The Governor and Company of the Bank of Ireland v Doyle

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr Justice Edwards,Whelan J.,Ní Raifeartaigh J.
• Judgment Date: 21 December 2022
• Neutral Citation: [2022] IECA 296
• Docket Number: Record No: 2018/322

Between/

The Governor and Company of the Bank of Ireland

Respondent

and

Kieran Doyle

Appellant

[2022] IECA 296

Edwards J.

Whelan J.

Ní Raifeartaigh J.

Record No: 2018/322

THE COURT OF APPEAL

Summary judgment – Cross-examination – Particularisation – Appellant appealing against summary judgment – Whether the judge erred in refusing to allow cross-examination

Facts: The appellant, Mr Doyle, appealed to the Court of Appeal against the judgment and order of the High Court (Meenan J) dated the 10th of July 2018 granting summary judgment in favour of the respondent, the Governor and Company of the Bank of Ireland, and against the appellant, in the sum of €7,473,348.47 together with the costs of the motion and of the proceedings when taxed and ascertained. The appellant’s grounds of appeal were as follows: (1) the High Court judge erred in law and in fact in refusing to allow the cross-examination of the deponents of the affidavits filed on behalf of the respondent, pursuant to Order 37 of the Rules of the Superior Courts; (2) the judge erred in law and in fact in finding that there was no breach, by the other borrowers of the joint venture agreement (JVA) dated 16 May 2007 with the appellant as a result of the other borrowers entering into the debt resolution agreement (DRA), dated 14 February 2017, with the respondent; (3) the judge erred in law and in fact in finding that, because the other borrowers had an obligation under the JVA to indemnify the appellant, entering into the debt resolution agreement did not and/or could not result in a breach of the JVA; (4) the judge erred in law and in fact in finding that the DRA did not constitute a release of or accord with the other borrowers by the respondent; (5) the judge erred in law and in fact in finding that the entirety of the proceeds of sales under the DRA were credited to the amount due under the loan, the subject matter of the proceedings; (6) the judge erred in law and in fact in finding that the entirety of the proceeds of sales under the DRA were credited to the amount due under the loan, in circumstances where the respondent redacted evidence of where the proceeds of sales under the DRA were applied; (7) the judge erred in law and in fact in finding that payments under the DRA were to the benefit of the appellant; (8) the judge erred in law by refusing to make an order in favour of the appellant for costs in so far as they arose prior to the 25th of July 2017, in circumstances where the respondent concealed the DRA until that date; and (9) the judge erred in making an order for summary judgment against the appellant in circumstances where the respondent failed to set out sufficient detail in pleadings or evidence to allow the appellant to know the case he must meet at trial.

Held by Edwards J that: (1) the judge was correct in taking the view that he had a discretion to refuse to permit cross-examination in the circumstances of the case and was correct to do so in the circumstances as found by him; (2) and (3) bearing in mind the admonition of the former Chief Justice about the need to approach the implication of terms into a contract with caution, the presumption that exists against the importing of terms into a contract in writing, and the failure of the appellant to point to how the implication of the term he contended for into the JVA was necessary to give business efficacy to it, the contention lacked any reality or cogency, and failed to meet the low threshold of being arguable; (4) the judge was correct having regard to the wording of Clauses 9 and 10(1)(a) of the DRA, the wider terms of the DRA, and the overall context and any other view was untenable.

Edwards J held that: (5), (6) and (7) he would allow the appeal to the limited extent of substituting the sum of €7,005,283.47 (being the sum stated in the amended summary summons) for the judgment sum of €7,743,348.47 provided for in the High Court’s order, and in all other respects those grounds of appeal were rejected, particularly in so far as they formed the basis for the contention that the judge was in error in not remitting the matter for plenary hearing; (8) while the existence of the DRA was not disclosed until the 25th of July 2017, there was no evidence that there was active concealment of its existence by the respondent; (9) he was not persuaded that the interests of justice clearly required that the appellant should be allowed to rely at a late stage upon the alleged failure to adequately particularise the claim before the High Court in circumstances where he did not point to any meaningful prejudice.

Appeal dismissed in part.

Unapproved Judgment

For electronic delivery

JUDGMENT of Mr Justice Edwards delivered on the of 21st day of December 2022 .

Introduction

1 This is an appeal against the judgment and Order of the High Court (Meenan J.) dated the 10 ^th of July 2018 granting summary judgment in favour of the respondent, and against the appellant, in the sum of €7,473,348.47 together with the costs of the motion and of the proceedings when taxed and ascertained.

The Background to the Proceedings

2 The uncontroversial background to the proceedings is that in or about 2007 the appellant, and three other individuals (I will identify them for the purposes of this judgment as S.O., C.H., and P.C., respectively) entered into a joint venture agreement (JVA) to invest in property and to develop it. While this joint venture agreement will be described in greater detail later in this judgment, it may be stated at this stage that it contemplated, inter alia, that finance for the venture would be sought from the respondent by way of a bank loan and that if such finance was secured the parties to the joint venture would be jointly and severally liable to the respondent in respect of it.

3 Evidence that the contemplated loan was in due course applied for, granted and advanced is to be found in the affidavit of Paul Diggin, a Senior Manager with the respondent, sworn on the 31 ^st of January 2017. He states that by a facility letter dated the 23 ^rd of December 2010 (“the facility letter”) the respondent offered to advance the sum of €7,550,000 by way of a full recourse loan facility (“the loan facility” or “the Facility”) to S.O., C.H., P.C., and the appellant, together trading as Greenhills Co-Ownership (collectively referred to as “the Borrowers”) for the purposes therein stated, including to refinance existing facilities at that time advanced to the Borrowers. The said facility letter, which was exhibited, incorporated the respondents' general terms and conditions, which were also exhibited. The offer contained in the said facility letter was accepted by the Borrowers on diverse dates between the 10 ^th of February 2011 and the 17 ^th of February 2011. In particular, it was accepted by the appellant on the 17 ^th of February 2011.

4 The following conditions applied to the loan facility thereby offered and accepted:

• a. that interest would accrue on the principal sum outstanding at the rate of 1.75% above the respondent's one-month cost of funds rate, pending review in accordance with the terms of the facility;

• b. that interest would be compoundable at such quarterly or other periodic rests as the respondent, in their absolute discretion, would determine, and in accordance with the respondent's practice for accounts from time to time;

• c. that all principal sums payable under the loan facility, together with interest accrued, were required to be repaid in full by the 21 ^st of March 2011; and

• d. that the liability of the Borrowers under the loan facility was joint and several.

5 The respondent advanced the loan facility to the Borrowers pursuant to the facility letter, but it is contended by the respondent that the sums due pursuant to the facility letter were not repaid in full or at all by the 31 ^st of March 2011. This led to the loan being called in.

6 In due course the respondent formally demanded repayment from the appellant of monies due arising from drawdown of the loan facility (“the debt”), and when repayment of that was not forthcoming, the respondent issued a Summary Summons against the appellant on the 10 ^th of November 2016, which in its original form sought judgment against him in the sum of €7,815,536.77, being the sum allegedly due as of the 4 ^th of November 2016, plus interest pursuant to the facility and/or statute.

7 Following the calling in of the loan, the appellant's co-debtors entered into negotiations with the respondent in relation to the debt. Arising from these negotiations the respondent entered into a Debt Resolution Agreement (“DRA”) on the 14 ^th of February 2017 with S.O., C.H., and P.C., but the appellant was not a party to that agreement. While this DRA will be described in more detail later in this judgment it provided, inter alia, for a release for consideration of the appellant's co-debtors from continuing liability to the respondent in respect of the debt.

8 When the respondent's proceedings against the appellant came on in the High Court the appellant sought to have the claim sent to a plenary hearing on the grounds that he had an arguable defence (i.e., a credible defence based on more than mere assertion), on two potential bases. First, he contended that the DRA represented a release or accord for the purposes of s. 17 of the Civil Liability Act 1961 (“the Act of 1961”) on which he could rely. Secondly, he contended that entry into the DRA amounted to a breach by his co-debtors of the previously mentioned JVA between them and the appellant, and that such a breach was induced by the respondent. However, the High Court was not satisfied, for reasons to be elaborated on later in this judgment, that either contention could be relied upon as providing him with an arguable defence

9 Accordingly, judgment was granted against the appellant and in favour of the respondent for...