The High Court varied Allied Irish Banks plc’s judgment against Nicholas O’Hara and Noleen O’Hara, reducing the amount from €613,445.74 to €243,460.74, subject to correction by counsel. The dispute over interest rates and other proposed defences is to proceed to a plenary hearing.
The judgment, delivered by Mr Justice Tony O’Connor on 25 November 2019, arose from the defendants’ application under Order 13, rule 11 of the Rules of the Superior Courts to set aside a judgment entered in default of appearance on 23 August 2017. The original judgment was for €613,445.74 plus €508 costs.
The defendants’ solicitor said the failure to enter an appearance followed a communication lapse. The bank challenged that explanation, citing unanswered correspondence about authority to accept service and the delay between service of the summons, the judgment and the application. The judge accepted that the failure resulted from “a simple lack of communication”.
The proposed defence included an allegation that about IR£23,600 was paid in cash to a bank officer around February 1998, and a dispute over the interest rate applied to the loan. The defendants also proposed a counterclaim over the alleged effects of overcharging. An account exhibited by Nicholas O’Hara recorded an actuary’s statement that the bank had overcharged €369,985. The court described the applicable interest rates as a realistic dispute; it did not determine the truth of the overcharging allegations.
The court noted the defendants’ undertaking not to dispose of the property that is the subject of a judgment mortgage until two calendar months after judgment in the plenary trial. It also restrained the defendants from seeking to vacate that mortgage and restrained the bank from taking further action on it for up to one year from the judgment, or until the plenary proceedings, including any counterclaim, are determined or compromised, if sooner.
The defendants were directed to deliver a defence by 19 December 2019, and the bank to deliver any reply or defence, if necessary, by 20 January 2020. Costs of the application were reserved to the trial judge. The bank was given liberty to seek a stay on any part of the order it wished to appeal. A postscript records that its application for a stay on the directions for closing pleadings was refused on 4 December 2019.