The High Court has refused Patrick O’Brien’s application to set aside a €1.37 million default judgment obtained by ICS Building Society in 2013 over six loans that had fallen into arrears.
Mr Justice Allen delivered the judgment on 7 December 2018. The application sought to set aside a judgment entered in default of appearance on 10 June 2013. The court refused it.
The bank issued a summary summons on 26 March 2013 seeking €1,373,676.11, and it was served on O’Brien on 3 April. He acknowledged receiving it by email a week later and asked the bank to pause action until he met a solicitor. The summons required an appearance within eight days of service and warned that judgment could be entered without further notice if he did not appear.
O’Brien argued that the judgment was irregular because no affidavit of debt had been served or filed. Although the bank’s affidavits had not addressed the claim, a search of the court file found an affidavit of debt sworn by Lorcan McCluskey on 10 June 2013. Allen therefore treated the judgment as regularly obtained.
The court considered whether O’Brien had shown a defence with a reasonable prospect of success. A July 2013 arrangement followed negotiations under which one property was to be sold and receivers on two others discharged, subject to repayments of €2,200 a month for five years. The parties accepted that the agreed payments were made during that period. But the arrangement post-dated the judgment by several weeks, and Allen said the relevant question was whether a defence existed when judgment was entered.
O’Brien also said he had been removed from tracker interest rates and moved to a less favourable rate. The bank’s evidence refuted that allegation, and the point was abandoned. A further argument concerning the Consumer Protection Code was also not pursued. Allen said the later email exchange about extending or replacing the repayment arrangement did not show that the bank had failed to assess O’Brien’s proposal; it indicated the bank considered his financial disclosure incomplete and his position unsustainable.
The court rejected the application. It did not decide the later repayment arrangement or email exchange as a defence to the judgment, because those matters arose after judgment was entered.