The High Court has rejected both defendants’ proposed defences to EBS Limited’s claim over three loan facilities, finding that neither raised an arguable defence to be sent for a plenary hearing. The judgment, delivered by Mr Justice Birmingham on 17 April 2013, concluded that EBS was entitled to summary judgment against both defendants.
EBS had agreed to advance €2.5 million, €3.05 million and €3.525 million under facility letters issued in November and December 2006. A summary summons issued in November 2011 claimed €8,824,152.85 as due immediately before proceedings began.
The case reached the judge by different procedural routes. In March 2012, the Master gave EBS liberty to enter final judgment for €8,865,784.10 against the first defendant, after refusing a further adjournment. The second defendant’s case was adjourned by consent and later transferred to the Judges’ List. The first defendant appealed the Master’s order. The High Court heard that appeal afresh and considered the summary judgment applications under the usual test: whether either defendant had a fair or reasonable probability of a real defence.
The first defendant said EBS had agreed in 2011 not to pursue the proceedings for years if additional security was provided. The judge found that correspondence between the parties showed negotiations, but no concluded agreement. EBS had proposed additional security worth €1.2 million from the second defendant; the first defendant later proposed €300,000. Notes of an October 2011 meeting also showed that acceptable security remained unresolved. The judge held the alleged agreement defence was unstateable.
The second defendant said she had signed the loan documents under her husband’s undue influence, without independent advice, and later said she did not remember signing them and believed her signature had been forged or procured to be forged. The judge noted that her later account sat uneasily with her earlier affidavit, which accepted signing the documents under pressure. He found no evidential support for undue influence, misrepresentation or deceit, and no circumstances that required EBS to make further inquiries. He distinguished a case involving a spouse guaranteeing the other’s debts, noting that the second defendant held a 50% share in the company through which the couple did business and had some role in it.
The court therefore concluded that neither defendant had made out an arguable defence and that EBS’s claim against both succeeded. The judgment does not state the final judgment amount awarded against the second defendant.