The High Court has refused Paula Roarty’s application to set aside a €898,981.13 judgment obtained by the Governor and Company of the Bank of Ireland after no appearance was entered in response to its summary summons.
The judgment, marked in the Central Office on 13 January 2016, also included €508 in costs. Ms Justice Ní Raifeartaigh delivered her decision on 2 October 2017. The bank’s claim included €117,981.13 relating to a bridging loan and €781,000 in company lending said to be secured by guarantees signed by the defendants.
The defendants had sent the Central Office what they described as a “conditional appearance”. The office replied that the Rules of the Superior Courts did not provide for that procedure. The bank then obtained judgment in default of appearance. The second defendant applied to set it aside, saying she had expected the conditional appearance to be considered.
The judge accepted that Mrs Roarty was mistaken about being able to enter a conditional appearance and was taken by surprise when judgment was entered. But she found no procedural irregularity in the judgment. Because the application was based on surprise or mistake, the key question was whether the proposed defence had a real prospect of success.
Mrs Roarty alleged that she and her husband had been led to believe they were signing directors’ guarantees rather than personal guarantees, and that bank officials had improperly presented pre-prepared documents and waivers of independent legal advice. She also raised an argument under the Unfair Terms Regulations and related EU directive. These were her submissions; the court rejected them for the purpose of deciding the motion.
The judge said Mrs Roarty had offered no defence to the bridging-loan sum. On the guarantees, she found that the documents identified her as a personal guarantor, recorded the amounts guaranteed and contained waivers of legal advice. She was satisfied that the waivers related to the same transactions as the guarantees. The judge also said the waiver was a declaration about declining legal advice, not a contract term, and noted doubts about whether Mrs Roarty qualified as a consumer in relation to guarantees for business loans to a company of which she was a director.
The court refused the relief sought by the second defendant. The decision concerned only her motion to set aside the judgment. The first defendant’s separate motion had been struck out earlier, and that ruling was under appeal at the time of this judgment.