Not so Summary Judgement

In our Article published in the October 2020 issue of the Law Society Gazette, we discussed how the burden of proof required to obtain summary judgment had been significantly raised in light of three cases at that time, most significantly the Supreme Court decision in Bank of Ireland Mortgage Bank v O'Malley [2019].
 
There have been further developments of the law in this area by virtue of the recent High Court judgment in AIB PLC v Dorey [2022], in which a summary summons was refused.
 
In Dorey, the plaintiff bank issued a summary summons on foot of three loans made to the defendant borrower in 2008. While the application was for judgment in default of appearance, with the plaintiff's consent the Court dealt with the application as though it were for summary judgment.
 
The issue that engaged the Court's attention was whether the plaintiff's plea in the summary summons as to the alleged indebtedness of the defendant met the requirements laid down by the Supreme Court in O'Malley, i.e. that the pleadings must particularise how the sum claimed came to be due. This was to ensure a defendant to a summary summons had sufficient particulars of the debt to enable him "to satisfy his mind whether he ought to pay or resist" [per Chief Justice Clarke in O'Malley].

Differing Authorities
 
In Dorey, the Court discusses the conflicting judgments on the adequacy of a plea in a summary summons. It was noted that in O'Malley, an alternative to pleading the calculation of the alleged indebtedness was that a plaintiff may plead the calculation by reference to other documents previously furnished to the defendant.
 
The Court emphasised that the practical purpose of pleading such particulars was because the defendant to the summary summons was entitled to have sufficient particulars of the debt to enable him decide whether to pay or defend the claim.
 
The Court considered the following authorities:
 

1. AIB v Hayden [2020] IEHC 442

In this case, summary judgment was granted on foot of various loans and the defendant resisted judgment in reliance, inter alia, on O'Malley. The Hayden judgment was guided by the fact the defendant had made no complaint about lack of particularity of the debt or the failure of the plaintiff to produce in evidence all relevant bank statements. It would appear that the claim in Dorey would be considered adequately pleaded, if the decision in Hayden were applied.
 

2. AIB v Ahern [2021] IEHC 311

In this case, summary judgment was granted on foot of various loans. The defendant had again resisted judgment in reliance, inter alia, on O'Malley. The plaintiff had exhibited in the summary summons not merely the statements sent to the defendant over the period of the loan, but also statements exhibited in an earlier motion for judgment.
 
The Court in Dorey distinguished the this case from Ahern in that the plea referred only to statements sent to the borrower from time to time since the loans were drawn down. The Court was not satisfied that Ahern was authority for the proposition that a plea referring to the statements provided from time to time since the loan was draw down satisfied the particularity test set out in O'Malley.
 

3. Havbell v Harris [2020] IEHC 147

In this case, summary judgment was refused on the grounds that a plea in the summons that the defendants were regularly supplied with statements of accounts failed to identify any such documents. The Court noted that the trial judge's comments in Havbell, if representative of the law generally, would invalidate the plea in this case.
 
Current Practice
 
In light of O'Malley, the current practice is that, shortly prior to issuing the summons and often with the last demand for payment before action, the plaintiff bank should send the intended defendant a complete set of statements of the loan account in question. The underlying rationale for this practice, as stated by Chief Justice Clarke in O'Malley, is that
 
"A party who is placed in the predicament of being liable to have judgment signed against him summarily, is entitled to have sufficient particulars to enable him to satisfy his mind whether he ought to pay or resist… it seems to me that a party is entitled, before summary proceedings for judgement are taken against him, to know specifically what is the claim against him".
 
Conclusion
 
The Court in Dorey noted that Havbell was the preferred view to be taken in conforming to the reasoning in the O'Malley decision and the requirements set out therein.
 
The O'Malley judgment holds that the plaintiff should furnish full and detailed particulars of the calculation of the liquidated sum claimed, which the plaintiff in Dorey had failed to do. Consequently, the High Court held that the summons in this case, which referred to statements delivered from time to time over twelve years, did not comply with the requirements set out in O'Malley and the summary summons was refused.
 
 
Written By: Mark Woodcock and Brendan Frawley