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THE HIGH COURT
[Record No. 2021/96S]
[2025] IEHC 233
BETWEEN
CABOT FINANCIAL (IRELAND) LIMITED
PLAINTIFF
AND
BRENDAN LAWLESS
DEFENDANT
JUDGMENT of Mr Justice Barr delivered on the 10th day of April 2025.
Introduction.
1. There were two applications before the court: the first was an application by the plaintiff for summary judgment against the defendant in the sum of 276,500; the second was the defendant's application for inspection of original documents.
Refusal of an Adjournment.
2. This matter was listed for hearing on 27 March 2025. At the commencement of the hearing, counsel for the defendant applied for an adjournment on the basis that she and her instructing solicitor had only received instructions to act on behalf of the defendant on the previous day. She stated that in these circumstances, she had not had sufficient time to properly prepare for the hearing.
3. Mr West BL, on behalf of the plaintiff, resisted that application. He pointed out that on a previous occasion when the case had been listed for hearing in early March 2024, the defendant had applied at the end of February 2024 for an adjournment of the hearing as he wished to instruct a solicitor. That adjournment had been granted.
4. The defendant had proceeded to engage a solicitor, who had acted for him until July 2024. Thereafter, the defend a nt resumed acting for himself in the litigation. Counsel pointed out that the date for the hearing on 27 March 2025, had been set in November 2024, without objection from the defendant. In addition, the defendant had attended at the call over of cases on Thursday, 20 March 2025, again without objection. It was submitted that in these circumstances, the adjournment application should be refused.
5. Luck was on the side of counsel who appeared for the defendant, as the court was available on the following day; being Friday, 28 March 2025. Having informed Counsel that the choice was to proceed that day, or to adjourn the matter for 24 hours, and having taken instructions from her client; counsel informed the court that the defendant would take the short adjournment on offer. As I was leaving the bench, counsel stated that she and her solicitor would not be appearing for the defendant on the following day. I thought that that was very strange.
6. Before the court sat on the morning on 28 March 2025, a man who held himself out as being a "friend" of the defendant, handed an envelope to the court registrar.
7. At the sitting of the court at 11am on 28 March 2025, the defendant was called. There was no appearance by or on behalf of the defendant.
8. When I opened the envelope that had been handed to the registrar, I discovered that it was a certificate of attendance issued by a doctor in the emergency department of Tallaght University Hospital. It stated that on the evening of 27 M arch 2025 at 22.14 hours, the defendant had attended the emergency department of the hospital.
9. The court interpreted that letter as an application by the defendant for a further adjournment. This was again resisted by counsel for the plaintiff.
10. In ruling against the granting of any further adjournment of the matter, the court noted that the relevant case law clearly established that failure by a litigant to instruct a legal team in time will rarely be seen as good grounds for an adjournment: see Kavanagh v Bank of Scotland v McLoughlin [2015] 3 IR 555; ACC Loan Management Limited v Fagan [2018] IECA 353.
11. The court ruled that having regard to the history of the matter and having regard to the inconclusive nature of the certificate of attendance that had been handed to the court registrar, the balance of justice was not in favour of granting any further adjournment. Accordingly, the court refused to adjourn the matter.
The Application for Summary Judgment.
12. Counsel for the plaintiff informed the court that the total sum that was claimed by the plaintiff against the defendant in its summary summons issued on 17th February 2021 was in the sum of an 499,477.48. However, that was made up of a sum for principal and a sum for surcharge interest that was alleged to be due under the contract. Counsel stated that the plaintiff was agreeable to the amount claimed for surcharge interest being referred for plenary hearing, as that was challenged on a legal basis by the defendant. Counsel stated that the plaintiff was only seeking summary judgment in the sum of 276,500, being the amount due for principal under the contract of loan. Counsel submitted that the defendant had no bona fide defence to this portion of the plaintiff's claim.
13. The evidence grounding the application for summary judgment was set out in a number of affidavits sworn by Mr Tom Dillon, a director of the plaintiff company. He stated that pursuant to the terms of a facility letter dated 22 July 2010 between ACC Bank and the defendant, the defendant accepted a loan from ACC Bank of 280,000 plus interest. He exhibited a copy of the loan facility letter dated 22 July 2010. The defendant had signed the form of acceptance in relation to the loan on 26 November 2010. In the loan facility letter, it was stated at clause 6 thereof under the heading "Repayment" that the loan facility would be repayable on demand. Copies of the loan facility letter and the acceptance thereof were exhibited to the affidavit.
14. Mr Dillon stated that the principal sum of 280,000 was drawn down to the defendant's loan account on 14 January 2011. A statement of account relating to that account was exhibited to the affidavit.
15. Mr Dillon went on to outline how ACC Bank plc had changed its name on a number of occasions ultimately resting with the name ACC Loan Management DAC (hereinafter "ACC"). He exhibited the relevant CR0 documents in this regard.
16. Mr Dillon went on to outline how by mortgage sale deed dated 31 October 2018 and an Irish law deed of transfer dated 17 December 2018, between ACC of the one part, as seller, unconditionally, irrevocably and absolutely granted, conveyed, assigned, transferred and assured all of ACC's rights, title, interest and benefits in and under a number of loan facilities and mortgage assets to Rabo UA, as buyer. He exhibited redacted copies of these deeds. He explained that the redactions had been made on two grounds: to protect commercially sensitive information and to protect the privacy rights of individuals who were unconnected with the litigation. It could be seen from the unredacted parts of the deeds that had been exhibited, that the loan account held by the defendant with ACC, which bore reference number 10052189 (hereinafter the "189 Account"). and the securities granted in respect of that loan, had been transferred by ACC to Rabo UA.
17. In a further affidavit sworn by Mr Dillon on 19 July 2024, he exhibited the letter dated 17 December 2018, whereby ACC notified the defendant that the loan held by him, had been assigned by them to Rabo UA. Furthermore, by letter dated 19 December 2018, Rabo UA confirmed to the defendant that the transfer had been completed. He exhibited copies of that correspondence.
18. At para. 13 of his affidavit sworn on 7 December 2022, Mr Dillon stated that by global deed of transfer dated 5 July 2019 between Rabo UA, as seller, and the plaintiff, as buyer; Rabo UA absolutely and unconditionally assigned and transferred to the plaintiff all its rights, title, interests, benefits and obligations to or in connection with a number of assets including loans and underlying securities, which included the loan account held by the defendant bearing reference number 10052189. He exhibited a copy of the global deed of transfer to his affidavit. Again, this deed had been redacted to protect both commercially sensitive information and the data of unconnected third parties. He stated that the unredacted portion of the document clearly established that the plaintiff had acquired the interests of Rabo UA in the loan facility and underlying securities held by the defendant.
19. By letter dated 9 July 2019, Rabo UA had notified the defendant that his loans, which included the loan account the subject matter of these proceedings, had been assigned to the plaintiff. A copy of that correspondence was exhibited to his affidavit sworn on 19 July 2024.
20. On 18 July 2019, the plaintiff had written to the defendant notifying him of the transfer of the loan facility to the plaintiff . The letter enclosed the plaintiff's terms of business, together with new account reference details for payments. A copy of that letter was exhibited to the grounding affidavit.
21. In the grounding affidavit, Mr Dillon went on to state that the defendant had defaulted in his repayment obligations pursuant to the loan facility. The plaintiff had, through its solicitor, written to the defendant on 18 May 2020 demanding payment of the outstanding debt of 499,477.48. The letter also enclosed a statement of account setting out the full transactional history of the defendant's loan account and the particulars of the debt due and owing, to include all applicable interest sums and rates, together with all surcharges, charged pursuant to the terms of the facility. Mr Dillon stated that in breach of the terms of the loan facility and in breach of the terms and conditions attaching thereto, the defendant had failed to make any repayments to the plaintiff on foot of the said demand. Accordingly, he stated that the said sum for principal and interest remained due and owing above all just credits and allowances. He exhibited a copy of the letter dated 18 May 2020.
22. Mr Dillon stated that the defendant had failed refused or neglected to pay the said sum or any part thereof and same remained due and owing as of the date of swearing of that affidavit.
23. In the grounding affidavit, the plaintiff agreed to waive any claim for further contractual interest. It stated that it had not applied any interest to the defendant's account since the date that it had acquired the facility. Mr Dillon stated that he had been advised by the plaintiff's lawyers and believed, that the defendant had no bona fide defence to the sum claimed in the proceedings. Accordingly, he prayed the court for summary judgment in the sum set out in the summary summons.
24. In his third supplemental affidavit sworn on 10 May 2024, Mr Dillon exhibited a letter dated 23 October 2020 which had been sent by the plaintiff to the defendant which contained a full statement of account in relation to the loan facility from the date of its inception on 14 January 2011 until 15 March 2019.
The Defendant's Evidence.
25. The defendant swore seven affidavits in response to the application brought for summary judgment by the plaintiff. It is not necessary to set out all the matters raised by the defendant in these affidavits, as there was a considerable amount of repetition between one affidavit and the next. In essence, the defendant raised a number of grounds on which he submitted he had established arguable grounds of defence, such that the court should remit the action to plenary hearing.
26. The first ground raised by the defendant was in relation to the legality of the charging of surcharge interest in the global sum which had been claimed by the plaintiff in the summary summons. It is not necessary to deal with this aspect in any detail, because in his second supplemental affidavit sworn on 29 August 2023, Mr Dillon on behalf of the plaintiff accepted that that part of the sum claimed in the summary summons, which constituted surcharge interest, which the defendant alleged was a penalty as opposed to a liquidated damages sum, could be remitted to plenary hearing. On that basis, the plaintiff was only seeking judgment in respect of the principal sum of 276,500. In these circumstances, no issue arises on this application as to the legality of the charging of surcharge interest, as it is agreed that that matter will be remitted to plenary hearing.
27. Insofar as the defendant sought to argue that the charging of surcharge interest prevented him dealing with the repayment of the principal sum at all, the court finds that there is no substance in this ground of defence, due to the fact that at the time when the defendant made the last repayment on the loan account, there was only a sum of just over 100 due in respect of surcharge interest. Therefore, it cannot plausibly be argued that the application of surcharge interest had prevented him dealing with repayment of the loan facility itself.
28. The second ground of defence raised by the defendant was to the effect that the transfer of the loan facility and the underlying securities from ACC to Rabo UA, and from that entity to the plaintiff, had not been validly proven, due to the fact that there were frailties in the deeds of transfer exhibited to the affidavits sworn on behalf of the plaintiff. In particular, it was asserted that the buyers of the loans had not been correctly or fully identified in the deeds of transfer, and in addition, due to the extensive nature of the redactions thereto, the requisite proof of transfer of the loan facility from one entity to the other had not been properly established in evidence.
29. The third ground of defence raised by the defendant, was that the within proceedings, which related to a loan which had been accepted in November 2010, were statute barred, having regard to the fact, that the summary summons had not issued until 17 February 2021.
30. The fourth ground of defence put forward by the defendant in his affidavits was to the effect that the sale of the underlying securities, which had been in respect of a mortgage or charge over two properties known as 'Elliott' and 'The Cone and Wafer' had not been lawful, as the proceeds of sale thereof, had not been applied by the plaintiff in reduction of the loan allegedly due by the defendant to it on loan account ending in numbers189.
31. The defendant's final ground of defence was set out in his seventh affidavit sworn on 26 June 2024, wherein he stated that the plaintiff was regulated by the Central Bank of Ireland and in turn was also regulated under the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015, which had amended the Central Bank Act 1997. The defendant stated that s.28 (f)(2)(c) (1) (2) of the Act as amended clearly showed that "credit servicing does not include enforcing a credit agreement" . He stated that the plaintiff had no locus standi to come before the court, as the plaintiff clearly could not enforce any credit agreement.
The Law.
32. Summary judgment procedure is only suitable where there is a clear prima facie legal entitlement on the part of the plaintiff to the sum claimed. Usually when such applications are being moved, the plaintiff has a very strong case that money is owed to him by the defendant and the real question before the court is whether the defendant has established sufficient evidence in his affidavit to cross the threshold that he has at least an arguable defence to some or all of the plaintiff's claim, such that he should be allowed to resist judgment been marked against him in a summary manner and should be allowed to have the matter remitted to plenary hearing.
33. The approach which the court should take to an application such as this, is well settled in law. The relevant test was set down by the Supreme Court as far back as 1996 in First National Commercial Bank v Anglin [1996] 1 IR 75. In that case Murphy J giving the judgment of the court, endorsed the following test laid down in Banque de Paris v DeNaray [1984] 1 Lloyds Law Rep 21, which had been referred to in the judgment of the President of the High Court and reaffirmed in National Westminster Bank plc v Daniel [1993] 1 WLR 1453:
"The mere assertion in an affidavit of a given situation which was to be the basis of a defence did not of itself provide leave to defend; the court had to look at the whole situation to see whether the defendant had satisfied the court that there was a fair or reasonable probability of the defendants having a real or bona fide defence."
34. The test set down in the Anglin case has been applied in a number of cases in the intervening years. The appropriate test was more recently set out in Aer Rianta CPT v Ryanair Ltd [2001] 4 IR 607, in which case Hardiman J stated as follows at page 623:
"In my view the fundamental questions to be posed on an application such as this remain: is it 'very clear' that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendants' affidavits fail to disclose even an arguable case?"
35. In Harrisrange Ltd v Duncan [2003] 4 IR 1, McKechnie J having analysed the relevant case law, set out a helpful summary of the relevant principles. It is not necessary to set these out in this judgment, as they are very well known.
36. The court has also had regard to the dicta of Moriarty J in Allied Irish Banks v Killoran [2015] IEHC 850, where he warned that the court should not accord substantive relief to defendants in summary judgment motions who raise spurious, fanciful or conjectural contentions to resist judgment. He advised that courts must be alert to defendants who seek merely to defer the evil day on the basis of arguments that do not pass muster and must remain mindful of the di minimis rule in assessing summary judgment applications.
37. In Feniton Property Finance DAC v McCool [ 2022] IECA 217, the court noted that "The fundamental question to be addressed is whether there is a fair and reasonable probability of the defendant having a real bona fide defence, in law, on the facts or both." The court stated that in addressing this question the court must proceed with caution. Murray J, delivering the judgment of the court, stated as follows at para. 11:
"At the same time, while the court must be cautious in granting summary judgment, and while the requirement that a defender establish a fair and reasonable probability of the defendant having a defence is a relatively low threshold, it is a threshold: it is neither in the public interest nor in the interests of the parties that straightforward claims for a debt or liquidated demand should require to be determined by plenary hearing, with the additional delay and cost that such a hearing involves and the additional burden thereby placed on the resources of the courts (see Promontoria (Aran) Ltd v Burns [2020] IECA 87 ('Burns' at para. 4). The defendant must, accordingly, lay a basis on which the court can conclude that there is in truth an issue to be tried, and that that issue is neither simple nor capable of being easily determined (see Prendergast v Biddle , Unreported, Supreme Court, 31 July 1957). Thus, in IBRC Ltd v McCarthy [2014] 1 IR 749, Clarke J (as he then was) stated that the type of factual assertions which may not provide an arguable defence are those that amount to a mere assertion unsupported either by evidence or by any realistic suggestion that evidence may be available, or which comprise facts which are in and of themselves inconsistent or contradictory."
Discussion and Conclusions.
38. The first thing which the court must determine is whether the plaintiff has established that it is entitled to the sum claimed in this application, being the sum of 276,500. The court is satisfied having regard to the averments of Mr Dillon in his affidavits and having regard to the documents exhibited thereto, that the plaintiff has established a chain of title to the loan in question.
39. The court is satisfied from the documents that have been put before it, that the defendant took out the original loan facility with ACC Bank by accepting the original loan facility in 2010. That loan and the underlying securities were transferred by ACC Bank to Rabo UA.
40. The court is satisfied having regard to the correspondence exhibited by Mr Dillon in his affidavits, that the defendant was given adequate notification of the transfer of the loan and underlying security from ACC to Rabo UA.
41. The court is satisfied having regard to the further deeds of transfer as exhibited in the affidavit sworn by Mr Dillon, that the loan and underlying securities were transferred by Rabo UA to the plaintiff. The court is further satisfied that the defendant was given proper notice of the transfer and assignment of the loan and securities between these entities.
42. The court is satisfied having regard to the statement of account that has been exhibited in the affidavit sworn by Mr Dillon, that the applicant is indebted to the plaintiff in the sum claimed in this application. Accordingly, the court is satisfied that the plaintiff has established in evidence its right to obtain judgment against the plaintiff in the sum claimed of 276,500.
43. The court must now move on to examine the grounds of defence put forward by the defendant to determine whether some or all of the amount claimed should be remitted to plenary hearing. The court has already noted that the disputed sum claimed in respect of surcharge interest will be remitted to plenary hearing, so it does not form part of the amount claimed for summary judgment herein; that being limited to the amount due as principal.
44. The court is satisfied that it is perfectly appropriate for a global sum claimed in a summary summons to be split in relation to a judgment for summary judgment, whereby only portion of the global amount may be awarded by way of a summary judgment, with the remainder thereof being remitted to plenary hearing. The court notes that this approach was adopted by Heslin J in Cabot Financial (Ireland) Ltd v Hamill [2023] IEHC 405, where, in circumstances that were almost identical to the present case, the court granted judgment to the plaintiff against the defendant in respect of the principal sum claimed and remitted the issue in relation to surcharge interest to plenary hearing. In that case, the learned judge expressly rejected an argument put forward by the defendant that as part of the claim was being remitted to plenary hearing, it was appropriate that the entire sum should be r emitted for determination in that manner (see paras. 10 and 88). Accordingly, the court is satisfied that the plaintiff is entitled to proceed to seek summary judgment in respect of one portion of the debt, while at the same time consenting to the remittal of the remainder of the sum claimed going to plen ary hearing.
45. The second ground of defence put forward by the defendant in his affidavits related to the adequacy of the deeds of transfer that had been exhibited in the affidavits sworn by Mr Dillon. It was submitted that there was some confusion as to who the buyers were under the various deeds. It was also submitted that given the extensive redactions carried out to the various documents that had been exhibited, the plaintiff had not established sufficient proof of transfer of the loan facility and underlying security to it.
46. The court is satisfied that there is no substance in this ground of defence. Case law makes it clear that a borrower in the position of the defendant in this case, cannot seek to raise issues in relation to the validity of the deeds of transfer that may or may not be capable of being raised by the parties to the deed itself. The authorities make it clear that a borrower, not being a party to such deeds, is only entitled to be shown that the assignee has in fact acquired the interests of the assignor: see English v Promontoria (Ireland) Ltd [2016] IEHC 662; English v Promontoria (Aran) Ltd (N o. 2 ) [2017] IE HC 322; s ee in particular paragraphs 55 and 60 in the second English case.
47. In relation to the level of redactions, it is also well settled on the authorities, that a transferee of the loans is entitled to redact the transfer documentation on grounds of commercial sensitivity and in order to protect the privacy rights of third parties who are unconnected with the litigation: see Launceston Property Finance v Walls [2018] IEHC 601.
48. The essential requirement is that the unredacted parts of the deeds of transfer clearly establish that the loan and underlying securities were transferred from the original lender to the party ultimately suing on foot of the loan or on foot of the securities. The court is satisfied from the documentation that has been exhibited to the affidavits sworn by Mr Dillon in this case, that it has been clearly established that the original loan taken out by the defendant from ACC Bank, has been transferred from that entity to Rabo UA, and from it to the plaintiff, such that the plaintiff has an entitlement to sue on the original loan facility. Accordingly, there is no substance in this ground of defence.
49. The next ground of defence raised by the defendant was to the effect that the proceedings were statute barred having regard to the fact that the loan facility letter was dated 22 July 2010 and the summary summons issued on 17 February 2021. The court is satisfied that there is no substance in this ground of defence. It is well settled that for a loan that is repayable on demand, the statutory period within which proceedings may be issued is within six years of the making of a demand for payment.
50. In Feniton Property Finance DAC v McCool, the Court of Appeal stated that in a cause of action on foot of a guarantee, the cause of action accrues when demand is made for payment from the guarantor for payment on foot of the guarantee. The court further held that where sums that had been loaned under a loan agreement which became repayable on demand, time similarly ran from the date of demand.
51. The court is satisfied having regard to the terms of the original facility letter and to the terms of the general terms and conditions incorporated into the loan agreement, that the loan was repayable on demand. The court is further satisfied that the cause of action in this case did not accrue for the purposes of the Statute of Limitations until a demand in writing was made of the defendant. The first such demand having been made on about 23 September 2015. As these proceedings commenced by issuance of the summary summons on 17 February 2021, the proceedings are clearly not statute barred.
52. The next ground of defence put forward by the defendant was to the effect that there had been a sale of the two properties over which mortgages had been given as security for the loan and that the proceeds of sale thereof had not been applied to the reduction of the loan in this case. In considering this ground of defence, the court has had regard to the uncontroverted evidence of Mr Dillon, which was to the effect that these properties had been given as security by the defendant for a number of different loans held by the plaintiff. The sale of the secured properties had occurred when there had been default in relation to a number of loans. The proceeds of sale of the properties had been applied to another loan which had been held jointly by the defendant with two other individuals. Accordingly, the proceeds of sale had been applied in reduction of a debt owed by the defendant to the plaintiff, albeit on a different loan account. The court is satisfied that in these circumstances, there is no substance in this ground of defence put forward by the defendant.
53. Finally, there is the issue raised by the defendant to the effect that the plaintiff was licensed to act as a credit servicing agent, which did not include enforcement of a credit agreement. In this regard, I accept the submission made by counsel on behalf of the plaintiff, that the section on which the defendant seeks to rely, was inserted into the Central Bank Act 1997 by the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015. However, that section was further amended by the Consumer Protection (Regulation of Credit Servicing Firms) Act 2018, with the effect that the defendant is seeking to rely on a provision that was not in force at the time that the loan was taken out and is no longer in force at the time when the plaintiff is seeking to enforce its judgment herein. I am satisfied that this is a complete answer to this purported ground of defence.
54. Furthermore, this issue was determined by Simons J in Start Mortgages v Kavanagh 2023 IEHC 452, where it was held that even under the 2015 Act, the definition contained therein excluded from the range of activities which required authorisation from the Central Bank, the taking of steps to enforce a credit agreement by or on behalf of a person who held the legal title to credit in respect of a portfolio of credit agreements. The court held that the holder of the legal title did not require authorisation from the Central Bank for the specific act of pursuing legal proceedings. The court stated that both the case law and the legislation made it clear that the holder of the legal title to a credit agreement was entitled to enforce it: see paras. 15 & 16. I am satisfied that there is no substance to this ground of defence.
55. In these circumstances, the court is satisfied that the defendant has not crossed the threshold set out in the Aer Rianta and Harrisrange cases. He has not raised any arguable bona fide defence that would entitle him to resist the application for summary judgment made by the plaintiff in respect of repayment of the principal sum.
56. Accordingly, the court will make the following orders:
(a) Grant summary judgment to the plaintiff against the defendant in the sum of 276,500;
(b) remit the remainder of the sum claimed in these proceedings to plenary hearing;
(c) the court would propose the following timeline for the exchange of pleadings in respect of that portion of the claim that is being remitted to plenary hearing: six weeks for delivery of a statement of claim; three weeks for raising a notice for particulars thereon; three weeks for furnishing replies thereto; and four weeks for furnishing a defence from date of receipt of replies to the notice for particulars.
The Defendnat's Application for Inspection of Original Documents.
57. As the defendant did not turn up to move his application for inspection of original documents, the court will strike out this motion.
Costs.
58. As this judgment has been delivered electronically, the parties will have three weeks within which to furnish brief written submissions on the terms of the final orders in each application and on costs and on any other matters that may arise.
59. The matter will be listed for mention at 10.30 hours on 14 May 2025 for the purpose of making final orders.
Result: Dismiss