Supreme Court dismisses appeal against summary judgment for bank debt where defendants failed to prove loan terms.

THE SUPREME COURT

Court of Appeal Record Number 2014/1174

Supreme Court Record Number 92/14

McKechnie J.

MacMenamin J.

Charleton J.

BETWEEN

ALLIED IRISH BANKS PLC

Plaintiffs/Respondent

-AND-

DANIEL DONOHOE & SYLVIA DONOHOE

Defendants/Appellants

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 10th day of April, 2019

Introduction

1. Allied Irish Banks Group plc., being the original applicant and now the respondent in this appeal, is a public limited company licensed

to carry on the business of banking, inter alia, in this jurisdiction with a registered address at Ballsbridge, Dublin 4. The defendants

are husband and wife and reside at Bunclody, County Wexford. On the 10th day of February, 2014, the Bank obtained judgment by

way of summary process against the defendants, both jointly and severally. The present appeal before this Court is what is generally

known as “a legacy appeal”, meaning that it predated the full effect of the 33rd Amendment to the Constitution, and thus the

operational regime of the Court of Appeal. Such however is a side note. The circumstances giving rise to this appeal can briefly be

described as follows.

2. For several years prior to 2012, the plaintiffs and the defendants had a business relationship between them in that from time to

time the Bank would advance monies to Mr. and Mrs. Donohoe, subject to the certain terms and conditions. It is the Bank’s case that

as of 15th March, 2012 the defendants were indebted to it in the principal sum of €564,532.15. Following the issuance of a Summary

Summons and the taking of the necessary procedural steps appropriate to that process, the High Court by order dated 10th day of

February, 2014, gave judgment in favour of the plaintiffs in the amount of €563,242.56 with costs following the event, this following a

partial repayment in the sum of €1,289.59 by the defendants which saw the principal amount reduced. It is the defendants’ appeal

from that order which is the subject matter of this decision.

The Accounts:

3. By way of an offer document, dated the 7th December, 2007, the plaintiffs, Allied Irish Banks (“AIB” or “the Bank”) offered the

defendants a loan in the amount of €515,000 with an additional overdraft facility of €10,000. The purpose was to enable them to

purchase lands at Ballyboy, Ferns, Co. Wexford (Folio 46611F County Wexford). This offer was accepted in writing by both

defendants, on the same day. On the 17th December, 2007 the full loan was drawn down in that the Bank sent a draft in the larger

sum of €520,551.05 to the appellants’ solicitor. The sum of €515,000 was on foot of account number 933414-21636-126 (“Account -

126”) with the balance of €5,551.05 taken from the defendants’ existing account being account number 933414-2163-043 (“Account-

043”). The Account -126 was restructured as follows.

4. On 4th February, 2009, the Bank offered the defendants a renewal of the existing facilities in the sum of €516,500, which each of

them accepted in written form on the 10th February, 2009. As such, in that month they borrowed the sum of €513,961.36 on foot of

account number 933414-2163-209 (“Account -209”) and used this money to close the original account, Account -126, in order to

restructure their indebtedness. By reason of this arrangement the defendants in August, 2010, owed the Bank the sum of

€507,843.22. Once again, this account, Account -209 was restructured in the manner next described, having remained open from

February 2009 until its closure in August 2010.

5. By Credit Agreement dated 23rd August, 2010, the plaintiffs offered the defendants another loan to restructure their existing debt

yet again, this time in the amount of €509,500. Thus on 23rd August, 2010, the appellants drew down €507,843.22 from an account

with the number 933414-2136-472 (“Account -472”) and used the sum to close Account -209. The former, Account -472 is one of

the two accounts which make up the subject matter of the claim.

6. The second account subject to the claim has the account number 933414-21636-399 (“Account -399”). This account was opened

in a similar fashion to those mentioned above, and for a similar purpose, namely to restructure existing debt. It was created by Credit

Agreement dated 24th August, 2010, upon which a loan was advanced to Mr. and Mrs. Donohoe in the amount of €23,000, which the

plaintiffs accepted, again in writing on the same day. This money was credited to an earlier account, Account -043. Those matters

stood until the bank sought payment by demand letters, followed by the institution of these proceedings.

High Court Proceedings

7. As above noted, the plaintiffs issued a summary summons on 9th July, 2012, claiming two amounts: the first on foot of Account -

399, the sum of €7,989.23 and the second on foot of Account -472, the sum of €556,542.92 making a total claim of €564,532.15.

Further, the Bank also claimed continuing interest on the principal sums at current bank rates, varying from time to time, until

payment or judgment. This summons was served on both defendants shortly after the date of issue: on 31st July 2010 an appearance

was entered by Mr. Cathal O’Donohoe, solicitor on behalf of both defendants.

8. Following this, on 20th September, 2012 a Notice of Motion was issued, in which liberty to enter final judgment in the sum claimed

was sought. The motion was grounded upon the affidavit Mr. Tom O’Reilly, an employee of AIB which was sworn on 6th September,

2012. In this affidavit, Mr. O’Reilly makes no reference to the restructuring of different accounts which took place: he merely states

the amount allegedly owed by the defendants on 15th March, 2012 as being €564,532.15 in total, and that by letters dated 19th July,

2012 the plaintiffs had, through its solicitors demanded repayment of this debt. The deponent goes on to state that the monies had

not been repaid and that in his view the defendants had no bone fide defence either at law or on the merits to the claim made: as a

result the entry of an appearance had been simply a delaying tactic. A supplemental affidavit sworn by Patrick MacNamara, another

employee of AIB, on 11th November, 2013 stated that since the swearing of Mr. Tom O’Reilly’s grounding affidavit the defendants had

repaid €1,289.59 of the monies due but had failed to repay the remaining €563,242.56.

9. The matter eventually came on for hearing before Ryan J., as he then was, in the High Court on 10th February, 2014 having been

transferred to that list by previous order of the Master of the High Court. The learned judge, having had regard to all of the affidavit

evidence granted judgment against the defendants, plus the costs of the proceedings. This order, which had a six month stay on its

execution, was perfected on 11th February, 2014.

10. Ryan J. wrote an accompanying “appeal note” in this matter which serves the useful purpose of giving a more complete picture of

the hearing and the manner in which the proceedings were engaged with by the defendants. The judge states that he attempted to

explain the Court’s function in what he described as a “straightforward case”: the Bank had lent the appellants money which they had

failed to pay back, leaving the court with two options, the first being available only if the appellants had or may have had a defence

whereby the matter would then be listed for full hearing or the second: if it was clear they did not have any defence, judgment would

be entered against them, which of course is what happened

11. The first appellant’s defence was per his affidavit dated 13th November, 2013 and was simply that the Bank had never established

jurisdiction in the court in respect of this case: this because all correspondence from the Bank and all court documents including the

initiating summary summons were defective in that the defendants were addressed using the surname “Donohoe” as distinct from

“O’Donohoe” which he claims is his correct family name. In support of this, he exhibited both his short and long form birth certificates.

He submitted that on such basis alone the entire matter should be struck out. The learned judge is unequivocal in his note, stating

that there was no defence. He further added that anything produced by Mr. Donohoe in court was meaningless and that he would

have been better placed appearing with some sort of sensible proposal which the Bank would have to consider.

12. It should be noted that at all times both defendants adopted a common position. In addition, during the currency of this appeal

Mr. Donohoe appeared in person and insisted that with her consent and approval he was also representing the interests of his wife.

He was aided at all stages by one or more individuals who filled the McKenzie type role.

Appeal to this Court

13. The Donohoes proceeded to appeal the order of Ryan J. by way of Notice of Appeal, dated 4th March, 2014. The grounds of

appeal were as follows:

a) The trial judge had failed to take account of the fact that the appellants had been incorrectly named throughout

proceedings;

b) The trial judge erred in law and in fact by failing to take account that the appellants had not been served with a

letter of demand by the respondent;

c) The trial judge erred in law by failing to take account that the respondent was in breach of the Bankers Books

Evidence Act in endeavouring to prove the alleged debt;

d) The trial judge erred in law in failing to require the respondent to open the affidavits grounding its application,

thus preventing the appellants from responding to same;

e) The trial judge erred in failing to consider the failure by the respondent in their summary summons and grounding

affidavits in not referring to the fact that the loan was a secured loan, furnished on foot of a loan offer and secured

by way of deed of mortgage.

14. Outline submissions were filed by both sides before the matter came before this Court for the first time on 20th February, 2019.

On that occasion, one of the principle submissions of the first defendant was that the monies were advanced not to him but to his

company, Kilmyshall Aggregates Ltd. Such argument had not featured in the High Court and was not specified in the Notice of Appeal.

Notwithstanding that however and despite the normal practice of refusing to hear an argument which had not been previously made,

this Court decided that as the defendants were not legally represented, it would adjourn the hearing so as to facilitate any further

submission which Mr. Donohoe might wish to make on that issue. The Bank of course would have an opportunity of replying.

15. One further matter of concern which arose on that occasion was that the Bank’s evidence of the debt claimed commenced with a

copy of Account – 472 as it stood in August, 2010. In other words, the preceding restructuring was not adverted to: there was no

mention of the multiple accounts, and the activity thereon, which had taken place between 2007 and 2010. This was quite

unsatisfactory as in the court’s view such material should have been available from the outset. This was also a factor in the

adjournment given.

16. In addition, the court was particularly concerned with the content of the submissions filed by Mr. Donohoe, which at virtually

every level of scrutiny was irrelevant and lacked any sense of reality. Whilst it would ultimately be a matter for him and his wife, the

first defendant was advised in the strongest possible terms of what issues any new submission or fresh evidence should be focused

on. On that basis, both parties were afforded the opportunity of filing such submissions and putting in whatever further evidence

either may have relevant to those issues. The matter was then relisted for hearing on 27th March, 2019.

Appellant Submissions:

17. The submissions of the appellants both as originally filed and those as later submitted, unfortunately, have very little resembling a

common intelligible thread, with the book of authorities offering little more: thus, the summary of their position will necessarily be

brief. Furthermore, if what is recited might appear somewhat disjointed and difficult to follow, it is only so because of the random

nature of the submissions made.

18. They first discuss the jurisdiction and test for summary judgment, citing correctly it should be said the cases of Aer Rianta v

Ryanair [2001] 4 IR 607, National Irish Bank v Durkan New House, [2010] IESC 22, Harrisgrange Limited v Duncan [2003] 4 IR 1. It is

the appellants’ contention that the trial judge failed to apply these principles as set out. Complaint is made that they have not seen

the original documents, said by the Bank to have been signed by them, which documents authorise the opening of the various

accounts. It is also claimed that the terms and conditions of the advances were not exhibited to them by the bank. Accordingly, it is

asserted that there was insufficient evidence for judgment to be given. It is also submitted that the trial judge should not have

rejected the documents put forth by the appellants without a plenary hearing, as such a hearing would have given the opportunity for

their submissions to be explained.

19. As mentioned above, the additional submissions of the appellants raise matters which were never brought to the attention of the

High Court. The first appellant states that he was a named director of Kilmyshall Aggregates Ltd, a company which dealt in the sale of

sand and aggregates, quarried on land owned by him and later had progressed naturally into housebuilding. Between 2003 and 2009,

he avers that a total of 27 sites/houses were sold by him and his wife with the total amount of such sales being €6,300,000.00

leaving net proceeds of €775,000.00. He then says that all such sales were conducted through Kilmyshall Aggregates Ltd and that the

received sums were also lodged to that company’s account. He also claims that there were two contracts put in place for each

transaction, one for the sale of the site and the other a building contract in respect of the house. In 2007, he avers that the

purchase of the land in Ballyboy, Co. Wexford was done through the company on his behalf, using the proceeds from the sale of the

27 sites. He states that the “banking and credit creation” became extremely complex at this juncture and that it was not

‘transparent’ to the company directors how money was being applied in the newly opened and closed accounts. Given that the

purchase of lands cost €633,242.00, he claims that there is approximately €140,000.00 owed to him by the Bank, being the balance of

the net proceeds above mentioned. It is his contention that AIB have failed to provide a transaction log and trail of evidence for what

he refers to as the “alleged loans” taken by him and his wife.

20. Mr. Donohoe goes on the claim that the proceeds of the sales referred to were not properly distributed by AIB and that the

company solicitors likewise had not properly “accounted for the distributions [sic]” to the appellants, until the purchase of some

additional land in 2007. As a result, he says that in 2007 there was a total outstanding of €775,000.00 which was owed to himself and

his wife. He refers then to the sum of €563,242,000 as a “phantom loan” to both of them. He then goes on to explain that between

2002 and 2010 there was a method of credit creation using EU Accounting Regulation 1606/2002 (The IAS Directive) which allowed a

double accrual in credit management and credit accounting which created fungible capital movement: he claims that AIB engaged in

this method of fungible capital movement in order to make his consolidated capital fungible and that at least €250,000 of his own

equity is part of the ‘Hidden Shadow Black Shadow Banking Sector’. He submitted a transcript from the Joint Committee of Enquiry

into the Banking Crisis from February of 2015 with the testimony of Professor William Black of the University of Missouri to support

these posited theories. Finally, he says that this alleged credit creation by AIB is incompatible with various pieces of EU legislation as

well as his own property rights under our Constitution, unspecified EU Treaties, Vatican Encyclicals and various other international

legal instruments.

Respondent Submissions:

21. The respondent addresses each of the original six grounds of complaint set out in the Notice of Appeal. Firstly, they deal with the

allegation that all documentation and correspondence, including the summary summons is defective on the basis of an incorrect

surname: in response to the bank notes several instances of inconsistency in this respect where the appellants have signed as

surname, Donohoe. A few examples will illustrate this: Mr. Donohoe’s Statement of Truth and Facts dated the 26th August, 2013,

several of the loan agreements between 2007 and 2009 and the Notice of Motion seeking a continuation of the stay were all issued or

signed with the name “Donohoe”. Secondly, a further allegation by the appellants that they were not served with a letter of demand

is refuted by reference to Mr. Donohoe’s own affidavit of 13th November, 2013, where he states clearly at para. 6 that they had

received such a demand.

22. In relation to the hearing before Ryan J., the appellants accuse the trial judge of failing to require the respondent to open the

affidavits grounding its application and also of preventing the appellants, as lay litigants, from responding to what it had to say. The

Bank correctly points out that the court considered all of the evidence, but for obvious reasons may have spent more time on the

affidavits and exhibits of the first appellant than on others. It is also noted that the trial judge repeatedly asked Mr. Donohoe to

stand at the front bench for the convenience of the proceedings, but he declined to do so: instead he remained in the public gallery

throughout. Furthermore, as a response to repeated references made by the appellants to the fact that they were not legally

represented, the respondent notes that they were represented by two successive firms of solicitors in the Master’s Court but decided

to dispense with legal representation prior to the final High Court hearing.

23. The Bank cites First National Bank v Anglin [1996] I.R. 75 to support their submission that the trial judge did in fact apply the test

for summary judgment entirely correctly, having all the papers before him and taking a considerable amount of time to ascertain

whether the appellants had any probability of establishing a defence, above and beyond mere assertions, or pleading matters of

irrelevance. They cite also the judgment of Hogan J. in AIB plc v Pierce [2015] IECA 87 in which he considered the adequacy of

particulars supplied by the Bank in their indorsement of claim when seeking summary judgment, wherein it was sufficient in the eyes of

that learned judge to specify the sum outstanding, the date of demand and the relevant account. The respondent likens Pierce to the

scenario within, and refers to its particulars which included the sums outstanding on each of the two accounts, the date of demand

and the identifying numbers of each account.

24. Finally, and in conclusion the respondent notes that the second defendant has failed entirely to engage with proceedings apart

from the initial act of joining with the first defendant and having two successive firms of solicitor firms come on record for her. It is

the submission that as such she has no grounds of appeal or defence, and certainly none separate from or distinct to that of her

husband.

25. The respondent also filed further submissions in which it addresses the arguments put forth by the appellants in their additional

submissions. It does this however “for the sake of completeness” as it pointed out that the document raises issues which were not

put before the High Court and as such should not form part of the appeal. AIB states that the appellants’ reliance on Regulation

1606/2002 is irrelevant as its application relates to the use of international accounting standards in the EU with a view to harmonising

the financial information presented by the companies referred to in Article 4 of same. It also discounts as completely irrelevant the

reference made to RBS v Highland Financial Partners & Ors [2013] All Er D 65, a case which relates to a judgment which was obtained

by fraud.

Discussion/Decision:

26. The issues put forth by the appellants which bear any real need for discussion are few and far between. We may note at this

stage that in the affidavit of Cliodhna Clancy, sworn on 1st March, 2019, she states unequivocally that at all stages, the monies

advanced by the bank were to the defendants personally and not to the company Kilmyshall Aggregates Ltd. This averment seems to

be fully borne out by the documentation which underlies the various accounts and their restructuring as above indicated. In the

absence therefore of any compelling and countervailing evidence from the appellants, which was not submitted to this or any Court, it

is extremely difficult to see how this argument could have any validity to it.

27. It would seem prudent firstly to set out both the procedure and the law surrounding summary proceedings. The summary

procedure is, according to Delany and McGrath, designed to enable a plaintiff to recover judgment against a defendant expeditiously

in circumstances where the plaintiff’s claim is easily quantifiable and the defendant does not have any valid defence (Delany &

McGrath on Civil Procedure, 4th Ed., pg. 143). This definition is straightforward and the law is settled in regard to when it is and is

not appropriate to utilise this jurisdiction.

28. Order 2 of the Rules of Superior Courts sets out the circumstances in which summary proceedings may be commenced, these

include all actions where the plaintiffs seeks only to recover a debt or liquidated demand in money payable by the defendant, with or

without interest, arising: upon a contract, express or implied; on a bond or contract under seal for payment of a liquidated amount of

money; on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty;

on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only; on

trust. They include also actions where a landlord seeks to recover possession of land, with or without a claim for rent or mesne

profits and claims in which the plaintiffs in the first instance desires to have an account taken. Order 4, rule 4, provides that a special

indorsement of claim on a summary summons must be used, one which states specifically all the necessary particulars. Even if correct

in a technical sense, an issue which we are not called upon to decide, I would enter a caveat to what Hogan J. said in AIB v Pierce: it

is that where there is a current and related history to the specific account(s) upon which the debt is claimed, that background

information should routinely be given or at least accounted for in general terms. In any event, that information is now before the

court, even if belatedly so.

29. Order 37 of the Rules of Superior Courts then goes on to give a detailed explanation for the correct procedure of a hearing

commenced by way of summary summons. Every summary summons indorsed with a claim (other than for an account) to which an

appearance has been entered shall be set down before the Master by the plaintiffs, on motion for liberty to enter final judgement for

the amount claimed, together with interest (if any). Such motion shall be supported by an affidavit sworn by the plaintiffs or by any

other person who can swear positively to the facts showing that the plaintiffs is entitled to the relief claimed and stating that in the

belief of the deponent there is no defence to the action. A copy of any such affidavit shall be served with the notice of motion. The

Master has power to deal with the matter summarily, if uncontested and to enter judgment for the relief sought by the plaintiffs.

However, in contested cases, the Master shall transfer the matter to the Court list, in order for it to be heard at first opportunity. He

may also extend time and adjourn if appropriate, to allow for the filing of affidavits. If, upon hearing a motion under Order 37 it

appears to a Court that the defendant has a good defence or ought to be permitted to defend the action, the judge may adjourn the

matter for plenary hearing. If, on the other hand the judge is satisfied that no defence is available and the defendant should not be

permitted to defend the action, the judge may enter final judgment in the matter and grant the relief sought by the plaintiffs.

30. A decision of this Court, Aer Rianta v Ryanair [2001] 4 IR 607 sets out some of the guiding principles to be followed by a judge

who is called upon to give summary judgment. In that case the plaintiffs brought a motion for summary judgment against the

defendant for monies due in respect of landing charges and other fees at Dublin Airport. The trial judge declined to refer the matter to

a plenary hearing and instead had given final judgment on the motion: this however was reversed on appeal and the matter remitted

back to the High Court for a full hearing. In coming to this conclusion, this Court held that the summary procedure was to be used

with great care and that when attempting to establish whether a defendant did or did not have a bona fide defence, the focus should

be placed entirely on matters put forth by the defendant him or her self. Furthermore, the court emphasised the distinction between

the fair and reasonable probability of a defendant having a bona fide defence and the defendant having a defence which was likely to

succeed.

31. A decision of my own which followed in Harrisgrange Ltd v Duncan [2002] IEHC 14 expands upon Aer Rianta: the plaintiffs, a

landlord, had been successful in his ejectment proceedings issued against the defendant. He applied to the High Court, by way of

summary procedure seeking mesne rates for the market value in respect of the period from the expiration of the lease to the final

determination of the original proceedings. The defendant attempted to rely upon s. 28 of the Landlord and Tenant (Amendment) Act

1980 to say that where a tenant remained in occupation pending the determination of an application for a new lease, and where a

new lease was not granted, the landlord was only entitled to the rent at the rate set under the expired lease. He also attempted to

counterclaim for breach of covenant.

32. Both his defence and counterclaim failed, one the principles which emerged from the case, building upon Aer Rianta was that if the

only relevant averment made by the defendant in the totality of evidence is the mere assertion of a given situation, this is not

enough to form the basis of a real and bone fide defence and as such, leave to defend should not be granted. Furthermore, it is not

an option for the defendant to open any counterclaim against the plaintiffs. Any counterclaim must stand independently and cannot

be used to in some way offset the evidence against the defendant in the summary claim. The summary procedure is not suitable in

situations where there are issues of fact which are material to the outcome or where there are issues of law above the simplest level.

33. Ryan J. was fully entitled to use the summary procedure in the manner in which he did. As he said it was indeed a straightforward

case, in which the appellants presented no bone fide defence thus making it entirely appropriate for summary judgment.

34. There are a number of points which I wish to emphasise here. The first, which is touched on above, relates to the original material

put before the court by the Bank. Why, in its grounding affidavit did it not provide all relevant proofs and furnish a breakdown of

figures. The affidavit of Mr. Tom O’Reilly, upon which the summary summons issued gave only three of the basic figures needed for a

court to understand the debt which was being pursued. None of the exhibits initially provided give any detail as to the restructuring,

the numerous different accounts or the purpose of each loan. It was not until the affidavit of Cliodhna Clancy, some seven years

later, that a comprehensive overview of the sums from each account, through each stage of the process was provided. This was

important in providing a total picture of events and it is a practice which an institution, as large as AIB, can surely follow without

undue difficulty.

35. The second point, relates to the manner in which the appellants have chosen to engage with these proceedings and the

disservice they have done to themselves and to all involved throughout this long and arduous litigation. The material and defences

provided by them has been abusive of the Court process, beginning in the High Court and continuing with their submissions and

presentation of same before this Court (paras. 11, 17, 19 and in particular 20. supra). These proceedings have wearily trudged on in

the absence of legal advice, and with the appellants failing to listen to the suggestions of the Court and in submitting materials which

were wholly unrelated to the claim they had to face. The result has been to prolong the inevitable while also increasing their own

debt through the continuing accrual of interest.

36. There were materials submitted to us prior to the hearings which did not bear discussion as part of the defendants’ submissions

due to their sheer irrelevance. I will list a choice few of them here if only to illustrate how unhelpful they were to both parties and to

the court: The Laws of Oresme Copernicus (which incidentally was spelled incorrectly on the page of contents of their Book of

Authorities), a paper detailing the ‘Three Pillars of Basel II – Optimising the Mix in Continuous Time’ from 2002, a transcript extract of

thirty-one pages from the Joint Committee of Inquiry into the Banking Crisis of the Oireachtas and a paper entitled ‘Fair value

accounting, financial economics and the transformation of reliability’ from the International Accounting Policy Forum in 2010.

37. In addition, Mr. Donohoe made a series of claims that AIB had engaged in fungible capital movement. He claimed that Prof. William

Black had given evidence to the Irish Banking Inquiry in 2015, explaining this double accrual and credit creation and fungible capital

movement methodology, were illegal and conflicted with property rights under Bunreacht na Éireann, the International Human Rights

Convention, the European Charter of Fundamental Rights, EU Treaties and Vatican Encyclicals.

38. Furthermore, during the court hearing, Mr. Donohoe was asked about points which he raised regarding the convergence of sums of

infinite series, divergence of harmonic series and the Cauchy-Riemann equations referred to when Professor Black gave evidence to

the Irish Banking Inquiry. He maintained that these submissions had relevance due to the discovery of new documentation, failing to

realise that adducing new evidence or documentation requires a process and application unto itself, which in the circumstances, it is

neither appropriate or proper for the court to accede to. (See generally, KD v MC [1985] IR; Lough Swilly Shellfish Growers Co-

operative Society & anor. v Bradley & anor. [2013] IESC 16)

39. However, in any event these submissions had nothing to do with the issue to be determined by this Court, that is to say, whether

or not an arguable defence to this claim by the bank could be established. Not only were these entirely immaterial and unrelated to

the actual subject matter of their case but they were submitted to support entirely unfounded allegations made by the appellants

against AIB which had not been raised in the High Court and as such were inappropriate from the outset.

40. There were a number of other disturbing aspects to the manner in which the appellants attempted to defend this case. For a long

period of time and throughout their original submissions considerable discussion was had regarding the surname of “Donohoe” or

“O’Donohoe”. In his affidavit evidence of 13th November, 2013, Mr. Donohoe averred on oath that his surname in fact had an “O” in it

rather than simply being Donohoe. Whatever a birth certificate might show, what was palpably obvious from his dealings with the Bank

and as is self-evident from even a cursory examination of the documentation filed, including that emanating from himself is that the

surname used is Donohoe. In addition, he made the entirely unfounded allegation that what purported to be his signature as appearing

on the Bank documentation was not in fact his at all. Having maintained this position for some time, he ultimately suggested that it

might have been a photocopy, but such was not authorised by him. Again, this submission is entirely without foundation. In other

circumstances the court might indeed take a very strong view of any individual, lay person or not, swearing on affidavit matters which

at an obvious level had no foundation to them.

41. Finally, the appellants make the suggestion that this matter should be referred to the Court of Justice under Article 267 of the

Treaty of the Functioning of the European Union. As with many of the submissions above described, this is without merit and as a

proposition is unsustainable. This case is purely one based on domestic law. It has no European dimension which would even at the

level of principle invoke Article 267. Accordingly, that suggestion must be rejected.

42. It has been pointed out several times that the appellants have been lay litigants for a substantial part of this process. While a

certain degree of latitude can and should be afforded to lay litigants who make a good-faith attempt to engage in the court process,

the latitude which was afforded to these defendants at their first hearing before this court and before the learned trial judge was

misused entirely. As noted at the High Court stage (para. 11. supra), had the appellants come to court with any kind of sensible

proposal for the respondent or any kind of feasible defence, things may have gone in a more favourable direction for them. They

chose however, to pursue defences which were ill informed and irrelevant and to present their case in a manner which was

incoherent.

43. They say that they were not afforded the chance to explain their documentation before Ryan J. and that he dismissed their

papers as “nonsense”, I say that it is not nor has it ever been the responsibility of a trial judge to allow a full plenary hearing in order

to give litigants a chance to explain documentation which is unclear and badly presented. It is difficult for any judge to give a fair

chance to litigants who do not take reasonable steps to do the same for themselves. It is clear that had the appellants obtained

some form of legal advice at certain stages throughout this process, they would have reaped the benefits by the end.

44. Accordingly, I would dismiss the appeal and uphold the order given by Ryan J.