The High Court granted Danske Bank A/S trading as National Irish Bank judgment for €736,948.45 against Ken Mulvaney, after ruling that his proposed defence did not meet the threshold for leave to defend the bank’s summary claim.
The bank had sought judgment for that amount, together with further interest on a principal sum of €697,391.65 at 5.216% a year from 23 November 2011 until judgment or payment. Mulvaney resisted the application and asked for the case to proceed to a plenary hearing, arguing that the loan was non-recourse: he said repayment was limited to the investment security and that he was not personally liable for any shortfall.
In his account, Mulvaney said he discussed personal liability with bank executive Barry Myler during a 2005 trip to Florida for prospective investors in a project at the Sawgrass Marriott Resort. He said Myler told him the bank would require no commitment beyond security over shares in the resort. Myler denied representing that the loan would be non-recourse and said bank policy did not offer such loans.
Mr Justice Birmingham said Mulvaney’s account was improbable, but noted that there had been no oral evidence or cross-examination, so the court could not decide the application simply by preferring one account over the other. Instead, he considered the written loan offer letters. The first, dated 23 June 2006, said the loan would become repayable in full after 48 months and could become due on demand in specified circumstances. The judge found those terms, repeated in the second letter, inconsistent with a non-recourse loan. Both letters also required any variation to be in writing and said no person could vary their terms orally on the bank’s behalf.
The judge said the threshold for leave to defend was low, but found it had not been met: the asserted defence was “so clearly contradicted by the documentation” that it was very clear Mulvaney had no defence. He therefore allowed the bank to enter judgment on its motion. The judgment does not state a separate order fixing further interest beyond the amount awarded.