The Governor and Company of the Bank of Ireland v James Osborne

JurisdictionIreland
JudgeMr. Justice Woulfe
Judgment Date27 April 2021
Neutral Citation[2021] IECA 127
Date27 April 2021
CourtCourt of Appeal (Ireland)
Docket NumberCourt of Appeal Record No. 2018/488
Between
The Governor and Company of the Bank of Ireland
Plaintiff/Respondent
and
James Osborne
Defendant/Appellant

[2021] IECA 127

Woulfe J.

Noonan J.

Pilkington J.

Court of Appeal Record No. 2018/488

High Court Record No. 2012/3244S

THE COURT OF APPEAL

Summary judgment – Arguable defence – Costs – Appellant appealing against summary judgment – Whether the appellant had established an arguable defence to the respondent’s claim

Facts: The appellant, Mr Osborne, appealed to the Court of Appeal against the judgment and order of the High Court (Murphy J) made on the 6th December, 2018. By that order the trial judge acceded to the motion of the respondent, the Governor and Company of the Bank of Ireland, for liberty to enter final judgment against the appellant in the sum of €50,000, and also granted the respondent the costs of the proceedings. Five net issues were identified by counsel for the appellant at the outset of the hearing of the appeal. The first issue put forward was that there was a fundamental mistake in relation to the identity of the appellant. Reference was made to the nature of the borrowing in the facility letter, which letter had allegedly misidentified “the party in question”. The appellant submitted that the discovery suggested that the respondent had made a further mistake regarding the identity of the correct party by producing documents relating to another Mr Osborne who resided in Galway, and who had nothing to do with the appellant. It was further submitted that the fact that these “clear breaches of bank statements” were referenced in this case meant that the case should have gone to plenary hearing. The fourth issue related to the way that this case was conducted by the respondent in the High Court, and it was claimed that this amounted to a breach of High Court Practice Direction 54. The fifth issue advanced by the appellant was that the trial judge did not take into account an offer by him to resolve the respondent’s claim, in circumstances where it was claimed that the sum offered was more than the value of the amount borrowed. During the appeal hearing, counsel for the appellant indicated that the appellant was also maintaining the “temporary arrangement” defence, i.e. that the overdraft facility and supporting guarantee was only a temporary arrangement until a hire purchase agreement was put in place.

Held by Woulfe J that the one erroneous reference to another company in the letter of offer could not possibly give rise to an arguable defence. He was satisfied that the erroneous inclusion of documents relating to a different individual, with the same name as the appellant, could not possibly give rise to an arguable defence. He was satisfied that the fact that the respondent furnished a booklet of authorities to both the Court and the appellant during the course of the hearing in the High Court could not possibly give rise to an arguable defence. In circumstances where the respondent indicated that it was not in a position to accept a non-monetary offer to settle the account, it did not seem to him that this issue gave rise to any possible defence. He was satisfied that the purported defence of “temporary arrangement” was devoid of any credibility, and did not give rise to any real or bona fide defence.

Woulfe J held that the appellant had not established an arguable defence to the respondent’s claim. He dismissed the appeal and affirmed the decision of the trial judge. As the appellant had been entirely unsuccessful in the appeal, Woulfe J’s provisional view was that the respondent was entitled to its costs of the appeal.

Appeal dismissed.

No Redaction Needed
Aproved judgment

JUDGMENT of Mr. Justice Woulfe delivered on the 27 th day of April, 2021

Introduction
1

This is the appellant's appeal against the judgment and order of the High Court (Murphy J.) made on the 6th December, 2018. By this order the learned trial judge acceded to the respondent's motion for liberty to enter final judgment against the appellant in the sum of €50,000, and also granted the respondent the costs of the proceedings.

2

The appellant was a litigant in person before the High Court, but instructed solicitor and counsel immediately prior to his appeal.

Background
3

In November, 2007 the appellant was running a business through a corporate entity called “Coregreen Limited” (hereafter “the company”). The business involved buying a medium-sized track which could be fitted with illuminated mobile advertising signage. The company had opened a current account at the respondent's branch at Gorey, County Wexford, but as of the 12th November, 2007 appear to have had only a small overdraft facility. On that date a cheque in the amount of €72,000.00 was drawn on the company's account by way of payment for the advertising truck, in circumstances where the account had a credit balance of only €41,514.00 approximately, and this clearly needed to be addressed immediately or the cheque would have bounced if not honoured by the respondents. It appears that on the following day, the 13th November, 2007, the appellant telephoned the respondent's Gorey Branch, who agreed to make loan facilities available for the purchase of the advertising truck.

4

Subsequently, on the 13th November, 2007 the appellant attended at the respondent's Gorey branch and met with a bank official, Mr. Michael Field. The appellant executed two documents to complete the various banking formalities in order to obtain the facility from the bank. The first document was a letter of offer dated the 13th November, 2007 whereby the respondent offered to provide the company with an overdraft facility in the amount of €50,000 to assist in funding the working capital requirements of the company, which facility would be repayable on demand at any time. It was a term of the offer letter that the respondent required security, by way of a letter of guarantee from the appellant guaranteeing the borrower's liability. The appellant signed a form of acceptance dated the 13th November, 2007 for and on behalf of the company stating that he had read and agreed to be bound by and to fully accept all of the terms and conditions contained in the offer letter.

5

The second document signed by the appellant was a guarantee and indemnity (hereafter “the guarantee”) of the same date, whereby he guaranteed to pay to the bank on demand all sums of money owing or remaining unpaid to the bank from or by the company up to a maximum sum of €50,000 together with interest.

6

There is no dispute between the parties as to the fact that the respondent then provided the company with the overdraft facility in the sum of €50,000, and that the purchase of the advertising truck by the company was done with the assistance of this facility. It appears that the company and the appellant later ran into financial difficulties, in common with many other people in this jurisdiction and elsewhere during the financial recession. As of March, 2012 the company was indebted to the respondent in a sum in excess of €50,000, and the respondent called in the guarantee by letter of demand dated the 21st March, 2012.

The High Court Proceedings
7

These proceedings were commenced by summary summons dated the 27th August, 2012. The matter came before the Master of the High Court pursuant to a notice of motion issued on the 13th March, 2013 seeking liberty to enter final judgment. On the 5th October, 2017 the motion was transferred to the Judge's List by the Master, and was ultimately heard before Murphy J. on the 6th December, 2018.

8

A series of affidavits were exchanged between the parties during the course of the proceedings. In his first affidavit sworn on the 17th July, 2015 the appellant disputed the respondent's claim on the principal ground that on the 13th November, 2007 he had requested a hire purchase arrangement with the respondent by telephone, and he subsequently called in to sign what he believed was the hire purchase agreement, but he ended up having signed the guarantee. He averred that he did not have the opportunity or the time to read or examine this document. He referred to certain dealings with the respondent since November, 2007 but he did not suggest that this claim about an intended hire purchase agreement had ever been raised along the way before he swore this affidavit. In his second affidavit sworn on the 19th November, 2015 the appellant repeats this claim about the document he signed on the 13th November, 2007, states that the company “then” purchased the advertising track and alleges that the guarantee “was procured by fraud and deceit”, given that he thought he was signing a hire purchase agreement on behalf of the company. In his next affidavit sworn on the 3rd October, 2017, the appellant says again that he understood that he was signing a hire purchase agreement. He says that the company “then” purchased the truck. He says therefore the guarantee is null and void as it was “procured by a mutual mistake” (at para. 7) and further, that there was misrepresentation by the bank. His subsequent affidavits are to the same effect.

9

The appellant's claim about an intended hire purchase agreement was completely rejected in affidavits sworn on behalf of the respondent. In his first affidavit sworn on the 25th May, 2017 Mr. Field averred that he was satisfied that he did explain to the appellant the full nature and consequences of the guarantee which the appellant was willing to execute. He found it difficult to see how the appellant could have confused a current account overdraft repayable on demand and an accompanying guarantee with a hire purchase agreement for a van. If the vehicle was indeed to be financed by way of hire purchase, the respondent would have been the purchaser and owner of the vehicle, whereas it was quite clear from the appellant's own evidence that the respondent advanced the monies...

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