The High Court has ordered Cabot Financial (Ireland) Limited to pay Michael Kearney’s costs of proceedings to date after the company agreed to send its €209,825.41 loan claim to a plenary hearing.
In a ruling delivered on 29 April 2022, Mr Justice David Holland said the claim’s summary summons and supporting affidavit lacked the particulars and evidence needed to support summary judgment. He awarded Mr Kearney the costs incurred so far, to be assessed if the parties cannot agree, and stayed enforcement of those costs until final orders after trial.
The ruling concerns costs and procedure, not whether the debt is owed. The judge said the parties agreed the case should proceed to plenary hearing. The underlying claim remains to be decided.
Cabot had sought summary judgment on a loan made by First Active plc in August 2000. It claimed the amount as the latest assignee of the lender’s interest. The loan had originally been made jointly to Mr Kearney and another person who was not involved in these proceedings.
The judge found that the summons did not explain how the claimed balance had been calculated. The evidence included an account statement beginning with an opening balance in October 2015, but the court had no record showing how the account operated during the preceding 15 years. The judge said the papers therefore could not establish a prima facie basis for summary judgment on the sum claimed.
Mr Kearney’s affidavit had raised concerns about the lack of particulars and account records, among other matters. The judge said the case was sent to a full hearing because of deficiencies in Cabot’s own papers, rather than because the court had determined that Mr Kearney had established a defence to a properly supported claim.
The ruling says Cabot’s counsel told the court that, after Mr Kearney’s affidavit, the company had sought relevant documents from predecessors in title but that cooperation had ceased. The judge said he was not told when that cooperation ended or whether Cabot had been able to obtain the missing material. He concluded Cabot had taken the risk of launching summary proceedings without the necessary particulars and proof, and should bear the costs of that choice.
The costs order covers proceedings to date only. Costs from this point in the plenary action are separate and may follow the outcome at trial. The stay on execution may be reconsidered if Cabot fails to progress the action with ordinary expedition; Mr Kearney has liberty to apply to lift it.