The High Court has refused Irish Bank Resolution Corporation’s application for summary judgment against Tommy Kelly over a €252,000 loan and sent the dispute to a plenary hearing. It also ordered that Jaguar Capital Limited be joined as a third party.
The bank sought €252,000 plus interest. The judgment said the total stood at €255,050.29 on 17 October 2012. The loan facility letter, issued by Anglo Irish Bank on 13 July 2009, replaced an earlier facility and stated that the loan was repayable on demand and, in any event, by 31 March 2010. It was not repaid by that date. The bank’s solicitors sought repayment in October 2012, a formal demand followed on 8 November, and a summary summons issued on 20 December 2012.
Kelly resisted summary judgment and asked for the case to proceed to a plenary hearing. He contended that the loan was non-recourse and that Jaguar Capital and its director, Gerry Jennings, had represented that the bank would have no personal recourse against investors, with security limited to each investor’s shares in a Luxembourg holding company. He also argued that Jaguar Capital was acting as the bank’s agent. These were the defendant’s claims; the court did not decide them at this stage.
The dispute arose from an investment in the acquisition of Beckett House, a property in Lambeth, London. The proposed structure involved investors buying shares in Lambeth SA, a Luxembourg company, with half of each investment said to come from investors’ own funds and half from borrowing from Anglo Irish Bank.
Mr Justice Birmingham said the facility letter created “formidable obstacles” for Kelly. He also noted that the written material and a structure diagram could be interpreted in ways that did not support Kelly’s account, and that it was unclear whether Jaguar Capital had been the bank’s agent. But the summary judgment test was not whether Kelly’s defence would probably succeed. The judge said judgment at this stage was appropriate only if it was “very clear” that Kelly had no defence.
The judge concluded he could not go that far. He refused the bank’s summary judgment application and directed that the matter proceed to plenary hearing. Given the allegations against Jennings and Jaguar Capital, he also ordered Jaguar Capital to be joined as a third party. The judgment did not determine liability or resolve the parties’ disputed accounts.