The Governor and Company of the Bank of Ireland v Rispin
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] IEHC 726 |
| Court | High Court |
| Docket Number | [2017 770 S] |
[2022] IEHC 726
[2017 770 S]
[2017 771 S]
THE HIGH COURT
Summary judgment – Remittal – Costs – Plaintiff seeking summary judgment – Whether the plaintiff’s claim should be remitted to plenary hearing
Facts: Four applications came before the High Court on 29 November 2022. The first and second comprised motions by the plaintiff, the Governor and Company of the Bank of Ireland (the bank), seeking to amend the summary summons in both cases (2017/770 S and 2017/771 S) “for the purpose of setting out further particulars of how the sum claimed as due”. The third and fourth were ‘Summary judgment’ applications brought in each case. The motions to amend were brought in the wake of the Supreme Court’s decision in Bank of Ireland Mortgage Bank v O’Malley. Both ‘O’Malley’ applications were issued on 27 October 2021 and grounded on affidavits sworn on 19 October 2021 by a Mr Feeley, Bank Official, who exhibited an amended summary summons in each case. The applications were moved by Mr Keys BL for the plaintiff in each case. Mr O’Higgins BL represented the first defendant in each case, Mr Rispin. Mr Hand BL represented the second defendant in proceedings under record number 2017/770 S, Mr Ryan. Mr Casey, solicitor, represented the second defendant in proceedings under record no. 2017/771 S, Mr Hughes.
Held by Heslin J that the plaintiff bank was entitled to judgment, joint and severally, against Mr Rispin and Mr Hughes, in proceedings bearing record no. 2017/771 S, in the sum of €366,099.40. Heslin J noted that Mr Hughes consented to judgment against him as well as an order for costs in favour of the plaintiff with a stay on execution for six months. Heslin J held that the plaintiff bank was also entitled to judgment against Mr Rispin, in proceedings bearing record no. 2017/770 S, in the sum of €176,504.03, in respect of the claim. With respect to the costs of both applications against Mr Rispin, Heslin J’s preliminary view was that, as the entirely successful party, the bank was entitled to an order for costs to include all reserved costs, to be adjudicated in default of agreement, consistent with the normal rule that costs should follow the event.
Heslin J held that the bank’s claim against Mr Ryan in proceedings bearing record no. 2017 770 S should be remitted to plenary hearing. Subject to any alternative agreement which the relevant parties might reach, Heslin J proposed to direct: (i) the plaintiff to deliver a statement of claim within four weeks of the start of Hilary Term; (ii) any notice for particulars to be raised within a further four weeks; and (iii) a further four-week period be allowed for the delivery of replies to particulars; thereafter, (iv) a defence should be delivered within four weeks; followed by (v) any reply to defence to be delivered within two weeks; (vi) discovery requests should be raised within a further two weeks; and (vii) responded to within a further two weeks; finally (viii) any motion for discovery by either side should be issued within four weeks from that point. Heslin J’s preliminary view was that the appropriate order was that the costs of the application against Mr Ryan should be ‘costs in the cause’.
In the second set of proceedings, judgment was granted against both defendants. In the first set of proceedings, judgment was granted against the first defendant but the claim against the second defendant was remitted to plenary hearing.
JUDGMENT of Mr. Justice Mark Heslin delivered on the 21st day of December 2022
. Four applications came before the court on 29 November 2022. The first and second comprised motions by the plaintiff (hereinafter the “Bank”) seeking to amend the summary summons in both cases (2017/770S and 2017/771S) “… for the purpose of setting out further particulars of how the sum claimed as due”. The third and fourth were ‘Summary judgment’ applications brought in each case.
. The motions to amend were brought in the wake of the Supreme Court's decision in Bank of Ireland Mortgage Bank v. O'Malley. Both ‘ O'Malley’ applications were issued on 27 October 2021 and grounded on Affidavits sworn on 19 October 2021 by a Mr. Brian Feeley, Bank Official, who exhibited an amended summary summons in each case.
. The applications were moved by Mr Keys BL for the plaintiff in each case. Mr O'Higgins BL represented Mr Rispin (who is the first defendant in each case). Mr Hand BL represented Mr Ryan (the second defendant in proceedings under record number 2017/770S). Mr Casey, solicitor, represented Mr Hughes (the second defendant in proceedings under record no. 2017/771S).
. The stance adopted by all 3 three defendants was neither to consent nor to object to the ‘ O'Malley’ applications. For the reasons explained in an ex tempore decision given on the day, I granted the relief sought in both motions and made an award in favour of each of the defendants in respect of the costs of these motions.
. At that point an application was made on behalf of Mr Hughes, who argued that the O'Malley applications and the summary judgment applications should not be dealt with on the same date. It was contended that, having granted the relief sought in the O'Malley applications, the Court should adjourn the summary Judgment applications to be heard at a later date. I refused this application for reasons set out in an ex tempore decision given on 29 November 2022, which, for the sake of clarity, can be summarised as follows:-
(i) a similar application was made in January 2022, to Meenan J by counsel for Mr Rispin;
(ii) Meenan J considered and rejected that application, and directed that all four motions (i.e. 2 x ‘ O'Malley’ applications and 2 x ‘summary judgment’ applications) should be listed for hearing together;
(iii) there had been no appeal against the said decision by Meenan J;
(iv) each of the defendants had, from January to November 2022, the opportunity to file such additional affidavits as they might wish;
(v) there was no suggestion that liberty to file any further affidavit(s) had been declined;
(vi) the matters appeared in the ‘call-over’ on Thursday 24 November and there was no suggestion that any such an application was going to be made;
(vii) the case was called before Meenan J at 11am on 29 November and, again, there was no indication given that an application of this sort was going to be brought.
. The ex tempore ruling emphasised that there could be no criticism of Mr Casey for moving an application which his client had instructed him to move. However, in substance, it comprised an application which had already been made, and rejected, and I was satisfied that the justice of the situation required the Court to decline the application to adjourn. Thus, the Court proceeded to deal with the remaining two applications i.e. applications for Summary Judgment.
. Immediately before the court embarked on a consideration of the summary judgment applications, I was informed that, as a result of discussions between the relevant parties, judgment could be entered, on consent, against Mr. Michael Hughes for the sum of €366,099.40, with costs in favour of the plaintiff, and a six–month stay on execution.
. As regards the appropriate approach for this court to take to an application for summary judgment, the jurisprudence is well known and well settled. Before looking closely at the facts which emerge from the affidavits before the court, it is important to refer to certain statements principle which must guide this court in respect of both motions for summary judgment.
. In A.C.C. Plc v. Elio Malocco [2000] IEHC 13 Laffoy J made it clear that:-
“ The Court has to look at the whole situation to see whether the defendant had satisfied the Court that there is a fair or reasonable probability of his having a real or bona fide defence, or, whether what the defendant said is credible. In my view, looking at the whole situation must involve an assessment of the cogency of the evidence adduced by the Plaintiff in relation to the given situation which is to be the basis of the defence”. (Emphasis added).
. McKechnie J's decision in Harrisrange Ltd. v. Duncan [2003] 4 IR 1 remains the ‘touchstone’ insofar as the correct approach is concerned. Having reviewed earlier jurisprudence, the learned judge stated:
“….it seems to me that the following is a summary of the present position:-
(i) The power to grant summary judgment should be exercised with discernible caution,
(ii) In deciding upon this issue the Court should look at the entirety of the situation and consider the particular facts of each individual case, there being several ways in which this may best be done,
(iii) In so doing the Court should assess not only the Defendant's response, but also in the context of that response, the cogency of the evidence adduced on behalf of the Plaintiff, being mindful at all times of the unavoidable limitations which are inherent on any conflicting Affidavit evidence,
(iv) Where truly, there are no issues or issues of simplicity only or issues easily determinable, then this procedure is suitable for use,
(v) Where however, there are issues of fact which in themselves are material to success or failure, then their resolution is unsuitable for this procedure,
(vi) Where there are issues of law, this summary process may be appropriate but only so, if it is clear that fuller argument and greater thought, is evidently not required for a better determination of such issues,
(vii) The test to be applied, as now formulated is whether the Defendant has satisfied the Court...
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