Judgment Title: Ulster Bank Ireland Limited -v- Healy
Neutral Citation:  IEHC 96
High Court Record Number: 2010 2182 S
Date of Delivery: 28/02/2014
Court: High Court
Composition of Court:
Judgment by: Barrett J.
Status of Judgment: Approved
Neutral Citation:  IEHC 96
THE HIGH COURT
[2010 No. 2182 S]
ULSTER BANK IRELAND LIMITED
JUDGMENT of Mr. Justice Barrett delivered on the 28th day of February, 2014
1. These are summary proceedings in which Ulster Bank Ireland Limited is seeking €612,712.96 plus interest and costs from Mr. Healy. Any views expressed herein are tentative in terms of the strength or weakness of the case that either party might seek to make at plenary hearing. The central issue arising in the proceedings is whether a person who borrows money to invest in a number of investment properties is engaged in the business, trade or profession of property investor, and thus loses the protection of the Consumer Credit Act 1995, being no longer a consumer within the meaning of that Act.
Leave to defend
(ii) in deciding upon this issue the court should look at the entirety of the situation and consider the particular facts of each individual case…
(iii) in so doing the court should assess not only the defendant’s response, but also in the context of that response, the cogency of the evidence adduced on behalf of the plaintiff…
(iv) where truly there are no issues or issues of simplicity only or issues easily determinable, then this procedure is suitable for use;
(v) where, however, there are issues of fact which, in themselves, are material to success or failure, then their resolution is unsuitable for this procedure;
(vi) where there are issues of law, this summary process may be appropriate but only so if it is clear that fuller argument and greater thought is evidently not required for a better determination of such issues;
(vii) the test to be applied, as now formulated is whether the defendant has satisfied the court that he has a fair or reasonable probability of having a real or bona fide defence; or as it is sometimes put, ‘is what the defendant says credible?’…
(viii) the test is not the same as and should not be elevated into a threshold of a defendant having to prove that his defence will probably succeed or that success is not improbable, it being sufficient if there is an arguable defence;
(ix) leave to defend should be granted unless it is very clear that there is no defence;
(x) leave to defend should not be refused only because the court has reason to doubt the bona fides of the defendant or has reason to doubt whether he has a genuine cause of action;
(xi) leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence and finally;
(xii) the overriding determinative factor, bearing in mind the constitutional basis of a person’s right of access to justice either to assert or respond to litigation, is the achievement of a just result whether that be liberty to enter judgment or leave to defend, as the case may be.”
6. Section 2(1) of the Consumer Credit Act 1995, as inserted by Part 12 of Schedule 3 of the Central Bank and Financial Services Authority of Ireland Act 2004, provides that a “consumer” is:-
(b) any person, or person of a class, declared to be a consumer in an order made under subsection (9).”
8. It does not appear that Mr. Healy is a person or class of person who has been declared to be a consumer. So the sole issue arising for the purposes of determining whether he was a “consumer” when he borrowed the loan monies from Ulster Bank is whether, when borrowing those monies, he was acting outside his business, trade and profession. It is of course possible for a person to be both a consumer and a non-consumer in different circumstances. This was acknowledged in Allied Irish Bank plc v. Higgins and Others  IEHC 219 at 28, Kelly J. stating:
10. In the Higgins case, summary proceedings were commenced against the defendants for over six million euro in respect of monies loaned by AIB to the defendants’ partnership for the purpose of acquiring and developing lands in County Meath. The scale of the borrowings and the venture in which the defendants in that case were engaged is quantitatively and appears qualitatively different from the level and form of speculation engaged in by Mr. Healy. Of interest in the present context is Kelly J.’s analysis of the European Court of Justice’s decision in Benincasa v. Dentalkit (Case C-269/95)  E.C.R. I-03767. Having considered the judgment of the court in that case, Kelly J. concluded, at 28:
12. Much of the argument in this case concerned how Ulster Bank classified Mr. Healy in its dealings with him, whether he was treated as a business customer or served by a commercial manager. The court has had close regard to this argument but considers that Ulster Bank’s view of Mr. Healy, while of interest, is not of determinative significance in the assessment of whether he is a consumer for the purposes of legislation such as the Consumer Credit Act.
14. Having regard to the criteria propounded respectively by Hardiman J. and McKechnie J. in the Aer Rianta c.p.t. v. Ryanair Limited  4 IR 607 and Harrisrange Limited v. Michael Duncan  4 IR 1 cases, the court considers that Mr. Healy satisfies the low hurdle that arises for a defendant seeking leave to defend and grants Mr. Healy leave to defend these proceedings at plenary hearing.