The Governor and Company of the Bank of Ireland v Timmons

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 20 May 2019
• Neutral Citation: [2019] IEHC 419
• Docket Number: [2015 No. 2050 S]
• Court: High Court
• Date: 20 May 2019

[2019] IEHC 419

THE HIGH COURT

Meenan J.

[2015 No. 2050 S]

BETWEEN

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

PLAINTIFF

AND

MICHAEL TIMMONS

DEFENDANT

Summary judgment – Loan accounts – Negligent misrepresentation – Plaintiff seeking summary judgment – Whether there was negligent misrepresentation

Facts: The plaintiff, the Governor and Company of the Bank of Ireland, sought liberty to enter final judgment in the sum of £248,520.75 (Sterling) or the euro equivalent thereof. The sum being claimed arose from two loan accounts, having account numbers 300733774 and 300734044. The defendant, Mr Timmons, relied upon an affidavit, sworn 3 March 2017, wherein he sought to raise a number of defences so as to have the matter remitted to plenary hearing.

Held by the High Court (Meenan J) that, insofar as the defendant alleged that the monies were not drawn down and questioned the basis for the two loan accounts referred to by the plaintiff, the defendant had failed to establish any bona fide grounds for defence. Meenan J was satisfied, on the basis of the documentation exhibited, that those were the relevant loan accounts and that the monies had not been repaid. In respect of the defendant’s claim for negligent misrepresentation, Meenan J applied the judgment of Ní Raifeartaigh J in Allied Irish Banks Plc v Marino Motor Works Ltd [2017] IEHC 522. Meenan J held that there was a conflict between the affidavits of the defendant and that of Mr Flynn which he could not resolve in the course of a hearing for summary judgment. Meenan J was satisfied that the defendant’s claim of negligent misrepresentation went beyond a “mere assertion”, as per McKechnie J in Harrisgrange Ltd v Durcan [2003] 4 IR 8.

Meenan J held that the plaintiff was entitled to judgment in an amount but he would hear counsel as to precisely what that amount was. Meenan J permitted the defendant to maintain his action for negligent misrepresentation by way of a counterclaim.

Judgment approved.

JUDGMENT of Mr. Justice Meenan delivered on the 20th day of May, 2019

Background

1 This is the plaintiff's motion seeking liberty to enter final judgment in the sum of £248,520.75 (Sterling) or the euro equivalent thereof. The sum being claimed arises from two loan accounts, having account numbers 300733774 and 300734044.

2 Initially the defendant was not legally represented but solicitors came on record on 30 June 2017. Prior to this date, the defendant filed a number of affidavits himself. For the purposes of this application, the defendant relies upon an affidavit, sworn 3 March 2017, wherein he seeks to raise a number of defences so as to have this matter remitted to plenary hearing.

Affidavit of the defendant

3 The affidavits set out the history of the defendant's dealings with the plaintiff. This history is sadly similar to that of many others who, with little or no experience, became involved with commercial property and incurred financial liabilities as a result. These persons, such as the defendant herein, were particularly vulnerable when the economic crash occurred.

4 The defendant deposes in his affidavit that he was approached to become part of a company (Investrade Limited) that was set up to purchase the upper floor of a property known as Halifax House, Fenwick Street, Liverpool. This company then approached an official of the plaintiff with a view to obtaining finance to develop Halifax House into 26 apartments. The company borrowed some £3million from the plaintiff. A number of serious problems developed with Halifax House, including a water leak and an ensuing insurance claim. There were also a number of claims concerning maintenance which affected the rest of the building. In any event, following the initial sale and rental of a number of apartments in the building, there remained four vacant units.

5 The defendant maintains that he was contacted by Mr. Pat Flynn, an official of the plaintiff, concerning the purchase of these four apartments.

6 In his affidavit, Mr. Flynn states that a number of meetings with the defendant and other investors took place in or around October 2006. Arising from these meetings the plaintiff issued a letter...