The High Court has not granted summary judgment in a €27.6 million debt claim brought by Promontoria (Aran) Limited against Gerry Burns. Mr Justice Noonan said the evidence before him was insufficient to establish that the plaintiff’s deponent could swear positively to the facts, as required for a summary judgment application. He proposed discussing with the parties whether further evidence should be submitted on that issue.
The application sought judgment for €27,644,377.23, plus further accrued interest. The claim concerns five loans Ulster Bank Ireland Limited advanced to Mr Burns between 2008 and 2010, some jointly with his wife, who is separately sued, and four guarantees he allegedly gave for company liabilities between 2006 and 2010. The judgment said the transactions appeared to relate to commercial property purchase and development.
According to an affidavit from Andrew Harris, a senior asset manager employed by Link ASI Limited, formerly Capita Asset Services (Ireland) Limited, Ulster Bank demanded repayment of the loans in August 2012 and called in the guarantees between November 2012 and January 2013. The affidavit said Promontoria acquired Ulster Bank’s rights under the facilities and guarantees through a transfer deed dated March 2015. The judge said the deed was prima facie sufficient evidence of the transfer for this application, as the defendant had not specifically challenged it.
Mr Burns, representing himself, disputed that Mr Harris could give evidence for the plaintiff. He said the deponent was not employed by Promontoria and lacked first-hand knowledge. The judge said submissions Mr Burns made at the hearing that amounted to unsworn evidence could not be considered; he could consider only the affidavits.
The central issue was whether Mr Harris’s evidence was admissible. The judge noted that Mr Harris said he was authorised by Promontoria to swear the affidavits, but did not explain his access to the plaintiff’s books and records or the precise relationship between the plaintiff and the servicer. A second affidavit did not address the defendant’s complaint. The judge concluded that authorisation alone did not show Mr Harris could swear positively to the facts.
The court did not dismiss the claim or send it to a plenary hearing. It also did not grant judgment. Mr Justice Noonan said the evidence might be supplemented by a further affidavit, and that the defendant had not contested the plaintiff’s factual assertions beyond a bare denial of the debt. He proposed discussing with the parties whether they wished to provide further evidence, confined to the admissibility issue.