The Court of Appeal has allowed John Kelly’s appeal against a High Court summary judgment of €1,502,175 in favour of Danske Bank A/S, finding an arguable defence over when the bank demanded repayment. The court said the issue required a plenary hearing and did not decide whether the claim was statute-barred.
The ex tempore judgment was delivered by Ms Justice Power on 12 March 2020. The High Court had entered judgment for the bank on 12 March 2018. Kelly appealed that order.
The bank advanced a €1.5 million loan facility to Kelly under a letter dated 12 October 2007, repayable in 240 monthly instalments. It said he defaulted on the loan and an unauthorised current-account overdraft. A registered letter dated 7 May 2009 sought €1,590,614.92, including balances on both accounts but excluding accrued interest. The bank later demanded €1,875,317.02. After payments and realisations from secured assets, it sought judgment for €1,502,175, having waived €245,333.49 in interest and cleared the current-account balance.
In the High Court, Kelly argued that the claim was statute-barred because the bank had issued a demand letter in April 2009, more than six years before proceedings began on 6 May 2015. The High Court judge held that Kelly had not exhibited the earlier letter and that the bank had evidence of posting a demand on 8 May 2009. The judge also rejected Kelly’s argument that the bank had not proved the transfer of the loan from National Irish Bank Limited.
On appeal, the Court of Appeal rejected the transfer argument, noting the bank’s position that the facility letter post-dated the transfer of assets on 1 April 2007. It also agreed that a separate argument relying on section 36(1)(a) of the Statute of Limitations had not been raised in the High Court and was not properly before it.
The court focused on the April 2009 entry in the bank’s own records, which stated that “demand letters issued in April 09”. The bank had not explained by affidavit how that entry arose. Justice Power said the record raised a question about whether proceedings were brought within six years of demand, and that discovery might disclose relevant documents. Whether a six-year or 12-year limitation period applied was left undecided.
The court held it could not say Kelly had no arguable defence or that the factual issue could be easily determined. It allowed the appeal and said the case should proceed to plenary hearing, which may include a preliminary issue on the limitation question. The judgment did not determine the defence or the bank’s ultimate entitlement to recover the sum.