The High Court renewed ACC Bank plc’s plenary summons against Gerald Stephens and Maryanne Stephens for six months, allowing the bank to continue a claim seeking a first legal charge over a property in County Mayo.
In a judgment delivered on 5 June 2013, Ms Justice Laffoy found that the bank had shown a good reason for not serving the summons within the permitted period. The order concerned only renewal of the summons. It did not decide whether the bank was entitled to the charge.
The bank’s 2008 proceedings seek a declaration that it is entitled to a first legal charge over the property as security for banking facilities, and specific performance of an alleged agreement by the defendants to complete the charge. The bank said the agreement followed a €400,000 bridging loan offered in February 2004.
The bank acknowledged it had not made reasonable efforts to serve the summons. Its explanation was that the defendants had indicated they would sign the charge, and that separate proceedings brought by their former solicitor sought the same result. The bank said it held back to avoid duplicate legal costs while those proceedings were active. The solicitor’s case remained pending, and no court had determined its substantive claim.
The defendants opposed renewal. The first defendant argued that a prior summary judgment for €775,234.57 in the bank’s debt proceedings barred this case under res judicata. That judgment was under appeal, and execution had been stayed. The bank argued that the debt claim and the current claim for security were distinct.
Justice Laffoy did not decide whether the res judicata argument was misconceived. She ruled that the other proceedings did not prevent the bank from seeking renewal and said the defendants could raise res judicata as a defence in due course. Finding that the balance of justice favoured renewal, she ordered the summons renewed for six months under Order 8, rule 1 of the Rules of the Superior Courts.