The Court of Appeal has dismissed Martin Small’s appeal against summary judgment for the Governor and Company of the Bank of Ireland on two loan balances. It held that the difference between two facility letters did not affect the judgment under appeal. A separate €400,000 claim remains for a plenary hearing.
The High Court had entered summary judgment for €408,079.93 and €2,212,042.93. It remitted a disputed €400,000 to a plenary hearing. The bank did not cross-appeal that remittal, so the Court of Appeal said Small would have an opportunity to contest the evidence about his liability for that sum, including whether a particular loan condition applied.
The bank’s claim arose from facility letters dated 24 October 2005 and 21 November 2007. The 2007 letter was issued in two versions, each for €2,163,978 and with the same account number. One contained four conditions precedent to drawdown; the other contained six. The additional sixth condition directed that €400,000 be applied to reduce specified debts. The High Court entered judgment on the basis of the six-condition version, although the bank had sued on the four-condition version.
Small argued on appeal that the bank had sued on the wrong contract. The court said his signature appeared on the acceptance attached to the six-condition letter, and cited affidavit evidence from solicitor Conleth Harlow that Small had approved its conditions at a meeting on 13 December 2007. It also noted evidence of a solicitor’s letter agreeing to borrowing under the six-condition version. The judgment described Small’s position on whether he knew of that letter as no more than a “mere assertion”.
The court said the two versions were otherwise essentially identical for the appeal. The additional conditions did not affect the sums covered by the summary judgment: the €400,000 connected with the sixth condition had already been remitted, and the bank had not appealed that decision.
The judgment records that Small did not dispute the bank’s calculations or deny that the money had been borrowed. His concerns about how the funds were distributed, including claims raised in other proceedings, did not provide a defence to this summary judgment claim, the court said. It concluded that the High Court had applied the correct legal test and that sending the case back for further consideration would cause unnecessary delay. The appeal was dismissed.