The High Court has refused an application by Brid Kavanagh, trading as Barony B&B, to set aside a €97,195.96 default judgment obtained by Ulster Bank Ireland Limited in 2007, together with ongoing interest.
Ms Justice Baker delivered judgment on 9 May 2014. The application concerned a judgment entered in the Central Office after the defendant did not enter an appearance. She argued that she had not been served with the proceedings and that the debt affidavit relied on by the bank was inadmissible hearsay under the Bankers Books Evidence Acts.
A professional summons server, Tony McDonald, swore that he personally served the original summary summons at 16 Mount Prospect Avenue, Clontarf, on 29 March 2006. In an affidavit made for the application, he said the person identified herself as Kavanagh. Kavanagh said she had no recollection of being served and was not at the house that day, which she associated with the twentieth anniversary of her late father’s death. The judge said Kavanagh did not explain who had accepted the documents or state that they had not come to her attention. She was not satisfied that service had failed or that the summons had not been left at Kavanagh’s dwelling. She therefore rejected the claim that the judgment had been obtained irregularly.
The judge then considered whether a regular default judgment should be set aside in the interests of justice. She said this required an arguable defence with a real prospect of success. Kavanagh relied on recent decisions concerning bank debt affidavits and argued that the person who swore the affidavit in her case was not a bank officer qualified to rely on the statutory exception to the hearsay rule.
Ms Justice Baker held that the later decisions could not be used to reopen a judgment that had already been finally determined. She also considered it unfair to the bank to raise a procedural defence that could have been raised in the original proceedings. Kavanagh had not claimed that she was not indebted to the bank and had not shown an arguable defence on the merits.
The court refused the relief sought. The judgment therefore remained in place; the court did not determine a fresh claim for the debt in this application.