The High Court has allowed Bank of Ireland’s appeal after the Master dismissed its loan recovery proceedings against Ian Dunne and Andrea Cawley, ruling that a contested case had to be transferred to the Judges’ list for hearing.
In a judgment delivered on 8 November 2013, President of the High Court Kearns said the Master had no jurisdiction under Order 37 of the Rules of the Superior Courts to dismiss a contested case. The court directed that the matter be entered in the Judges’ list under Order 37, rule 7. It did not determine the bank’s claim or the defendants’ asserted defences.
The bank’s 2012 summary summons claimed €4,570,579.49, plus interest, arising from loans it said had not been repaid. The proceedings referred to a €50,000 overdraft offered in 2006 and a later loan offer for €5,232,000 in 2009. The bank said the defendants owed €4,365,275.66 in April 2011, and that a €135,000 payment was later received. Its application to the Master sought final judgment for €4,717,580.02, with interest.
Both defendants contested the claim. Cawley said she had a genuine defence, including that the claim should have been brought by Bank of Ireland Private Banking. Dunne said factual conflicts required a plenary trial. Neither defendant raised an objection to the form of the proceedings before the Master.
The Master dismissed the summons in November 2012, relying on reasoning he had set out in a separate ACC Bank case. The High Court judgment says all parties agreed that this was the rationale, although no recording or written decision by the Master existed in this case.
Kearns said Order 37 permits the Master to deal summarily with uncontested cases, while rule 6 requires contested cases to be transferred to the court list when in order for hearing. The judgment says any inadequacy in form could prevent transfer until corrected, but did not give the Master power to dismiss the contested case outright. The High Court also rejected the reasoning that later defence affidavits could show that the bank’s earlier supporting affidavit was improperly made. The asserted defences remain for consideration in the proceedings.