Jeremy Erwin

On 29 November 2019, the Supreme Court, in Bank of Ireland Mortgage Bank v O’Malley [2019] IESC, overturned a decision of the High Court granting summary judgment against the defendant. It did so on the basis that the plaintiff failed to adequately particularise its claim.

In particular, the court held that the summary summons and supporting affidavit evidence from the bank should provide “at least some straightforward account of how the amount said to be due was calculated and whether it includes surcharges and/or penalties as well as interest”.

Following the O’Malley decision, the plaintiff in Havbell DAC v Harris [2020] IEHC 147 brought an application to amend its summary summons to include the detailed information that is now required. The application was opposed by the defendant.

In an effort to summarise the law, the High Court (Humphreys J) confirmed that, in order for summary judgment to be granted, each limb of the following four-part test must be met.

1. The plaintiff’s claim must be sufficiently pleaded and particularised

A plaintiff must provide sufficient particulars of the amount being claimed to allow a defendant to contest the sum, if necessary, and to allow the Court to reach a determination. This particularisation may be done directly in the pleading or affidavit itself, or indirectly by referring to another document which contains the required level of information.

Where interest or other charges are being claimed, the pleadings must specify how the sum due was calculated and the basis for the charge. It is insufficient to state that the defendant was aware of these charges having been regularly provided with statements of account, if either the statements of account are not exhibited in the pleadings or, where they have been provided, do not contain sufficient information.

2. The plaintiff must adduce evidence establishing a prima facie case

It is insufficient for a plaintiff to baldly assert that they have a prima facie case; they must provide, and refer to, the evidence that demonstrates that there is, in fact, a prima facie case.

3. If there is a prima facie case, the Court must inquire whether there is a fair and reasonable probability of the defendant having a real or bona fide defence

The Court did not consider this limb of the test in much detail, but noted that it essentially involves an inquiry into whether the defence put forward is credible.

4. If the defendant has such a defence, they must also show that it goes beyond mere assertion and is supported by evidence

If the defendant puts forward a defence, they must support that defence with evidence. For example, if the defendant alleges that an agreement was concluded with the plaintiff, or a predecessor in title of the plaintiff, which, if actually concluded, would prevent the plaintiff from obtaining judgment, the onus of proof is on the defendant to prove that such an agreement was concluded.

Conclusion

The Havbell decision provides some welcome clarification of the implications of the O’Malley decision on applications for summary judgment and summarises the hurdles a plaintiff will have to overcome in order to succeed. It is also a useful consideration of the law on applications to amend a summary summons.

Plaintiffs in both new and existing proceedings should ensure that they have sufficient documentation to evidence their claim and that this documentation is contained, or referred to, in the pleadings and affidavits grounding the application. On the other side, defendants are required to adequately support by way of evidence the defences to the application for judgment.

• Jeremy Erwin is a partner and Cian Clinch is an associate solicitor at Hayes solicitors.