THE HIGH COURT
[Record No. 2020/328 S]
[2025] IEHC 315
BETWEEN
FITZWILLIAM LOAN MANAGEMENT UNLIMITED COMPANY
PLAINTIFF
-AND-
ALBERT CONNEALLY
DEFENDANT
JUDGMENT of Mr. Justice Mark Heslin delivered on the 29th day of May 2025
1. This decision concerns the plaintiff's application for summary judgment.
The plaintiff's claim
2. The pleaded claim can be summarised as follows. Bank of Scotland Ireland Ltd ("BOSI" or the "Bank") issued a facility letter, dated 5 August 2008, the terms of which the defendant accepted. The defendant was provided with a loan facility in the sum of 480,000 for a term of 12 months at an interest rate of 4% per annum, plus '3-month Euribor' (the "loan"). The purpose of the loan was to re-finance loan account number 24984-102 held with the Bank and the defendant drew down the loan to the said account. The loan was 'interest only' with ongoing interest payments to be paid quarterly by the defendant and his co-borrower, Mr. Coyle. The principal was to be repaid at the end of the term, or at such later date as the lender might determine in its sole discretion. Despite demand, the defendant has failed to repay the loan. The plaintiff sues in its capacity as the ultimate successor to the Bank. The relevant chronology, including what might be called the 'chain of title', is said to be as follows.
Transfer no. 1 (BOSI to BoS)
3. By virtue of a cross-border merger pursuant to inter alia the European Communities (Cross-Border Mergers) Regulations 2008 (the "Regulations") as well as regulations made in the United Kingdom and pre-merger requirements certified by this Court, on 22 October 2010, and approved by the Scottish Court on, 10 December 2010, all the estate and title of the BOSI in the loan facility and related mortgage became vested in Bank of Scotland plc ("BoS") on 31 December 2010, pursuant to Article 19 of the Regulations.
Transfer no. 2 (BoS to Ennis)
4. By deed of conveyance and assignment, dated 20 November 2015, all the right, title, and interest of BoS in the said loan facility and related mortgage was conveyed and assigned to Ennis Property Finance Designated Activity Company ("Ennis"). The plaintiff believes that the defendant was subsequently notified of same.
Transfer no. 3 (Ennis to GDP)
By Loan Sale Deed, dated 4 September 2017, made between Ennis and GDP Capital Real Estate Ltd ("GDP") Ennis agreed to sell, and GDP agreed to purchase, inter alia, all the right, title, interest, benefit and obligation, both present and future, of Ennis in and under the said loan facility and related mortgage, for the consideration contained therein. The defendant was notified of the assignment by Ennis to GDP, of his loan facility and account, by means of a notice of assignment dated 4 September 2017. The assignment by Ennis to the plaintiff of the loan facility and account took effect on about 14 May 2018.
5. A letter of demand was sent by solicitors on behalf of GDP, dated 30 November 2018, seeking payment of 711,232.72. On 9 October 2020, GDP issued the present proceedings by way of Summary Summons.
Transfer no. 4 (GDP to the plaintiff)
6. By deed of transfer, dated 15 November 2022, GDP conveyed, assigned and transferred to the plaintiff, all its legal rights, title, interest, estate, benefit and entitlement (past, present and future) in the outstanding loans advanced to the defendant and all underlying loan documents, including the loan facilities (the "transfer deed"). Schedule 2 of the transfer deed identifies the loans which are the subject of the transfer (i.e. account number 249484-102).
7. The plaintiff's solicitors sent a further letter of demand, dated 2 June 2023, seeking payment by the defendant of 660,409.77 being the total sum claimed, as of 20 April 2022. This letter of demand attached what the plaintiff describes as a "Statement of Account" against which he could cross-reference the various debits and credits made to the account, including a credit paid to the defendant's account, in the sum of 97,348.50, in circumstances where, prior to the commencement of these proceedings, the defendants co-borrower, Mr. Coyle, had certain assets placed into receivership, which were sold.
Amendment and substitution
8. Whereas the summary summons, as issued, claimed the higher sum of 761,329.97, this did not take account of payments made by Mr. Coyle, which came to light after the proceedings. Leave to amend the summary summons was granted by order made by the Deputy Master, on 1 November 2023. This order also substituted the plaintiff, in place of GDP, in the present proceedings.
9. The plaintiff claims that, as of 20 April 2022, the defendant's liability stood at 660,409.77, which remains due and owing, and that no sums have been paid since 9 October 2020 when the summary summons first issued. The plaintiff has waived all interest from the date of the issue of the Summary Summons.
10. An Appearance was entered, on 10 February, 2023 and the plaintiff's motion issued on 17 December 2023.
11. I now turn to the affidavit evidence.
Grounding affidavit
12. On 6 December 2023, Mr. Frank Colgan, in his capacity as director of the plaintiff, swore an affidavit in support of the plaintiff's motion for liberty to enter final judgement (i.e. the "grounding affidavit") averring to his authority and source of knowledge, as follows: "I am a Director of Fitzwilliam Loan Management Unlimited Company and I make this affidavit on behalf of the Plaintiff with its knowledge and consent. I make this affidavit from facts within my own knowledge and from a diligent perusal of the books and records of the Plaintiff save where otherwise appears and where so otherwise appearing I believe same to be true".
13. In the grounding affidavit, Mr. Colgan avers to facts pleaded in the special endorsement of claim in the amended summary summons and exhibits copies of the following documents:
· The facility letters between BOSI and the defendant, dated 5 August 2008 and 16 June 2006, respectively, and the Bank's 'General Conditions';
· The Loan Sale Deed, dated 7 September 2017, between Ennis and GDP (i.e. regarding Transfer no. 3) clause 2.1 and 2.2 of which state the following under the heading "Sale and Purchase":
"2.1 Sale and Purchase
2.1.1 The Seller agrees to sell to the Buyer the Loan Assets and the Buyer agrees to purchase the Loan Assets on the Completion Date, such sale and purchase to take effect on the Completion Date in accordance with and subject to the terms and conditions of this Deed.
2.1.2 The Buyer agrees to pay to the Seller the Deposit on the execution of this Deed by the Buyer.
2.1.3 The Buyer agrees to pay to the Seller the Purchase Price on or before the Completion Date.
2.1.4 In Consideration of and subject to (i) the Seller having received the Purchase Price and (ii) the satisfaction of the Conditions Precedent as set out in Fifth Schedule, on and with effect from the Completion Date:
(a) the Seller in its capacity as existing lender under the Finance Documents hereby assigns and transfers absolutely to the Buyer the Loan Assets;
(b) the Buyer assumes all obligations (present and future, actual and contingent) of the Seller under the Finance Documents; and
(c) the obligations and entitlements of the Seller pursuant to the Loan Agreements and the Loan Assets shall cease absolutely.
2.2 For the avoidance of doubt and without prejudice to Clause 2.1, the Parties agree that, with effect from the Completion Date, subject to the sale and purchase of the Loan Assets on the terms and conditions of this Deed, the right and benefit of all sums payable by the Borrowers pursuant to the Finance Documents shall be held by the Buyer."
· A document entitled "Notice of assignment" dated 4 September 2017 (regarding Transfer no. 3) addressed to the defendant (and cc-d to GDP) which refers to loan facilities issued by the Bank, under account number 249484102 begins:
"Dear Sirs,
As the successor to Bank of Scotland (Ireland) Limited and Bank of Scotland plc we write to notify you that the Lender intends to contract to sell all of its rights, title, interest and benefits (including all present and future amounts owing to it) in respect of your Facilities and your facility letter(s), letters of amendment, guarantee(s), security and all rights relating to your Facilities (the Facility Documents) to GDP Capital Real Estate Limited (the "Purchaser") (the "Transfer"). The Lender will write to you in due course to confirm the date on which the transfer will take effect (the "Transfer Date").
From the Transfer Date, all amounts owing in respect of your Facilities will be owed to the Purchaser, the Facility Documents will be with the Purchaser and the Purchaser will take on all obligations (if any) arising under the Facilities after the Transfer Date to you as a customer.
From the Transfer Date your Facilities will be serviced by Everyday Finance Limited trading as Everyday. If you have further queries regarding the proposed Transfer, please contact Everyday Finance trading as Everyday, 16 Briarhill Business Park, Ballybrit, Galway, Ireland.
HOW DOES THIS TRANSFER AFFECT YOU?
Your Facilities will remain in place until all amounts payable under your Facilities have been paid in full but from the Transfer Date, your obligations will be owed to the Purchaser rather than to the Lender. Notwithstanding the Transfer, you are expected to continue to make payments in line with your Facilities in the normal way."
· A so-called 'hello letter', dated 6 July 2018, to the defendant (regarding Transfer no.3) entitled "Your commercial loan facilities with GDP Capital Real Estate Ltd (the Lender)..." which goes on to state inter alia: "Dear Mr Conneally, Please be advised that with effect from 14th May 2018 (the effective date) Mount Street Mortgage Servicing Ltd (Mount Street) was appointed by the Lender as Servicer for your Facilities"; and "...if you wish to pay by cheque please make your cheque payable to the following account name: GDP Capital Real Estate Limited";
· The Transfer Deed, dated 15 November 2022, between GDP, as "Seller", and the plaintiff, as "Buyer" (i.e. regarding Transfer no. 4), Schedule 2 of which identifies the facility letters dated 16 June 2006 and 5 August 2008, respectively. Clause 2.1 of Transfer states:
"2.1 Subject to the terms and conditions of this Deed, the Seller agrees to transfer, assign, convey and deliver legal title in the Facilities/Liabilities to the Buyer subject to the subsisting rights of redemption of the Borrower and the Buyer agrees to accept the transfer, assignment, conveyance and delivery of the legal title to the Facilities/Liabilities and assume the Assumed Obligations with effect from the Completion Date."
· A so-called "goodbye letter", dated 16 November 2022, to the defendant (regarding Transfer no.4) entitled "Re: Facility letters with Bank of Scotland Ireland Limited dated 16th June 2006 and 5 August 2008: GDP Real Estate Limited (the "Assignor") and Fitzwilliam Loan Management Unlimited Company (the "Assignee")", paras. number 1 and 4 of which state:
"1. With effect from 15th November 2022 (the Completion Date) the Assignor assigned to the Assignee all of its present and future legal rights, legal title and interest whatsoever and howsoever arising, in and to:
a. The Loan Agreement set out in the Schedule hereto, including (but not limited to) the principal amounts, accrued interest and any other amounts outstanding as at the Completion Date or which become due after the Completion Date under or in the connection with the loans and other credit facilities advanced to the Borrowers under Loan Agreements; and
b. The Ancillary Rights and Claims arising after the Completion Date
Together, the "Assigned Assets".
...
4. With effect from the date of receipt of this notice all payments due to the Assignor in respect of the Assigned Assets shall be paid to the Assignee.";
· The letter of demand, dated 13 November 2018, sent to the defendant by which GDP called for payment of 711,232.72;
· The letter of demand, dated 2 June 2023, sent by the plaintiff's solicitors to the defendant's solicitors which stated inter alia: "We enclose herein a Statement of Account compiled by our client which notes that the current outstanding amount due by your client currently stands at 660,409.77. We are providing you with this information as a final request for payment prior to entering final judgement against your client. Should your client failed to make payment or offer an acceptable compromise within 7 days, our client will proceed to enter final judgement."
Defendant's affidavit
14. The defendant swore an affidavit on 18 April 2024 in opposition to the plaintiff's claim for judgement asserting inter alia:-
· the plaintiff is not entitled to rely on s. 15 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 (the "2020 Act");
· issue is taken with Mr. Colgan's source of knowledge, including, in relation to the transfer or assignment to Ennis of what the defendant describes as "the alleged loan agreements";
· the plaintiff has not exhibited the deed of Conveyance from BoS to Ennis (i.e. regarding Transfer no. 2);
· the plaintiff has not provided evidence of notice, to the defendant, regarding an assignment from BoS to Ennis (i.e. Transfer no. 2);
· searches carried out on 16 April 2024 by the defendant's solicitor confirmed that the plaintiff was a credit servicing firm, but there was no such confirmation in relation to GDP;
· whilst the defendant accepts that the plaintiff appears to be an authorised credit servicing firm, he does not know if this was the case for the original plaintiff;
· the letter of demand relied upon prior to issuing the proceedings was made on behalf of GDP;
· the purpose of the sale from GDP to the plaintiff, for the consideration of 100, may have been to address evidence to suggest that the original plaintiff was not an authorised credit servicing firm;
· there is no averment as to who prepared the document entitled "Statement of Account" which the defendant does not regard as such;
· the plaintiff has failed to exhibit the documents referred to in the "Source" column;
· the defendant points to the absence of statements from BoS and avers inter alia: "I do not know what FL M calculations are, or basis for the calculations"; and "...I believe and have been advised that the basis for calculation and balances of the alleged amount due and owing is inadmissible hearsay ...";
· The defendant further avers that he has no knowledge "of where the alleged receipt of 97,348.50 came from in 2019";
· the defendant says that, save for the entry, on 10 June 2019, for 97,348.50, it appears from the plaintiff's document that the last credit or lodgement is for 210, on 14 October 2010;
· the defendant contends that the alleged loan, the subject matter of the proceedings, is statute-barred;
· the defendant refutes the contention that there is no defence to the plaintiff's claim; he denies that the Appearance was entered exclusively for the purpose of delay; and the defendant asserts that the plaintiff is not entitled to judgment.
15. With regard to the alleged 'statute of limitations' defence, the loan facilities were plainly "interest only" and "on demand" at the discretion of BOSI. Even if the defendant is correct that the last payment was made on 14 October 2010, the first letter of demand did not issue until 13 November 2018, at which point the cause of action accrued. Quite apart from the foregoing, the 5 August 2008 loan facility letter specifies, by way of "Security", an "extension" of the Bank's "first specific charge over the freehold land and premises of the borrower consisting of 4.5 acres...". Regarding a loan secured by a charge on property, s. 36 (1) of the Statute of Limitations Act 1957 specifies a 12-year period. Thus, the suggestion that the claim is 'statute barred' would not constitute an arguable defence.
Affidavit by plaintiff's solicitor
16. On 23 April 2024, Mr. Sam Saarsteiner, solicitor for the plaintiff, swore an affidavit containing inter alia the following averments:
"3. At paragraph 28 of the Defendants Replying Affidavit, he states that he has no knowledge of the origins of the receipt of 97,348.5 to the relevant loan account in 2019. I say for the reasons that follow, this averment is incorrect.
4. I say that on or about 10th June 2019 certain properties held as security in relation to the loan the subject of these proceedings were sold. The net sales proceeds were 97,348.50 (per a completion statement prepared by my firm at that time). I say that this sum was promptly remitted to the chargeholder and applied against the loan in that sum.
5. I say that on 29th October 2020 the Defendant wrote to my firm regarding the sale of this charged fixed asset, raising several queries. I say that this letter also expressly acknowledges the debt the subject of these proceedings and confirms his status as a mortgagor and a borrower.
6. I say that on 20th November 2020 my firm replied, explaining the source of the receipt to the loan account.
7. I beg to refer to the completion statement in relation to the property sale, the letter of 29th October 2020 and the letter of 20th November 2020, upon which pinned together and marked with the characters "SS1" I have signed my name prior to the swearing hereof."
17. Exhibit 'SS1' includes a copy letter, dated 29 October 2020, from the defendant to the plaintiff's solicitors. This letter, which was not stated to be 'without prejudice' quoted: "Account Number-CLC-GDP-249484102" and stated inter alia:
"It is my understanding that the secured asset under the above account number may have been sold. This came as a complete shock to me. As one of the mortgagors under the above account number, I would be obliged if you could furnish me with the following information:
1. Please confirm the position in relation to the alleged sale of the secured asset.
2. In the event that the secured asset has been sold please confirm the legal basis upon which the property was sold.
3. In the event that the procedure under Section 100 of the Land and Conveyancing Law Reform Act 2009 was applied please confirm the steps taken in this regard.
4. In the event that the provisions of Section 19 of the Conveyancing Act 1881 please confirm the steps taken in this regard.
It might be noted that I have been in correspondence with Mount Street Mortgages in relation to a settlement of the above mortgage account over the past two years and it is with some surprise to be informed that the asset may have been sold. In the circumstances I would be obliged to hear from you in relation to the above queries by return."
The defendant's second affidavit
18. The defendant swore a second affidavit, on 21 June, 2024. At para. 3 he averred that, as appearing in the grounding affidavit, the plaintiff claims that the "alleged loan" was transferred (1) from BOSI to BoS; (2) from BoS to Ennis; (3) from Ennis to GDP; and (4) from GDP to the plaintiff.
19. The defendant went on to aver, at para. 6, that, on 14 August 2020, he received a letter from Ennis advising that loan account number 249484-102 and any related security had been transferred to Pepper Finance Corporation Designated Activity Company (i.e. "Pepper") and he exhibited a copy of that letter.
20. The defendant averred, at paragraph 7, that Pepper had written to him since, alleging that Pepper is the legal owner of the loan and the defendant exhibited copies of letters by to him, dated 7 February 2024 and 7 May 2024, respectively.
21. The first letter exhibited by the defendant at "AC1" is dated 14 August 2020, from Ennis to the defendant, and begins as follows:
"Loan- Account Number: 249484102
Dear Mr Albert Conneally,
IMPORTANT INFORMATION ON THE TRANSFER OF YOUR LOAN
As detailed in our letter to you on 5th June 2020, Ennis Property Finance Designated Activity Company ("Ennis DAC") agreed to transfer ("the Transfer") the legal ownership of your loan and any related facility letter(s), mortgages, guarantee(s), security documents and rights relating to your loan (together your "Loan") to Pepper Finance Corporation (Ireland) Designated Activity Company, 4th Floor, Two Park Place, Hatch Street Upper, Dublin 2 ("Pepper").
....
We are writing to confirm that the transfer took place on 7th August 2020 (the "Transfer Date"). From the Transfer Date your Loan is with Pepper.
We have assigned to Pepper all of our rights, title and interest (past, present and future) in and to your Loan and any other underlying loans and any guarantees and security granted in respect of and/or guaranteeing and/or securing your Loan. Our duties and obligations under your Loan have been assumed by Pepper and therefore we are no longer responsible to you for any such duties and obligations."
22. The second item in "AC1" is a letter, dated 31 August 2020, from Pepper to the defendant, which begins as follows:
"Loan - Loan Account Number: 249484102
IMPORTANT INFORMATION ON THE TRANSFER OF YOUR LOAN
Dear Mr Albert Conneally,
We refer to the previous letter dated 14 August 2020 in which Ennis Property Finance Designated Activity Company ("Ennis DAC") informed you that it had transferred the legal ownership of its loan agreement with you and any related facility letter(s), mortgages, guarantee(s), security documents and rights relating to your loan (together your "Loan") to us with effect from 7th August 2020 ("the Transfer Date").
HOW DOES THIS AFFECT YOU?
Your obligations in respect of your Loan must be discharged to Pepper and the terms and conditions of your Loan are unaffected and continue to apply. Your Loan will remain in place until all amount's payable have been paid in full. As the new legal owner of your Loan, we will continue to service your Loan and we will collect your current monthly loan repayment or scheduled repayment."
23. The first item in exhibit "AC2" to the defendant's 21 June 2024 affidavit is a copy letter, dated 7 May 2024, from Pepper to him which begins in the following terms:
"Re Loan account number(s): 249484102
This is URGENT and requires your IMMEDIATE attention.
Dear Mr Conneally,
We are writing to you in relation to the loan referenced above, the related facility letter and to the facility made available to you thereunder (together "the Facility") with Pepper Finance Corporation (Ireland) DAC ("Pepper"), which remains in arrears..."
24. The 2nd letter exhibited at "AC2" is an earlier letter, dated 7 February 2024, which begins in identical terms and contains a reservation, by Pepper, of rights including "the right to demand repayment of the facilities and enforce upon the security". As regards the relevant 'timeline', the correspondence exhibited at "AC2" post-dates the issuing of these proceedings by some three and a half years and post-dates the present motion by several months.
Second affidavit by plaintiff's solicitor
25. Mr. Saarsteiner swore a 2nd affidavit, on 21 October last, in which he averred inter alia that the documents exhibited comprise part of the plaintiff's ordinary books and records, compiled in the ordinary course of its business; and notice was given of the plaintiff's intention to rely on section 15 of the 2020 Act.
26. At para. 4 he averred that "Upon receipt of the defendant's 2nd affidavit, my office contacted Ennis and Pepper in order to clarify the issue. It was obvious to us that there must have been an error given the preponderance of evidence to counter what the defendant was alleging." Without intending any disrespect whatsoever to the deponent, this is not a situation in which a defendant was alleging that a 3rd party owned the relevant facilities. Rather, a 3rd party was repeatedly making this assertion, including, (i) after the commencement of these proceedings and (ii) after the institution of the present application for summary judgement.
27. At para. 5 the plaintiff's solicitor averred: "Following that engagement Pepper have unequivocally clarified that the letters exhibited in the defendant's 2nd affidavit were sent in error to him as a result of a failure by Pepper to shut down mailing flags on their system" and he exhibited correspondence from "Pepper Advantage" to the defendant, dated 14 October 2024, which states:
"Re: Loan Account Number: 249484102 (the "Loan")
Dear Mr Conneally,
We are writing to you in relation to the Loan. Please note that Ennis Property Finance DAC ("Ennis") previously appointed Pepper Finance Corporation (Ireland) Designated Activity Company trading as Pepper Asset Servicing and Pepper Advantage ("Pepper"), to provide portfolio and asset management services on its behalf.
Our error
It has come to our attention that, due to a process error, a letter dated 14 August 2020 issued to you from Ennis stated that legal ownership of the Loan had transferred from Ennis to Pepper. This information was incorrect. Letters from Pepper continued to issue to you in relation to the Loan in error until 7 May 2024. Pepper is not the loan servicer or the legal title holder of the Loan.
Impact of this error
As a result of the above. You were provided with incorrect information relating to the Loan.
Our Remediation
In order to remediate this issue, we have turned off all mailing flags relating to the above account. No further correspondence will issue from Ennis or Pepper regarding the Loan.
Your right to make a Complaint
If you feel we haven't met your expectations, you have a right to complain. Here's how you can lodge your complaint..."
28. The plaintiff's solicitor went on to aver at para. 8 that "Pepper issued a further letter to our office dated 14 October 2024". This letter is exhibited, in which "Pepper Advantage" states:
"We confirm that Pepper Finance Corporation (Ireland) Designated Activity Company ("Pepper") has never had any beneficial or legal interest in the Loan.
We further confirm that any letters sent by Pepper to Mr. Conneally stating otherwise were issued in error. We have written to Mr. Conneally to clarify the issue and to apologise for the error (copy appended hereto).
Yours faithfully,
For and on behalf of
Pepper Finance Corporation (Ireland) Designated Activity Company"
29. Mr. Saarsteiner concludes his affidavit by asserting that the defendant intentionally waited until the 11th hour before raising the issue. In my view, if the only correspondence from Pepper asserting ownership of the relevant loan facilities and security dated from 2020, there would be obvious force in that assertion. However, in the manner discussed earlier, Pepper would appear to have written to the defendant asserting ownership as recently as 7 May 2024, being 5 months after Mr. Colgan swore the grounding affidavit (on 6 December 2023) and the month after Mr. Saarsteiner swore his first affidavit (on 22 April 2024).
Discussion and decision
30. I have taken full account of the provisions of Order 21, rules 3 and 5 of the Rules of the Superior Courts ("RSC") and O. 37, r. 3, RSC (regarding the approach of a defendant to an application for summary judgment). It is clear from the affidavits sworn by the defendant, and from the written and oral submissions made on his behalf, that the defendant asserts that he has a defence to the plaintiff's claim (see paras. 30 - 33 of the defendant's affidavit sworn 18 April 2024). Before looking at the issues raised by the defendant in opposition to this motion for judgment, it is appropriate to recall the plaintiff's obligation.
Prima facie evidence
31. In summary proceedings such as these, the plaintiff has to discharge the burden of placing before this Court prima facie evidence of the debt claimed. In this regard Clarke C.J. stated the following in Bank of Ireland Mortgage Bank v O'Malley [2019] IESC 84 [22] 2 IR 487 at 496:
"[24] Where it comes to the evidence which is required to be placed before the court, it does seem to me that it is important to emphasise that there is an obligation on any plaintiff to produce prima facie evidence of their debt if they wish the court to grant summary judgment (or, indeed, if, in the absence of the filing of an appearance by the defendant, they bring an application for judgment in the Central Office). The jurisprudence on the question of what a defendant must do to resist summary judgment primarily focuses on cases where a prima facie claim to a debt is established and the defendant wishes to put forward a positive defence. In such cases, it is necessary for the court to assess, in accordance with the detailed requirements which can be found in the relevant jurisprudence, whether what is said to amount to a defence amounts to mere assertion or meets the threshold for entitling the defendant to a full or plenary hearing.
[25] However, it also seems clear that the obligation on a defendant to establish an arguable defence is, in reality, one which only arises if the plaintiff has first placed sufficient evidence before the court to establish prima facie the debt alleged is due. There are, therefore, two questions. The first is as to whether the plaintiff has put sufficient evidence before the court to establish a prima facie debt. If the answer to that question is no, then the plaintiff cannot be entitled to summary judgment in any event. If, however, the answer to that question is yes, then the court must go on to consider, in accordance with the established jurisprudence, whether the defendant has put forward a credible defence."
32. Recalling that the plaintiff brings this claim as the ultimate successor to the BOSI, the 'chain of title' relied upon regarding the loan facilities and security in question comprises of 4 transfers of ownership, i.e. (1) from BOSI to BoS; (2) from BoS to Ennis; (3) from Ennis to GDP (which entity issued these proceedings); and (4) from GDP to the plaintiff (who was substituted into the proceedings).
1877 Act
33. Section 28 (6) of the Supreme Court of Judicature (Ireland) Act 1877 is of relevance to such transfers and provides:
"(6.) Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed,) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor:
Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, lie shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees." (emphasis added).
34. For a transfer to be valid, it must comply with the s. 28 (6) of the 1877 Act. For present purposes, this means prima facie evidence of a valid sale of the loan facilities and valid notice given to the defendant.
Substitution
35. I am conscious of the fact that the Deputy Master made an order, on 1 November 2023, substituting the plaintiff for GDP. Leaving aside the fact that this Court has not had sight of the papers which were before the Deputy Master, it does not seem to me that the making of the said order, or the fact that it was not appealed, constitutes a determination of whether, for the purpose of an application for summary judgement, the plaintiff has put forward prima facie evidence that it is the ultimate successor in title to BOSI. In my view, for this to be established requires the plaintiff to proffer prima facie evidence of the validity of all transfers relied upon by the plaintiff.
36. Few legal practitioners will be unaware that when making an application to substitute one plaintiff for another, the Court will require prima facie evidence that there has been "a valid sale of the assets, a valid assignment of the chose in action... and a valid notice given" [see the judgment of Meenan J. in Permanent TSB & Anor. v Doheny [2019] IEHC 414 ("Doheny") in which the learned judge cited, with approval, Kelly J. (as he then was) in IBRC v Comer [2014] IEHC 671].
37. At para. 10 in Doheny, Meenan J. referred to the documents exhibited in the particular substitution application before him, namely: (i) the Deed of Transfer from the initial plaintiff to the would-be plaintiff; (ii) the 'goodbye letter' sent by the original plaintiff, giving notice to the defendant of the absolute assignment of rights in the loan facilities to the would-be plaintiff; (iii) the 'hello letter' whereby the would-be plaintiff notified the defendant of the said transfer; and (iv) a 'Land Registry' Form 56 under which the relevant mortgage and charge were transferred to the would-be plaintiff which, in that case, was Start Mortgages Designated Activity Company ("Start"). At para. 11 Meenan J. stated:
"I am satisfied that Start, in exhibiting the above documentation, has established the prima facie evidence necessary for the Court to grant the Orders sought".
38. The learned judge also made clear that the substitution order, made ex parte, was subject to certain protections for the relevant defendant, (detailed at para. 13 in Doheny) including the defendant's entitlement to contest the transfer at the hearing of the action.
39. In the present application for summary judgment, this Court has not been provided with documentation which, for the purpose of a substitution application, constitutes the necessary prima facie evidence. The plaintiff has chosen to provide less than that i.e. confining the evidence with respect to transfer no.2 (from BOS to Ennis), to the averments at para. 11 and 12 of the grounding affidavit, to which I now turn.
20 November 2015
40. The evidence proffered by the plaintiff in relation to transfer no. (2) from BOS to Ennis comprises the following averments at paras. 11 and 12 of the grounding affidavit:
"11. By deed of conveyance and assignment dated 20 November 2015 all the right and interest of BOS in the above-mentioned loan facility and related mortgage was conveyed and assigned to Ennis Property Finance Designated Activity Company ("Ennis").
12. The Defendant was, to the best of my knowledge and belief, subsequently notified of the assignment of his loans and securities from Bank of Scotland (Ireland) Limited to Ennis Property Finance DAC." (emphasis added).
41. The plaintiff has chosen not to exhibit a copy of the Deed of Conveyance and Assignment dated 20 November 2015 (the "November 2015 Deed", or the "Deed") redacted or otherwise. This Court is given no more than the averment at para. 11. Without for a moment suggesting that the averment was made other than honestly and to the best of the deponent's knowledge and belief, I take the view that, in the absence of the November 2015 Deed, this Court is unable to discharge its functions properly, in this application for summary judgment.
42. Specifically, this Court is unable to examine the Deed in order to be satisfied that, at 'face value', the wording in the Deed has the legal effect averred to. Why is this important? It seems uncontroversial to suggest that a situation could arise whereby averments are made, honestly (for example, by a non-legal professional) but, on examining the instrument in question, the legal effect is other than understood by the deponent.
43. To illustrate the point: (i) without a copy of the Deed, this Court is unable to see whether (and if so, the manner in which) the defendant's loan facility and related security was included in the transfer; (ii) this Court is also prevented from looking at the operative clause(s), so as to be satisfied at a prima facie level that the transfer was absolute; (iii) this Court is left in a position where it does not know whether the November 2015 Deed laid down any conditions which had to be satisfied for a transfer to be effective; or (iv) whether the provisions of other legal Instrument(s) are relevant to an effective and absolute transfer.
44. In other words, without the November 2015 Deed, this Court can take no view on the legal effect of same. For the sake of completeness, this is not a situation where averments are made that the Deed is missing or unavailable.
29 July 2015
45. The foregoing concerns are compounded, in this particular case, by the contents of the Loan Sale Deed in respect of Transfer no. (3), from Ennis to GDP. A copy of the relevant Loan Sale Deed comprises exhibit "FC4" to Mr. Colgan's affidavit (wherein Ennis is described as the "Seller" and GDP is described as the "Buyer"). Internal pg. 3 of this instrument states:
"B. Pursuant to a certain Loan Purchase Deed dated 29 July 2015 the Seller acquired all rights, title and interests of Bank of Scotland Plc under the loan assets and the loan agreements."
46. There is a material difference between the foregoing and the contents of para. 11 of the grounding affidavit. In other words, the plaintiff has proffered and seeks to rely on evidence to the effect that all the right, title and interest of BoS in the defendant's loan facilities and mortgage was acquired by Ennis pursuant to (i) a Loan Purchase Deed dated 29 July 2015; and (ii) a Conveyance and Assignment dated 20 November 2015. In the absence of further and other evidence, it is impossible to reconcile this contradiction. Furthermore, the plaintiff has also chosen not to exhibit a copy of the 29 July 2015 instrument.
General principle
47. With regard to the foregoing situation, the guidance given by Mr. Justice McMenamin in the Supreme Court's decision in Ulster Bank Ireland Limited v. O'Brien [2015] IESC 96 ("O'Brien") seems to be relevant, in particular:
"What is in issue in summary judgement applications is whether or not a prima facie case can be made out by the plaintiff. The burden of proof is on the party who asserts the debt is owed. As a general principle, a prima facie case will be made out when, on the evidence available, it would be open to a tribunal of fact, if no other evidence was given, or if that tribunal accepted that evidence even though contradicted in its material facts to enter a verdict for that party (See O'Toole v. Heavey [1993] ILRM 343 at 344)."
48. It seems to me that the "general principle" articulated in O'Brien is not satisfied in the present application, where different elements of the plaintiff's evidence disclose a material and unresolved inconsistency.
"BOSI" to Ennis
49. In addition to the foregoing, it will be recalled that, at para. 12 of the grounding affidavit, it is averred that, to the best of Mr. Colgan's knowledge and belief, the defendant was subsequently notified of the transfer from "Bank of Ireland Scotland (Ireland) Limited to Ennis Property Finance DAC". However, on the plaintiff's case, there was no such transfer from BOSI to Ennis (as opposed to transfer no. 2, from BoS to Ennis). In the manner averred at para. 10 of Mr. Colgan's affidavit, BOSI effectively ceased to exist as of 31 December 2010, all rights having vested in BoS.
50. No further affidavit was sworn on behalf of the plaintiff which purports to clarify the foregoing issue, nor has any documentation been exhibited which is said to comprise the relevant notice. I ask whether this Court, in a summary judgment application, can assume that the reference to "Bank of Scotland (Ireland) Limited" should have been a reference to "Bank of Scotland Plc"? In other words, would it be appropriate, when faced with an averment as to particular facts, for this Court to assume that the facts are otherwise? I do not believe so, particularly in an application for summary judgment.
Notification
51. In these circumstances, the averments at para. 12 do not seem to me to comprise prima facie evidence that the notification requirements in s. 28(6) of the Supreme Court of Judicature (Ireland) Act, 1877 have been met. The absence of any documentation concerning notification of a transfer from BoS to Ennis also stands in contrast with evidence that the defendant was notified, in writing, of subsequent transfers. For example, the assignment of loans from Ennis to GDP was the subject of notice to the defendant dated 4 September 2017 by way of "goodbye" from Ennis and exhibit "FC6" comprises a "hello" letter sent on behalf of GDP.
"debt"
52. During the hearing, counsel for the plaintiff laid particular emphasis on certain correspondence sent by the defendant to Messrs. Clark Hill, solicitors for GDP, including letters dated 24 November 2020 and 19 January 2021. Both of those letters contain inter alia the following: "As per my previous correspondence, I have been in negotiations with your client's agent, Mount Street Mortgages, in relation to this debt over the past two years". The gravamen of the submission on behalf of the plaintiff is that this Court can and should take this to be an acknowledgment by the defendant of indebtedness, which entirely rules out the possibility of any defence with regard to the transfer from BOS to Ennis. With respect I cannot agree.
53. It does not seem to me that, for the purposes of an application for summary judgment, I should infer from the contents of the defendant's correspondence to the solicitors for GDP that (i) there was an absolute transfer of all the rights and interest of BOS to Ennis, in 2015 (be that under a Loan Purchase Deed dated 29 July 2015, or a Deed of Conveyance and Assignment dated 20 November 2015, or otherwise); and/or (ii) that statutory obligations in the 1877 Act were complied with; and/or (iii) that the defendant is estopped from raising the issues canvassed in his affidavit and legal submission in opposition to the plaintiff's claim.
54. For whatever reason, the plaintiff has chosen not to exhibit any of the following documentation concerning Transfer no. 2, from BoS to Ennis: (i) the loan purchase deed dated 29 July 2015; (ii) the 20 November 2015 deed of conveyance and assignment; and (iii) a copy of any letter/notice to the defendant regarding this Transfer. In the absence of the foregoing, it seems to me that this Court lacks prima facie evidence that a valid transfer took place from BoS to Ennis (i.e. Transfer no.2).
55. To say this is certainly not to determine that issue with finality. It may be that further evidence will clarify matters. However, on the state of the evidence before me, I take the view that it would be to act contrary to the principles articulated in O'Malley and in O'Brien to grant judgment, in a summary manner, for any amount (Transfer no. 2 being relevant to the entire liability).
Harrisrange principles
56. I also take the view that, were I to grant summary judgment, I would also be failing to approach this application with the requisite degree of caution and in breach of the principles outlined by Mr. Justice McKechnie in Harrisrange Ltd. v. Duncan [2003] 4 IR 1; [2002] IEHC 14 ("Harrisrange"). After conducting an analysis of prior jurisprudence, McKechnie J. articulated (at para. 9) in Harrisrange 12 principles which have since been quoted in numerous decisions (including at para. 11 of the judgment in Allied Irish Banks v. Killoran [2015] IEHC 850, being the first of the authorities contained in the joint-book, which the parties furnished in the present case). The 12 principles identified by Mr. Justice McKechnie are the following:-
"(i) The power to grant summary judgment should be exercised with discernible caution,
(ii) In deciding upon this issue the Court should look at the entirety of the situation and consider the particular facts of each individual case, there being several ways in which this may best be done,
(iii) In so doing the Court should assess not only the Defendant's response, but also in the context of that response, the cogency of the evidence adduced on behalf of the Plaintiff, being mindful at all times of the unavoidable limitations which are inherent on any conflicting Affidavit evidence,
(iv) Where truly, there are no issues or issues of simplicity only or issues easily determinable, then this procedure is suitable for use,
(v) Where however, there are issues of fact which in themselves are material to success or failure, then their resolution is unsuitable for this procedure,
(vi) Where there are issues of law, this summary process may be appropriate but only so, if it is clear that fuller argument and greater thought, is evidently not required for a better determination of such issues,
(vii) The test to be applied, as now formulated is whether the Defendant has satisfied the Court that he has a fair or reasonable probability of having a real or bona fide defence; or as it is sometimes put, 'is what the Defendant says credible?', which latter phrase I would take as having as against the former an equivalence of both meaning and result,
(viii) This test is not the same as and should be not elevated into a threshold of a Defendant having to prove that his defence will probably succeed or that success is not improbable, it being sufficient if there is an arguable defence,
(ix) Leave to defend should be granted unless it is very clear that there is no defence,
(x) Leave to defend should not be refused only because the Court has reason to doubt the bona fides of the Defendant or has reason to doubt whether he has a genuine cause of action,
(xi) Leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence and finally,
(xii) The overriding determinative factor, bearing in mind the constitutional basis of a person's right of access to justice either to assert or respond to litigation, is the achievement of a just result whether that be liberty to enter Judgment or leave to defend, as the case may be."
57. As well as taking the view that the plaintiff has not furnished prima facie evidence of the debt due, it is not very clear to me that there is no defence, in particular, on the question of whether the plaintiff is the ultimate successor in title to BOSI. Thus, guided by the Harrisrange principles, it seems to me that the appropriate outcome of this application is to give leave to defend. Lest I be wrong in the foregoing views, I now turn to further issues which arise in this application.
Credit servicing questions
58. The within proceedings were instituted, not by this plaintiff, but by GDP. With reference to searches conducted, on the instructions of the defendant, on the Financial Service Provider Search website of the Central Bank of Ireland, the defendant makes the following averments, at para. 13 of his affidavit sworn on 18 April 2024:
"13. I believe and have been advised by my solicitor that while the search platform confirmed that the plaintiff was a Credit Servicing Firm, there was no such confirmation in relation to GDP Capital Real Estate Limited."
59. It is common case that the letter of demand relied upon to issue the present proceedings was made on behalf of GDP and, at para. 17 of the defendant's affidavit, he avers "...that it will be necessary for the court to consider whether a demand for payment and a claim for summary judgment can be maintained where there is evidence to suggest that the original plaintiff was not an authorised Credit Servicing Firm".
60. The 4th, in sequence, of the relevant transfers upon which the plaintiff relies is a transfer on 15 November 2022 (i.e. over two years after the present proceedings were instituted) from GDP to the plaintiff, the consideration for which would appear to be 100.
61. For the purpose of the present application, the plaintiff concedes that GDP was not an authorised credit service provider but submits that nothing turns on this, placing reliance on the Supreme Court's decision in Cave v Gilhooley [2025] IESC 3 ("Cave").
62. In Cave, this Court had granted judgment against a certain defendant for a substantial sum, which decision he appealed to the Court of Appeal. Prior to the appeal being heard, the Central Bank issued a notice to the effect that it believed that Cave Projects Limited (the plaintiff/respondent) was engaged in credit servicing services in the State without authorisation from the Central Bank to act as a credit servicing firm, which notice also stated that it was a criminal offence to do so ("the notice").
63. The Court of Appeal considered the notice on a de bene esse basis but refused the appeal. The Supreme Court granted leave to appeal on the credit servicing issue, but ultimately found that the defendant/appellant was not entitled to raise the issue, in circumstances where he did not plead it in his defence in this Court, despite the fact that he had been aware of the issue for some time prior to the publication of the notice by the Central Bank.
64. With respect to Cave, counsel for the plaintiff draws particular attention to the following observations by Hogan J. (at para. 45):
"It is true that Cave Projects could of course apply to the Central Bank for authorisation in the event that the legislation were held to be apply with retrospective effect, but the question might be asked as to what then would happen to the litigation in the event that authorisation were to be refused. Is to be said that Cave Project could no longer sue to recover moneys which it contends are owing? The relevance of the fact that on this interpretation Cave Projects would have had the entitlement to seek authorisation from the Central Bank means that for the purposes of a constitutional analysis much might depend on a variety of factors such as the cost of obtaining authorisation and the likelihood of obtaining such authorisation were it be sought. Having regard to the range of evidence before it this Court is obviously not in a position to express a view on these matters." (emphasis added).
65. The gravamen of the submission made by counsel for the plaintiff is that this Court can accept the foregoing as a finding that the credit servicing issue could not prejudice the legal proceedings instituted by GDP (which proceedings are now maintained by the plaintiff, following transfer no.4). With respect, I cannot accept that any such finding has been made by the Supreme Court, particularly in circumstances where Hogan J. went on to say (at para. 46) that it was "...both impossible and unnecessary in these circumstances to express a final view on this question...".
66. Rather than determining the credit servicing issue, in Cave the Supreme Court affirmed the Court of Appeal's decision, which rejected the defendant's entitlement to raise the credit servicing issue. Mr. Justice Hogan made this very clear, including at para. 49, where he stated:
"I take this view because Mr. Kelly failed to raise the credit servicing argument in a timely or effective fashion before the High Court. Given that the resolution of this issue would have required the admission of oral evidence and legal submissions in the High Court, this was an issue which came towards that end of the Lough Swilly spectrum which suggests that such new arguments should not be admitted on appeal". (emphasis added).
67. The reference to Lough Swilly was, of course, to Lough Swilly Shellfish Growers Co-Op Society Limited v Bradley [2013] 1 I.R. 227. In Lough Swilly, the Supreme Court (O'Donnell J., as he then was) articulated the test regarding the admission of new arguments, on appeal. The Court also referred to a 'spectrum' of cases, including, those where the risk of prejudice to the opposing part is slight and where there is less strength in the argument that the entire case should be put before the court of first instance.
68. In my view, the ratio of the Supreme Court's decision in Cave is clear from para. 51, wherein Hogan J. stated that the defendant: "...has not satisfied the burden of demonstrating the existence of persuasive and comprehensive evidence of illegality such as might otherwise have entitled this Court, exceptionally, to act on the basis of an unpleaded illegality which had not been raised or addressed in the High Court."
69. By contrast, the defendant in these proceedings has raised issues which include:- (i) whether the original plaintiff, GDP, breached the provisions of Part V of the Central Bank Act, 1997 ("the 1997 Act") which were in force at the time these proceedings were instituted; and (ii) if so, whether the acquisition, by the current plaintiff, of the relevant loan and underlying security 'cures' any illegality or defect; and/or (iii) the extent to which it may be necessary for the plaintiff to take any steps to remedy same (the "credit servicing questions").
70. I find myself unable to determine these credit servicing questions on the current state of the evidence and submissions. In my view, an attempt to do so in a summary application gives rise to the risk of an unjust result. Rather than it being very clear to me that there is no defence, it is clear to me that a fair determination of the credit servicing questions requires further evidence and further legal argument.
71. To explain further. Even if it were to be accepted by the plaintiff, at a future trial, that GDP lacked necessary authorisation from the Central Bank, rendering oral evidence on that issue unnecessary (and no such concession has been made) the question of the effect of breach of the 1997 Act on the proceedings issued by GDP, in the context of a subsequent assignment, to the plaintiff, of GDP's rights in the proceedings, is not a simple issue readily capable of determination in this summary application. That being so, I cannot say that it is clear to me that there is no defence. The application of the Harrisrange principles, including (iv) and (vi), mean that the summary process is an unsuitable one in which to determine the credit servicing questions, and, in my view, a plenary hearing is required to determine these questions, fairly and justly.
72. Counsel for the plaintiff emphasises the fact that his client is a registered and authorised credit servicer. Whilst that is not in dispute, this fact alone does not seem to me to determine the questions raised. With respect to the plaintiff's reliance on the decision in Cave, it is also appropriate to note what Mr. Justice Hogan stated at paras. 34 and 35 of the Supreme Court's decision:
"34. In my view, it is unclear whether Part V of the 1997 Act (as amended) applies to the activities of Cave Projects so far as the prosecution of the present litigation is concerned. It is unclear whether the definition of credit servicing extends to the prosecution of actions for the recovery of debt, still less that it applies to proceedings of this nature which were pending at the time of the commencement of these legislative changes. Nor is it clear that the ongoing prosecution of a single set of proceedings in which the creditor and the putative creditor service provider are the same could constitute "the business of a credit service firm" for this purpose. Finally, it is far from clear that even if Cave Projects is non-compliant and in breach of the requirements of the 1997 Act that this in itself could justify the termination of the present proceedings.
35. Of course, none of these issues have been the subject of any consideration by either the High Court or the Court of Appeal. I do not think that this Court - bereft of possibly key evidence on these issues which might otherwise have been tendered in the High Court - could or should seek to resolve them. It is perhaps sufficient to say that as matters stand this Court cannot be satisfied that the elevated test of persuasive and comprehensive illegality posited by Colman J. in Birkett has been satisfied here." (emphasis added).
73. In short, Cave has not answered the credit servicing questions which arise in the present case and a proper application of the Harrisrange principles requires that the defendant be given the opportunity, to have determined by way of a plenary hearing, issues which have not yet been determined by the Superior Courts. Apart from this, a further issue arises.
Admissibility / 3rd party ownership
74. In the manner discussed earlier, the defendant has averred that he received notifications from Ennis to the effect that his loan transferred to Pepper and that Pepper has been writing to him on the basis that it owns the loan. The said correspondence has been exhibited by the defendant.
75. However, a question arises as to admissibility, for the purpose of the present application, of correspondence from Pepper exhibited by the plaintiff's solicitor, in circumstances where this Court does not have any averment by from an authorised representative of Pepper. Nor is there any affidavit from Ennis.
76. I note that the plaintiff's solicitor avers inter alia: "my office contacted Ennis and Pepper in order to clarify the issue" and "it is clearly proven that the letters were sent to the defendant in error". Without for a moment criticising the plaintiff's solicitor, he is neither an authorised officer of Pepper, nor of Ennis. He is not the author of the letters he exhibits from Pepper. Furthermore, the plaintiff is seeking relief which, if granted, would amount to a final determination of the claim, without the testing of evidence by way of a plenary hearing.
77. In these circumstances, it does not seem appropriate to take the contents of third-party correspondence as proof of their contents, in the absence of any evidence from the author of same. On this issue it is submitted on behalf of the plaintiff that the second paragraph of s. 28(6) of the 1877 Act "...makes clear that where a person liable in respect of a debt has notice of a dispute of the assignment, that he can call upon the assignor or any person claiming a right to the assignment to interplead in this action. The defendant has chosen not to do so". With respect, this submission does not seem to me to address the fundamental question regarding the admissibility of correspondence as proof of their contents. In circumstances where this Court has no evidence from either the author of the correspondence in question (i.e. an authorised representative of Pepper) or evidence from any entity in the 'chain of title' (as opposed to the plaintiff's solicitor) I am not satisfied that the exhibited letters from Pepper are admissible as proof of their contents. In addition to the foregoing, another issue arises.
Reliance on the 2020 Act
78. At para. 2 of the grounding affidavit Mr. Colgan makes the following averments:
"I say and believe that the books and records reviewed by your deponent in the preparation of this affidavit, including the documents exhibited hereto, constitute business records within the meaning of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020. I say and believe that the information comprised in these records was compiled in the ordinary course of business of the plaintiff of its predecessors, was supplied by persons who had or may reasonably be supposed to have had personal knowledge of the matters dealt with and, in the case of information in non-legible form, was reproduced in the course of the normal operation of the reproduction system concerned. Insofar as the information comprised in the aforesaid records was supplied indirectly to the plaintiff or its predecessors, I say and believe that each person through whom it was supplied received such information in the ordinary course of business. The plaintiff, in relying on this affidavit gives notice of its intention to rely on the documentation exhibited hereto pursuant to s. 15 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020." (emphasis added).
79. The Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 ("the 2020 Act") provides, in relevant part:
"14. -
(1) Subject to this Chapter, information contained in a document shall be admissible in any civil proceedings as evidence of any fact in the document of which direct oral evidence would be admissible if the information -
(a) was compiled in the ordinary course of a business,
(b) was supplied by a person (whether or not he or she so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and
(c) in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.
(2) Subsection (1) shall apply whether the information was supplied directly or indirectly but, if it was supplied indirectly, only if each person (whether or not he or she is identifiable) through whom it was supplied received it in the ordinary course of a business.
....
15. -
(1) Information in a document shall not, without the leave of the court, be admissible in evidence by virtue of section 14 at a civil trial unless -
(a) a copy of the document has been served on the other party or parties, or
(b) not later than 21 days before the commencement of the civil trial, a notice of intention so to give the information in evidence, together with a copy of the document, is served by or on behalf of the party proposing to give it in evidence on each of the other parties to the proceedings." (emphasis added).
"Statement of Account"
80. At para. 22 Mr. Colgan makes the following averments:
"In advance of the issue of the within motion a fresh letter of demand was sent to the defendant's solicitors by my solicitors dated 2nd June 2023 demanding payment of 660,409.77 being the total sum due and owing as of 20th April 2022. Attached to that letter of demand was a Statement of Account produced by the plaintiff from a combination of the computer records and physical statements previously issued by the predecessors to the plaintiff. This was done to provide the defendant with a single Statement of Account against which he cross reference the various debits and credits made to the account. As can be seen therefrom, the various interest rate changes as well as the rates themselves are identified, along with the payments made and interest accrued to the account over its lifetime. I say that it is clear from the said statement that the Defendant is duly indebted to the plaintiff in the amount of 660,409.77 above all just credits and advances. In that regard I beg to refer to a copy of the said letter of demand and attached Statement of Account upon which marked with the letters 'FC10' I have signed my name prior to the swearing hereof."
81. From para. 21, onwards, of the affidavit sworn on 18 April 2024, the defendant takes issue with the "Statement of Account" including: (i) authorship; (ii) the information on which it is based; (iii) certain entries under the column entitled "Source"; (iv) the plaintiff's failure to exhibit any documents referred to in the Source column; and the defendant avers, inter alia, that "...the basis for calculation and balances of the alleged amount due and owing is inadmissible hearsay...". Paras. 25 to 31 of the defendant's written legal submissions raise the following issues:
"25. The document which the plaintiff alleges is a Statement of Account is undated, is not produced on the plaintiff's headed paper and does not contain the name of the plaintiff. Instead, it appears to be an Excel spreadsheet titled 'Albert Conneally compiled loan statement'. It then sets out the figures which are claimed to be due. The final column of the document is headed Source.
26. The sources set out on the first page are either BOSI statement or "date of rate change per LK Shields spreadsheet. Rate estimated by LFM calculations".
27. The only other reference to LK Shields in the documents furnished by the plaintiff is the deed underlying the third transfer which appears to have been prepared by LK Shields.
28. All entries on the second page appear to have come from BOSI statements.
29. The third page refers to the BOSI statements and rate change per LK Shields statement as before but also includes a new source for new debits and credits which simply states "LK Shields spreadsheet". However, on subsequent dates the information appears to have been sourced from a BOSI statement.
30. The last reference to be BOSI statement is a BOSI statement dated 11/1/2012, with the balance of the entries coming from the LK Shields spreadsheet from 18/1/2012 up to 2/5/2018. Thereafter the Source column refers to Mountstreet Statements from 8/7/2018 up to 9/10/2020 with the last entry made on 20/4/2022 with the description End Balance. The source is described as per FLMXRS system 26/4/2023.
31. No explanation is given by the plaintiff why it elected to exhibit what is in effect a spreadsheet rather than the various account statements from BOSI, Mountstreet or the LK Shields spreadsheet. No explanation is given why reliance is being placed on an Excel spreadsheet created by a firm of solicitors between January 2012 and August 2022 notwithstanding the fact that the plaintiff's own case is that the loans continued to be owned by BOS until 2015. No explanation is given why Ennis does not appear to have produced any statements or data. None of the source documents are exhibited."
82. In legal submissions, counsel for the defendant referred inter alia to the Court of Appeal's decision (Baker J.) in Promontoria v Burns [2020] IECA 87 in which the learned judge upheld a decision of this Court (Noonan J.) wherein he found that the evidence relied upon by the plaintiff in a motion for summary judgment constituted inadmissible hearsay, also stating:
"It is with regard to the proof of the quantum of the claim that I have most difficulty. There are no bank statements of the type sent on a regular basis from a bank to a customer which carry indications of reliability and can be seen as part of a course of dealings, or evidence of a contractual nexus from which a court could draw an inference from a failure to respond."
83. I have taken full account of the detailed submissions, written and oral, made with skill by the plaintiff's counsel, including, the submission to the effect that, upon being furnished with the letter of demand, dated 2 June 2023 (and enclosed Statement of Account document) the defendant did not respond with a challenge to it. However, I cannot ignore the challenge now made in opposition to the plaintiff's claim for summary judgment, including, in particular the case made that the Statement of Account is inadmissible.
Ordinary course of business
84. The state of the evidence is that the plaintiff has chosen to rely on figures which appear to have been produced, in material part, by solicitors (rather than by the parties said to have owned the loan facilities in question i.e. BOS for 3 years/Ennis for 7 years).
85. Given the multiple references in the Statement of Account document to "date of rate change per LK Shields spreadsheet"; "LK Shields spreadsheet"; and "Mountstreet statement", it is not sufficiently clear to me that the records upon which the plaintiff relies were compiled in the "ordinary course of business". Therefore, I cannot safely come to a decision that what the plaintiff describes as the Statement of Account is admissible for the purposes of this application, be that under Statute or at common law.
In summary
86. For the foregoing reasons, I have come to the view that this Court has not been provided with the prima facie evidence necessary to be satisfied that the plaintiff is the ultimate successor in title to BOSI.
87. Furthermore, despite the submissions made with such skill and sophistication by the plaintiff's counsel, I cannot safely take the view, in this purely 'papers based' exercise, that it is very clear that there is no defence.
88. Thus, guided by the Harrisrange principles, I have come to the view that the defendant has 'cleared' the low threshold which requires that this claim should be adjourned to plenary hearing.
89. The reality that the threshold is a low one also seems to me to be relevant to the question of the costs of this motion. It seems fair to say that it took the bringing of the present application by the plaintiff for the defendant to articulate the range of challenges he wished to make in respect of the claim.
90. One of the alleged defences has since been abandoned by the defendant, specifically, the assertion that the claim is 'statue barred'. Furthermore, this Court has made no determination in respect of any aspect of the defence raised, other than to say that the case should go to plenary hearing.
91. If the defendant is ultimately unsuccessful at a plenary hearing, his opposition to the present motion will have caused an increase in legal costs and will have made an extra demand on finite court resources.
92. In light of the foregoing, I take the view that the most appropriate way to deal with the costs of this particular application is that they be 'costs in the cause'.
93. If either party wishes to argue otherwise, short written submissions should be filed within 21 days. I propose to list the matter on Thursday 26 June at 10:30 am for the purpose of final orders being made in respect of this application.