons which I gave in the course of my ex tempore ruling on that occasion, I refused to recuse myself from hearing the matter, as the allegations made by Mr. Beades were unsupported by any evidence of any sort. I also declined to direct that a transcript of the hearings on 16 th April and 25 th June, 2012, be made up and provided to him, given that he adduced no evidence to warrant such order.
16. During the course of the hearing on 6 th July, 2012, Mr. Beades appeared to have no...
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