The Court of Appeal has dismissed an appeal by Allied Irish Banks plc and Everyday Finance DAC over the renewal of a summary summons seeking more than €1 million from the estate of Agnes Boyd.
The appeal concerned procedure, not the underlying debt claim. A High Court judge had set aside an order renewing the summons, finding that the lenders had not established special circumstances to justify extending its life. The Court of Appeal upheld that result.
AIB issued the summons in August 2017, seeking €1,025,303.35 over two loans made to Mrs Boyd in 2006 and 2007. Five attempts to serve her at home failed. She later complained that the bank had provided unsuitable facilities to an elderly and vulnerable customer. She died in April 2018, while her complaint was being considered by the Financial Services and Pensions Ombudsman (FSPO).
The complaint led to mediation, but no resolution. The FSPO dismissed it in September 2020, largely on jurisdictional grounds. The Court of Appeal said it was reasonable for AIB to defer pursuing service while exploring a possible resolution through mediation, and that the circumstances surrounding Mrs Boyd’s death created procedural difficulties. Considered together, those factors might just have met the threshold for special circumstances during part of the delay.
But the court found that they did not explain the lenders’ inaction after the executors obtained a grant of probate in October 2019 and the mediation had ended. AIB instead issued fresh proceedings in April 2020, after the Supreme Court’s O’Malley judgment prompted financial institutions to review how their claims were pleaded. Those fresh proceedings were issued one day after the applicable two-year period from Mrs Boyd’s death had expired.
The Court of Appeal said the O’Malley decision did not require AIB to issue fresh proceedings, and the evidence did not adequately explain the delay from April 2020 to the renewal application in April 2021. The court also gave little weight to general assertions about Covid restrictions and the health-related departure of the solicitor handling the file, because the evidence did not clearly set out their timing or effect.
The court held that the lenders had not established special circumstances for the later period of delay. It therefore did not need to decide whether renewal would be justified after weighing prejudice. It said that, if that question had arisen, it would have agreed with the High Court: the lenders faced prejudice if unable to pursue the claim, while the estate’s defence could be impaired because Mrs Boyd, a key potential witness, had died.
The appeal was dismissed. The court’s proposed costs order was that the respondents receive the costs of the appeal, subject to written submissions by the appellants within 14 days seeking a different order.