The Governor and Company of The Bank of Ireland v Ward

JurisdictionIreland
JudgeMs. Justice Faherty
Judgment Date09 February 2023
Neutral Citation[2023] IECA 25
CourtCourt of Appeal (Ireland)
Docket NumberAppeal Number: 2021/294
Between/
The Governor and Company of the Bank of Ireland
Plaintiff/Respondent
and
Gerry Ward
Defendant/Appellant

[2023] IECA 25

Barniville P.

Faherty J.

Pilkington J.

Appeal Number: 2021/294

High Court Record No [2017] 487 S

THE COURT OF APPEAL

UNAPPROVED

Judgment of Ms. Justice Faherty delivered on the 9 th day of February 2023

1

. This is an appeal by Mr. Ward (hereinafter “the defendant”) from the judgment of the High Court (MacGrath J.) of 7 October 2021 and the consequent Order of 28 October 2021 (as perfected on 11 November 2021) whereby the summary summons issued by the plaintiff (hereinafter “the Bank”) was to be amended in accordance with the judgment of the court, with the Bank to have two weeks to deliver the amended summary summons to the defendant, and a further two weeks to serve further affidavits, already filed in the proceedings, on the defendant. The defendant was given four weeks from the receipt of these documents to file and serve any responding affidavit should he wish to do so. Service of the documents on the defendant was to be by way of ordinary pre-paid post pursuant to previous orders of the court. The High Court made no order for costs in respect of the motion to amend and refused the defendant's application for a stay.

Background and procedural history
2

. The summary summons issued on 21 March 2017. The Bank sought: (a) judgment in the sum of €776,024.34; (b) interest pursuant to contract, or alternatively pursuant to statute; and (c) costs.

3

. The defendant entered a conditional appearance on 23 May 2017 wherein it was asserted, inter alia, that there was no lawful cause of action, that the defendant had made a lawful payment to the Bank on 8 March 2017 which was accepted, such that his alleged indebtedness had been discharged under the Bills of Exchange Act 1882, that the Bank had been advised that the matter had been privately settled with the Group Chief Financial Officer with the Bank, and that the Bank were “unlawfully and criminally” withholding from the defendant his right to inspect their “alleged original mortgage documents” and had failed to address the defendant's “NOTICE OF WRIT OF ERROR” which had been served on the Bank on 29 June 2016.

4

. By notice of motion dated 26 June 2017, returnable to 25 July 2017, the Bank sought liberty to enter final judgment against the defendant in the sum of €777,762.70, together with interest pursuant to contract, or, alternatively, pursuant to statute. That application was grounded on the affidavit sworn on 14 June 2017 by Sean Buckley, Manager.

5

. In his affidavit Mr. Buckley averred that the defendant was indebted to the ICS Building Society (“ICS”) in respect of two mortgage loan facilities which had been provided by the ICS to the defendant. Mr. Buckley went on to detail the scheme of transfer between ICS and the Bank whereby certain assets and liabilities (including the defendant's loan accounts) of ICS were transferred to the Bank on 1 September 2014. He averred that the Bank was a bank for the purposes of the Bankers' Books Evidence Act, 1879 and that the books were kept in the ordinary course of the Bank's business and under its control at all relevant times. This was further elaborated upon by Ms. Jacinta Enright, Legal Case Manager, in her affidavit sworn on 14 June 2017.

6

. Mr. Buckley stated that particulars of the sum alleged to be due were extracted from the original Banker's Book, being a computerised Mortgage Account System known as “ MAS”. This was confirmed by Ms. Enright in her affidavit. The MAS at all times was the only and ordinary Banker's Book of ICS, and now the Bank, for the purposes of recording the defendant's liabilities and compiling the statements of interest to which Mr. Buckley referred in his affidavit. Mr. Buckley averred that all entries on the MAS in relation to the defendant's liabilities had been made in the usual and ordinary course of business of ICS, and that the MAS was and had at all material times been in the control of ICS and now the Bank.

7

. Mr. Buckley outlined that the loans arose by mortgage loan offer letters of 13 December 2006 and 15 December 2006. In the former, the ICS offered the defendant a facility in the sum of €510,000 through account number ending -806 by which the defendant agreed to repay the sums due in accordance with the terms of the said letter. The loan offer was subject to general conditions. The defendant agreed to the terms of the loan offer and signed a form of acceptance of those terms. The funds were drawn down. It was averred that the defendant was in default of payment in respect of the loan and demand for repayment was made on 3 December 2014. At that time his indebtedness to the Bank was in the sum of €530,611.48, representing the principal amount together with loan interest and loan arrears amounting to €49,680.67. A further letter issued on 1 March 2017 demanding repayment in the sum of €541,701.81. No payment had been made. As of 29 May 2017, the sum due on account ending -806, according to Mr. Buckley, was €542,915.28.

8

. In respect of the second mortgage loan offer of 15 December 2006, the amount of this facility was €220,000 (account ending -808). Copies of the loan offer documentation were exhibited by Mr. Buckley, who averred that the funds had been drawn down and that the defendant was in default on this account also. In accordance with the conditions of the loan offer, on 25 November 2014, demand was made for repayment of the sum of €229,513.16. On 1 March 2017, the Bank's solicitors wrote to the defendant demanding repayment of the sum of €234,322.53. Despite demand, the defendant had failed to pay the sums due.

9

. Altogether, as of the date of the swearing of Mr. Buckley's affidavit on 14 June 2017, the total sum of €777,762.70 was alleged to be due and owing by the defendant to the Bank.

10

. On 14 February 2018, Mr. Buckley swore a further affidavit in which he exhibited copies of the entries in the Banker's Book as they relate to the loans the subject matter of these proceedings. He averred that at no stage had the defendant engaged with the Bank in a meaningful way with regard to the settlement of the claims and no payments had been made since a payment of €700 was made on 20 March 2013 into account ending -806 and a payment of €400 was made into account ending -808. Mr. Buckley confirmed that when the Bank makes a decision to issue proceedings it relies on simple interest statements, as opposed to customer statements, giving the defendant the benefit of a lesser sum based on simple interest, rather than compound interest. He also exhibited a table calculating the simple interest for both accounts.

11

. Mr. Buckley exhibited statements of account, which appear to have been generated on 2 February 2018. As of 31 January 2018, the sums due in respect of the two accounts were €546,209.76 and €236,272.50 respectively. Each of these sums was calculated on the basis of the principal and interest due on 29 May 2017, as claimed in the summary summons, but updated to include interest accruing since that time. The statements exhibited in respect of each of the accounts, which were in the name of the defendant, were stated to commence in 2007, with a drawdown of €510,000 on 25 January 2007 in respect of account ending -806, and a drawdown of €220,000 on 19 February 2007 in respect of account ending -808.

12

. Mr. Buckley also exhibited two simple interest statements of account which showed the balance due as of 31 December 2016. They stated the amount of interest which accrued between that date and the institution of the proceedings on 29 May 2017 (149 days) at an interest rate of 0.9%; and the interest which has accrued between 29 May 2017 and 31 January 2018, again all calculated on a simple interest basis of 0.9% (for this period 247 days). The total sum outstanding as of the date of swearing of Mr. Buckley's affidavit of 14 February 2018 was said to be €782,482.27. In a further affidavit of 14 February 2018, Ms. Enright confirmed the maintenance of the accounts in MAS insofar as the updated amounts were concerned.

13

. Prior to the Bank's application for summary judgment coming on for hearing, the defendant issued some four motions in the within proceedings. The first, dated 19 July 2017, sought to dismiss the Bank's case on jurisdictional grounds. By motion dated 3 December 2017, the defendant sought the determination of certain points of law, including the applicability of the Bills of Exchange Act 1882 in circumstances where the defendant claimed he made a lawful payment to the Bank for value in accordance with the Bills of Exchange Act 1882 and that this had been accepted by the Bank. Para. 1(b) of this motion claimed that the affidavits sworn by the Bank in the proceedings were unlawful and invalid. On 11 January 2018, the defendant issued a third motion seeking a determination of certain points of law, specifically that the Bank's affidavits were not lawful and that the failure to produce a written order from the Master of the High Court (who had transferred the proceedings to the High Court list) meant that the defendant had been denied his right of appeal. The defendant also sought to have the Bank and its counsel held in contempt of court for not addressing his conditional appearance. It was contended that until the court addressed the issues raised in the motion, the court had no jurisdiction to proceed and could not be recognised as a properly constituted court. The defendant issued a further (fourth) motion dated 9 February 2018 seeking orders that the solicitors for the Bank produce Mr. Buckley and Ms. Enright for cross-examination.

14

. On 18 June 2018, 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...

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    ...& anor [2021] IEHC 247; Cave Projects Limited v Gilhooley & Ors [2022] IECA 245; The Governor and Company of Bank of Ireland v Ward [2023] IECA 25; Murphy v The Minister for Defence [1991] 2 IR 161; and Fitzgerald v Kenny [1994] 2 IR 383. Cave Projects Limited is more relevant to the assess......

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