The Governor and Company of the Bank of Ireland v Ward
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 08 February 2019 |
| Neutral Citation | [2019] IEHC 208 |
| Court | High Court |
| Docket Number | [2017 No. 487 S] |
| Date | 08 February 2019 |
[2019] IEHC 208
[2017 No. 487 S]
THE HIGH COURT
Summary judgment – Loan agreements – Jurisdiction – Plaintiff seeking summary judgment against the defendant – Whether the case ought to be dismissed on jurisdictional grounds
Facts: The plaintiff, the Governor and Company of the Bank of Ireland, applied for summary judgment against the defendant, Mr Ward, in respect of the sum of €776,024.34 alleged to be outstanding on foot of two loan agreements dated 13th December, 2006 and 15th December, 2006. The defendant brought four motions within these proceedings. In his first motion, dated 19th July, 2017, application was made to dismiss the case on jurisdictional grounds. The next application was by way of notice of motion dated 3rd December, 2017 and in which Mr Ward sought the determination of certain points of law, including the applicability of the Bills of Exchange Act 1882. A further motion was issued by Mr Ward on 11th January, 2018, seeking a determination of certain points of law, specifically referring to two matters: (i) that the affidavits were not lawful and were inadmissible; and (ii) that the Master of the High Court had given assurances on the hearing of the application on 14th November, 2017 that he would issue a written court order transferring the proceedings to the High Court Monday list of 5th February, 2018. In the motion, it was maintained that the Master’s Order had not been produced and therefore the defendant had been denied his right to appeal. Finally, a further notice of motion dated 9th February, 2018, was issued by Mr Ward in which he sought orders pursuant to O. 40, r. 1 and/or r. 31 of the Rules of the Superior Courts that the solicitors for the plaintiff produce Mr Buckley and Ms Enright for cross-examination. This matter first came before the High Court on 18th June, 2018 and on the hearing of the application, MacGrath J concluded that the Court had jurisdiction to hear the various applications.
Held by MacGrath J that the fundamental objection of Mr Ward to the Court’s jurisdiction was his contention that such jurisdiction did not arise because of the improper swearing of affidavits by deponents by and on behalf of the plaintiff; in addition, he stated that as there was no perfected order of the Master, he was not in a position to appeal the transfer of the case to this list. MacGrath J held that: (i) he had jurisdiction to hear and determine the motions and he saw no reason to depart from the order already made by the Court in that regard on 18th June, 2018 even if he had jurisdiction to do so; (ii) the Court had a jurisdiction to admit in evidence the affidavits, even if they were not in perfect form. MacGrath J held that no reasonable grounds had been advanced by the defendant why, in the interests of justice, the affidavit should not be so admitted. MacGrath J held that to refuse to admit the affidavits would result in a potentially grave injustice to the plaintiffs. MacGrath J held that this was an appropriate case for the Court to exercise its jurisdiction to receive and admit the affidavits under O. 40, r. 15 of the Rules of the Superior Courts.
MacGrath J held that, regarding whether the defendant was or should be entitled to cross-examine the deponents on their affidavits, the time had expired in respect of which a notice of cross-examination may be served as of right; therefore, leave of the court was required. MacGrath J was willing to treat the application before the Court as an application for an extension of time within which to serve notice to cross-examine the deponents in question. However, MacGrath J saw no good reason to depart the directions given by McDermott J that the defendant be required to place on affidavit the reasons why he wished to have the deponents examined. MacGrath J invited Mr Ward to submit a further affidavit to the Court and would extend the time within which to so do.
Judgment approved.
This is the plaintiff's application for summary judgment against the defendant in respect of the sum of €776,024.34 alleged to be outstanding on foot of two loan agreement dated 13th December, 2006 and 15th December, 2006. The summary summons was issued on 21st March, 2017.
On 23rd May, 2017, Mr. Ward entered what is described as a conditional appearance to the summons. It is stated therein that the defendant did not submit or accede to the court's jurisdiction to proceed as there were no grounds for the claim and no lawful cause of action. It is stated that on 8th March, 2017 he made a lawful payment to the plaintiff which was accepted and therefore the alleged debt has been fully discharged by virtue of the provisions of the Bills of Exchange Act, 1882. Second, it is stated that the defendant wrote to the solicitor for the plaintiff on 14th March, 2017 informing her that the matter had been privately settled with Mr. Andrew Keating of the Bank of Ireland. Third, it is stated that the plaintiff was unlawfully and criminally withholding from the defendant his right to inspect the alleged original mortgage documents contrary to the Land and Conveyancing Law Reform Act, 2009. Finally, he stated that the plaintiff and the court had failed, refused or neglected to address what is described as ‘ notice of writ of error (coram nobus)’ served on the plaintiff and on the court on 29th June, 2017.
A notice of motion was issued by the plaintiff returnable for 25th July, 2017 seeking liberty to enter final judgment against the defendant. The application was grounded on the affidavit of Mr. Seán Buckley, a manager in the arrears support unit of the plaintiff bank, sworn on 14th June, 2017.
Ms. Jacinta Enright, legal case manager and employee in the arrears support unit of the plaintiff bank, has also sworn an affidavit on 14th June, 2017. She avers that the defendant's loan accounts were at all material times maintained by the plaintiff in electronic format on its computerised mortgage account system, which constituted the plaintiff's bankers” book for the purpose of the Bankers” Book Evidence Acts. She confirmed that all entries made on the mortgage accounting system regarding the defendant's liabilities were made in the usual and ordinary course of business of the plaintiff. She also confirmed that the mortgage accounting system was and remains under the control of the plaintiff.
The defendant has brought four motions within these proceedings. In his first motion, dated 19th July, 2017, application is made to dismiss the case on jurisdictional grounds. It is claimed that that the jurisdiction of the court has not been established nor has the jurisdiction of the Master been established. He further seeks an order that the matter be referred to the Director of Public Prosecutions/Garda Fraud Squad for criminal investigation, and for ‘the Financial Instrument/Promissory note/lawful payment proffered to the said alleged Plaintiff under the said Bills of Exchange Act 1882’. In an affidavit grounding this application, sworn on 17th July, 2017, Mr. Ward makes a number of claims. Specifically, he makes the case that the plaintiff is acting unlawfully and criminally in withholding from inspection the original mortgage documents. He claims that the plaintiff has been guilty of fraudulent activity. Mr. Ward argues that there are no grounds for the claim and that it should be dismissed.
Ms. McGovern, a solicitor at McDowell Purcell Solicitors, who represent the plaintiff, avers that when this motion came before the Master on 24th October, 2017, there was no appearance by or on behalf of Mr. Ward and the motion was struck out.
The next application was by way of notice of motion dated 3rd December, 2017 and in which Mr. Ward sought the determination of certain points of law, including the applicability of the Bills of Exchange Act, 1882. It is his contention that he made a lawful payment to the plaintiff for value received in accordance with the provisions of the Bills of Exchange Act, 1882 and that this was accepted by the bank. This notice of motion is grounded on an affidavit sworn by Mr. Ward on 4th December, 2017. He complains that to date, the courts in these proceedings have permitted what he describes as unlawful, illegal and fraudulent affidavits to be admitted into evidence.
At para. 1(b) of the motion of 3rd December, 2017, it is claimed that the affidavits of the plaintiff in these proceedings are unlawful and invalid. It is alleged by Mr. Ward that the affidavits are fraudulent and amount to perjury because they do not comply with the provisions O. 40, rr. 1 to 33 of the Rules of the Superior Courts, 1986 and in particular r. 9 which provides:-
‘Every affidavit shall state the description and true place of abode of the deponent…’
In addition, he relies on O. 40, r. 6, which provides:-
‘Every commissioner to administer oaths shall express the time when and the place where he shall take any affidavit, or the acknowledgement of any deed, or recognisance, otherwise the same shall not be held authentic, nor be admitted to be filed or enrolled without the leave of the court…’
It is claimed that the affidavits sworn by the deponents on behalf of the plaintiff do not specifically and expressly refer to their true place of abode. Mr. Ward emphasises the word ‘ true’ in his submissions. Further he maintains that the time of swearing is not stated in the affidavits. He seeks liberty to have an issue tried as to whether the affidavits should be allowed in evidence. It is claimed that until such time as these points of law have been fully addressed and tried, the Court has no jurisdiction to proceed and Mr. Ward states that this Court cannot and will not be recognised as a lawfully constituted court.
Mr. Seán Buckley,...
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The Governor and Company of The Bank of Ireland v Ward
...MacGrath J. determined that he had jurisdiction to hear the various applications. 15 . In a judgment delivered on 8 February 2019, ( [2019] IEHC 208), MacGrath J. addressed the defendant's various motions. At para. 29 of the judgment, he noted that he had already accepted jurisdiction and h......