Court of Appeal: Appeal from grant of summary judgment dismissed

About this case:

• Citation:
  [2023] IECA 246
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Donald Binchy

Delivering judgment for the Court of Appeal, Mr Justice Donald Binchy determined that whilst the appellant was entitled to apply to introduce a new ground of appeal based on Bank of Ireland Mortgage Bank v. O’Malley [2019] IESC 84, he had not attempted to establish that this would be “in the interests of justice”.

Background

On 21 December 2016, proceedings were issued by AIB Plc and separately by AIB Mortgage Bank against the appellant seeking summary judgment for €1,681,861.89 and €79,059.49 respectively.

In the summary summonses, no particulars as to the computation or interest or charges were provided, nor did the summons cross-reference a document in which that information was provided.

The appellant swore an affidavit contending that the deponent on behalf of AIB Plc was unsuitable to swear the affidavit grounding the summary judgment application, as he was neither an officer nor a partner of the bank, and that due to the uncertainty as to his position, he was disqualified from availing against the rule against hearsay provided in the Bankers’ Books of Evidence Act 1879, as amended.

The appellant further contended that negotiations between the parties in late 2014 and early 2015 culminated in an agreement in 2016, witnessed by his accountant, which AIB Plc was estopped from resiling from. The appellant also averred that he had issued proceedings against AIB Plc and AIB Mortgage Bank seeking specific performance of that agreement.

AIB Plc’s deponent in reply averred that it was a condition precedent of the agreement with the appellant that he would return the signed facility letter by a certain date, which the appellant failed to do, despite providing him with an extension.

The deponent further averred that after the end date, AIB Plc informed him by letter that the offer had been withdrawn for that reason. In reply, the appellant suggested that he had informed AIB Plc that after he signed the letter, his secretary had misplaced it and it had been returned to AIB it had withdrawn the offer.

The High Court

The trial judge found that the letter of offer contained a condition precedent that it was to be signed and returned within 35 days, and so there was no fulfilment of the agreement on the facts before her.

The court then turned to the evidence as to the appellant’s indebtedness, which the trial judge stated was uncontradicted by the appellant and which she believed herself entitled to accept on the basis of Ulster Bank Limited v. Rory O’ Brien, Danny O’ Brien and Michael O’ Brien [2015] IESC 96.

The trial judge further observed that the appellant’s contention as to non-compliance with the Bankers’ Books Evidence Act was dealt with in Ulster Bank Limited v O’ Brien, and found that the appellant’s argument that AIB’s deponent was not party to the oral agreements leading to the offer letter did not amount to an arguable defence in the circumstances.

The High Court entered judgment for both amounts claimed by the plaintiffs. The appellant appealed on a range of grounds, including the lack of locus standi of AIB Plc and AIB Mortgage Bank.

The Court of Appeal

Noting that the appellant could not have relied on Bank of Ireland Mortgage Bank v. O’Malley [2019] IESC 84 before the High Court, as that judgment was delivered subsequent to those proceedings, Mr Justice Binchy remarked that “that is not to say that he could have not made just the same arguments advanced by Mr O’Malley as regards the adequacy of the banks’ pleadings”.

Finding it “striking” that the oral and written submissions of the appellant did not address any of the grounds set forth in his notice of appeal, the judge proceeded to address the new arguments advanced by the appellant.

Considering the appellant’s contention that the respondents had no locus standi to bring the claim as the loans had been transferred to Everyday Finance DAC, the court considered that despite some procedural difficulties with same, the appellant had ultimately consented to an order re-joining AIB Plc and AIB Mortgage Bank to the proceedings by the time the cases came before the Court of Appeal.

Turning to the appellant’s submission that Everyday Finance DAC could not participate in the appeals as it had not filed its own respondent’s notices, the court highlighted that this was “at odds with para. 21 of the appellant’s own submissions” which stated that “the appellant consented to the respondent’s notice filed on behalf of AIB Plc and AIB Mortgage Bank being used for all respondents”.

Finding that the appellant was entitled to apply to the court to consider his new ground of appeal based upon O’Malley, Mr Justice Binchy noted that he was “very mindful” of the fact that in Irish Bank Resolution Corporation Limited v. Halpin [2014] IECA 3, Clarke J. “urged caution in rejected applications of this kind in summary judgment proceedings and stressed the need for proportionality between the consequences of granting summary judgment on the one hand, and the need to enforce rules applicable to new evidence on the other”.

Considering that this very issue had been addressed in no less than three recent appeals, being Allied Irish Banks Plc v. O’Callaghan [2020] IECA 318, Promontoria (Arrow) Limited v. Mallon [2021] IECA 130 and Feniton & Ors. v. McCool [2022] IECA 217, the court emphasised that exceptions to the general rule as to the introduction of new grounds of appeal must be “clearly required in the interests of justice”.

Determining that the appellant had not advanced any reasons as to why his application was required to be granted in the interests of justice, the judge commented that it is “inconceivable” in circumstances where the appellant had engaged, with the assistance of his accountant, in detailed negotiations with the respondents, that he would not be aware of the extent of his indebtedness.

Turning to the appellant’s original grounds of appeal, the court found that the trial judge applied the correct test applicable to summary judgment applications, that the agreement as between the parties was not binding as the appellant had not accepted within the time specified, and that there was no inordinate or inexcusable delay on part of the respondents, and so the appellant did not have any bona fide defence to the proceedings which would have facilitated the remittal of the proceedings to plenary hearing.

Conclusion

Mr Justice Binchy dismissed the appeal and granted the respondents their costs.

Everyday Finance DAC & Anor v. Lohan [2023] IECA 246