The Governor and Company of the Bank of Ireland v Seamus White

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 29 June 2018
• Neutral Citation: [2018] IEHC 415
• Court: High Court
• Docket Number: [2016 No. 377 S.]
• Date: 29 June 2018

[2018] IEHC 415

THE HIGH COURT

Faherty J.

[2016 No. 377 S.]

BETWEEN

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

PLAINTIFF

AND

SEAMUS WHITE

DEFENDANT

Summary judgment – Bona fide defence – Stay of execution – Plaintiff seeking summary judgment in respect of sums which they claimed they advanced to the defendant – Whether the defendant had a bona fide defence to the plaintiff's claim

Facts: The plaintiff, the Governor and Company of the Bank of Ireland, by way of summary summons dated 29th February, 2016, instituted proceedings claiming the sum of €1,213,306.77 against the defendant, Mr White, being money lent by the plaintiff to the defendant on foot of Loan Account No. 71439897. A motion for liberty to enter final judgment issued on 1st June, 2016. The plaintiff argued that the defendant had no bona fide defence to its claim. The defendant maintained that the plaintiff overcharged on interest. He also relied on an alleged breach of the 2007 loan agreement that gave rise to a defence by way of counterclaim and equitable set off.

Held by the High Court (Faherty J) that there was no basis to adjourn the matter to plenary hearing by reason of alleged overcharging of interest. Faherty J held that even if the defendant had a defence by way of counterclaim arising out of the allegations he made with regard to the 2007 loan agreement, such a defence could not operate so as to refuse the plaintiff leave to enter final judgment since the 2012 loan agreement provided that all payments to be made by the defendant were to be "calculated and made without, and free and clear of any deduction for, set off or counterclaim". Faherty J found that the plaintiff was entitled to enter summary judgment against the defendant.

Faherty J held that the defendant's claims with regard to the events of 2008 were arguable to the extent necessary for the High Court to contemplate a stay of execution. In the exercise of its inherent jurisdiction, the High Court was minded to grant a stay of execution on condition that the defendant pursues his plenary proceedings with all due diligence in accordance with the rules of the Superior Courts.

Stay of execution granted.

JUDGMENT of Ms. Justice Faherty delivered on the 29th day of June 2018

1 The within proceedings were instituted by way of summary summons dated 29th February, 2016 in which the plaintiff claimed the sum of €1,213,306.77 against the defendant, being money lent by the plaintiff to the defendant on foot of Loan Account No. 71439897.

2 An appearance was duly entered by the defendant on 6th April, 2016.

3 The within motion for liberty to enter final judgment issued on 1st June, 2016. A number of affidavits have been sworn on behalf of the plaintiff and the defendant in the within proceedings. It is the plaintiff's case that the defendant has no bona fide defence to its claim. The defendant however maintains that he has a defence and that he is entitled to a set off and counterclaim against the plaintiff.

Preliminary Objection

4 In the first instance, however, the defendant maintains a preliminary objection to the within application on the grounds that the special indorsement of claim on the summary summons is fundamentally defective in that it is:

(a) deficient;

(b) improperly constituted;

(c) fails to comply with the requirements with the Rules of the Superior Courts (RSC) governing summary proceedings, and;

(d) fails to provide sufficient particulars and/or the grounds thereof which, if true, would give rise to a cause of action against the defendant.

Alleged defects in the summary summons

5 The defendant maintains that the summary summons does not accord with the requirements of the RSC in particular that there is no reference to a contract or a demand for monies payable in the indorsement of claim, as required by O. 2, RSC. It is further submitted that the indorsement of claim does not set out 'all necessary particulars the relief claimed and the grounds thereof', as required by O. 4, r. 4.

6 As formulated, the special indorsement of claim reads:

'1. The plaintiff's claim is for the sum of €1,213,306.77 and the Defendant having failed to pay the sum due.

2. €1,213,306.77 being money payable by the Defendant to the Plaintiff for money lent and advanced by the Plaintiff's Clonakilty County Cork Branch to the Defendant at the Defendant's request within the past six years and for money now due on foot of Loan Account Number 71439897 of the said defendant with the plaintiff ...'

7 The defendant asserts that the indorsement of claim does not meet the test set out in Caulfield v. Bolger [1927] I.R. 117, namely, '... t he special endorsement must be valid as a statement of claim...', an approach echoed by the Supreme Court in Bond v. Holton [1959] I.R. 302. It is submitted that notwithstanding that summary proceedings contemplated an abbreviated and concise form of pleading, ' this is no bar to its containing all essentials of a correct pleading', as per Hanna J. in Caulfield v. Bolger.

8 The defendant asserts the plaintiff has failed to provide particulars and/or sufficient particulars in relation to the sums claimed. In particular, the indorsement of claim contains no particulars of demand on the part of the plaintiff. It is submitted that this is in circumstances where the letter of loan facility of 11th January, 2012 identifies the loan as being repayable on demand. Moreover, it is submitted that the plaintiff has failed to plead particulars and/or sufficient particulars of default on the part of the defendant. Albeit, the special indorsement of claim refers to 'money now due', there is no reference to why it is allegedly due. Nor, the defendant asserts, are there sufficient particulars relating to his alleged failure to pay the said sum. In those circumstances, counsel for the defendant submits that no cause of action is pleaded and that the defendant is thus entitled to seek to have the plaintiff's action dismissed. It is also submitted that a defective special indorsement of claim cannot be amended or cured by affidavit.

9 Counsel for the plaintiff submits that there is no merit in the defendant's assertion that the summary summons is defective. Counsel relies on the decision of the Court of Appeal in AIB v. Pierce [2015] IECA 87. where Hogan J. opines:

'15. In the present case the particulars supplied by AIB in the indorsement of claim refer to the sum outstanding, the date of demand and the relevant account. To my mind, this is sufficient, at least so far as the present case is concerned. It is clear from the correspondence from her financial adviser which has been exhibited in the grounding affidavits filed on behalf of AIB that she is fully acquainted with the nature of the bank's claim against her. Adopting the words of Ryan J. in Bank of Ireland v. Keehan [2013] IEHC 631, it cannot be said that this defendant 'has asserted...any confusion or uncertainty as to his liability.'

16. Counsel for Ms. Pierce, Mr. Sheahan S.C, suggested that the Bank could and should have provided by way of particulars contained in the indorsement of claim a running account of the loan obligations, with additional details as to interest, nature of the loan, repayments and so forth. Doubtless all of this information could have been supplied, save that in that situation the indorsement of claim would have taken on the character of a bank statement rather than a pleading. It is clear, however, from the language of Ord. 4, r. 4 that this is what the drafters of the Rules sought to avoid: they aimed instead for a pithy and concise statement of the claim.

17. I do not doubt but that there might be special cases involving proceedings brought by way of summary summons where more elaborate particulars might be required. Yet such cases are likely to be unusual - perhaps even exceptional - and no objection to the form of pleading should properly be entertained unless the defendant has first made out a convincing case by way of replying affidavit to the effect that, absent such additional particulars, the fair defence of the proceedings would be compromised.

18. Nothing of the sort arises in the present case. Indeed, Mr. Sheahan S.C. freely conceded that the objection here was based on a pure pleading point to the proceedings as cast in their present form. In my view, however, the indorsement of claim in the present case complies with the requirements of Ord 4, r. 4. It follows, therefore, that the present appeal should be allowed and the matter remitted to the High Court for a determination on the merits.'

10 The defendant maintains that the present case is distinguishable from AIB v. Pierce, given that, unlike the position in the latter case, there is no reference in the within indorsement of claim to a demand having been made of the defendant or to any date of such demand.

11 Overall, I am not persuaded that the summary proceedings should be struck out because of alleged defects in the pleadings. To my mind, there is sufficient in the special indorsement of claim to persuade the Court that the defendant knows the case he has to meet. While it is the case that there is no specific reference to a demand for repayment having been made, it is pleaded, however, that the defendant has failed to pay the sum claimed by the plaintiff. Moreover, the defendant has made no case on affidavit that a fair defence of the proceedings is compromised by the absence of any additional particulars such as are now alleged on the defendant's behalf in oral and written submissions. On the contrary, the defendant has sworn affidavits setting out the basis upon which he asserts that he has a bona fide defence to the plaintiff's claim, including by way of set off and counterclaim.

The relevant legal principles as to whether the within proceedings should be adjourned for plenary hearing

12 Before dealing with the basis upon which the...