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You are here: BAILII >> Databases >> Irish Court of Appeal >> Boulbet v Sumup Ltd (Approved) [2025] IECA 125 (27 May 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA125.html
Cite as: [2025] IECA 125

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THE COURT OF APPEAL

CIVIL

 

Approved

No Redactions Needed

Record Number: 2025/4

High Court Record Number: 2017/2545/S

Neutral Citation: [2025] IECA 125

 

Costello P.

Meenan J.

O'Moore J.

 

BETWEEN/

EVERYDAY FINANCE DAC

RESPONDENT/PLAINTIFF

-AND-

 

FINBARR TOLAN

 

APPELLANT/DEFENDANT

 

 

 

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 27th day of May, 2025.

1.             It is commonplace in litigation, especially commercial litigation, that parties will seek to add further particulars of their claim as it progresses.  This is particularly so in actions where financial institutions take proceedings in order to recover sums allegedly due to them.  As a result of the judgment of the Supreme Court in Bank of Ireland Mortgage Bank v O'Malley [2022] 2 IR 487, financial institutions have been anxious to ensure that proper particulars of their claim are provided.  This is such a case. 

2.             These summary summons proceedings began with Allied Irish Banks plc as the plaintiff.  The writ was issued on the 23rd November 2017.  By order of the 19th February 2024, Barry O'Donnell J. substituted Everyday Finance DAC for Allied Irish Banks plc as the plaintiff in the proceedings.  As is the norm, this order was made on foot of an ex parte application by the plaintiff.  As is also by no means unusual, the defendant sought to set aside the ex parte order.  The Defendant/Appellant, Mr. Tolan, states (at para. 10 of his written submissions in this appeal) that on the 18th November 2024 he issued a motion seeking to "contest" the order of O'Donnell J. made on the 19th February 2024.   He goes on to assert that that motion was returnable for the 27th January 2025 "as this was the earliest possible date that could be allocated to the Appellant."

3.             On Mr. Tolan's own account, therefore, this motion was brought only after Everyday had issued a motion seeking to amend the summary summons so as to provide the further particulars which, Everyday says, had to be provided in accordance with the judgment in O'Malley.  That motion was issued on the 2nd July 2024, and was returnable for the 11th November 2024. 

4.             Importantly, on the first return date for that motion (and again according to Mr. Tolan's own written submissions on this appeal) he "submitted to the Court firstly that he had not been provided with all the documentation which he required to defend this case, and secondly those documents were required by his legal and/or financial adviser as he wished to put a Solicitor on record."  On foot of this submission, Mr. Tolan says that the judge hearing the motion (Coffey J.) adjourned the Everyday motion for a week to allow Mr. Tolan "to be provided with the necessary documentation, to enable him to seek legal advice on the matter"; see para. 7 of Mr. Tolan's written submissions.  That paragraph goes on to say that Mr. Tolan informed the court that unless he was given all documentation relating to the case and the Everyday application "then his Solicitor would not be willing to come on record."

5.             Mr. Tolan asserts that it was only after this court appearance that he was informed of the order of O'Donnell J. substituting Everyday for AIB. 

6.             On the 18th November 2024, notwithstanding the opposition of Mr. Tolan, the trial judge made an order in the following terms: -

"It is ordered pursuant to Order 28, rule 1 of the Rules of the Superior Courts that the plaintiff be at liberty to amend the Summary Summons and the Schedule attached.

And it is further ordered that the plaintiff do have liberty to reserve the said Amended Summary Summons within 14 days of the perfection date of this order."

7.             It is against this mundane order, permitting Everyday to deliver an amended summary summons with, admittedly, a large amount of further particulars, that Mr. Tolan now appeals.

8.             Mr. Tolan has set out 17 grounds of appeal (one of which is broken into five sub grounds).  The real issues on the appeal can be seen more clearly from the admirably brief written submissions provided by Mr. Tolan.  In them, he elaborates upon a number of the grounds of appeal.  At the hearing of the appeal, and without abandoning any of his grounds of appeal, Mr. Tolan has focused on an alleged failure of Everyday (even in its amended Summary Summons) to comply with the O'Malley principles; Ground of Appeal 16.

9.             Firstly, Mr. Tolan complains that at the hearing on the 18th November he made an unsuccessful application to adjourn the motion to amend the summary summons "until such time as his Motion was determined before the High Court which is returnable for 27th January 2025"; para. 11 of his written submission.  This application was apparently based on a submission made by Mr. Tolan to the effect that Everyday "should not have jurisdiction to amend any pleadings until the outcome of [his] Motion."  This is not a good argument.  The order of O'Donnell J. naming Everyday as the plaintiff in the proceedings had legal effect as soon as it was made.  It was therefore open to Everyday, on foot of that order, to seek to amend the proceedings in the way in which they proposed.  The jurisdiction in this regard is clearly set out at O. 28, r. 1 of the Rules of the Superior Courts, as follows: -

"The court may, at any stage of the proceedings, allow either party to alter or amend its endorsement or pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

10.         It should be remembered that the stated purpose for the amendment of the summary summons was to provide Mr. Tolan with full particulars of the claim made against him.  That was, of course, not done for altruistic reasons.  It was done to avoid the proceedings falling foul of the requirements of the Supreme Court in O'Malley.  Having said that, however, the upshot of the application was that Mr. Tolan would be more fully aware of the details of the claim which he was facing.  It is difficult to see why he would object to that.  Indeed, the trial judge in making the order sought by Everyday emphasised the nature of the amendment to the pleading in these terms: -

"All that is being sought is leave to further particularise the claim that is made.  The order of the court, in giving that leave, does not adjudicate on the merits of the claim at all."

11.         In brief, Everyday had a clear entitlement to bring the application to amend, the court had jurisdiction to make the order sought by Everyday, and the judge was perfectly within his discretion in deciding to proceed with the motion in advance of the hearing of Mr. Tolan's own application to set aside the order of O'Donnell J.

12.         Secondly, Mr. Tolan complains, in fairly trenchant terms, about the hearing that he was given.  At para. 14 of his written submissions he says: -

"Further, it appears, with all due respect, that the Judge stated quite early in the hearing that he did not wish to hear the Appellant."

There was then a reference to a Transcript excerpt in which, it is argued, "the Judge cut the Appellant off mid-sentence...".

13.         A proper consideration of the full transcript shows that there is no merit in this argument. 

14.         While the trial judge indicated at an early stage in the hearing that the order sought was of a type he made as a matter of course, when Mr. Tolan asked "to say something" he was naturally allowed to do so. Mr. Tolan then made a submission running from line 10 of page 2 of the transcript to line 2 of day 3: -

"MR TOLAN:  Okay.  Judge, what I'm saying is I believe that this application is premature.  And the reason for that is an order was made in February of this year gone by, where the plaintiff submitted an application to change the name from AIB to Everyday.  I am contesting that.  And I believe that until that matter is determined that this matter is premature.  It shouldn't be dealt with.  Now, if I had known sooner and been aware of that, I would have made that application sooner.  But I have made that application to come before Mr Justice O'Donnell.  I know this gentleman made little of it earlier because he made a comment, and he says that was just an ex parte application.  There's an order here by Mr Justice O'Donnell and he makes it very clear on his order.  And he says that a copy of this order substituting the plaintiff is to be served on the defendant of the proceedings.  The defendant is to be informed on notice in writing of the following:  A), that a copy of the affidavit and exhibits grounding this appropriate is available on request; B), that an application may be made to the Court on notice to set aside this order; and C), which is very important, of my entitlement to contest the transfer of the loan.  I hadn't been afforded that opportunity and if I had, Judge, that matter would perhaps have been determined before it came before you.  So, I'm asking - what I'm asking of this Court is I - in light of the order of Mr Justice O'Donnell, where liberty is granted for me to contest and seek, if I wish, to set aside his decision, I believe that it's premature to make any order in this matter until that is determined.  And that is coming before the Court on the 27th of January.  And I'm asking the Court that this will be adjourned until such time.  Now, I respect Judge where you say that this is just maybe a normal, common thing.  I would have no issue, Judge, with you considering making the order that you're -- that this gentleman wants you to make today, if I had no issue with Everyday being the plaintiffs in this matter.  But when I am contesting that, I believe that they shouldn't have jurisdiction to seek to do that until such time as that order is determined."

15.         Following a brief exchange between Mr. Tolan and counsel for Everyday, Mr. Tolan continued: -

"MR TOLAN:  Judge, I certainly did say I had an issue because I'm objecting to -- until the -- at least, Judge, until this -- I believe that Everyday hasn't jurisdiction or shouldn't have jurisdiction to be making any application, Judge, until such time as I have fully contested the order which Mr Justice O'Donnell, on his order, has given me to do.  Now, Judge, if I had been furnished with this documentation at that time, I would have made the application sooner.  But as I said previously, Judge, I was only furnished with this documentation in recent days, and you very kindly gave me permission to seek legal advice last week.  Now, as I said the last day, I have a solicitor that will be willing to come on record when I have all documentation to hand for him, not until then.  However, what I was provided with the last day was just the motion that's before you.  And on the basis of that, when we looked through that and that -- it was only then when I became aware of Mr Justice O'Donnell's order.  And what I'm saying here is, Judge, I moved immediately.  I sent a letter last Friday then immediately to the defendants.  Or excuse me, to the plaintiffs, requesting that they furnish me with a copy on request, as Mr Justice O'Donnell directed on his order.  On request to furnish me with a copy of the ex parte motion that they relied upon in February, and also, the affidavit.  Now, I will be hopeful that they will be honourable enough to furnish that to me now.  They should have that letter -- the letter is here.  They should have that.  I've no reason -- if they don't, Mr Justice O'Donnell will have to probably make that order himself in January.  But I would be hopeful that they will adhere to that.  Because it's clear in his order.  He says in his order, Judge, that I have an entitlement to request -- that they have to give it to me on request.  Now, what I'm saying here is, Judge, I believe, Judge -- that's why I asked earlier, I am conscious of court time.  I asked that this matter be adjourned till after Mr Justice O'Donnell deals with this motion on the 27th of January.  Because at that point, if -- Mr Justice O'Donnell feels that I have no grounds to contest the matter, then obviously, that will automatically grant Everyday jurisdiction to move this motion.  But until such time as they do, Judge, I am resisting the application."

16.         It is clear that Mr. Tolan not only had a right to be heard (as he argues) but that he was heard fully by the High Court judge. Strikingly, Mr. Tolan accepted at the hearing of the appeal that he at no point argued before the trial judge that the proposed amendment should not be allowed as it did not meet the requirements set out by Clarke CJ in O'Malley. The suggestion that the High Court judge "failed to grant equality and parity of arms" is also misplaced.  It may well be that Mr. Tolan is, as he says, a farmer from Mayo with a limited education, but that in itself is not a reason to upset the order that the High Court made in this case.  There is an equally unsupported allegation that the exchange upon which Mr. Tolan relies (between him and the court) "would give the impression of bias"; para. 18 of Mr. Tolan's written submission.  This is also a groundless complaint, as it takes one small aspect of the hearing completely out of context. 

17.         The third argument raised by Mr. Tolan in his written submissions is that Everyday "has failed to comply with the O'Malley case"; para. 21 of the written submissions.  Apart altogether from the fact that this was not submitted to the trial judge, this is not a ground of appeal that can properly be advanced against the making of the order permitting the summary summons to be amended.  In allowing the amendment sought, the High Court was in no way satisfying itself that the amendments complied with O'Malley.  Mr. Tolan's argument to that effect is misguided.  In the event that the amendments do not comply with O'Malley, an application can be made by Mr. Tolan at a later stage in the proceedings for whatever orders such a failure to comply with the judgment of the Supreme Court would justify.  All that the High Court did was to permit Everyday to amend its pleadings; it did not, in so doing, in any way warrant that the pleadings were satisfactory in their amended state.  In an application such as this, and contrary to what was submitted by Mr. Tolan at the hearing of the appeal, it is not for the High Court to carry out any sort of quality check on the adequacy of the proposed amendment.  There may well be circumstances where a proposed amendment is resisted on the basis that it is pointless, or pleads a case that cannot succeed.  However, that was not the position taken by Mr. Tolan in this case.  Similarly, if (as Mr. Tolan argues) the amendments do not provide "the important information that any financial advisers or banking expert would require" (para. 22 of his written submission) that is a matter which can be pursued either in a notice for further and better particulars or, possibly, through a request for discovery. 

18.         None of the arguments advanced in the written or oral submissions by Mr. Tolan go anywhere close to providing a reason for setting aside the order made by Coffey J.  I would therefore dismiss the appeal.


Result:     Appeal dismissed.

 

 

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