The Standard Of Proof For Service Of Demand Letters – Ruling In ‘Declan Mcdonald v Thomas Michael Hill’ [2014] IEHC 629 (Judgment Delivered 25 November 2014)

Author:Mr John O'Riordan and Jamie Ensor
Profession:Dillon Eustace

This case related to an application by the Plaintiff, a receiver appointed by Danske Bank A/S trading as Danske Bank (the "Bank"), for interlocutory relief in which the Plaintiff sought an order restraining the defendant from attempting to frustrate the activities of the Plaintiff receiver appointed over lands which were charged by the defendant in favour of the Bank. The Bank claimed that it issued a letter of demand to the defendant on 22 November 2013. The defendant denied ever receiving this letter as grounding a basis for refusing to deliver up vacant possession to the Plaintiff.

The central issue in this case is the standard of proof that the Bank must demonstrate to prove that a letter of demand had been sent prior to the appointment of a receiver.

By way of background, the Bank advanced facilities to the defendant for the purpose of purchasing a public house. Security was provided by the defendant. At some stage following the drawn down of the loan, the defendant began to fall into arrears with his repayments. The mortgage in favour of the Bank contained the following clause:

"The monies owing upon this security shall be deemed to have become due within the meaning of s.19 of the Conveyancing and Law of Property Act 1881, and s.4 of the Conveyancing and Law of Property Act 1911, immediately on demand for payment being made by the Bank ... and that such demand may be effectually made by notice in writing either left at or sent by post to the mortgagor either at the mortgagor's usual or last known place of abode or business in Ireland or left for the mortgagor on any part of the mortgage property.."

The Bank claimed that it issued a letter of demand to the Defendant on 22 November 2013 which was a prerequisite to the entitlement to appointment of a receiver. The Plaintiff was appointed on 14 April 2014.

The Defendant denied ever receiving the letter of demand. He also claimed that the letter could not have been sent as he maintained that he was careful about the management of his correspondence.

To support the contention that the letter had been sent, the Plaintiff procured a number of affidavits from members of staff of the Bank which attested to the following:

The demand had been checked, printed, signed and placed in the internal bank postage process (for...

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