The High Court has refused Cabot Financial (Ireland) Ltd’s application for summary judgment of €100,000 against Brian and Diane Duffy, sending the case to a plenary hearing with limits on the issues to be argued.
Mr Justice Max Barrett, in a judgment delivered on 14 April 2021, found that Cabot had not established on the balance of probabilities that it was entitled to bring the proceedings. The court said the affidavit evidence offered to establish Cabot’s entitlement relied almost entirely on hearsay and did not show that the Cabot director who swore the affidavit had, or could reasonably be supposed to have had, personal knowledge of the loan and rights transfer.
Cabot claimed it acquired the relevant debts and rights from the Ulster Bank Group under a portfolio acquisition deed dated 22 January 2016. The claim relates to a loan facility agreed in November 2009 between Ulster Bank (Ireland) Ltd and AMT Properties Ltd for close to €110,000. The Duffys had signed a guarantee in December 2007, capped at €100,000. After AMT defaulted, a demand for €100,000 was made against the Duffys in June 2014 and remained unpaid.
The Duffys argued that Cabot’s claim was outside the six-year limitation period. The judge rejected that argument, finding the facility was an on-demand loan and the proceedings, begun by summary summons in August 2017, were brought within time. He also rejected their argument that the guarantee was past consideration, ruling that it covered present and future liabilities, including the liabilities claimed under the facility.
The court also rejected Cabot’s request to file further affidavit evidence to repair the gap in its proof after the application had been decided. It held that a party bringing a summary application must have its evidence in order and meet the threshold for judgment.
The matter will proceed to a plenary hearing. The judge said the limitation and past-consideration points do not need to be addressed again at that hearing. The ruling does not determine whether the Duffys owe the money to Cabot; it decides that Cabot did not establish its entitlement to summary judgment on the evidence before the court.