by Matthew Austin October-19-2015 in Banking & Financial Services, Litigation & Dispute Resolution, Commercial & Business
What proofs does a bank need for summary judgment against defaulting borrowers? Matthew Austin outlines a clarification by the Court of Appeal.
In recent years, on a number of occasions, the High Court has had cause to consider the proofs required of a bank in an application for summary judgment by the bank against defaulting borrowers. A number of judgments issued over the last 18 months which had given rise to difficulties for some lenders in proving the debt by means of affidavit evidence. In April 2015 the Court of Appeal decided on an appeal by judgment debtors (Con Egan and Theresa Egan) where the High Court had awarded summary judgment for various sums in favour of Ulster Bank Ireland Limited as against the Egans.
The High Court’s jurisdiction to grant summary judgment is based upon Order 37 of the Rules of the Superior Courts which provides that the affidavit grounding the application must be sworn by the applicant or by any other person who can swear positively to the facts showing that the applicant is entitled to summary judgment.
In the case before the Court of Appeal the Egans claimed that the deponent of the bank’s grounding affidavits did not meet the requirements of Order 37. The deponent had stated in the grounding affidavit that he was a “Recoveries Clerk” employed by the applicant bank in its “Debt Recovery Department” based in Belfast.
Mr Justice Mahon delivered the Court of Appeal’s judgment and stated: “I am satisfied that Mr Holbrook has, in his sworn affidavits, demonstrated that he has had access to the computer, bankers books and records of the plaintiff relevant to the amounts being claimed as due and owing to it by the defendants, and that he has perused same for the purposes of establishing the quantum of such amounts, and that he has been appropriately designated by the plaintiff to so do in all three proceedings.”
Mr Justice Mahon noted that Mr Holbrook had sworn in his affidavit that he had carried out a “diligent perusal” of the bank’s books and records before swearing the affidavits to ground the application for summary judgment.
The decision clarifies the position and will bind the High Court in future cases. The Supreme Court has given the Egans leave to appeal the Court of Appeal’s decision and the outcome of that final appeal is awaited.
Full copy of Court of Appeal judgment here.
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About the Author
Matthew Austin
Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.