High Court of Ireland Decisions
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Cite as: [2015] IEHC 86
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Judgment
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Neutral Citation: [2015] IEHC 86 THE HIGH COURT [2012 No. 3470 S.] BETWEEN IRISH BANK RESOLUTION CORPORATION LIMITED PLAINTIFF AND
GAVIN PEACOCK DEFENDANT JUDGMENT of Mr. Justice Barr delivered the 6th day of February, 2015 Preliminary Matter - Extension of Time 2. When the court clerk brought the papers to the Central Office, it was noticed that there was an error in the notice of motion, as it was stated that “counsel for the plaintiff herein will apply to this Honourable Court sitting at the Master’s Court”. The court clerk returned to Mr. Harte. He amended the notice of motion by striking out the words “the Master’s Court”. The court clerk returned to the Central Office on the following day, 15th November, 2013, which was one day outside the six day time limit for appealing the order made by the Master of the High Court on 8th November, 2013. 3. I am satisfied that the plaintiff did form the intention to appeal the Master’s order within the designated time period. The reason why the appeal was not lodged within time has been satisfactorily explained by Mr. Harte in his affidavit sworn on 14th January, 2014. In the circumstances, it is reasonable and appropriate to extend time by one day to allow for the appeal to proceed. Accordingly, I will extend the time for lodging the appeal from the Master’s order up to and including 15th November, 2013. Notice to Cross Examine the Plaintiff’s Deponent 5. When the matter was before the Master of the High Court, he dismissed the plaintiff’s application on the basis that they had not produced Mr. Egan for cross-examination and accordingly, their grounding affidavit could not be used as evidence, save by special leave of the Master. 6. When the matter came before me on 24th September, 2014, the defendant indicated that he was most desirous that the matter should proceed before the court that day. He indicated that his wish to cross examine the plaintiff’s deponent was one of the reasons why he was seeking to have the matter remitted to plenary hearing. In these circumstances, where the defendant wanted the matter to proceed, it was appropriate to deal with the matter on the basis of the affidavits and exhibits before the court. The Plaintiff’s Application for Summary Judgment 8. The plaintiff’s case was set out in an affidavit sworn by Mr. Stephen Egan, the head of the Recovery Management Ireland (Personal) Division of the plaintiff bank, sworn on 23rd September, 2013. In the Summary Summons herein, issued on 10th September, 2012, the plaintiff claimed the euro amount of €6,331,018.60 and the sum of STG£789,298.66. 9. These monies relate to the defendant’s banking liabilities that remained due and outstanding by the defendant pursuant to his liability to pay arising out of seven loan accounts, the subject matter of four letters of loan offer as well as another account, regarding charges in the sum of €18,412.50. There were eight accounts in total in respect of which a liability arose being the subject of the within proceedings. 10. By letter of loan offer dated 8th March, 2006, the plaintiff loaned to the defendant the sum of STG£1,282,000.00, the subject matter of two loan accounts numbers 02409084 and 02408268. The defendant accepted the said loan offer by signing the attachment to the letter of loan offer on 16th March, 2006. 11. By letters of loan offer dated 12th December, 2006, and 3rd January, 2007, the plaintiff loaned to the defendant the sum of STG£2,628,000.00, the subject matter of three loan accounts numbers 02485142, 04260822 and 02444113. The defendant signed the said letters of loan offer on a date unspecified in respect of the first loan offer and on 5th January, 2007, in respect of the loan offer dated 3rd January, 2007. 12. By letter of loan offer dated 31st May, 2007, the plaintiff loaned to the defendant the sum of STG£550,000.00, the subject matter of loan account bearing number 02468121. The defendant signed the said loan offer on 11th June, 2007. 13. By letter of loan offer dated 5th June, 2012, the plaintiff loaned to the defendant the sum of STG£50,000.00, the subject matter of loan account number 026488196. The defendant signed the attachment to the said letter of loan offer on 14th June, 2012. There was also an account bearing number 02475581 in respect of charges relating to the sterling loan accounts in the sum of €18,412.54. The said loans were used by the defendant to purchase a large number of apartments in England. 14. Mr. Egan has sworn that as of the date of demand on 25th July, 2012, the balance of the amounts outstanding on the various loan accounts were as follows:- Loan Account No. Balance as of 25th July, 2012 02408268 €1,040,638.30 04260822 €2,178,745.61 02444113 €1,998,493.83 02475581 €18,412.54 Total: €6,331,018.60 15. In addition, the plaintiff claimed the sterling amount of STG£789,398.66 in respect of the outstanding balances on three sterling loan accounts as at the date of demand as follows:- Loan Account No. Balance as of 25th July, 2012 02468121 STG£568,516.81 02648196 STG£5,838.00 Total: STG£789,298.66 16. Mr. Egan has sworn that as of the date of demand, 25th July, 2012, the balance of the euro amount outstanding was €6,312,606.06 plus interest which continued to accrue in the relevant four loan accounts. The euro amount of €6,331,018.60 referred to in the Summary Summons relates partly to charges that had been set against the loan account number 02475581, relating to the defendant’s outstanding loan accounts, which charges made in total the sum of €18,412.54. Mr. Egan stated that the euro amount due and owing representing the outstanding balance on the five euro accounts as of the date of demand including account number 02475581, was €6,331,018.60. He gave a breakdown of what was due and owing on each account. 17. In addition, the plaintiff claimed the sterling amount of STG£789,296.66 representing the outstanding balance on three sterling loan accounts as of the date of demand. Mr. Egan gave a breakdown of what was owed on each account. 18. When the defendant failed to pay what was due under these loans, the plaintiff disposed of eighteen of the properties in respect of which the loans had been given and which had been taken as security for the loans. The proceeds of sale have been applied to a number of the loan accounts thereby bringing to zero the amount owed on these accounts. 19. After the sales of the properties and as of 15th August, 2013, the amount outstanding on account number 02460822 was €2,224,318.21. The amount outstanding on account number 02444113 was €263,655.04. The amounts outstanding on the remaining accounts had been reduced to zero due to the application of the proceeds of sale of the apartments thereto. 20. As of the date of application for summary judgment herein on 24th September, 2014, the balance allegedly due and owing by the defendant was €2,325,362.12. The Defendant’s Defence 22. At para. 4 of his affidavit, the defendant states as follows:-
8. I say the maxim in law states that the unrebutted affidavit stands as the truth in commerce which is supported by the Superior Court Rules, Order 19, rule 13. 9. I say that I entered an entry of appearance relating to 2012/3470 S. on 25th September, 2012, and heard nothing substantial of the case until now. Delay defeats equity. 10. I say that I believe the plaintiff are guilty of inter alia suppression of documents as per Part 2, section 11 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (see exhibit A). 11. I say and believe that the plaintiff breached section 91 of the Land and Conveyancing Act 2009 (see exhibit B) which is the crime of suppression of documents, which is fraud in the concealment. Notwithstanding the account is settled and closed, fraud negates any contract. I believe no contract now exists. 12. I say and believe that the plaintiff misrepresented themselves by reporting themselves as a licensed and regulated bank, which was fraud in the inducement. 13. I say and believe that the facts of this case are simple. The plaintiff has admitted that: (a) Financial instruments were tendered by me to effect payment and settle any liability and there is no evidence to the contrary. (b) That the said instruments were accepted by the plaintiff for the purpose that they were offered. And there is no evidence to the contrary. (c) When offered these instruments, the plaintiffs were given the opportunity to seek clarification or highlight any defect in the instruments. Instead they honoured the instruments by their acceptance. And there is no evidence to the contrary. (d) The financial instruments were addressed to and accepted by the CEO, Mike Ainsley. And there is no evidence to the contrary. (e) That Stephan Egan has no experience with said financial instruments. And there is no evidence to the contrary. (f) That the plaintiff is not an injured party and there is no evidence to the contrary. (g) That the plaintiffs are not the holder in due course and there is no evidence to the contrary. (h) That the plaintiff has no locus standi and there is no evidence to the contrary. (i) The plaintiff has been placed in permanent estoppel some time ago and as such has no right to bring these proceedings.” 25. By letter dated 1st September, 2011, addressed to Mr. Mike Ainsley, CEO of the plaintiff bank, the defendant wrote seeking copies of three classes of document being:-
2. Verification of your claim against me i.e. a sworn affidavit or signed invoice. 3. A copy of the contract binding both parties.”
28. By letter dated 27th September, 2011, the defendant, in the course of a long letter, alleged that the plaintiff had acted unlawfully in relation to the contracts of loan. In the course of the letter, he made the following allegation:-
1. Converted the initial supposed agreement or document into a Bill of Exchange or Promissory Note without my knowledge or concern, thus rendering any agreement invalid at its inception due to nondisclosure and gross misrepresentation. 2. Created money on this basis without knowledge or consent. 3. Used this money as an agent without my authority. 4. Taken commission on this money by selling this instrument funding to the merchant bank without my knowledge or consent. 5. Misled me to believe I or the above party was receiving a loan or credit line from you separately and validly obtained variable assets, where in fact there were no such assets and thus no loan or credit. 6. Charged interest on this supposed loan or credit when in fact there was none supplied. The above actions constitute fraudulent activity and I demand nullification of the entire contract, as I firmly believe fraud has been taken place.”
That I as the depositor for this account, that the Anglo Irish Bank risked none of the Anglo Irish Bank’s assets at any time regarding this account and that the Anglo Irish Bank failed to disclose these facts to me. Take notice that I hold you personally accountable under your full commercial liability for any personal, financial or other damages incurred as a result of any or all action proceeding the Anglo Irish Bank or any of its employees or agents in the absence of any proof of claim, signed affidavit and supporting documentation.” 31. By letter dated 3rd October, 2011, the defendant requested copies of all information held by the bank in relation to the defendant. By letter dated 7th October, 2011, the plaintiff responded to the defendant’s letter dated 27th September, 2011. They noted that correspondence from the bank had been returned with the following written on the envelope:-
33. On 7th October, 2011, in a letter headed “Acceptance of Claim for Settlement and Closure”, the defendant stated as follows:-
I wish to meet our lawful obligations and this is not a refusal to pay, nor has there been or will be any refusal to pay. I have recently been informed that the Anglo Irish Bank contract references as detailed below date unknown may contain fraud and is unlawful.”
Unless you/Anglo Irish Bank can furnish me a proof of claim and signed affidavit within the next ten (10) days of the date of this presentment, including mailing, it is taken as your lawful admission, the debt has been discharged/extinguished under the accepted and appropriate terms regarding primary liability of instruments and the account is settled and closed. You also will admit and agree that:- To report this account to all credit bureaus as paid as agreed. That I am the depositor of this account, Anglo Irish Bank risked none of Anglo Irish Bank assets at any time regarding this account and that the Anglo Irish Bank failed to disclose these facts to me. The date of last activity on this account is the date of this notice. Take notice that I hold you personally accountable under your full commercial liability for any personal, financial or other damages incurred as a result of any or all action proceeding, the Anglo Irish Bank or any of its employees or agents, in the absence of any proof of claim, signed affidavit and supporting documentation. A fee schedule/service charge list will be presented to you and applied should you proceed with any action without first presenting facts and an opportunity to cure and I also advise you that if the information is not forthcoming, it will be reported to the court that you are trying to frustrate proceedings and denying us the opportunity to file a defence and counterclaim. Furthermore, I will not enter into any verbal communication over the telephone. I will only accept written correspondence for my records. I respectfully request that you respect my legal rights and reputation and refrain from involving any third parties to this civil dispute.” 36. By letter dated 27th October, 2011, the defendant pointed out that any further correspondence with Gavin Peacock™ or any copyright trademark derivatives will attract fees in the sum of €10,000.00 per claim in writing. He stated that all fees were payable in advance as evidence by registered mail. This letter was concluded with the words “without malice or mischief, in sincerity and honour”, signed by Gavin Peacock as agent of Gavin Peacock™. By letter of the same date and addressed to Mr. Ainsley, the defendant sent a document headed “Notice of Irrevocable Estoppel by Acquiescence”. The letter stated as follows:-
• Close these accounts immediately and make or cause to be made all the necessary adjustments to include all interest, fees, legal, receiver and otherwise. • This serves notice that these accounts are now Accepted and Closed. • Adjust this account for the proceeds, products, accounts and fixtures and all good and valuable considerations and release the order to me immediately. • Complete the amount to be inserted on money order after appropriate calculations of the amount needed to satisfy all accounts. Nota bene If you wished to disclaim this appointment you are directed to disclaim by deed immediately; acceptance may be conveyed by non-response within seventy two (72) hours. If there is anything you do not understand, please contact me privately for assistance at the above address.”
By G. Peacock Without recourse.”
According to An Post on 13th January, 2012, service of RL345094200IE and the enclosed documents was made to the respondent. As of January 12th 2012, the Fiduciary appointment has been accepted by Respondent and the instruments accepted as payment for the IBRC accounts by reference 9506110 and account numbers 9506110 - 02468121, 9506110 - 02485142, 9506110 -02408268, 9506110 - 02409084, 9506110 - 0244113, 9506110 - 02460822, 9506110 - 02475581. Respondent has three (3) days from receipt of this Affidavit of Truth Your Ref AT/9506110 (hereinafter ‘AT’) which you can either respond to or rebut this affidavit on a point by point basis via sworn affidavit under your full commercial liability, signing under penalty of perjury that the facts contained therein are true, correct, complete and not misleading. Failure to respond in this manner and form will be deemed agreement with the facts stated herein and may lead to severe financial penalties for the respondent and/or IBRC to the value of ten (10) times the amount of the private credit instrument(s) as evidence by proof of delivery by recorded service RL 345094200IE. I Gavin Peacock, affiant, upon my unlimited commercial liability, do affirm and say that I have read the above AT and know the contents to the very best of my knowledge to be true, correct, complete and non misleading; the truth, the whole truth and nothing but the truth. In witness whereof, I Gavin Peacock, affiant hereunto set my hand and seal on this 19th day of January, 2011.” 42. On 26th January, 2012, the defendant sent a document headed “Affidavit of Specific Negative Averment” to Stewart Forman and Alan Gottsholk who were the receivers appointed by the plaintiff over some of the properties which had been taken as security for the loans. It is not necessary to set out the content of that letter at this juncture. 43. On the same date, the defendant sent to Mr. Ainsley a document headed “Notice of Fault and Opportunity to Cure”. This gave the plaintiff an opportunity to cure its alleged default in giving a response to the so called “Affidavit of Truth”. It was further stated that “failure to cure will constitute an operation of law, the admission of assent to and agreement with all the facts stated in the AT by tacit procuration”. 44. On 2nd February, 2012, the defendant sent a document headed “Notice of Default and Dishonour”. This document recited the furnishing of documentation subsequent to the affidavit of truth. It stated that as the defendant was not in receipt of a sufficient response to the affidavit of truth, “the respondent by tacit procuration, admits agreement with all facts stated in the AT”. It concluded in the following terms:-
7. As of 02/02/12 Affiant is not in receipt of a sufficient response to AT. 8. Respondent(s) by tacit procuration, admits agreement with all facts stated in AT. 9. By the terms and conditions of the preceding AT and NOFOC you are under obligation to timely and in good faith respond or make proper answer. Your failure to do so is your dishonour and places you in default. This matter is stare decisis and res judicata and respondent(s) is hereby in estoppel.” 46. In an undated document which was received by the plaintiff on 20th February, 2012, the defendant sent a document headed “Actual Constructive Notice of Conditional Acceptance”. This was addressed to Ms. Renee Duggan of the Group Recovery Management Unit. In the body of the document it was stated that the defendant was conditionally accepting an offer apparently made by the plaintiff bank in a letter dated 1st February, 2012, upon presentation of bona fide and verified proofs of claim that:-
(ii) Instruments were not accepted as settlement of these accounts. (iii) That Mike Ainsley is not the liable party on these accounts. (iv) That these instruments did not provide sufficient funds to discharge the total amount of these accounts. (v) That receivers will not be trespassing on the properties and will not be committing the offence of trespass and harassment. (vi) That the property is subject for sale by the receivers and that they have a lawful right to do so. 48. On 16th February, 2012, the defendant sent to Ms. Duggan a document headed “Affidavit of Specific Negative Averment”. The document stated that there was no proof that Mr. Mike Ainsley had not received the so called “instruments”. It went on to state that there was no evidence that the instruments were not accepted as settlement of the accounts and the affiant believes that none exists. He went on to state that there was no verifiable proof or evidence that Mr. Mike Ainsley was not the liable party on these accounts. There was not any verifiable proof or evidence that payment of Gavin Peacock’s accounts (and he gives the various account numbers) have not been effected and the affiant believes there is no such proof. The document ended in the following way:-
51. By letter dated 23rd February, 2012, the defendants sent to Ms. Duggan a document headed “Actual Constructive Notice of Conditional Acceptance”. It referred to the plaintiff’s letter dated 16th February, 2012, and stated that the defendant was “conditionally accepting your offer(s) upon presentation of bona fide and verified proofs of claim”. It then set out a number of matters which had been set out in previous correspondence upon which the defendant required proof of claim. It again gave Ms. Duggan a period of three days to respond to the matters raised in the letter. It stated that failure to do so would be deemed agreement with the facts contained in the Affidavit of Specific Negative Averment and would be taken to be an inability on the part of the plaintiff to prove its claim, thereby indicating that no debt existed in association with the accounts, the subject matter of the proceedings. 52. On 24th February, 2012, the defendant sent to Ms. Duggan a “Notice of Fault” pointing out that she had not responded to his earlier correspondence. She was given a further period of three days in which to “cure” her alleged default. The document provided that “failure to cure will constitute, as an operation of law, the admission of, assent to and agreement with all the facts stated in the CA & AOSNA by tacit procuration”. 53. The plaintiff responded by letter dated 29th February, 2012, in which it simply pointed out that the bank’s position remained as set out in their letter dated 16th February, 2012. 54. On 1st March, 2012, the defendant sent a further document headed “Notice of Fault and Opportunity to Cure” to Ms. Duggan. On the following day, 2nd March, 2012, the defendant sent a document headed “Notice of Default and Dishonour” to Ms Duggan. This document stated that as the plaintiff had not responded to earlier correspondence, the plaintiff had by tacit procuration admitted agreement with all the facts stated in the conditional acceptance. The document concluded as follows:-
56. On 12th March, 2012, Messrs. Mason Hayes & Curran, Solicitors, wrote on behalf of the plaintiff. They referred to the documents dated 2nd March, 2012, and 8th March, 2012, sent by the defendant. They stated as follows:-
58. On the same date, the defendant sent to Ms. Gilvary, a document headed “Affidavit of Specific Negative Averment”. She was given three days to respond, failing which her failure to respond would be deemed agreement with the facts stated in the document. Also, on that date, a document headed “Affidavit of Non-Response” was sent to Ms. Duggan. It was in similar terms to previous correspondence. 59. By letter dated 22nd March, 2012, Messrs. Mason Hayes & Curran wrote in relation to the correspondence which the defendant had sent to Ms. Duggan. They again stated that the plaintiff did not accept any of the matters set out in the defendant’s correspondence. They again stated that they would not engage in such correspondence, but that the failure to address the points raised by the defendant therein, should not be taken as any agreement or acquiescence therein. 60. On 27th March, 2012, the defendant sent a document headed “Actual Constructive Notice of Conditional Acceptance” to Ms. Laoise O’Shea at the solicitor’s offices. It was in the same terms as previous correspondence and gave Ms. O’Shea three days to respond, failing which she would be taken to have agreed with the content of the previous correspondence. On the same date, the defendant also sent an “Affidavit of Specific Negative Averment” to Ms. O’Shea. Again it was in similar terms to that previously sent to other people connected to the plaintiff. 61. On 30th March, 2012, Ms. O’Shea replied to the defendant’s correspondence stating that the plaintiff bank did not accept the content of his said correspondence. By letter dated 5th April, 2012, the solicitors wrote to the defendant in connection with the accounts and gave the defendant 21 days to remedy the breach of contract due to non-payment of the loans. 62. By letter dated 26th April, 2012, the plaintiff’s solicitors formally demanded payment of the amounts due on foot of the loan accounts. 63. On 3rd May, 2012, the defendant sent a document headed “Notice of Fault” to Ms. Gilvary. It claimed that the solicitors had not responded to the earlier “Conditional Acceptance and Affidavit of Specific Negative Averment”. It gave Ms. Gilvary an “opportunity to cure” and ended with the statement that failure to cure would constitute as an operation of law, an admission of assent to and agreement with all the facts stated in the conditional acceptance and affidavit of specific negative averment by tactic procuration. A document in similar terms was also sent on the same date to Ms. Laoise O’Shea of the same firm of solicitors. 64. On the same date, the defendant forwarded to the plaintiff a document which purported to be an invoice, claiming the sum of €3,500,000.00, in respect of “financial penalties”. A similar invoice, but having a different number, was sent to Mr. Ainsley for the same amount. 65. By email dated 14th May, 2012, sent by the defendant to Ms. Renee Duggan, the defendant requested inspection of a number of documents. He stated that he would come to the bank’s HQ in two days to inspect same. A response was furnished by the plaintiff’s solicitor on the following day, stating that they would need more than two days to assemble the required documentation. 66. By letter dated 15th May, 2012, the plaintiff’s solicitors wrote to the defendant stating that the plaintiff did not accept that any money was due from them on foot of the first invoice submitted by the defendant. A similar letter was sent on 22nd May, 2012, in relation to the second invoice for the same amount sent by the defendant to the plaintiff. 67. On 24th May, 2012, the defendant wrote to the plaintiff concerning non-payment of the invoices in the following terms:-
In the event that you fail to pat (sic) the amount demanded in accordance with this letter within the next ten days, I will issue legal proceedings with a view to securing judgment against you and IBRC. I trust that you are aware of the implications of this action and would therefore urge you to contact me with your settlement proposals immediately.” 69. By letter dated 3rd July, 2012, the plaintiff’s solicitors wrote seeking payment by the defendant within 21 days of the amounts owed under the various loan accounts. The letter stated that in the event that the defendant failed to remedy this breach within 21 days of the receipt of this letter, the bank intended to issue a formal demand letter setting out the total balance together with the daily interest rate which would be payable by the defendant and legal proceedings may be commenced. 70. By letter dated 25th July, 2012, the plaintiff’s solicitors wrote to the defendant requiring payment of the loan amounts. The letter continued:-
We trust that you are aware of the implications of this action and would therefore urge you to contact us with your settlement proposals immediately.” 72. On 28th May, 2013, (although this may be an incorrect date as the bank seemed to receive the letter on 7th May, 2013), the defendant wrote to the special liquidator of IBRC to see if there was any amicable way the liquidator and the defendant could resolve any outstanding issues they may have. The liquidator was given ten days to respond to the letter. On 10th June, 2013, the defendant wrote again to the special liquidator giving him five days to respond to the letter dated 28th May, 2013, otherwise they would have a tacit agreement: (i) that any debt due and owing by the defendant to IBRC was settled and closed on 12th January, 2012; (ii) that the special liquidator agreed that any property owned by the defendant that IBRC sold after January 2012, was at best sold in error and at worst with criminal intent; (iii) that the special liquidator would agree, within 21 days of this letter, that the defendant could take lawful possession of his remaining unsold properties; and (iv) that the special liquidator would forward to the defendant the proceeds from the sale of the properties that the IBRC or the liquidator had sold after 12th January, 2012. 73. The bank’s solicitors responded by letter dated 1st July, 2013, that they did not accept the content of the defendant’s letter dated 10th June, 2013, and they did not intend to engage in correspondence of that nature. However, if the defendant submitted a sworn statement of affairs in advance of a meeting, then the plaintiff would be prepared to have a settlement meeting with the defendant. 74. On 8th July, 2013, the defendant sent a further invoice to Mike Ainsley seeking payment of €3,000,000.00 in respect of “financial penalties”. 75. By letter dated 16th July, 2013, the defendant replied to the solicitor’s letter dated 1st July, 2013. The defendant did not accept that there was any outstanding debt due to the plaintiff. He stated as follows in this regard:-
The Defendant’s Subsequent Affidavits
(2) I say that the bank knew as it is a matter of public record that they were guilty of, inter alia, violation of fiduciary duty and duty of good faith, malfeasance in public office, breach of fiduciary duty, fraud, fraud in the factum and inducement, assignment and title fraud, slander of title, tortious interference in contract, unjust enrichment and breach of contract and breach of regulatory duties. (3) The bank knew or in the alternative ought to have known that they were manipulating the interest rates and charges on my account causing a loss yet to be determined. (4) They knew because it is averred to by the plaintiff’s grounding affidavit of Stephen Egan that financial instruments were sent and accepted along with a fiduciary contract which was strictly in the private to Mike Ainsley with an offer to accept. Mike Ainsley duly accepted the offer and was given instructions on how to credit my account.”
A4 I say how am I expected to defend such a motion when the plaintiff refuses to state the facts and/or the laws on which the Master erred. A5 I say that the plaintiff offered jurisprudence as a reason to overturn the Master’s order in front of Judge Ryan. However jurisprudence supports the theory that a man has the right to face and question the witnesses against him. These origins can be traced back to Roman times, as well as to the Bible, Shakespeare and British Common Law. A6 I say that jurisprudence also supports the right to a fair and impartial trial as does Article 6 of the European Convention on Human Rights. Furthermore, both support a low threshold for proof of a defence. While that point was long surpassed with the admission of the tendering and acceptance of financial instruments. I have now listed for the court’s information additional points that I have averred to in point B of this document. It is self evident that we have now surpassed the minimum threshold to move to a plenary summons.”
The Law
‘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.’ In the National Westminster Bank case, Glidewell L.J. identified two questions to be posed in determining whether leave to defend should be given. He expressed the matter as follows:— ‘I think it right to ask, using the words of Ackner L.J. in the Banque de Paris case, at p. 23, '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 Standard Chartered Bank case, Court of Appeal (Civil Division), Transcript No. 699 of 1990 'Is what the defendant 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.’”
In light of these authorities, I believe that the test for obtaining summary judgment has not changed since the early days of the procedure in the late nineteenth and early twentieth centuries. The formulation used in First National Commercial Bank plc. v. Anglin [1996] 1 IR 75 and the cases cited in that judgment are useful and enlightening expressions of the test, but I do not believe that this formulation expresses an altered criterion which is more favourable to a plaintiff than that derived from the other cases cited. The ‘fair and reasonable probability of the defendants having a real or bona fide defence’, is not the same thing as a defence which will probably succeed, or even a defence whose success is not improbable… 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 defendant's affidavits fail to disclose even an arguable defence?”
Insofar as facts are put forward, then, subject to a very narrow limitation, the Court will be required, for the purposes of the summary judgment application, to accept that facts of which the defendant gives evidence, or facts in respect of which the defendant puts forward a credible basis for believing that evidence may be forthcoming, are as the defendant asserts them to be. The sort of factual assertions, which may not provide an arguable defence, are facts which amount to a mere assertion unsupported either by evidence or by any realistic suggestion that evidence might be available, or, facts which are in themselves contradictory and inconsistent with uncontested documentation or other similar circumstances such as those analysed by Hardiman J. in Aer Rianta . It needs to be emphasised again that it is no function of the Court on a summary judgment motion to form any general view as to the credibility of the evidence put forward by the defendant.” 85. The plaintiff through its own letters and through its solicitors made it clear that they did not accept any of the assertions made by the defendant in the correspondence. 86. The defendant attempted to unilaterally impose terms upon the plaintiff by declaring that unless the plaintiff responded within a certain time they would be deemed to have agreed to the terms set out in the various documents. The plaintiff did not accept any of these terms. The defendant was not entitled to unilaterally impose any such terms on the plaintiff. In the circumstances, I am satisfied that no settlement of the debts owed by the defendant to the plaintiff occurred as a result of this series of correspondence. 87. The plaintiff did not acquiesce in any of the terms stipulated by the defendant. The plaintiff at all times made it clear that it did not accept any of the terms suggested by the defendant. There was no representation by the plaintiff that it agreed to any such terms. Accordingly, the plaintiff is not estopped from seeking to enforce repayment of the loans by virtue of any of the correspondence which passed between the parties. 88. The various letters and “affidavits” failed to set out any realistic defence to the within proceedings. In the circumstances, the defendant has failed to establish that he has any bona fide defence to the plaintiff’s claim herein. The plaintiff is entitled to judgment as against the defendant in the sum of €2,325,362.12. Substitution of Deutsche Bank A.G. as Plaintiff 90. Counsel pointed out that under the general terms and conditions which accompanied each of the letters of loan offer, provision was made for the transfer of the benefit of the agreement and security documents in the following manner:-
92. Under the Loan Sale Deed, “Assets” were deemed to include:-
94. Pursuant to clause 9.1 completion was to take place on the “completion date”. In that regard, the purchaser and the vendor agreed that the completion date would be 23rd May, 2014, and on that date, the sale and transfer referred to in clause 2 of the deed, should occur. 95. Clause 9.6 of the Loan Sale Deed dealt with transfer of title to the Assets. It provided that at completion, the following should occur: upon receipt by the vendor of the initial consideration from the purchaser and subject to the purchaser satisfying its obligations pursuant to clause 9.3, the Assets [portion redacted] to the purchaser (and for the avoidance of doubt, transfer of the assets (or where applicable the economic benefit and obligations under and in respect of the Assets) shall be deemed to have occurred upon the receipt of the said initial consideration and upon the satisfaction of each of the purchaser’s obligations under clause 9.3. 96. The purchaser shall be deemed to have assumed and it shall perform and comply with all of the assumed obligations as if the purchaser was originally named as a party to the Finance Agreements and the Hedging Agreements and the vendor shall be released from the relevant Assumed Obligations in each case, on and with effect from the completion date. 97. Clause 11.8.5 of the Loan Sale Deed provided that as soon as possible after the relevant completion date, the purchaser would prepare and procure the filing of an application for substitution of the purchaser in respect of proceedings in the Irish Courts for the vendor in any litigation (plaintiff proceedings) in which the vendor is the plaintiff or claimant as the case may be as against an Obligor and which relates to an asset. 98. In Schedule 1 to the Loan Sale Deed, a list of assets and borrowers was set out. The loans in respect of the accounts numbered 2444113 and 02460822 held by the defendant were included in the list. 99. Pursuant to the Loan Sale Deed, a Deed of Transfer between the vendor (as transferor) and the purchaser (as transferee) was executed on 23rd May, 2014. The deed provided that subject to the terms of clause 4.2-4.6, the assignor unconditionally, irrevocably and absolutely transfers, conveys and assigns to the assignee all such rights, title, interests and benefits as the assignor may have in and to the assets relating to the specified connection (subject to and with the benefit in each case of the related financial agreement) and assumes the Assumed Obligations relating to the specified connections in each case, with effect from the Completion Date. 100. Pursuant to clause 5 of the Deed of Transfer, the parties agreed that notification of the transfer should be made to the borrowers in accordance with the Loan Sale Deed. 101. Notifications of the sale and assignment was made to the defendant as borrower in the following manner. On 30th May, 2014, the vendor sent a letter to the defendant in respect of the facilities extended to him, notifying him that it had agreed to sell amounts owing on the said facility and guarantee to the purchaser and indicating that it would write to him in due course to confirm the date upon which the sale would take effect. That letter was exhibited in the affidavit sworn by Mr. Bull. 102. In an affidavit sworn on 19th September, 2014, the defendant dealt with the issue of the change of the plaintiff in the proceedings. The defendant alleged that the plaintiff had breached the following regulations and statutory provisions: the Central Bank Code of Practice on the Transfer of Mortgages and Central Bank of Ireland Asset Securitisation, s. 117 of the Central Bank Act 1989, and s. 58 of the Asset Covered Securities Act 2001. The defendant also stated that he did not give his consent to the change of plaintiff due to the fact that the plaintiff, when seeking his consent to the transfer of the loans, did not give him sufficient information to make an informed choice in the matter. 103. In response, the plaintiff referred to s. 12 of the Irish Bank Resolution Corporation Act 2013, which provides as follows:
(i) providing for or requiring— (I) notice to be given to any person, (II) the consent, approval or concurrence of any person, or (III) any other step, consent, notification, authorisation, licence or document to similar effect, or (ii) prohibiting that sale or transfer, (b) any other legal or equitable restriction, inability or incapacity relating to the sale or transfer of any asset or liability or the assumption of any obligation or liability relating to such sale or transfer. (2) On the sale or transfer of any cause of action or proceedings by IBRC, acting through a special liquidator, or by a special liquidator where such cause of action has, or proceedings have, vested in the special liquidator, to any person— (a) that person assumes all of the rights and obligations in relation to the cause of action or proceedings which IBRC had immediately before that sale or transfer, other than the obligations of IBRC to which paragraph (b) relates, and (b) IBRC retains obligations in relation to the defence of or liability for any counterclaim or cross-claim which, if successful, would not give rise to a right of set-off and, in respect of such defence or liability, IBRC has full rights in relation to, and is solely liable for, any remedy awarded in relation to any counterclaim or cross-claim which, if successful, would not give rise to a right of set-off. [...] (5) Notwithstanding any enactment or rule of law, IBRC, acting through a special liquidator, or a special liquidator, where such cause of action has vested in the special liquidator, may sell or transfer, on such terms and conditions and to such person as the special liquidator thinks fit, any cause of action, howsoever arising, which has accrued or will accrue to IBRC.”
(b) That they are fully aware of my pending counterclaim and that they are aware of my defence. (c) That the IBRC legal team have been fully transparent and shared with them all the documents and correspondence from this case so DB can make an informed decision on any liabilities they may be taking on. Upon reading the affidavit of Clive Bull, it appears that he is not. (d) Confirmation that IBRC has not indemnified DB against any legal claims, as is my understanding that IBRC will neither have the assets nor the legal longevity to service any indemnification. (e) That they are fully indemnified by a reputable insurance company for the said damages and a letter confirming that same is furnished to me. (f) That they are fully aware of my case in its entirety and all correspondence to date. And that they accept all liabilities for Anglo and IBRC’s actions to date. And that they do not use the (it was not us defence) in any future court cases.” |
