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Cite as: [2014] IESC 38
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Judgment Title: Danske Bank A/S t/a Danske Bank -v- Meagher Neutral Citation: [2014] IESC 38 Supreme Court Record Number: 487/13 High Court Record Number: 2013 176 S & 2013 23 COM Date of Delivery: 01/04/2014 Court: Supreme Court Composition of Court: Fennelly J., Laffoy J., Dunne J. Judgment by: Laffoy J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No. 487/13] Fennelly J. Laffoy J. Dunne J. BETWEEN DANSKE BANK A/S TRADING AS DANSKE BANK PLAINTIFF/RESPONDENT AND
JOHN MEAGHER DEFENDANT/APPELLANT Judgment of Ms. Justice Laffoy delivered on 1st April, 2014 Background to appeal 2. On 31st January, 2013, on an ex parte application made to the High Court, it was ordered by the High Court (Kelly J.) that the respondent be at liberty to effect service of the summary summons and, inter alia, the notice of motion and the grounding affidavit of Donal Scully, the Property Credit Manager of the respondent, sworn on 30th January, 2013 on the appellant “by ordinary pre-paid post addressed to him at his residence at Milltown, Ashbourne, County Meath”. The ex parte application was grounded on the grounding affidavit of Mr. Scully and also on an affidavit sworn on 30th January, 2013 by Tom Ryan, who described himself as “a summons server”. Mr. Ryan made the following averments in his affidavit:
(b) that he first attempted to serve the appellant with the summary summons by attending at “the Defendant’s House” on Monday, 21st January, 2013 at 3.30pm, but the gates in the fencing surrounding the property were closed and there was no response when he pressed the intercom button and the bell adjacent to the gates several times; (c) that his second attempt to serve the appellant was on 22nd January, 2013, but again there was no response when he pressed the intercom button and the bell; (d) that his third attempt to serve the defendant was on the evening of 24th January, 2013 and again there was no response when he pressed the intercom button and the bell; (e) that his fourth attempt to serve the defendant was on 25th January, 2013 at 9.45am. 3. On 25th February, 2013 the respondent’s notice of motion dated 31st January, 2013 seeking orders -
(b) for summary judgment against the appellant, 4. Subsequent to the making of the Summary Judgment Order, further orders were made in the High Court by Kelly J., namely:
(i) a garnishee order nisi that the sum of €70,000 due by Dublin City Council to the appellant be attached to answer the Summary Judgment Order was made and it was ordered that the matter be listed on 17th June, 2013 to show cause why Dublin City Council should not pay to the plaintiff the said sum of €70,000, and (ii) it was further ordered that Ian Bell, solicitor, be appointed receiver by way of equitable execution to receive on behalf of the respondent all other monies that might be due to the appellant from Dublin City Council in proceedings pending in the High Court by the appellant against Dublin City Council and Northern Area Health Board (High Court Record No. 2005 No. 336S) (the Appellant’s 2005 Proceedings); and (b) by a further order dated 13th May, 2013, it was ordered - (i) that the defendant make discovery of certain documents outlined within four weeks of the date of the order; (ii) that the appellant attend Court to be orally examined on 10th July, 2013; and (iii) that the defendant produce to the Court and to the solicitors for the respondent two weeks prior to the conduct of the examination certain documents specified. 5. Each of the orders dated 13th May, 2013 provided that service was to be effected on the appellant in the same way as he had been served to that date, including service of the second order with a penal endorsement thereon. What precipitated the next application made ex parte to the High Court was that on 6th June, 2013 there was returned to Mr. Bell in person the copy documents, including the copies of the two orders made on 13th May, 2013, which he had served by post to the appellant at the address at Milltown, Ashbourne, County Meath together with a letter from a Mr. Edward Cox, which was attached to the front of the envelopes. It is clear on the evidence that Edward Cox is married to Cora Cox who is a sister of the appellant. The letter signed by Mr. Cox was dated 4th June, 2013 and it stated:
Please do not send any more as they will not be accepted.” 7. There is some lack of clarity on the papers before this Court, as the judgment of Peart J. indicates was also the case in the High Court, in relation to what happened next in the High Court. Apparently, on 17th June, 2013 the respondent was given leave to bring a motion for the attachment and committal of the appellant, which was returnable for 24th June, 2013. In any event, by order of the High Court (Kelly J.) made on 24th June, 2013, having recited -
(b) that there had been no attendance in Court by or on behalf of the appellant, and (c) that the Court was satisfied that the appellant had been duly served with all the relevant documents and that he had chosen to ignore the Commercial Division of the Court whilst conducting litigation in another division of the Court and that prima facie he was in breach of the order of the Court made on 13th May, 2013, 8. There is also lack of clarity on the papers before this Court as to what happened subsequently. As recorded by Peart J. in his judgment, the appellant seems to have appeared in the High Court before Kelly J. on 10th July, 2013, but it is unclear as to what happened on that date, except that the appellant stated subsequently that he handed his passport into Court. The matter appears to have been adjourned and on 17th July, 2013 the appellant was given leave to issue the motion which was the subject of the judgment and order of Peart J. and is the subject of this appeal. The motion in the High Court
(b) that all subsequent orders, reference being made to orders made on 13th May, 2013, 11th June, 2013, 17th June, 2013, 24th June, 2013 and 26th June, 2013, be set aside; and (c) that the €70,000 paid to the respondent by Dublin City Council pursuant to the order made on 13th May, 2013 and made absolute on 17th June, 2013, be paid to the appellant forthwith. The affidavit evidence on the motion Appellant’s grounding affidavit
(b) that he left the jurisdiction on or about 27th December, 2012 and returned on 5th March, 2013 and that the judgment was sought and obtained in that period and no papers or other information were received by him while he was abroad; (c) that he did not receive any correspondence from the respondent “shortly prior to the commencement of these proceedings” at the address in Milltown, Ashbourne, County Meath and that correspondence from the respondent to him had been addressed to him at Charlemont Street, Dublin; (d) the description of the premises at Milltown, Ashbourne, County Meath as “the Defendant’s House” was incorrect and that he had concluded from the affidavit of Mr. Ryan and an affidavit of Mr. Bell that the house visited by Mr. Ryan belonged to his sister and her husband; (e) that he had never met the Receiver, although he did receive phone calls in or about 21st December, 2012 from a Mr. O’Callaghan, whom he believed worked for the Receiver, who rang him when he was abroad, but did not identify himself as a receiver or a person acting for a receiver, but said he would like to meet him in relation to the respondent but did not tell him what he wanted to discuss with him; (f) that he told Mr. O’Callaghan that, if it was urgent, he should contact or send any materials he had for the attention of his accountant in Cork, whose name and address he gave to Mr. O’Callaghan; (g) that he told Mr. O’Callaghan that he would be visiting his sister and her family in Ashbourne, County Meath, but he did not represent her home as his address, or a place at which he could or should be contacted; (h) that he had no knowledge of any order of the Court which placed an obligation on him to do any act or to appear before it until he was informed that an order for his “arrest” had been made by a friend who had learned of it through newspaper reports; (i) that he first saw the relevant orders when they were handed to him on 11th July, 2013 by direction of the Court; and (j) that any orders requiring action by him were never conveyed to him and he had no knowledge of them and, as soon as he learned that an order was made, he immediately took steps to return to the jurisdiction at great cost and inconvenience. Affidavit of Lauren Cox Affidavit of Mr. Bell
(b) Sancta Maria Building & Civil Engineering Limited. 14. In his affidavit Mr. Bell averred that he had been informed by a solicitor with Dublin City Council that the Appellant’s 2005 Proceedings had commenced in the High Court on 12th March, 2013 and that the appellant had attended Court and had given evidence in those proceedings on 12th , 13th and 14th March, 2013. Further, he had been informed that the solicitor in question had informed senior counsel for Dublin City Council to bring to the attention of senior counsel acting for the appellant that judgment had been obtained by the respondent against the appellant on 25th February, 2013, which had occurred. Affidavit of Henry O’Callaghan 16. As regards the appellant’s averment that he advised Mr. O’Callaghan that he should contact his accountant in Cork, Mr. O’Callaghan averred that the appellant’s evidence was not correct. Mr. O’Callaghan averred that the appellant provided him with the name of a person whom he said was his adviser. That person was Mr. Alan Dilloughery. The appellant advised Mr. O’Callaghan that Mr. Dilloughery would contact him. He received a telephone call from Mr. Dilloughery on 21st December, 2012 at approximately 3.40pm. Mr. Dilloughery was unable to provide any information of any substance regarding the properties over which the Receiver had been appointed and he was not in a position to provide a date or time for a meeting with the appellant. Mr. Dilloughery advised Mr. O’Callaghan that he should contact the appellant directly. At no time had Mr. Dilloughery told him that he should send any documentation or communications in relation to the appellant to Mr. Dilloughery, which he would not have been in a position to do in the absence of a signed letter of authority from the appellant authorising him to do so. Affidavit of Alan Dilloughery Appellant’s second affidavit Second affidavits of Mr. Bell and Mr. O’Callaghan 20. The other was an affidavit sworn by Mr. O’Callaghan on 2nd September, 2013 in which he reiterated that, in the course of the telephone call on 20th December, 2012, he had informed the appellant of the appointment of a receiver and that the appellant had provided him with a postal address of Milltown, Ashbourne, County Meath and had given him the e-mail address that he set out in his first affidavit referred to at 15 above. Mr. O’Callaghan clarified that the letter dated 20th December, 2012 addressed to the appellant at Milltown, Ashbourne, County Meath, which enclosed a copy of the deed of appointment of the Receiver, was sent on 20th December, 2012 to that address. 21. In outlining the contents of the affidavits filed on behalf of both sides, the emphasis has been on the facts disclosed as to what transpired between the parties and their respective agents up to the time the Summary Judgment Order was made on 25th February, 2013, rather than on other material contained in the affidavits, much of which is of an argumentative nature. The hearing in the High Court 23. As is disclosed in the order of the Court made on 8th November, 2013, in addition to the various affidavits outlined above, the Court heard the oral evidence of the appellant. As I understand it, notice to cross-examine the appellant was served on behalf of the respondent, but no notice was served by either side to cross-examine any of the other deponents. A very unsatisfactory aspect of this appeal is that there is no transcript available to this Court of the oral evidence given by the appellant in the High Court. On the hearing of the appeal this Court was informed that there was no stenographer present in Court when the appellant was testifying, although, of course, there would have been a digital audio recording of the evidence. This Court was informed by counsel for the appellant that the appellant had applied to the High Court for a transcript with the implicit consent of the respondent and that the position adopted in the High Court was that, if the Supreme Court considered a transcript was necessary, it would be ordered that a transcript be produced. The hearing of the appeal proceeded without the views of this Court being canvassed. The judgment of the High Court 25. As I have already recorded, Peart J. stated in his judgment that, if the Substituted Service Order was to be set aside, the Summary Judgment Order would also have to be set aside. However, he also stated that the application to set aside the Summary Judgment Order required to be considered even if the Court was satisfied that the Substituted Service Order should not be set aside. In that event the onus would be on the appellant to satisfy the Court that because of a mistake on his part, or that he was taken by surprise, which deprived him of an opportunity to defend the claim, the Court should set aside the judgment, but consideration of those matters would be predicated on the fact that, as far as the plaintiff was concerned, the judgment was obtained regularly. 26. In addressing the issue as to whether the Substituted Service Order should be set aside, Peart J. stated (at para. 52):
27. Peart J. set out his conclusion on the issue as to whether the Substituted Service Order should be set aside as follows (at para. 58):
29. It is appropriate to record that on the hearing of the appeal, counsel for the respondent made it clear that the respondent has always conceded that, if the appellant wants to defend the claim for summary judgment, the respondent will not resist an application to do so provided that -
(b) he makes some offer as to suitable terms, suggesting that an order for payment of funds into Court might be suitable. 30. The judgment of Peart J. was given effect to in the order dated 8th November, 2013, in which it was ordered that the notice of motion dated 28th August, 2013 on behalf of the appellant be refused and that the respondent recover against the appellant its costs of and incidental to the motion, the costs to be taxed in default of agreement. 31. The grounds of appeal against that order set out in the appellant’s notice of appeal filed on 29th November, 2013 were as follows:
(b) that Peart J. erred in law and on the facts insofar as he failed to set aside the Substituted Service Order, when evidence, uncontradicted by the respondent, was put before the Court that at the relevant time the appellant was outside the jurisdiction, and that the appellant had at no time resided at Milltown, Ashbourne, County Meath; (c) that Peart J. erred in law and on the facts in preferring the evidence that Milltown, Ashbourne, County Meath was the appellant’s residence to (a) the evidence of the appellant himself and (b) the unrebutted evidence of his niece, the long-term occupier of those premises with her parents; (d) that Peart J. erred in law and on the facts insofar as he found that the appellant had notice of these proceedings prior to June 2013, in that his finding was based on an assumption as to facts which, even if true, did not in fact form any adequate basis for concluding that the appellant had notice of the proceedings prior to the making of the Summary Judgment Order; and (e) insofar as the evidence on which the Substituted Service Order was made was shown to be false, Peart J. erred in law in effectively placing the burden of proof of the irregularity of the Substituted Service Order on the appellant rather than putting the burden of proof of the regularity thereof on the respondent. The submissions on behalf of the appellant: outline and discussion 33. In particular, counsel for the appellant submitted that Order 9, rule 2 of the Rules was not complied with. That rule provides:
34. Of course, in this case, the respondent did not rely on the option available under the second sentence of rule 2 to endeavour to effect service on the appellant by serving a connected person. Rather, the respondent invoked Order 10 of the Rules and applied to the High Court for an order for substituted service. Rule 1 of Order 10 provides:
35. Elaborating on the alleged irregularity, counsel for the appellant submitted that service of the summary summons and the motion for judgment and other relevant documents was not regular, because the Substituted Service Order was not regular because -
(b) the premises at Milltown, Ashbourne, County Meath were not his house or place of residence; and (c) the evidence on the application for substituted service was deficient in that - (i) it did not state that the appellant was within the jurisdiction; and (ii) it wrongly referred to the premises at Milltown as his residence. 36. Counsel for the appellant challenged the correctness of the findings of fact which had been made by Peart J., asserting that they were seriously faulty. It was contended that Peart J. had failed to resolve the conflict of evidence between Mr. Ryan and Lauren Cox and pointed out that the respondent had not sought to cross-examine Lauren Cox. He contended that it was not appropriate for the Court to have found that there must have been a sensible and working arrangement in place between the appellant and his sister, Cora Cox, in relation to the use of the address of Cora Cox as the appellant’s address in filings in the CRO, when there was no evidence of the existence of such an arrangement, or what the arrangement was. The evidence was insubstantial and insufficient to warrant forming a disadvantageous view as against the appellant, he submitted. Given that the appellant testified that he was not within the jurisdiction prior to the making of the Summary Judgment Order and that there was no contra evidence, his counsel contended that the Court was not entitled to conclude that the appellant was telling lies. At no time was there the slightest evidence that the appellant intended to disobey a Court order, he contended. On that last point, there was no suggestion that the appellant left the jurisdiction to avoid service of proceeding on him and, indeed, it was made clear by counsel for the respondent that the respondent was not suggesting otherwise. 37. Turning to the authorities relied on by counsel for the appellant, it is undoubtedly the case, as laid down by the Court of Appeal in Crane & Sons v. Wallis [1915] 2 I.R. 411, that the Rules must be strictly complied with in the case of a judgment by default. As O’Brien L.C. stated (at p. 415), the jurisdiction of the Court can only come into existence if the Rules have been complied with. In this case the motion on foot of which the Summary Judgment Order was made sought an order for summary judgment invoking Order 37 of the Rules. Having said that, the courts take a strict approach to compliance with summary summons procedure, as is pointed out in Delany & McGrath on Civil Procedure in the Superior Courts, 3rd Ed., (at para. 26 - 34). 38. The decision of the High Court (Herbert J.) in Heffernan v. Ryan [2005] 1 I.R. 32 cited on behalf of the appellant concerned the proper application of the alternative form of service where the defendant is personally within the jurisdiction and due care and diligence was exercised in endeavouring to effect personal service, as provided in the second sentence of rule 2 of Order 9 of the Rules. Counsel for the appellant referred the Court to two aspects of the judgment of Herbert J. The first was his interpretation of the meaning of “place of residence” and “house” in Order 9, rule 2, in relation to which he stated (at para. 22):
39. Counsel for the appellant also relied on two authorities in which judgment was set aside because the Court was not satisfied that the defendant was within the jurisdiction at the time of the alleged service: Tisdall v. Humphrey I.R. 1, C.L. 1, a decision dating from 1867; and Poole v. Stewart (1903) 37 ILTR, in which the earlier decision was followed. Each of those decisions was concerned with whether service purported to be effected pursuant to a provision analogous to Order 9, rule 2 then in force was regular, not with a situation in which an order for substituted service had been obtained from the Court. Incidentally, those decisions have been departed from in recent years in an authority relied on by counsel for the respondent: Royal Bank of Ireland v. Nolan (1958) 92 ILTR 60, in which Dixon J. held that, where an application to set aside a judgment is brought on the basis of an irregularity in service, it is a prerequisite to relief that the defendant swear an affidavit establishing that he did not have notice of the proceedings. Submissions on behalf of the respondent: outline and discussion 41. Counsel for the respondent also addressed whether the requirement of being personally within the jurisdiction should be imported into Order 10, rule 1. It was submitted that there was no basis for so doing. Reference was made to the commentary in Delany and McGrath (op. cit.) at page 216. In the passage in para. 3 - 23 quoted by counsel for the respondent, the authors state:
42. Counsel for the respondent also relied on the decision of the High Court (Barron J.) in Uwaydah v. Nolan [1997] IEHC 35. However, in my view, that decision does not really advance the respondent’s case. Clearly in that case the service which the defendant sought to set aside and in respect of which the plaintiff sought an order under Order 9, rule 15 of the Rules declaring the service actually effected to be sufficient was service pursuant to the alternative option to personal service on a connected person, as provided for in the second sentence of Order 9, rule 2. 43. Of more assistance to this Court are the submissions which were made by counsel for the respondent as to the principles which apply to the review by this Court on appeal of the evidence which was before Peart J. in the High Court and on the basis of which he determined that service on the appellant was not irregular. The relevant principles are summarised in the judgment of McCarthy J., with whom the other Judges of the Supreme Court concurred, in Hay v. O’Grady [1992] 1 I.R. 210. Having quoted Order 58 of the Rules which provides, inter alia, that all appeals to the Supreme Court “shall be by way of re-hearing”, McCarthy J. stated (at p. 216) that this does not mean that the Supreme Court re-hears oral evidence but, rather, the arguments based upon the findings of fact, including arguments that findings are unsupported by evidence, itself a question of law. Having stated that, although the jurisdiction confirmed by Article 34 of the Constitution is, save as there expressed, unlimited, the Supreme Court has, in effect, limited its jurisdiction in the manner detailed in the succession of cases which had been cited in the course of argument in that case. McCarthy J. then (at p. 217) summarised the role of the Supreme Court stating, insofar as is relevant for present purposes, this Court being primarily concerned with review of findings of fact, as follows:
1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial. 2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority. 3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. . . . I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.” 44. On the issue as to whether Peart J. should have acceded to the appellant’s application to set aside the Substituted Service Order, counsel for the respondent submitted that the irresistible conclusion from the facts established before Peart J. in the High Court was that the address at Milltown, Ashbourne, County Meath was an address at which the defendant could be contacted. Counsel highlighted six elements of the additional evidence which was before Peart J., which was not before Kelly J. when he made the Substituted Service Order, namely:
(b) that the Forms B1 which were filed in the CRO as late as autumn 2012, and which were filed in accordance with the statutory obligations of the appellant gave his address as Milltown, Ashbourne, County Meath; (c) that the premises at Milltown were the appellant’s sister’s home; (d) that the evidence of Mr. O’Callaghan that he got the appellant’s e-mail and postal correspondence addresses from him on 20th December, 2012 was corroborated by the fact that Mr. O’Callaghan e-mailed that information to Mr. Scully on the following day, 21st December, 2012; (e) on the appellant’s best case, he left the jurisdiction on 27th December, 2012 without leaving any contact address, notwithstanding that he was an Irish citizen with an Irish business, so that the respondent had no address for him abroad; and (f) that even in the summer of 2013 the appellant had not identified one single location as his address in this jurisdiction. Conclusion 47. First, there is no requirement, express or implied, in the Rules which confer jurisdiction on the superior courts to make an order for substituted service that the person sought to be served is personally within the jurisdiction, either when the application for substituted service is made or when service is effected. The only requirement in Order 10, rule 1 is that the Court is satisfied that prompt personal service cannot be effected on the person sought to be served. In the High Court, Kelly J., on the evidence before him, was satisfied that that requirement had been complied with. The evidence before Peart J. subsequently, in my view, put beyond “yea or nay” that the respondent was unable to effect prompt personal service on the appellant, who for most of the first half of 2013 was at an unknown location in Sri Lanka. 48. Secondly, in my view, on the evidence before him, Kelly J. was correct in concluding that service of the summary summons, the motion for judgment and the other relevant documentation on the appellant by pre-paid post addressed to him at Milltown, Ashbourne, County Meath would result in the appellant being put on notice of the proceedings and the motion for summary judgment, irrespective of the fact that, as is now acknowledged, the description of the premises at Milltown as the appellant’s “residence” was incorrect. As the analysis of the evidence which was before Peart J. conducted by counsel for the respondent illustrates, there was even more evidence before Peart J. than there had been before Kelly J. from which it would have been reasonable to conclude that the appellant would be put on notice of the proceedings and of the motion for judgment by service of the relevant documents on him in a manner directed in the Substituted Service Order. I am satisfied that it was reasonable for Peart J. to infer from the totality of the evidence that there was an arrangement in place between Cora Cox and the appellant whereby the appellant would be apprised that correspondence and documents had been sent to him by post at the address in Milltown, and that the appellant could ascertain the contents of the correspondence and documents, so that, in the case of documents for the initiation and prosecution of legal proceedings, the appellant would have an opportunity to respond thereto in whatever way he thought fit. As Dixon J. is reported to have said in giving his judgment in the Royal Bank of Ireland Ltd. v. John Nolan as to the importance of seeing that service was regular:
49. The decision of Dixon J. leads to the second issue the Court has to determine. That is whether the appellant can rely on his assertion that he did not have knowledge of the existence of the proceedings when the Summary Judgment Order was made on 25th February, 2013 and what the consequences are, if he cannot rely on that assertion. 50. Having heard the oral evidence of the appellant on cross-examination, Peart J. concluded that the appellant was not telling the truth when he averred that he had no knowledge of the proceedings before the Summary Judgment Order was made on 25th February, 2013. At the risk of unnecessary repetition, unlike the trial Judge, this Court has not had the opportunity to see or hear the appellant testifying, and, more importantly, it has no record whatsoever of the testimony which he gave. In line with the principles set out in Hay v. O’Grady, in normal circumstances this Court is slow to interfere with a finding of fact made by a Judge in the High Court, particularly where the finding specifically relates to the credibility of the witness or witnesses. In the very unusual circumstances of this case, there is absolutely no basis on which this Court could determine that the conclusion of Peart J. as to the appellant’s knowledge of the proceedings before 25th February, 2013, which, as recorded earlier in para. 28, he put bluntly as that he did not believe the appellant’s testimony that he did not have “knowledge of the proceedings before judgment was granted”, was incorrect. Accordingly, this Court must act on the basis that the appellant did have knowledge of the proceedings before 25th February, 2013 and it must reject the appellant’s assertion to the contrary. The consequence is that the Court must reject the appellant’s assertion that the Summary Judgment Order was an irregular judgment because of the alleged irregularity in service. 51. Turning to the Summary Judgment Order, on the application for summary judgment, the respondent satisfied the Court that it had complied with the Substituted Service Order. On the basis of the additional evidence put before Peart J., he found that the appellant did have knowledge of the proceedings before the Summary Judgment Order was made and, for the reasons set out above, this Court cannot interfere with that finding. It follows that this Court must regard the Summary Judgment Order as having been regularly obtained. 52. The appellant, on the application to the High Court to set aside the Summary Judgment Order, did not even attempt to meet the essential prerequisite to a Court considering an application to set aside a regular judgment, namely, that he demonstrate on affidavit that he has a defence on the merits which has a reasonable prospect of success. Accordingly, it was not open to the High Court to consider setting aside the regular Summary Judgment Order and giving the appellant the opportunity to defend the proceedings on the basis that the interests of justice so required. That being the case, the issue does not arise on this appeal, although, in this regard, it appears that the respondent’s attitude to the appellant having an opportunity to defend the claim on the merits has at all times reasonable. 53. Having regard to the foregoing considerations, I consider that there should be an order dismissing the appeal.
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