The Court of Appeal has refused Cathal Mallon permission to add two new grounds to his appeal against a €1.9 million summary judgment, which was granted against him by the High Court in 2018.
The proposed grounds challenged the particulars of the amount claimed and the evidence supporting Promontoria (Arrow) Limited’s case, including whether its deponents could give evidence about the lender’s records. The Court of Appeal heard only the application to amend the appeal grounds. It did not decide the underlying appeal or reconsider the High Court judgment.
The dispute arose from a €1.8 million loan offered by EBS Building Society in 2006 to Mallon and Michael Shanahan to buy a development site at Mill Lane, Shankill. Both signed the original facility letter and two subsequent amended offers. The loan was later transferred to NALM and then to Promontoria, which demanded payment in July 2016.
In the High Court, Mallon did not dispute that the loan had been drawn down and not repaid. He argued that the lender had agreed to rely on the property rather than pursue him personally, and sought discovery to support that position. The High Court found that the signed loan documents contradicted the non-recourse claim and that the request for discovery lacked a sufficient basis. It entered judgment for €1.9 million against Mallon, subject to a stay pending appeal on terms. Judgment had separately been granted against Shanahan.
Mallon’s original appeal grounds concerned the alleged non-recourse agreement, whether he understood he was taking on joint and several liability, and whether he should have received discovery. The new grounds relied on the Supreme Court’s 2019 decision in *Bank of Ireland Mortgage Bank v O’Malley* and the Court of Appeal’s 2020 decision in *Promontoria (Aran) Limited v Burns*.
Delivering the judgment on 20 April 2021, Mr Justice Noonan said the proposed points had not been raised in the High Court, although Mallon could have challenged the claim’s particulars and the plaintiff’s evidence there. Promontoria might then have been able to provide further particulars or evidence. The new arguments were also substantially different from those made at first instance.
The court acknowledged that summary proceedings can allow a more flexible approach to new arguments on appeal. But it found no exceptional circumstances or demonstrated injustice that justified permitting these grounds. The application for leave to amend was refused.