Judgment: 2020-02-21 · Court archive

High Court refuses Havbell’s bid for summary judgment over €113,778 loan claim

The court allowed Havbell to amend its summons but sent the dispute to a plenary hearing, where the borrowers’ defence and counterclaim can be examined.

High Court · [2020] IEHC 147

Who, what, where, when and why

Who
  • Havbell DAC (Plaintiff)
  • David Harris
  • Rita Harris (Defendant)
  • Permanent TSB
What

The court allowed Havbell to amend its summons but sent the dispute to a plenary hearing, where the borrowers’ defence and counterclaim can be examined.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

The High Court has refused Havbell DAC summary judgment in its claim against David Harris and Rita Harris over an alleged €113,778.04 debt, sending the dispute to a plenary hearing. The court also allowed Havbell to amend its summary summons, but found the claim’s particulars insufficient to support summary judgment.

The High Court has refused Havbell DAC summary judgment in its claim against David Harris and Rita Harris over an alleged €113,778.04 debt, sending the dispute to a plenary hearing. The court also allowed Havbell to amend its summary summons, but found the claim’s particulars insufficient to support summary judgment.

The judgment, delivered by Mr Justice Richard Humphreys on 21 February 2020, concerns a facility Permanent TSB entered into with the defendants in 2004. Havbell says it acquired the lender’s rights in 2015 and that repayment was demanded in 2017. The defendants dispute the basis of the debt. David Harris says the original facility was interest-only and that Permanent TSB unilaterally changed it to require repayment of principal as well as interest.

Havbell sought to amend the summons after the Supreme Court’s 2019 decision in Bank of Ireland Mortgage Bank v O’Malley, which clarified the need to explain how a claimed sum was calculated. Its proposed breakdown listed an opening balance of €302,308.20, interest of €43,283.11, payment credits of €50,679.98 and property-sale credits of €181,133.29, producing the amount claimed. The judge allowed the amendment, finding it arguable, reasonably explained by the change in legal requirements and not subject to irremediable prejudice. The defendants were awarded the costs of that application. The court dispensed with re-service of the amended summons.

However, the judge found the amended pleadings still did not explain how interest was calculated over time or how the opening balance arose. They also described the loan as interest-only without pleading the alleged restructuring to include principal repayments. The judge concluded that the claim was not sufficiently particularised for summary judgment.

The court also found that David Harris’s affidavits provided adequate evidence of a defence at this stage. His account was that the change to the loan terms had been imposed unilaterally; he also relied on separate damages proceedings concerning the same dispute. The judge said that an agreement to repay principal, made in the context described in the affidavit, did not automatically amount to a waiver of the defendants’ position.

The court dismissed Havbell’s summary judgment motion and adjourned the case to a plenary hearing. It adjourned the matter for six weeks to consider possible consolidation with the separate damages action, after the defendants communicate with Permanent TSB. Execution of the costs awarded on the amendment application was stayed until the proceedings are determined. The costs of the summary judgment application were ordered to be costs in the cause.

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