The High Court has refused a defendant’s application to set aside a 2016 order that changed the plaintiff in a bank loan case from Bank of Ireland Mortgage Bank to the Governor and Company of the Bank of Ireland.
In an ex tempore judgment delivered on 8 November 2019, Ms Justice O’Regan also refused the defendant’s related allegation of concealment. The court did not decide whether a time limit should apply to applications to set aside ex parte orders, saying that issue would benefit from fuller argument.
The defendant had initially sought four forms of relief in a 2018 motion but abandoned the first three at the hearing. The remaining application challenged an order made on 7 March 2016, which had allowed the bank to amend the summons. The defendant argued that the change should instead have been made under a rule governing cases where proceedings began in the name of the wrong plaintiff, and complained that he had not been served with the ex parte application.
The judge considered the service issue. She noted that no affidavit of service had been produced, and that the bank said it only learned after the 2016 order that the defendant had entered an appearance. She recorded the defendant’s position that he should not be blamed for the lack of service because he was a lay litigant and believed the appearance would be recorded on Courts.ie.
The bank argued that the amendment could be made under a rule allowing correction of errors in proceedings. It said the defendant had suffered no prejudice and relied on the loan and demand documents. The judgment records that the parties agreed the original and substituted plaintiffs were separate entities, and that the defendant was entitled to seek to set aside an order made ex parte.
Justice O’Regan concluded that the Governor and Company of the Bank of Ireland was the correct plaintiff, particularly in light of the loan and demand. She was satisfied that the High Court had authority to make the 2016 amendment order and that it would have been made if the documents then before the court had included the material now presented.
The application to set aside the 2016 order was therefore refused. The court also refused the concealment application, finding that the defendant had not established concealment. The judgment says the ex parte application was probably made because the bank had not been notified that an appearance was entered, but adds that the reason was immaterial to the decision. The defendant had been heard on the issue at the 2019 hearing.