The Court of Appeal has set aside summary judgments granted to Allied Irish Banks plc against Simon Forde and Darragh O’Driscoll, finding that the High Court had not considered an affidavit disputing the bank’s claims before entering judgment.
The High Court orders, made on 11 February 2019, awarded the bank €20,095.49 against each appellant. It also awarded €112,576.37 and €204,000 against Forde, and €204,000 against O’Driscoll, with costs. The Court of Appeal did not decide whether the debts were owed or whether the appellants had a defence on the merits.
The bank’s summary summons, issued in 2014, concerned loan claims against the two appellants and Forcoll Developments Limited, which was not a party to the appeal. In an affidavit sworn in July 2018, O’Driscoll said he was making it on his own behalf and with Forde’s authority. The affidavit disputed the claims on several grounds, including the interest charged, the guarantees, and the bank’s appointment of a receiver over property in Tuam. The bank replied to some matters by affidavit and said others were irrelevant or better addressed in legal submissions.
Neither the appellants’ solicitor nor counsel attended the High Court hearing. The Court of Appeal accepted that the solicitor had mistakenly understood that the applications would be adjourned because they were expected to take longer than 15 minutes. It found the absence was inadvertent, not a deliberate decision to abandon the defence.
The appeal court said the High Court had been left with the incorrect impression that Forde had filed no affidavit and that the appellants had chosen not to attend. The defence affidavit and the bank’s response were not opened to the judge, who therefore did not assess the contested evidence before granting judgment.
The Court of Appeal held that the appellants had shown cause against summary judgment by affidavit and were entitled to have that evidence considered under the rules governing summary proceedings. It said the failure to consider the affidavits breached natural justice in the circumstances. The court also rejected the bank’s reliance on a rule for setting aside judgments after plenary trials, explaining that the case involved summary proceedings.
The court set aside the High Court orders and remitted the case to the High Court to be listed for dates, as a matter expected to take more than 15 minutes. It gave both sides liberty to file further affidavits. Any further directions, and any decision on the debt or the claimed defences, were left to the High Court.