The Supreme Court has set aside the Court of Appeal’s judgment in Allied Irish Banks’ possession case against Rory Ennis and directed that the case go to a plenary hearing in the High Court. It also allowed Mr Ennis three weeks from the judgment date to file his defence.
The order, in a judgment delivered by Mr Justice John MacMenamin on 15 March 2021, followed an appeal about whether Mr Ennis could advance new arguments and evidence after the High Court granted the Bank summary judgment. The Supreme Court held that appeal courts may take a more flexible approach to new material in appeals from summary proceedings, while weighing fairness to both sides and the consequences of denying a full trial.
The Bank’s claim arose from a 2011 credit agreement for a €231,438 loan, secured by a mortgage over a 60-acre property in County Kildare. The High Court ordered Mr Ennis to deliver up possession of the lands. He represented himself in the High Court and Court of Appeal. At the original hearing, he challenged the Bank representative’s authority to swear an affidavit and said he had not received pleadings. The High Court directed that the representative provide a further affidavit; it found no factual conflict requiring cross-examination and granted judgment.
On appeal, Mr Ennis relied on internal Bank emails obtained through a data access request, his account of what had been agreed about repayments, and provisions of the Consumer Credit Act 1995. He argued that the agreement’s timing and delivery requirements could affect its enforceability. The Supreme Court described that statutory argument as arguable and said the material could support further arguable defences, including a lack of agreement between the parties and non est factum. It made no final finding on those defences or on the merits of the underlying dispute.
The Court said the Court of Appeal had not considered relevant authorities on appeals from summary proceedings and may have assessed the new material on the mistaken basis that it was inadmissible. It concluded that, had the issues been raised in the High Court, the low threshold for sending a summary claim to a full hearing would have been met. The Court therefore allowed the appeal and substituted an order transferring the case to the High Court for plenary hearing, where disputed legal and factual issues can be resolved.
The Supreme Court did not determine costs. It invited written submissions, allowing Mr Ennis two weeks and the Bank a further two weeks to reply, and asked the parties to say whether they objected to the issue being decided without further oral submissions.