The High Court restored Lombard Ireland Ltd’s proceedings against Kevin Devlin Transport and Kevin Devlin, and substituted Vanguard Auto Finance Ltd as plaintiff. But it did not grant the application for summary judgment. The court said an issue remained over whether the transfer to Vanguard legally entitled it to pursue the claim, and proposed allowing the defendants to seek discovery before that application is decided.
The judgment, delivered by Ms Justice Donnelly on 12 December 2014, dealt with two motions. Lombard appealed the Master of the High Court’s order striking out its summons and its application for liberty to enter final judgment. It also sought to substitute Vanguard, or alternatively add it as a co-plaintiff, following a transfer of assets and rights.
The claim arose from two business lease agreements dated 4 November 2009 for Komatsu construction vehicles. Lombard alleged that the first defendant failed to pay rentals and that the second defendant was liable as guarantor. Its evidence put the outstanding balance at €227,175.93, plus continuing interest under the leases. The defendants had not filed an affidavit addressing the merits of that claim.
Justice Donnelly held that the appeal from the Master was a rehearing. She found that the summons had been amended in substance to state Lombard’s registered address, and that the difference from the wording ordered by the Master caused no prejudice. She reversed the strike-out order and reinstated the summons and the related notices of motion.
On the separate substitution motion, the judge accepted an affidavit stating that Lombard’s asset finance facilities, including the leases in the case, had been transferred to Vanguard, with a closing date of 28 February 2013. She ordered Vanguard substituted as plaintiff. The defendants had challenged reliance on a substantially redacted agreement, but the judge considered the sworn evidence sufficient to establish the transfer for the purpose of substitution.
The judge treated the summary judgment question differently. She said the defendants could have an arguable defence because they were not party to the transfer agreement and could not see its full terms. Although she described a legally ineffective transfer as unlikely, she said that possibility was enough to prevent the court from concluding that the defendants had no case. She therefore did not grant judgment or send the case immediately for plenary hearing.
Instead, the judge proposed adjourning the judgment motion to allow the defendants to apply for discovery. She expressly said that leave to make such an application would not determine the judgment motion’s outcome. Before making a final order on that course, she said she would hear counsel, as the proposal had not been fully addressed at the hearing.