The High Court has sent Allied Irish Banks plc’s claim for summary judgment of more than €3.7 million against Albert Purcell, Junior, to a plenary hearing, finding that the evidence before it did not establish the nature of his liability under the loan agreement and disclosed an arguable defence.
In a judgment delivered on 1 October 2018, Mr Justice Max Barrett said AIB had not produced the bank’s general terms and conditions or the complete loan agreement. The sanction letter, signed by three borrowers, did not say whether they were jointly or severally liable. The judge said the court could not grant judgment for the entire sum on the basis of selected contract provisions when the complete agreement was available and there was no good reason for its omission.
AIB said it had made a €3 million loan facility available to the defendants in 2008 and sought summary judgment against the third defendant for more than €3.7 million. The bank had issued written demands in June and December 2015. The judgment records that judgment had already been entered against the first defendant, Albie Purcell, and that the second defendant, Florence Purcell, had died without a grant of probate for her estate. The third defendant was therefore the only defendant against whom judgment was then sought.
The sanction letter specified three agricultural land charges as security and said they had to be in place before the loan drawdown. One item provided for 97 acres, then owned by the first and second defendants, to be transferred into the names of all three borrowers and charged by them. The third defendant said in affidavit evidence that he did not know why that security was not put in place and surmised that a new arrangement may have been made with his father. His counsel argued that the agreed security was a precondition to drawdown and that the change raised issues about the third defendant’s repayment obligation.
The judge said the missing contract alone meant the court could not determine the claimed joint and several liability. He also considered the third defendant’s arguments about the uncompleted security arrangement. Applying the test for summary judgment, the judge concluded it was not clear that the defendant had no case, that the issues were simple and readily determined, or that his affidavits disclosed no arguable defence. He said the position might be different if the complete agreement were before the court, but on the evidence presented the matter required a plenary hearing.
The court did not determine the ultimate liability for the debt. It refused to grant the summary judgment sought and directed that the case proceed to plenary hearing.