The Court of Appeal has dismissed Ann Dempsey’s appeal against the refusal to set aside an €860,485.75 default judgment obtained by EBS Limited, leaving the judgment and €384 in costs in place.
The appeal concerned a High Court judgment entered in July 2014 after EBS sued over a €860,000 loan advanced under a facility letter dated 18 April 2005. Dempsey argued that she had not been served with the summary summons and that she had a defence to the debt. EBS accepted that if service had not been properly effected, the default judgment should be set aside without requiring her to show a defence.
The evidence about service conflicted. Professional summons server Colum Smith said he served Dempsey at Oasis Florists on 27 January 2014, recognising her from online images and hearing her say words to the effect of “you have been looking for me”. Dempsey denied being at the shop or receiving the summons. Her employee Aisling Fanning said she was working alone that day. Smith’s original service affidavit said Dempsey identified herself; a later version said he knew her appearance. EBS’s solicitor also said letters had warned Dempsey that proceedings were imminent and later advised that service had been effected.
The High Court accepted Smith’s account, noting that Dempsey had not applied to cross-examine him or EBS’s solicitor. On appeal, the Court of Appeal held that the burden was on Dempsey, as the party seeking to set aside the judgment, to present at least a prima facie basis for finding service irregular. Given the conflicting affidavits, the court found that the High Court was entitled to conclude she had not discharged that burden. It also rejected the argument that the judge should have adjourned the hearing to arrange oral evidence.
The court also considered the proposed defences. It found that the grounds advanced in the High Court—including alleged errors in the amount claimed, the debt affidavit, a valuation clause and the allocation of payments—did not establish a good defence. A new argument concerning alleged breaches of consumer and mortgage-arrears codes was raised late on appeal, without a factual basis identifying any breach. The court said it did not amount to a good or arguable defence.
The Court of Appeal dismissed the appeal. It did not retry the underlying debt claim; it decided only whether the default judgment should be set aside.