Ulster Bank Ireland Ltd v Grimes

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 28 July 2015
• Neutral Citation: [2015] IECA 346
• Docket Number: [Appeal No. 2015/150]
• Court: Court of Appeal (Ireland)
• Date: 28 July 2015

[2015] IECA 346

THE COURT OF APPEAL

Irvine J.

[Appeal No. 2015/150]

Kelly J.

Irvine J.

Hogan J.

Ulster Bank Ireland Limited

Plaintiff/Respondent

- AND-

Brendan Grimes

Defendant/Appellant

Banking and finance – Liability – Summary summons – Appellant seeking to appeal against an order of the High Court – Whether respondent had proved its entitlement to obtain summary judgement

Facts: The respondent, Ulster Bank Ireland Ltd, appealed against an order of the master of the High Court of 20th February, 2014, whereby the master dismissed the bank's motion for liberty to enter final judgement and, in doing so, granted the costs of that application to the customer (the appellant, Mr Grimes). The High Court (Cross J) made an order on 16th March, 2015 granting judgment in favour of the respondent for a sum of €70,007.18 together with costs, the latter to be taxed in default of agreement. The appellant appealed against that High Court order, submitting that the bank's grounding affidavit sworn by Mr Duffy, a bank official with its SME recoveries department, failed to comply with the requirements of the Banker's Books Evidence Act 1879, thus rendering it inadmissible as hearsay evidence. The appellant submitted that the bank, in its verifying affidavit, had failed to prove the amount stated to be due and owing in the special indorsement of claim. Further, he submitted that, insofar as it had sought to remedy its previous errors in a supplemental affidavit, that affidavit was inadmissible as it was one sworn, not by any bank official, but by the bank's solicitor, who was not in a position to swear positively to the facts therein contained. In reply to the appellant's second submission, the bank submitted that the grounding affidavit of Mr Duffy had proved that the amount stated in the summons was lawfully due and owing, and that this was particularly so in circumstances where the appellant had not advanced any potential defence to the sum in respect of which judgement had been granted. Further, the bank submitted that the supplemental affidavit filed by Mr Harte, the bank's solicitor, was admissible as it related to matters within his own knowledge as it did no more than clarify matters that had been earlier deposed to by Mr Duffy. Insofar as there may have been any discrepancy between the sum claimed in the summons and that referred to in the grounding affidavit, the bank submitted that the appellant had been given credit to the extent of the said discrepancy.

Held by Irvine J that, regardless of whether or not Mr Harte's affidavit was admissible, having regard to the provisions of order 37 rule 1 of the Rules of the Superior Courts, she was not satisfied that the bank had proved its entitlement to obtain summary judgement as against the appellant for €70,007.18; that sum, while claimed in the notice of motion, was not the appellant's liability as advised in the special indorsement of claim, nor was it the sum outstanding as per the books and records of the bank. Irvine J held that the grounding and supplemental affidavits offered a range of different figures as the appellant's outstanding liability. Irvine J held that the Rules governing summary summons proceedings were not met by affidavits and submissions which urged the court to grant judgment for the lowest of the figures claimed on the basis that it was clear that the customer's liability was in excess of that figure and they had not advanced any potential defence to the claim. Irvine J held that the appellant was entitled to a straightforward, clear and unambiguous statement on affidavit demonstrating how the sum claimed in the notice of motion was lawfully due and owing. Irvine J held that the bank must accept the consequences of the errors and confusion created by its own pleading.

Irvine J held that she would allow the appeal and would set aside the order of the High Court made on 20th February, 2015. She then proposed that the bank be directed to re–serve the summary summons, as amended by order of the master of the High Court 20th February, 2015. Irvine J held that thereafter the bank would be at liberty to issue a fresh motion seeking liberty to enter final judgement.

Appeal allowed.

Judgment delivered ( ex tempore) on the 27th day of July 2015 by Ms. Justice Irvine

1 This is an appeal by the defendant ('the customer') against an order of the High Court (Cross J.) made on 16th March, 2015, whereby the High Court judge granted judgment in favour of the plaintiff ('the bank') for a sum of €70,007.18 together with costs, the latter to be taxed in default of agreement.

2 That order was made following an appeal brought by the bank against an order of the master of the High Court of 20th February, 2014, whereby the master dismissed the bank's motion for liberty to enter final judgement and, in doing so, granted the costs of that application to the customer.

3 For the purposes of this appeal, Mr. Casey B.L., counsel for the customer, advanced two principal arguments. First, he submitted that the bank's grounding affidavit sworn by Mr. Ian Duffy, a bank official with its SME recoveries department, failed to comply with the requirements of the Banker's Books Evidence Act 1879, as amended, thus rendering it inadmissible as hearsay evidence. Second, he submitted that the bank, in its verifying affidavit, had failed to prove the amount stated to be due and owing in the special indorsement of claim....