The High Court has declined to grant Allied Irish Banks plc summary relief in its debt claim against Peter and Mary Counihan, sending the application to a plenary hearing because the couple had an arguable defence based on alleged assurances by bank employees.
In a judgment delivered on 21 December 2016, Mr Justice Max Barrett said the case concerned a loan agreement dated 5 February 2009, which appeared to refinance earlier borrowing used to buy additional frontage to the Counihans’ existing farmstead. The agreement was documented as a business loan. The Counihans contended that they were consumers when they signed it.
The judge considered whether any loan terms appeared potentially unfair under the consumer regulations. He concluded that none did on the facts before him. He also said any breach of the Consumer Credit Act, if established, would be punishable under that Act and did not create a further issue under the unfair-terms regulations.
The separate issue was an estoppel defence raised by Mr Counihan. In affidavit evidence, he alleged that AIB managers David Brosnan and Gerry Fanning had represented that he and his wife would not lose their home. He also said Fanning represented that the bank would accept about €1 million to settle the debt. Mr Counihan said the couple relied on those representations in their dealings with AIB and that he needed to give oral evidence, alongside the two bank employees.
The judgment records those statements as allegations in affidavit evidence; it does not determine that the representations were made or that an estoppel exists. Justice Barrett said the account disclosed an arguable defence, even if it might ultimately prove to have been part of negotiations that did not reach agreement.
Applying the established test for summary relief, the court held that the application should proceed to plenary hearing, where the factual issues can be examined. It therefore declined to grant the relief AIB sought “at this time”. The judgment did not decide the underlying debt claim or the ultimate merits of the estoppel defence.