The Court of Appeal has allowed Bank of Ireland’s appeal and set aside a High Court order that had undone a judgment against Tim Carey and Finola Colgan Carey. The court found the bank obtained its judgment regularly and that the Careys had not established a bona fide defence with a real prospect of success.
The bank began summary summons proceedings in December 2013 over finance made available under a loan offer dated 5 August 2010. A copy summons was served on 7 January 2014, but the Careys did not enter an appearance. After negotiations and an unsuccessful refinancing offer, the bank served a notice of intention to proceed and later obtained judgment in the Central Office on 12 September 2016. The judgment was registered as a mortgage on five folios of land owned by the Careys in Westmeath.
The Careys applied to the High Court to set the judgment aside. In May 2017, the High Court granted that application, reasoning that negotiations and the notice may have left the Careys unaware that judgment could follow without another warning. The Court of Appeal said the High Court had not determined whether they had a defence with a real prospect of success, as required where a judgment was regularly obtained.
The appeal court rejected the Careys’ arguments that the summons was defective. It compared the original summons with the copy served and found it was a true copy and sealed. It also found there was no requirement for it to be stamped, no time limit for swearing the affidavit of service, and no rule requiring the bank to issue another warning before seeking judgment. The delay between the notice and the bank’s application for judgment did not make the process irregular.
The Careys argued that a three-month loan facility had expired and that the bank had agreed to accept proceeds from the sale of 78 acres of land in settlement. The court said expiry of the loan term did not prevent the bank from demanding repayment and suing for the outstanding amount. It also found that the alleged 2013 land-sale settlement was not the case advanced in the Careys’ affidavits, which relied on a 2014 loan offer. Other arguments about earlier banking transactions and shares did not establish a defence to this claim.
The appeal court concluded that the High Court had erred in setting aside the judgment and that the Careys had not met the required burden. It allowed the appeal. The judgment restored was for €597,331.44, with a further €396 in costs.