Kelly J.
Irvine J.
Hogan J.[Appeal No. 2015/150]
Ulster Bank Ireland Limited
Plaintiff/Respondent
Defendant/Appellant
Judgment delivered (ex tempore) on the 27th day of July 2015 by Ms. Justice Irvine
1. This is an appeal by the defendant (“the customer”) against an order of the High Court (Cross J.) made on 16th March, 2015, whereby the High Court judge granted judgment in favour of the plaintiff (“the bank”) for a sum of €70,007.18 together with costs, the latter to be taxed in default of agreement.
2. That order was made following an appeal brought by the bank against an order of the master of the High Court of 20th February, 2014, whereby the master dismissed the bank’s motion for liberty to enter final judgement and, in doing so, granted the costs of that application to the customer.
3. For the purposes of this appeal, Mr. Casey B.L., counsel for the customer, advanced two principal arguments. First, he submitted that the bank’s grounding affidavit sworn by Mr. Ian Duffy, a bank official with its SME recoveries department, failed to comply with the requirements of the Banker’s Books Evidence Act 1879, as amended, thus rendering it inadmissible as hearsay evidence. Second, he submitted that the bank, in its verifying affidavit, had failed to prove the amount stated to be due and owing in the special indorsement of claim. Further, he submitted that, insofar as it had sought to remedy its previous errors in a supplemental affidavit, that affidavit was inadmissible as it was one sworn, not by any bank official, but by the bank’s solicitor, who was not in a position to swear positively to the facts therein contained.
4. It has to be said that, in the course of the hearing before this Court, counsel for the customer did not receive much encouragement from members of the Court to pursue the first of his arguments in light of the provisions of O.37 r.1 of the Rules of the Superior Courts, which requires no more of a plaintiff, in terms of proof, than that the claim made be “supported by an affidavit sworn by the plaintiff or by any other person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed and stating that in the belief of the deponent there is no defence to the action.” In other words, it is unnecessary for a bank in a claim such as the present one to exhibit bank accounts or bank statements in support of its claim.
5. In reply to the customer’s second submission, Mr Shanahan B.L., counsel on behalf of the bank, submitted that the grounding affidavit of Mr. Duffy had proved that the amount stated in the summons was lawfully due and owing, and that this was particularly so in circumstances where the customer had not advanced any potential defence to the sum in respect of which judgement had been granted. Further, he submitted that the supplemental affidavit filed by Mr. Harte, the bank’s solicitor, was admissible as it related to matters within his own knowledge as it did no more than clarify matters that had been earlier deposed to by Mr. Duffy. Insofar as there may have been any discrepancy between the sum claimed in the summons and that referred to in the grounding affidavit, counsel submitted that the customer had been given credit to the extent of the said discrepancy.
Summary Summons Proceedings
6. Proceedings by way of summary summons provide a plaintiff with an effective and efficient way of obtaining a judgement for an amount to which they believe they are entitled and in respect of which they consider the defendant can have no defence. However, the fact that a defendant may have no substantive defence to put forward to such a claim, to my mind, does not relieve the plaintiff of its obligations, in terms of proof, on a motion for liberty to enter final judgement. The defendant is entitled to sufficiently clear particulars of the claim made so that they can be satisfied that the sum claimed is correct and not excessive.
7. On an application for liberty to enter final judgment, a plaintiff must, by verifying affidavit, be in a position to satisfy the court that the sum claimed in the special indorsement of claim was validly due as of the date of the issue of the summons. (See Butler J. in Allied Irish Banks Limited .v. The George Limited, 21st July unreported 1975) Insofar as a plaintiff may seek liberty to enter final judgment in a sum different from that contained in the special indorsement of claim, the plaintiff’s right to that sum must also be proved by clear and unambiguous evidence and in such a manner as to show that the latter sum is not in conflict with that initially claimed in the summons. How the amount claimed on the motion for liberty to enter final judgment has been calculated should be readily ascertainable from the affidavit. In particular, insofar as a plaintiff may seek to recover further interest on a principal sum, following the date of the issue of the summary summons, the amount so claimed and the period over which that sum has been calculated should be clearly specified in the grounding affidavit. Likewise, insofar as credits may be due to a defendant in respect of dealings between the parties post-dating the issue of proceedings, the grounding affidavit should identify how and the extent to which the sum initially claimed has been reduced.
8. Bearing these factors in mind, I will now briefly refer to the facts of the present proceedings.
9. The Summary Summons was issued on the 21st January, 2014. On its face, a total sum of € 71,871.86 is claimed on foot of a Loan Account and a Current Account.
10. While the total claimed as due and owing in respect of both accounts as of the 13th October, 2013, is correct, there is an error in the particulars on the face of the summons. The total sum in respect of principal and interest due on foot of the Loan Account as of 13th October, 2013, was €69,715.35, comprising a principal sum of €67,648.26 and interest of €2,067.09 as opposed to the sum of €68,715.35, claimed. (“error 1”)
11. Because of this error, on the 24th July, 2014, an application was made to the master of the High Court to amend the summons and he permitted the amendment sought and dispensed with the need for its re-service.
12. The bank then proceeded to issue a motion for liberty to enter final judgement in December, 2014. In doing so, it sought to enter judgment in the sum of €70,007.18, an incorrect sum (“error 2”). The sum claimed ought to have been €71,007.18 as per the summons, that being the total sum due on both accounts as of the 13th October, 2013.
13. In support of the notice of motion, Mr. Duffy, at para. 5 of his grounding affidavit sworn on 10th December, 2014, carried through the same error. The sum, of course, should have been €71,007.18, not €70,007.18. (“error 3”)
14. In paragraph 7 of the same affidavit, Mr. Duffy attempts to bring the customer’s liability in relation to the Loan Account up to date. The total due in respect of that account as of the 13th October, 2013, was €69,715.35. This new sum of €71,094.48 is arrived at by adding continuing interest to the principal sum of the €67,648.26 from the 14th October, 2013. However, there is nothing in the affidavit to identify the date to which this further interest has been calculated. The date in question is in fact the 5th June, 2014, and can only be found by reference to the exhibits although subsequently furnished by Mr. Harte in his affidavit of the 25th February 2015.
15. At paragraph 10 of the grounding affidavit, once again Mr. Duffy incorrectly swears to the fact that, from his perusal of the books and records of the bank, that the sum of €70,007.18 is due and owing. That sum is simply incorrect and is one which could not have been ascertained from any inspection of the books of the bank. The sum outstanding on the Loan Account, as per para. 7 of his affidavit, was €71,094.48. Add to that the sum of €1,291.83 (€2,156.51 - €864.68) due on Current Account, as per para. 8 of the affidavit and you get a total of €72,386.31. (“error 4”)
16. Because of the lack of clarity in the grounding affidavit, the bank sought to mend its hand by filing a supplemental affidavit. That is the affidavit sworn by Mr. Harte, a partner in the firm of Mason Hayes and Curran, the solicitors on record for the bank.
17. It is true to say that the sums referred to at para. 4 of Mr. Harte’s affidavit are correct. However, I find his averment to the effect that “... the defendant was indebted to the plaintiff in a total sum of €72,386.31 as of the 5th June 2014 and as more particularly deposed to in the grounding affidavit of Ian Duffy …” to be a little less than a fair reflection of the facts. The sum of €72,386.31 was never mentioned in Mr. Duffy’s affidavit, even if the components of that sum can be found by scouting around the affidavit and ignoring the numerous incorrect references to the sum of €70,007.18.
18. Then, at para. 5 of his affidavit, Mr. Harte states that the sum due on foot of the current account has been reduced since the issue of the proceedings to the extent of €864.68, by reason of payments made in the sum of €943.32. This is hardly a statement of great clarity for a customer seeking to ascertain how its bank has calculated the sum claimed against them.
19. Finally, Mr. Harte swears to the fact that Mr. Duffy, in claiming that the customer was indebted to the bank in the sum of €70,007.18, had incorrectly given an additional credit to the customer in the sum of €1,000 in his affidavit. He states that the figure should have been €71,007.18 comprising the €71,871.86 in the summons less the credit €864.68. But that is to ignore that the total sum due and claimed as a result of further interest on the Loan Account, from 14th October, 2013, to 6th June, 2014, was €72,386.31, as mentioned in para. 4 of his own affidavit. That was also the sum claimed in Mr. Duffy’s affidavit when one does the calculation by reference to paras. 7 and 8 thereof.
20. Regardless of whether or not Mr. Harte’s affidavit is admissible, having regard to the provisions of order 37 rule 1 of the Rules of the Superior Courts, I am not satisfied that the bank has proved its entitlement to obtain summary judgement as against the customer for €70,007.18 . That sum, while claimed in the notice of motion, is not the customer’s liability as advised in the special indorsement of claim. Neither is it the sum outstanding as per the books and records of the bank. Further, the grounding and supplemental affidavits offer a range of different figures as the customer’s outstanding liability. The Rules governing summary summons proceedings are not met by affidavits and submissions which urge the court to grant judgment for the lowest of the figures claimed on the basis that it is clear that the customer’s liability is in excess of that figure and they have not advanced any potential defence to the claim. The customer is entitled to a straightforward, clear and unambiguous statement on affidavit demonstrating how the sum claimed in the notice of motion is lawfully due and owing. Regrettably, the bank must accept the consequences of the errors and confusion created by its own pleading.
21. For my part, I would allow the appeal and would set aside the order of the High Court made on 20th February, 2015. I would then propose that the bank be directed to re-serve the summary summons, as amended by order of the master of the High Court 20th February, 2015. Thereafter, the bank will of course be at liberty to issue a fresh motion seeking liberty to enter final judgement.
