In AIB PLC v Dorey IEHC 317 the plaintiff issued a summary summons on foot of three loans made to the defendant in 2008. It came before the High Court on foot of an application for judgment in default of appearance. Although the application was for judgment in default, with the plaintiff’s consent, the High Court (Court) approached the application as one for summary judgment. It followed that the Court had to consider whether the plaintiff had adequately pleaded and proved a prima facie case. The particular issue that was the focus of the Court’s judgment was whether the plaintiff’s plea in the summary summons was sufficient to satisfy the requirements laid down by the Supreme Court in Bank of Ireland Mortgage Bank v O’Malley IESC 84. O’Malley requires pleadings to specify how a sum allegedly due is calculated (Information Obligation). For further information, see our article on O’Malley here.
The summary summons in Dorey pleaded as follows:
“Short particulars of are set out hereunder and full particulars of the Defendant’s indebtedness have previously been notified to him by the delivery from time to time of bank account statements in respect of each of the accounts set out below”
Conflicting Authorities
The Court noted the conflicting judgments on the adequacy of such pleas in a summary summons. Applying O’Malley, the Court said that a plaintiff may plead the calculation of the alleged indebtedness by reference to other documents previously furnished to the defendant. This is an alternative to pleading the calculation in the summary summons itself. The Court placed considerable reliance on an earlier decision of Charleton J that emphasised that the Information Obligation allows debtors to see if mistakes were made, interest overcharged or penalties misapplied.
Holland J referred to post-O’Malley judgments to assess the adequacy of pleas in a summary summons, including:
(i) AIB v Hayden IEHC 442
In Hayden, summary judgment was granted by Meenan J. The plea in the summons was similar to that made in Dorey. Meenan J was influenced by the fact the defendant had made no complaint about a lack of particulars of the debt, and the plaintiff had exhibited relevant bank statements. Applying the decision in Hayden to Dorey, the plea would suffice.
(ii) AIB v Ahern IEHC 311
In Ahern, the court granted summary judgment. The relevant plea in the summary summons pleaded the statements sent to the defendants over the loan period, but also exhibited statements to an earlier motion for judgment. The Court distinguished Ahern from the present case, as the latter pleaded only the statement sent to the defendants over the loan period. The Court was not satisfied that Ahern is authority for the position that it suffices for the provision of the particulars required by O’Malley to plead by reference to the statements provided from time to time since the loan drawdown.
(iii) Havbell v Harris IEHC 147
In Havbell, Humphreys J refused summary judgment based on a general plea in the summons which pleaded that the defendants were regularly supplied with statements of account, but failed to identify any such documents. Applying Havbell to the facts in Dorey, the Court commented that it would invalidate the plea made.
The Court found that it was open to it to follow either line of authority. It chose between them by returning to the decision in O’Malley.
Current Practice
Since O’Malley and to comply with the Information Obligation, it has become common practice that shortly before issuing a summary summons, the intending plaintiff writes to the intended defendant enclosing a complete set of statements of the loan account in question. The Court noted that the practical purpose of the Information Obligation is to allow a defendant to satisfy themself that the sum claimed is correct, and they can decide whether to defend the proceedings or consent to judgment.
Conclusion
The Court preferred the view taken in Havbell as conforming to the reasoning and practical requirements of O’Malley. The plea in the summons which referred to statements delivered periodically over twelve years, did not comply with those requirements. Although the Court was conscious that it was not in the public interest that straightforward debt claims should be prolonged by plenary hearing, it was swayed by the exceptional and summary nature of the process where the plaintiff seeks judgment without trial. The Court therefore held that the plaintiff could not recover summary judgment on the particulars pleaded.
Contributed by Niamh Green and Joanne Ryan
