The High Court granted AIB Mortgage Bank special leave to rely on listed affidavits without producing two of its witnesses for cross-examination at the defendant’s summary judgment application. The court said the defendant had raised issues it considered an arguable defence and indicated that a plenary hearing appeared appropriate. It did not decide the application for judgment.
AIB is seeking €1,241,762.62 under three loan facilities provided in 2006. It demanded repayment in September 2013 and began proceedings by summary summons in June 2014. A motion seeking liberty to enter final judgment was listed for hearing on 31 March 2017.
The defendant, who represented himself, served notices seeking to cross-examine Lynne Allen and Peter Glynn, who had sworn affidavits for AIB. The bank applied for special leave under Order 37, rule 2 of the Rules of the Superior Courts to use their affidavits without producing them. AIB’s solicitor said the affidavits set out the bank’s position by reference to documents and correspondence, and argued that cross-examination would delay the application. She also said Allen was on sick leave.
In opposing the application, the defendant alleged that the bank had acted dishonestly and that both witnesses had made statements they knew to be untrue. He raised issues concerning advice he said Glynn had given him about investing money, a letter he said he did not receive in response to a data access request, and the timing of the bank’s sale of three properties. These were the defendant’s claims, not findings by the court.
The judge reviewed the principles governing summary judgment, including that leave to defend should be granted where a defendant shows a fair or reasonable probability of a real defence, and that summary judgment should be used cautiously. The court considered that the defendant had raised issues amounting to an arguable defence.
The order was limited to allowing AIB to use the scheduled affidavits without producing Allen and Glynn for cross-examination at the summary judgment application. The judge said the ruling would not bind the judge assigned to hear that application, while indicating that a plenary hearing appeared appropriate. The court did not grant final judgment, dismiss the proceedings or formally transfer them to a plenary hearing in this ruling.