The Governor and Company of The Bank of Ireland v Balford Construction Ltd
|Mr. Justice Allen
|25 July 2022
| IECA 169
|Court of Appeal (Ireland)
|Appeal Number: 2021/179
 IECA 169
Ní Raifeartaigh J.
Appeal Number: 2021/179
THE COURT OF APPEAL
EX TEMPORE JUDGMENT of Mr. Justice Allen delivered on the 25 th day of July, 2022
. This is an appeal by the defendant – which was pressed after the determination by the High Court of the substantive action – against a judgment of the High Court as to the progressing of an interlocutory motion brought by the defendant, but which was later abandoned by the defendant.
. The appeal was misconceived from the outset and progressively deteriorated. It was, from start to finish, a complete waste of time and money.
. By summary summons issued on 9 th October, 2019 the plaintiff, Bank of Ireland, claimed judgment against the defendant, Balford Construction Limited, in the sum of €2,751,216.74, said to be due and owing on foot of two loan facilities, each of which was said to have been repayable on demand, and in respect of which demand was said to have been made. As at that time was, and for many years had been, the practice the special indorsement of claim did not set out detailed particulars of the sum claimed.
. An appearance was entered on behalf of the defendant on 12 th November, 2011. The defendant's solicitor is Ms. Marilyn McNicholas, who is the daughter of the directors of the defendant, Peter McNicholas and Nancy McNicholas.
. On 29 th November, 2019 the Supreme Court gave judgment in , . The judgment of Clarke C.J. addressed, inter alia, the requirement in O. 4, r. 4 of the Rules of the Superior Courts that the indorsement of claim should provide particulars of the sum claimed. The indorsement of claim on the summons in this case clearly did not meet the requirements set out in .
. By notice of motion issued on 11 th February, 2021 and originally returnable for 22 nd March, 2021 the plaintiff applied to the High Court for an order pursuant to O. 28 of the Rules of the Superior Courts giving it liberty to amend the special indorsement of claim so as to set out the required particulars, and for summary judgment in the sum of €2,661,194.73. The sum for which judgment was sought by the motion was less than that sought by the summons because of the application to the account in the meantime of the proceeds of realisation of security held by the Bank. Owing to COVID-19 restrictions, the Bank's motion was adjourned from 22 nd March, 2021 – which was a Monday – to 21 st June, 2021 – which was also a Monday.
. On 18 th June, 2021 – the very eve of the adjourned date for the Bank's motion – a motion was issued on behalf of the defendant by which the defendant sought an order pursuant to O. 19, r. 27 of the Rules of the Superior Courts striking out so much of the special indorsement of claim as alleged that the loans were repayable on demand “on the grounds that the said pleadings are untrue and prejudicial to the fair trial of the action”. That motion had been assigned a return date of 8 th November, 2021.
. I pause here to recall that O. 19, r. 27 of the Rules of the Superior Courts sets out an express power to strike out or amend any matter in an indorsement of claim which is unnecessary or scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action.
. If the defendant wanted to make the case that the loans were not repayable on demand, I can see no reason why it should not have done so by way of defence. Indeed, to have successfully seen off the Bank's motion for summary judgment, the defendant needed to have done any more than show that it was arguable that the loans were not repayable on demand, or that it was not clear that they were. More to the point, if there was a real issue as to whether the loans were or were not repayable on demand, the effect of the order sought would have been to prevent rather than enable the High Court to decide the issue.
. The defendant's motion issued on 18 th June, 2021 was served on – or at least sent to – the Bank's solicitors by e-mail on the same day. The defendant's solicitor proposed that the Bank's motion would be adjourned until after the defendant's motion had been determined. The Bank's solicitors were not agreeable to this course and proposed, instead, that the court would be asked to adjourn the proceedings to the earliest available Thursday in the non-jury list, so that directions could be sought and a hearing date fixed for both applications. The defendant's solicitor was not agreeable to that.
. When the Bank's motion came back into the list on the following Monday, counsel for the Bank urged that the matter was not suitable for a Monday. He asked that it, and the defendant's cross motion, be listed together in the non-jury list on the following Thursday for directions. Ms. McNicholas suggested that the defendant would be prejudiced if its motion was not heard first, but did not say why. She said that she wished to reply to both of the Bank's motions – that is, to both parts of the Bank's motion, but wanted the defendant's motion heard first.
. Hanna J. expressed the view that the one thing that was abundantly clear was that this was not a Monday morning motion matter. There were, he said, two conflicting motions which should be listed together for directions and he put them both into the non-jury list for Thursday 24 th June, 2021.
. When the motions came before Meenan J. on 24 th June, 2021 there was no appearance on behalf of the defendant and the two motions were put back to 28 th June, 2021. On 28 th June the motions were further adjourned to accommodate a personal difficulty on the part of Ms. McNicholas until 12 th July, 2021. On 12 th July, 2021 there was again no appearance by or on behalf of the defendant and the court then gave directions for the exchange of affidavits and listed the motions for hearing on 15 th March, 2022.
. It is significant to note here that the order of Hanna J. was that the two motions should travel together in order than they might be heard and directed on the same occasion. The judge did not make any order as to the sequencing of the motions.
. On 20 th July, 2021 the defendant filed a notice of appeal against the judgment and order of Hanna J. but not against the order of Meenan J. of 12 th July, 2021 by which he had given directions and fixed the hearing date. The stated grounds of appeal were that the High Court judge (1) had erred in law in transferring the defendant's motion “from the common law list to the summary judgment list without the consent of the common law list judge” and (2) that he had erred in law when he ordered that the two motions should travel together and be heard on the same occasion. As was pointed out by the Bank in its respondent's notice, the grounds of appeal were bald assertions that the judge had erred in law and did not indicate how he had allegedly erred in law.
. The defendant's appeal first came into the Court of Appeal directions list on 15 th October, 2021. Costello J. then observed – as had been pointed out by the Bank's solicitors in correspondence, as well as in the respondent's notice – that the Court of Appeal will not interfere with the management by the High Court of its lists save in the most exceptional circumstances. By then, of course, the motions...
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The Governor and Company of the Bank of Ireland v Balford Construction Ltd
...2022, the Court of Appeal (Allen J, Haughton and Ní Raifeartaigh JJ concurring) decided that the defendant’s appeal should be dismissed:  IECA 169. On 30th November, 2022, the same division of the court decided that the application brought by the defendant to “review” the judgments th......