The Court of Appeal has dismissed an appeal by Walter De Kretser and Gillian Fox against a High Court order allowing Ulster Bank (Ireland) Limited to enter final judgment for €126,077.06, including interest.
The judgment, delivered by Mr Justice Birmingham on 7 December 2016, concerned a joint and several guarantee signed by the appellants on 5 July 2007. It secured a company overdraft and was capped at €100,000 plus interest. The bank’s claim was for a principal sum of €89,350.95, with interest from 19 August 2010.
The company, Stones Finishes Supply Limited, went into voluntary liquidation in December 2008 after financial difficulties. The bank had demanded payment under the guarantee in January 2009 and issued a summary summons later that month.
The appellants raised several proposed defences, including that they had not understood the guarantee, that Fox signed under pressure and undue influence from De Kretser, and that the bank had agreed to accept assignments of Ark Life assurance policies in settlement. The bank disputed their accounts. It submitted that Fox had prior business dealings with the bank, had signed earlier guarantees, was a company director and received a salary from the company. It also said acceptance of the policy assignment had been conditional on encashment within 28 days, which did not occur.
The appeal focused chiefly on whether Fox had shown an arguable case that she signed under undue influence, requiring a full hearing. The Court of Appeal applied the summary judgment standard: leave to defend should be allowed unless it was clear there was no defence, but a bare assertion was insufficient.
Mr Justice Birmingham said the affidavit evidence did not provide credible support beyond assertion for the undue influence claim. He noted Fox’s history of business dealings with the bank and previous guarantees. The court also agreed that the other grounds, including non est factum, did not amount to arguable defences.
The court held that the High Court was entitled to grant liberty to enter final judgment and dismissed the appeal. The decision determined whether the appellants had an arguable defence at the summary judgment stage; it did not follow a plenary trial of the disputed allegations.