Judgment: 2020-06-09 · Court archive

Court of Appeal allows two earlier loan demands into evidence in Promontoria appeal

The court granted two defendants leave to rely on 2009 and 2010 demand letters in their appeal against a High Court summary judgment, but did not decide whether the claim is time-barred.

Court of Appeal · [2020] IECA 151

Who, what, where, when and why

Who
  • Promontoria (GEM) DAC (Plaintiff)
  • Ciaran Redmond
  • Clody Norton
What

The court granted two defendants leave to rely on 2009 and 2010 demand letters in their appeal against a High Court summary judgment, but did not decide whether the claim is time-barred.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 14 December 2009; 1 February 2010

    The letters, issued by Anglo Irish Bank Corporation Limited on 14 December 2009 and 1 February 2010, sought repayment of the loan. Promontoria’s High Court case had relied on a demand it issued in June 2017. The High Court granted judgment for €3.896 million and sent the remaining €676,662.91 of the claim to a plenary hearing. Redmond and Norton appealed.

Why

Reasons reported in the judgment

Justice Costello applied the Court of Appeal’s test for admitting evidence that existed at the time of the High Court hearing. She was satisfied the letters appeared credible and could have an important influence on the appeal. She also found the defendants had met the reasonable-diligence requirement. In summary proceedings, they could not obtain discovery, and she said they were not required to make data access requests to the lender’s predecessor to find earlier demands.

The Court of Appeal has granted Ciaran Redmond and Clody Norton leave to introduce two earlier loan demand letters as evidence in their appeal against a High Court summary judgment in favour of Promontoria (GEM) DAC. The court did not decide whether the letters establish a defence or whether the claim is time-barred.

The letters, issued by Anglo Irish Bank Corporation Limited on 14 December 2009 and 1 February 2010, sought repayment of the loan. Promontoria’s High Court case had relied on a demand it issued in June 2017. The High Court granted judgment for €3.896 million and sent the remaining €676,662.91 of the claim to a plenary hearing. Redmond and Norton appealed.

The defendants argued that the earlier demands could support an argument that the claim was brought outside the six-year limitation period for recovering a debt. Promontoria argued that the loan was secured by a mortgage, so a 12-year limitation period applied, and that the case was brought within that period. Those arguments concern the appeal; they were not determined in this application to introduce evidence.

Justice Costello applied the Court of Appeal’s test for admitting evidence that existed at the time of the High Court hearing. She was satisfied the letters appeared credible and could have an important influence on the appeal. She also found the defendants had met the reasonable-diligence requirement. In summary proceedings, they could not obtain discovery, and she said they were not required to make data access requests to the lender’s predecessor to find earlier demands.

Norton obtained the 2009 letter through a data access request after the High Court decision. Redmond found the 2010 letter in his stored loan papers while searching after Norton’s discovery. The judge acknowledged that the letter had been in his possession, but found special circumstances justified admitting both letters for him too. She cited, among other matters, the trial judge’s acceptance that Redmond genuinely believed the claim had been settled and the short time he had to prepare after that belief changed.

The judgment criticised Promontoria’s High Court presentation as misleading and incomplete in a potentially material respect because it proceeded on the basis of the 2017 demand without the earlier letters. The judge did not find that Promontoria had suppressed them.

The court granted both defendants special leave to adduce the two letters on appeal. It directed each to swear a short affidavit within 21 days, explaining how the documents came to their attention and exhibiting them. The ruling addressed admission of evidence only; the underlying appeal and limitation arguments remained unresolved.

Read the original court judgment

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