The Court of Appeal has sent Promontoria’s claim over one of three loan facilities back to the High Court for rehearing, ruling that the lender should have been allowed to file a further affidavit addressing an error in its evidence.
The appeal concerned proceedings brought by Promontoria (Oyster) DAC against Desmond Greene to secure payment from lands in County Westmeath. The lands do not include Mr Greene’s family home. Promontoria said €210,954 was due across three facilities transferred to it by Ulster Bank Ireland Limited. The first facility was a €116,000, 10-year loan made in 2008.
In February 2020, the High Court granted relief relating to the second and third facilities, which Mr Greene did not contest, but refused it for the first. The judge found Promontoria had not shown that money was due on that facility when proceedings began in April 2018. The first facility’s letter referred to lending conditions for companies, while Promontoria’s affidavit identified different conditions and did not exhibit the relevant ones. The judge also considered the evidence unclear about when the land certificate had been deposited as security.
The Court of Appeal held that the deposit date was not a necessary proof in every application of this kind. It said Promontoria had to establish that the debt was due and that it was secured by the registered lien. The court also concluded that the documents before the High Court recorded the land certificate’s deposit on 11 February 1993; a separate 1992 date referred to the certificate itself.
On the affidavit issue, the appeal court said the question had first been raised during the High Court hearing. The proceedings were then adjourned for about 10 weeks, which would have allowed Promontoria to file further evidence and Mr Greene to respond without adding delay. The court found that refusing the affidavit caused significant prejudice to Promontoria, with no material prejudice to Mr Greene.
The appeal court allowed Promontoria’s appeal on the first facility, set aside the refusal of relief and remitted that part of the claim for rehearing. It directed that Promontoria should have an opportunity to file its corrective affidavit and that Mr Greene should have an opportunity to respond. The High Court will decide the next steps and the merits of the first-facility claim. The appeal court declined to decide Promontoria’s alternative arguments about whether the debt was already due, leaving those issues for the High Court if needed.
The appeal court also set aside the High Court’s costs order and reserved those costs for the judge hearing the remitted proceedings. Its provisional view was that Promontoria should receive half the appeal costs, subject to a stay pending final determination. Either party may seek a brief supplemental hearing on costs within 21 days.