Judgment: 2016-02-23 · Court archive

High Court rejects borrower’s bid to defend €1.06m bank claim

The court found the 2012 refinancing was commercial and rejected arguments based on consumer protections, pressure and the Family Home Protection Act. It directed that judgment be entered, with the precise figures to be heard from counsel.

High Court · [2016] IEHC 105

Who, what, where, when and why

Who
  • Danske Bank A/S trading as Danske Bank (Plaintiff)
  • Ethel Miley (Defendant)
What

The court found the 2012 refinancing was commercial and rejected arguments based on consumer protections, pressure and the Family Home Protection Act. It directed that judgment be entered, with the precise figures to be heard from counsel.

Where

Places mentioned in the report

  • Blessington
  • Shanghai
When

Judgment:

Why

Reasons reported in the judgment

The High Court has rejected Ethel Miley’s application to defend a €1,063,448.12 debt claim brought by Danske Bank A/S trading as Danske Bank, finding that she had not raised an arguable defence to the bank’s claim over a 2012 loan refinancing.

The High Court has rejected Ethel Miley’s application to defend a €1,063,448.12 debt claim brought by Danske Bank A/S trading as Danske Bank, finding that she had not raised an arguable defence to the bank’s claim over a 2012 loan refinancing.

In a judgment delivered on 23 February 2016, Ms Justice Baker said the bank had made out its case. She directed that judgment be entered for the amount claimed and said she would hear counsel on the precise figures. The case came before her on appeal from a Master of the High Court’s order allowing the bank to enter judgment. The parties consented to that order being set aside before the matter proceeded as a motion for judgment.

The claim arose from a facility letter dated 18 January 2012. The judgment records that Mrs Miley and her late husband had borrowed from the bank from around 2006, and that the earlier borrowing was used by him to invest in property in Ireland and abroad. The 2012 facility refinanced the unpaid 2006 loan after his death.

Mrs Miley argued that she was a consumer for the 2012 facility and that the bank had failed to provide protections under the Consumer Credit Act 1995, including a cooling-off period. The judge found she had not made out a prima facie case that the refinancing was a consumer loan. She cited its commercial purpose and terms, including requirements for company accounts, sale proceeds from two Shanghai apartments to reduce the loan, valuations of commercial property at Miley’s Bar in Blessington, and public liability insurance for the licensed premises. Mrs Miley operated and managed the licensed business, and both loans had been arranged through an investment broker.

The judge also noted that Mrs Miley had signed acknowledgments for both loans stating she was not acting as a consumer. She said the signatures alone did not determine the loans’ character, but, alongside the other evidence, supported the conclusion that they were not consumer loans.

The court rejected Mrs Miley’s claim that she had no choice but to accept the 2012 facility. The judge said the pressure arose from her circumstances as the surviving co-borrower of a loan in default, and noted that her financial adviser attended the signing meeting. The court also rejected the undue influence argument, finding no evidence that the bank knew of any influence that might have overborne her will.

Finally, the judge rejected the argument that alleged non-compliance with the Family Home Protection Act 1976 made the loan or security unenforceable. She noted the proceedings were an action in debt and that the relevant premises were jointly owned.

The judgment resolves whether Mrs Miley could defend the proceedings at this stage. It does not state the final precise judgment figure, which the court left for submissions from counsel.

Read the original court judgment

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