Irish Court of Appeal
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Cite as: [2015] IECA 66
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 66 Kelly J. Irvine J. Mahon J. Appeal No. 1465/2014
Bank of Ireland Mortgage Bank Plaintiff/Appellant and
Colm Heron and Orla Heron Defendants/Respondents Judgment of the Court delivered on the 26th day of March 2015 Introduction 2. The plaintiff bank appealed to this Court on two grounds. They were:
(b) that the defendants had failed to establish a stateable defence to the plaintiffs claim. 3. On the 12th September, 2012, the plaintiff bank commenced proceedings seeking judgment against the defendants for €162,102.15 together with interest thereon, on foot of a loan agreement concluded between the parties. 4. The usual application for leave to enter final judgment followed. By the time the notice of motion seeking such relief issued, the sum outstanding had grown to €171,699.92 taking account of interest which accrued in the meantime. 5. The motion was transferred to the judge’s list where it was heard on the 1st December, 2014. The Hearing before the High Court 7. Counsel for the plaintiff maintained its entitlement to summary judgment and submitted that the affidavit filed on behalf of the defendants did not demonstrate that they had a real or bona fide defence to the claim notwithstanding the seven purported grounds of defence contained in it. 8. Counsel on behalf of the defendants submitted to the High Court judge that the defendants’ single affidavit raised sufficient matters to justify the case being adjourned to plenary hearing. He argued that only in the context of such a hearing would the defendants have the opportunity of testing the validity of the plaintiff’s claim and of pursuing their own allegations of negligence in respect of the plaintiffs alleged failure to notice alleged problems with the title to the property which the defendants purchased with the monies advanced to them by the plaintiff. The judgment of the High Court
The jurisdiction of the High Court under O. 37 12. On a contested application for summary judgment, the High Court judge may do one of three things. He may (a) dismiss the action, (b) grant judgment for the sum to which he believes the plaintiff is entitled or (c) grant leave to the defendant to defend the proceedings in whole or in part unconditionally or subject to terms (O. 37, rr. 7 and 10 RSC). 13. Any decision made by a judge on an application for summary judgment will have significant repercussions for the parties to the litigation. For a plaintiff whose claim is remitted to plenary hearing, there will be substantial delay encountered in their efforts to recover the sum claimed. Such a plaintiff will also incur additional costs in bringing the action to a full trial. 14. On the other hand, if judgment is granted against the defendant, the consequences of that decision may be very serious indeed. Such a defendant is denied the opportunity of a full trial because of a failure to reach the low threshold of proof of an arguable defence. 15. A failure on the part of a judge to give reasons for deciding to take whichever option is available under the provisions of O. 37 means that the parties to the litigation cannot make an informed decision as to whether the order may be successfully challenged on appeal or not. Need to give reasons
18. That such is the case cannot be doubted having regard to the decision of McCarthy J. in Foley v. Murphy [2008] 1 IR 619. 19. In that case McCarthy J. considered a number of Irish and English authorities in favour of the proposition that reasons must be given for judicial decisions. In Foley’s case, Her Honour Judge Murphy, a Circuit Court judge, had failed to give reasons for refusing an award of the applicant’s costs. On judicial review McCarthy J. granted certiorari to quash her decision because of the failure to give reasons for it. He remitted the matter back so that the question could be determined in accordance with law. 20. In the course of his judgment he cited with approval the judgment of the Court of Appeal in England in English v. Emery Reimbold and Strick Limited [2002] WLR 2409. In the course of that judgment the Court of Appeal quoted with approval from the judgment of Henry L.J. in Flannery v. Halifax Estate Agencies Limited [2000] 1 WLR 377. There that judge said in respect of the duty to give reasons as follows:-
(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself. (3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject-matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases. (4) This is not to suggest that there is one rule for cases concerning the witnesses’ truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.”
23. The court is sympathetic to the predicament of a High Court judge faced with a lengthy motion list on every Monday of the legal term. The present case was just such a motion listed on Monday the 1st December, 2014. But a judge cannot be relieved of the obligation to set out briefly the principal reasons underlying a decision on that account. If a judge is unable to deliver a judgment ex tempore because of the complexity of the facts or legal issues, then judgment should be reserved. But it is never sufficient to do as was done in the present case and merely announce a decision without giving any reasons for it. This Appeal
25. In Harrisrange Limited v. Duncan [2003] 4 IR 1 McKechnie J. set out the approach to be adopted on an application for summary judgment by reference to twelve different considerations (see p. 7). This Court takes into account each of those factors. The affidavit evidence 27. The only ground sought to be raised on this appeal by way of defence was an assertion that the plaintiff’s solicitors having examined the title to the property which the defendants purchased with the loan monies, had failed to notice a problem with it. The defendants asserted that they had relied on the inspection by the bank’s solicitors when they purchased the property and had they known that the title was defective, they would never have entered into the loan. 28. This is how the matter was dealt with in the defendants’ affidavit:-
31. The exhibits contained in the replying affidavit of the bank consist of the undertaking given by Mr. Kelly whereby he promised to acquire good marketable title to the property on the defendants’ behalf. The undertaking is signed by both defendants. It acknowledges that the solicitor was retained and authorised by them to deal with the bank on their behalf. The certificate of title furnished by Mr. Kelly in May 2010, confirms that the defendants had acquired good marketable title to the property. 32. It is clear in the light to this material that the relevant part of the defendants’ affidavit which is relied upon as demonstrating an arguable defence is mere assertion. Furthermore it is not credible. The supplemental affidavit sworn on behalf of the bank together with its exhibits demonstrates that the bank did not engage solicitors to act on its behalf in relation to the title to the property. Rather it relied upon the undertaking furnished by the defendants own solicitor, that he would obtain good title to the property on behalf of the defendants. No arguable defence has been shown. 33. It is of some concern to this Court that when swearing his affidavit, the first defendant must have known the true state of affairs particularly since he himself is a solicitor in Northern Ireland. Disposal |