The High Court has refused Ann Dempsey’s application to set aside a 2014 default judgment in favour of EBS Limited for €860,485.75 plus €384 costs. Mr Justice Eagar concluded that she had been served with the summary summons and had not shown a defence with a real chance of success.
EBS’s claim concerned money it said it had lent Dempsey under a commercial mortgage account. The default judgment was entered on 7 July 2014 after no appearance was filed. Dempsey’s 2015 application asked the court to set aside that judgment and consequential orders.
The parties disputed whether a summons server, Colum Smith, personally served Dempsey at Oasis Florist in Terenure on 27 January 2014. Smith said he served her there after earlier attempts at her residence and business. Dempsey denied being present and said she was in Wicklow. Her employee, Aishling Fanning, also swore that Dempsey was away and she worked alone at the shop that day.
The judge said the conflicting affidavits made it impossible to determine the truth from the papers alone. He noted that Dempsey had not applied to cross-examine Smith or the solicitor who engaged him, and that no affidavit came from her son or another resident about Smith’s visits to her home. The judge also referred to letters sent before and after proceedings began, including one noting that she had been served. In the circumstances, the court was satisfied that service had occurred.
Dempsey’s first affidavit setting out a possible defence on the merits was sworn in November 2016, more than a year after her application. She argued that the loan offer was for €840,000 rather than €860,485.75; that EBS had failed to obtain an independent valuation required by the offer; that repayments had been wrongly allocated among several loan facilities and surcharge interest applied; and that a €1,250 payment in April 2014 was omitted from the debt evidence.
EBS’s senior manager described the higher figure in the summons as a typographical error in its background narrative, said the valuation clause did not create a condition precedent and that valuations had in fact been obtained, and disputed Dempsey’s account of payment allocation. He said the April payment did not reduce the sum claimed because EBS had not included additional contractual interest for the relevant period.
The court accepted EBS’s submissions on the figure, the valuation clause and the payment allocation. It concluded that Dempsey’s proposed defence did not have a real chance of success. The judgment therefore refused the application to set aside the default judgment.