Ulster Bank Ireland Ltd v Beades Supreme Court

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 25 November 2019
• Neutral Citation: [2019] IESC 83
• Date: 25 November 2019
• Docket Number: Supreme Court Record No: S:LE:IE:2013:000448 High Court Record No: 2012/1242
• Court: Supreme Court

BETWEEN

ULSTER BANK IRELAND LIMITED

PLAINTIFF/RESPONDENT

AND

JERRY BEADES

DEFENDANT/APPELLANT

[2019] IESC 83

McKechnie J.

MacMenamin J.

Irvine J.

Supreme Court Record No: S:LE:IE:2013:000448

Court of Appeal Record No: 2014/1007

High Court Record No: 2012/1242

THE SUPREME COURT

Summary judgment – Application of principles – Defence – Respondent seeking summary judgment – Whether the appellant established a plausible defence

Facts: The respondent, Ulster Bank Ireland Ltd, on 18th April, 2013, issued a summary summons in which it sought judgment against the appellant, Mr Beades, in the sum of €3,521,735.02. The substantive application for judgment came on for hearing, on the 10th October, 2013, before the judge then in charge of the Commercial List, McGovern J. By order dated 10th October, 2013, and perfected on the same day, the judge granted judgment against Mr Beades in the sum of €3,521,735.02, together with interest thereon at the rate provided for by s. 26 of Debtors (Ireland) Act 1840, amended by the Courts Act 1981 (Interest on Judgment Debts) Order 1989 (S.I. No. 12 of 1989). Mr Beades appealed to the Supreme Court against that decision and the resulting order. It was not suggested, as such, that the principles outlined by the trial judge were in themselves incorrect or erroneous as a matter of law. Rather, what was claimed was that even on those principles, liberty to enter judgment should not have been granted; in effect, the principles were wrongly applied. Reference was made in this context to an article published in the Commercial Law Practitioner, October, 2019, headed “Revisiting Aer Rianta” by Barrett J in support of this submission.

Held by McKechnie J that, even applying the lowest threshold that the case law identifies, namely the establishment of an arguable ground upon which it might be said that a plausible defence might be established, he could not identify any basis within the evidence adduced or the submissions made by Mr Beades which would justify such a course.

McKechnie J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 25th day of November, 2019

Introduction

1 As part of his longstanding and ongoing banking relationship with the Ulster Bank Group, Ulster Bank Ireland Limited (“the Bank” or “the respondent”) offered to make available to Mr. Beades the sum of €3,270,000.00 by letter dated 26th May, 2010 (“the facility letter”). This was subject to the terms and conditions specified in the said letter which included the Bank's standard terms and conditions, being those which at that time, governed business of this nature and kind. By acknowledgement in writing and as verified by his signature, Mr. Beades accepted this offer and the terms and conditions therein specified, on 21st July, 2010.

2 This facility had as its purpose, three aspects: firstly, to redeem certain accounts which were nominated by number and sort code, secondly, to facilitate the amalgamation of other facilities which were likewise so designated and thirdly, to capitalise a number of current accounts then held by Mr. Beades, with the same once again being similarly described. The repayment requirement stated that in the absence of demand, interest only was payable on a monthly basis until 30th April, 2011, by which date the terms were to be reviewed and agreed with the Bank: failing which the loan was to be repaid in full by way of a single payment. The security therefor was said to include a first charge over several properties, which were expressly identified by both address and location. This aspect of the contractual arrangement is not of concern in this case.

3 Despite initially making certain repayments to an acceptable level, concern soon arose at the reducing nature of the amounts being paid: so much so that between March, 2012 and December, 2012 a number of meetings were had with Mr. Beades wherein those concerns were articulated. Despite such discussions which included the possible consensual disposal of assets, the profile of the payment schedule did not improve, with the result that following the issuance of a demand letter, these proceedings were instituted on 18th April, 2013.

The High Court Proceedings:

4 On the date last mentioned, the Bank issued a Summary Summons in which it sought judgment against the appellant in the sum of €3,521,735.02. As part of the required procedure, pursuant to Order 37 of the Rules of the Superior Courts as amended (“RSC”) a notice of motion issued on 7th June, 2013, in which liberty to enter final judgment was sought. In addition, given the sum involved, an application was also included in that motion, seeking to have the proceedings admitted to the Commercial List, under O. 63A, r. 4(2) of the RSC. The affidavit grounding the motion was sworn by a Mr. Fergal White on 7th June, 2013. In response, Mr. Beades' replying affidavit was filed on 2nd July, 2013. Having considered the material exhibited and the evidence adduced, Kelly J. (as he then was) admitted the case to the Commercial List on 8th July, 2013: he also permitted the defendant to file a further replying affidavit by Wednesday, 11th September, 2013 if he so wished. No such affidavit however was filed.

5 Ultimately, the substantive application for judgment came on for hearing, on the 10th October, 2013, before the judge then in charge of the Commercial List, McGovern J. The respondent, at all times was represented by solicitor and counsel, but Mr. Beades was self-representing. It is clear from the transcript of the hearing that the lack of legal representation did not disadvantage Mr. Beades in any way. He took a full and active part in the process and participated to an extent that permits me to draw the conclusion which I have just described. He would not I think be in any way offended if I also said that, as a person he is not only familiar with court procedure, but also with court advocacy: he has experience in both. Consequently, although a lay litigant, he was in a position to fully articulate and ably present whatever defence he may have had, to the Bank's application.

6 In any event, having considered the evidence and having heard submissions from both sides, the learned judge by order dated 10th October, 2013, and perfected on the same day, granted judgment against Mr. Beades in the sum of €3,521,735.02, together with interest thereon at the rate provided for by s. 26 of Debtors (Ireland) Act 1840, amended by the Courts Act 1981 (Interest on Judgment Debts) Order 1989 ( S.I. No. 12 of 1989). Whilst a further word is needed in respect of that decision, it should be noted that the appeal therefrom and the resulting order is the subject matter of this judgment.

The High Court Judgment

7 At the outset, the learned judge acknowledged that as a lay litigant Mr. Beades “had to be given an appropriate amount of latitude in defending his position”. This is in accordance with a longstanding tradition of the Irish judiciary. He was also conscious of the fact that the procedure attaching itself to a summary summons is different in nature and extent to that pertaining to a plenary process and accordingly, the consequences of granting judgment, on a motion rather than at the end of a plenary hearing was “a very serious matter and [would have] serious consequences for … Mr. Beades”. It was therefore essential that the facts, circumstances and the evidence would be critically analysed with this in mind.

8 In furtherance of this awareness the following point should be noted: as above explained, Kelly J., as part of the order made on 8th July, 2013, afforded Mr. Beades an opportunity of putting in a further affidavit in response to the grounding affidavit sworn by Mr. White. This was thought necessary as the replying affidavit appeared to concentrate more on opposing the application to have the case admitted to the Commercial List, rather than dealing with the substantive motion for judgment. Even though no such affidavit was filed by the due date or indeed at all, nonetheless, and although the same technically should not have been permitted, McGovern J. was entirely satisfied to allow Mr. Beades to rely on the only affidavit sworn by him in this case. Not to do so he felt, would be entirely unjust.

9 The learned judge cited many of the cases in which the relevant principles governing the summary process are set forth. These included Danske Bank a/s (t/a National Irish Bank) v Durkan New Homes and Others [2010] IESC 22 (Unreported, Supreme Court, 22nd April 2010), Aer Rianta C.P.T v. Ryanair [2001] 4 I.R. 607, McGrath v. O'Driscoll [2006] IEHC 195, [2005] 4 I.R. 100 and an older case but nonetheless one still of significance, First National Commercial Bank v. Anglin Ltd [1966] 1 I.R. 75. McGovern J. then outlined his approach to the instant case: at p. 75 of the transcript he said: “… the basis on which I have to approach this matter: does that afford him a bona fide defence or a prima facie case – defence or do – is the position that notwithstanding what is in his affidavit and notwithstanding what he says the documents would show, that even taking them at their height they nonetheless do not disclose an arguable defence. So that is the basis on which I have to approach this matter in accordance with the jurisprudence of the Supreme Court. And that is the basis upon which I approach the case”.

10 The trial judge then went on to consider several of the complaints advanced by Mr. Beades in his opposition to the application made: whilst many of these were not raised in his affidavit, nonetheless all were considered. However, for the purposes of this judgment, it is unnecessary to dwell on these matters at any length or on the submissions behind them: this because they have been repeated, almost verbatim, before this Court. It suffices to state, that having acknowledged...