Judgment: 2020-07-30 · Court archive

Court of Appeal allows bank borrower to defend €1.5m guarantee claim

The court allowed an appeal against summary judgment, ruling that evidence of an alleged collateral agreement just met the threshold for a full hearing on a limited recourse defence.

The Court of Appeal · [2020] IECA 211

Who, what, where, when and why

Who
  • Allied Irish Bank plc (Plaintiff)
  • Sean Cuddy (Defendant)
What

The court allowed an appeal against summary judgment, ruling that evidence of an alleged collateral agreement just met the threshold for a full hearing on a limited recourse defence.

Where

Places mentioned in the report

  • warehouse
When

Judgment:

Why

Reasons reported in the judgment

The Court of Appeal has allowed Sean Cuddy to defend Allied Irish Bank plc’s claim under a €1.5 million guarantee, finding that evidence of an alleged collateral agreement just met the threshold for a plenary hearing.

The Court of Appeal has allowed Sean Cuddy to defend Allied Irish Bank plc’s claim under a €1.5 million guarantee, finding that evidence of an alleged collateral agreement just met the threshold for a plenary hearing.

In a judgment delivered on 30 July 2020, Ms Justice Costello agreed with the decision of Mr Justice Collins to allow the appeal. The court’s decision was limited: Cuddy may defend the proceedings on the limited recourse ground identified in Collins J’s judgment. Costello J did not decide whether the alleged agreement existed or whether the defence would succeed at trial.

The dispute concerned security for an additional facility to be advanced to a company. Cuddy maintained that recourse was to be limited to a warehouse provided as security. The bank’s position, as described in the judgment, was that the security was a €1.5 million guarantee supported by, but not limited to, a mortgage over the warehouse.

Cuddy’s defence relied on oral representations or assurances allegedly made to him in November 2007 and to his agent, Mr Comerford, in December 2007. Costello J said Cuddy’s evidence alone would amount to mere assertions and would not meet the low threshold for sending the case to a full hearing. But she found that, when considered alongside Comerford’s affidavit, the evidence just met that threshold.

The judgment noted a gap in Cuddy’s account: although he relied on representations concerning a facility offered in December 2007 and accepted in March 2008, he did not expressly say that he entered into the 2008 guarantee on the basis of those representations. Costello J said that omission might be fatal to his application, but cautioned against finely parsing affidavits at the summary judgment stage.

She said a court considering summary judgment should not reject a defence simply because it appears weak or likely to fail. The competing accounts of the security were significantly different, but were not as directly contradictory as the documentation in a prior case discussed in the judgment. With the balance finely drawn, Costello J concluded that it tipped in favour of allowing Cuddy to defend the claim.

Read the original court judgment

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