Irish Court of Appeal
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Cite as: [2015] IECA 55
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 55
Appeal No. 2014/271 [Article 64 Transfer] Kelly J Peart J. Mahon J. BETWEEN The Governor and Company of the Bank of Ireland Plaintiff/Respondent - and -
John Flanagan Defendant/Appellant Judgment of the Court delivered on the 19th day of March 2015 1. This is the Defendant’s appeal from an Order of the High Court dated 14th March 2011 (and perfected on 21st March 2011), which granted summary judgment to the Plaintiff in the sum of €53,576.20, together with the costs of the proceedings. A helpful note of the ex tempore judgment of O’Neill J. delivered on 14th March 2011 has been made available to this Court. 2. The Defendant maintained a current account with the Plaintiff (Account No. 54817817) at its branch at Ennistymon, Co. Clare. This account operated from 1999 and on 19th July 2010 it was claimed by the Plaintiff that there was a principal sum due and owing on the account in the sum of €53,405.78, together with €77.01 in interest. On 19th July 2010 the Plaintiff’s solicitors wrote to the Defendant demanding payment of the sum of €53,171.28, being the amount outstanding as of 19th July 2010. This was in fact an incorrect figure; it should have been €53,482.79. The Plaintiff maintains that the Defendant has no defence to the claim. 3. In the course of the proceedings before the High Court, a number of affidavits were sworn by the Defendant. A perusal of these affidavits indicate that the Defendant’s opposition to the Plaintiff’s claim can be usefully summarised as follows:-
ii. The said current account “was maintained and operated under verbal agreement for the purposes of lending financial support to other commercial facility agreements entered into between the Plaintiff and the Defendant and/or his partners and/or co-directors.” iii. If the amount owing on the said current account became repayable on demand (which is denied), the term providing for such repayment “was replaced by the discussions and agreements in or around October/November 2009 on the consolidation of all connected commercial facilities of your deponent with the Plaintiff.” iv. Discussions relating “to the consolidation of the commercial facilities” has “not progressed and finalised.” v. The facility letter dated 8th July 2008 was not accepted by the Defendant, and it is not accepted that the signature thereon is the signature of the Defendant. vi. The issue relating to the current account intrinsically linked to commercial accounts numbered 40136260 and 70896877. 5. Twenty one grounds of appeal were submitted by the Defendant in his Notice of Appeal to this court, dated 7th April 2011. 6. For its part, the Plaintiff contends that the Defendant signed a Form of Acceptance of an overdraft facility letter on 8th July 2008, and that this facility letter provided that the overdraft facility was repayable on demand, and that in accordance therewith, the repayment of the overdraft facility was lawfully demanded by the Plaintiff. Specific reference is made to an oral agreement in 2006 when the then overdraft limit of €50,000 was raised to €100,000, with the expiry of that revised limit being 14th December 2006. The Plaintiff maintains that the overdraft limit reverted to €50,000 on 14th December 2006, and that the amount in respect of which summary judgment was granted by the High Court in excess of €50,000 represents interest accrued on the account. The Plaintiff maintains that the signature on the facility letter of 8th July 2008 is the signature of the Defendant. Reference is made to the fact that the Defendant denied that the signature was by his own hand, and as such was not a simple denial that it had been signed by him. It is contended that even if the Defendant had not signed the acceptance of the facility letter dated 8th July 2008, he would nevertheless remain bound by its terms, and the terms of an earlier facility letter, on the basis that the overdraft facility was at all material times processed and utilised by the Defendant in accordance with the terms and conditions thereof. It is further pointed out on behalf of the Plaintiff that the Defendant has not denied that the overdraft facility was used by him, or that he had the benefit of so using that facility over a number of years. On the basis of the note of the ex tempore judgment of O’Neill J which he delivered on 14th March 2011, the following is evident:-
ii. The judge noted that the Defendant had availed of the overdraft facility and had used it very actively. iii. That in relation to the contention by the Defendant that there had been a “consolidation agreement” concluded by the bank with him, the judge noted that, in particular, a letter from the Plaintiff dated 14th October 2010 had stated that it was unwilling to consolidate the accounts of the Defendant. iv. That he was satisfied that no agreement, as contended for by the Defendant had been put in place. The judge remarked that even if the Plaintiff had agreed to consolidate the loans of the Defendant, this would not relieve the latter of his liability to repay the amount owing on the current account overdraft. v. It was stated by the judge that the Defendant/Respondent has fallen well short of the threshold required in order to establish a credible bona fide defence.
The mere assertion in an affidavit of a given situation which was to be the basis of the 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.”
Is there a fair or reasonable probability of the Defendants having a real or bona fide defence? The test posed by Lloyd L.J. in the Capital Standard Chartered Bank case …. “is what the Defendants says credible?” amounts to much the same thing as I see it. If it is not credible, then there is no fair or reasonable probability of the Defendant having a defence.” |