The Court of Appeal has upheld the refusal of summary judgment in two debt claims brought by Promontoria (Aran) Limited against Gerry Burns and Ann Burns. The court agreed that the evidence Promontoria presented was insufficient to justify judgment without a full hearing.
In a judgment delivered on 7 April 2020, Mr Justice Maurice Collins said he agreed with Mr Justice Baker’s judgment and proposed order. The appeals concerned separate proceedings against Gerry Burns and Ann Burns, recorded as appeal numbers 2019/189 and 2019/188 respectively. Both were heard with Mr Justice Whelan also on the Court of Appeal panel.
The claims related to guarantees that Mr and Mrs Burns apparently entered into following transactions with Ulster Bank Ireland Limited. Collins J noted that Promontoria and its servicer had no involvement in those transactions, the demands for payment or the issuing of proceedings. Those events pre-dated the assignment of the debts from Ulster Bank to Promontoria.
The judgment described the Burns’ position as “nothing more than a formulaic denial” that the debt claimed was due. But Collins J agreed with the High Court judge, Mr Justice Noonan, that Promontoria’s evidence still fell short of what was required for summary judgment. The Court of Appeal did not decide that the debts were not owed; its ruling addressed whether the evidence supported judgment through the summary procedure.
Collins J said Order 37 of the Rules of the Superior Courts is intended to provide a relatively quick and inexpensive route to judgment for debts or liquidated demands that are clearly due. He also described the legal position as unsatisfactory for some plaintiffs suing on assigned debts, especially assignees that are not banks and cannot use the Bankers’ Books Evidence Act 1879.
He said neither Promontoria nor its servicer appeared able to “swear positively” to events that took place before the assignment. The judgment identified the lack of a statutory provision for admitting business records in civil proceedings as an underlying difficulty and said the issue deserved legislative attention when circumstances permitted.