Judgment: 2018-07-25 · Court archive

Appeal court sends €80,855 guarantee dispute back for full hearing

The Court of Appeal reduced the judgment against Noel Dunne to €284,699.66 and remitted the dispute over two transfers, plus interest, to a plenary hearing.

Court of Appeal · [2018] IECA 271

Who, what, where, when and why

Who
  • The Governor and Company of the Bank of Ireland (Plaintiff)
  • Noel Dunne (Defendant)
  • Leinster Broadband Limited
  • Declan Gilligan
What

The Court of Appeal reduced the judgment against Noel Dunne to €284,699.66 and remitted the dispute over two transfers, plus interest, to a plenary hearing.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 30 August 2006; 1 December 2005

    The disputed sum comprised two transfers made on 30 August 2006: €50,000 and €30,855, transferred from the company’s account to accounts in the name of co-director Declan Gilligan. Dunne denied authorising the transfers by telephone and argued that the company’s 1 December 2005 authority had replaced an earlier telephone mandate. The bank maintained that Dunne had authorised the transactions and that the telephone mandate remained in force.

Why

Reasons reported in the judgment

The appeal court rejected Dunne’s other grounds concerning interest, delay and the calculation of the bank’s claim. It said the interest challenge had not been raised in the High Court and that both parties contributed to the proceedings’ slow progress. It also found the bank’s calculation sufficiently clear for the appeal.

The Court of Appeal has reduced a judgment against Noel Dunne from €384,699.66 to €284,699.66 and sent a dispute over €80,855 in company funds back to the High Court for a plenary hearing.

The appeal concerned guarantees Dunne gave in 2005 and 2006 for loan facilities advanced by the Governor and Company of the Bank of Ireland to Leinster Broadband Limited, of which he was then a director. The bank’s claim arose after it demanded repayment in February 2008. The High Court entered judgment for the bank in May 2016.

The disputed sum comprised two transfers made on 30 August 2006: €50,000 and €30,855, transferred from the company’s account to accounts in the name of co-director Declan Gilligan. Dunne denied authorising the transfers by telephone and argued that the company’s 1 December 2005 authority had replaced an earlier telephone mandate. The bank maintained that Dunne had authorised the transactions and that the telephone mandate remained in force.

In a judgment delivered on 25 July 2018, Ms Justice Irvine said the High Court judge had wrongly resolved the conflicting affidavit evidence by assessing Dunne’s credibility on the telephone call. She said that factual dispute, and whether the December authority affected the earlier mandate, could not be decided on the summary judgment application. Dunne’s denial was consistent, and the court did not have a complete copy of the December authority. An email from the bank in 2011 also supported his argument that the bank relied on the December authority and did not hold a telephone mandate, though it did not establish what arrangements applied on the transfer date.

The appeal court rejected Dunne’s other grounds concerning interest, delay and the calculation of the bank’s claim. It said the interest challenge had not been raised in the High Court and that both parties contributed to the proceedings’ slow progress. It also found the bank’s calculation sufficiently clear for the appeal.

The court varied the High Court judgment to €284,699.66 and remitted the dispute over the €80,855 transfers, together with interest on that sum, for a plenary hearing. The bank may rely on the guarantees at that hearing. The court said the reduced judgment may be adjusted depending on the outcome. It did not decide whether Dunne made the call, whether the mandate authorised the transfers, or the parties’ ultimate liability for the disputed amount.

Read the original court judgment

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