Supreme Court dismisses appeal against summary judgment for bank loan debt where defendant failed to serve affidavit.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[S:LE:IE:2012:000425]

O’Donnell J.

Dunne J.

O’Malley J.

Between/

Bank of Scotland plc

Plaintiff/Respondent

AND

Jerry Beades

Defendant/Appellant

Judgment of O’Donnell J. delivered the 29th day of July, 2019.

Introduction

1 The defendant (“Mr. Beades”) appeals against the judgment and order of the High Court of 20 July 2012 granting the plaintiff’s

application for summary judgment as against the defendant in the sum of €9,684,987.04 together with costs (see [2012] IEHC 328).

The appeal to the Supreme Court was initially transferred to the Court of Appeal consequent upon the establishment of that court

and the division of the backlog of cases in the old Supreme Court between this court and the new Court of Appeal. That order in turn

was cancelled by this court as part of an initiative designed to reduce the backlog of cases in the Court of Appeal arising from the

limited number of judges initially appointed to that court and the severe strain on its resources. Mr. Beades’s application for a stay on

the judgment was refused in the High Court, and no application for a stay was made to any appellate court. It does not, however,

appear that any steps were taken to enforce the judgment in the period since the delivery of the judgment of the High Court.

The proceedings

2 In his judgment of 20 July 2012, Kelly J. set out a detailed procedural history of the case, which, for reasons which will become

apparent, it is necessary to recapitulate here. A summary summons was issued on 4 January 2012. A substituted service was

permitted by order of Peart J. on 20 February 2012, and was effected. An application was brought for entry of the case to the

Commercial List, which was granted. Mr. Beades was granted a generous period within which to deliver a replying affidavit. He was

permitted until 18 May to do so, and the case was fixed for hearing for 23 May 2012. However, no affidavit was delivered, and the

hearing on 23 May was vacated. Mr. Beades was given a further period until 15 June 2012 to deliver his affidavit, and the bank was

permitted a further week (until 22 June 2012) to reply if desired. A date for hearing of the summary summons was fixed for 26 June

2012.

3 Once again, Mr. Beades did not deliver a replying affidavit within the time allowed. In the event, a replying affidavit was sworn on

21 June 2012. The affidavit (but not the exhibits) was served on that day. The bank notified Mr. Beades of its intention to seek an

adjournment, and applied on 25 June 2012, that is, the day before the intended hearing. Mr. Beades did not appear and was not

represented on that occasion. Kelly J. acceded to the application for an adjournment and fixed a further hearing before him on 6 July

2012.

Facts

4 The underlying facts of this matter are set out in the comprehensive judgment delivered by Kelly J., which is available to any

interested party or member of the public, and it is sufficient for the purposes of the appeal to set out the salient matters. In essence,

the plaintiff’s claim was made on foot of four facility letters, the first of which was dated 18 May 2005, and the last dated 11

February 2008. The loans were made by Bank of Scotland (Ireland) Ltd., which as of 31 December 2010 merged with the plaintiff

herein, Bank of Scotland plc (“the bank”), in a cross-border merger by absorption pursuant to Directive 2005/56 on cross-border

mergers of limited liability companies (“the 2005 Directive”). Under the terms of that merger and on foot of an order of the Court of

Session in Scotland made pursuant to the 2005 Directive and the implementing regulations, all of the assets and liabilities of Bank of

Scotland (Ireland) Ltd. transferred to the bank.

5 Two grounding affidavits were sworn in support of the plaintiff’s application for summary judgment. The first was sworn by Caoimhe

Tracey on 16 March 2012. Ms. Tracey described herself as an official of Certus of 124 to 127 St. Stephen’s Green, Dublin 2. Certus

was appointed by Bank of Scotland plc to provide customer support and administration services to the bank and to support the

management of its customers in Ireland and Northern Ireland. In para. 1 of her affidavit, she stated that “[i]n this regard, I make this

affidavit to swear as to the facts of this case”, and further stated that Clare Wrightson of Bank of Scotland plc would swear a further

affidavit seeking the relief sought in the notice of motion. At para. 2 of the affidavit, Ms. Tracey stated, “I make this affidavit from

facts within my own knowledge and from perusal of the plaintiff’s books and records, save where otherwise appears and where so

otherwise appearing I believe the same to be true and accurate. For the sake of completeness, I should point out that the various

individuals referred to in the following paragraphs were at the time of the various communications employees of Bank of Scotland

(Ireland) Ltd., and now, where indicated, are employees of Certus.” It is apparent from the terms of the affidavit that Ms. Tracey was

personally involved with the management of the bank’s relationship with the defendant. Thus, for example, at para. 44 of the affidavit

she refers to a meeting held by Certus with the defendant on 17 August 2011, and continues that “on 18 August 2011, I sent a letter

to the defendant which recorded what was discussed at the meeting on 17 August 2011”, exhibiting a copy of that letter.

6 Ms. Wrightson described herself as a senior credit risk manager with the Ireland Business Support Unit of Bank of Scotland plc of the

Mound, Edinburgh, EH1 1YZ, Scotland. She states that she is duly authorised by the bank to make the affidavit on its behalf. In

addition, she records the fact that Certus is an Irish-registered unlimited liability company, and provides customer support and

administration services to the bank in relation to the management of the former assets of Bank of Scotland (Ireland) Ltd. She states

that most of the employees of Bank of Scotland (Ireland) Ltd. have transferred to Certus. For those reasons, she considered it both

necessary and appropriate that a representative of Certus – in this case Ms. Tracey – should swear a grounding affidavit in respect of

the proceedings on the basis that Certus, having assumed the customer management functions of Bank of Scotland (Ireland) Ltd.,

has first-hand and intimate knowledge of the defendant’s loan facility, all events and details relating to the loan facilities, and the

obligations and liabilities of the defendant in connection with and/or under the loan facilities. She continues, “I have had an

opportunity to read the grounding affidavit in advance of the swearing hereof and I confirm, on behalf of the plaintiff, that I am

satisfied that the averments of the deponent therein are true and accurate”. There was therefore evidence from two sources: one a

current employee with knowledge of the affairs of the bank, and the other a former employee now engaged by a separate company

dealing with debt recovery, with personal knowledge of and involvement in the dealings with Mr. Beades. Ms. Wrightson’s affidavit was

sworn by her on 21 March 2012, at Augustine House, Austin Friars, EC2N 2HA London, before a Mr. Jack Sheehy, described as “a

practising solicitor”.

7 The defendant herein swore a replying affidavit on 21 June 2012, setting out certain complaints he had with the performance of

Bank of Scotland (Ireland) Ltd. In addition, he asserted that the affidavit sworn by Claire Wrightson was “fraudulent”, apparently on

the basis that Jack Sheehy was not a registered solicitor in England or Wales (in fairness to Mr. Beades, it should be recognised that

he was initially informed by a representative of the Incorporated Law Society of Ireland, erroneously, that Mr. Sheehy was not a

solicitor on the rolls in Ireland, either). He stated that the Solicitors Regulation Authority in England and Wales “has advised that Clare

Wrightson and Jack Sheehy have most likely committed a criminal offence under English law and asked me to report the matter to the

London City Fraud Squad. I say that I have prepared and forward[ed] a statement to the London City Fraud Office along with a copy

of the Clare Wrightson statement”. As observed by Kelly J. in the High Court, Mr. Beades did not exhibit any correspondence from the

Solicitors Regulation Authority to this effect, or any statement made by him to the entity described as “London City Fraud Office”. In

the affidavit, Mr. Beades made certain complaints that the bank was unable to meet its commitments to him in respect of the loan

agreements 690141/101, 690141/104, and 690141/105, and that he had experienced constant delays with drawdowns of the

construction money from Bank of Scotland (Ireland) Ltd. He also contended that the bank had breached “its contract and duty of

care to me”. Finally, he contended that the bank was in breach of its own general conditions applicable to loan facilities, and

specifically section 26.1 thereof, which provided that “every…demand or other communication under the loan agreement shall …be in

writing delivered personally or by registered letter or facsimile transmission”. He stated that “no request or demands were served or

delivered to my confirmer [sic] address with [Bank of Scotland (Ireland) Ltd.] of 30 Richmond Ave Fairview, I further say that no proof

of registered letter has been produced or of personal service of the said demands”.

8 A replying affidavit on behalf of the bank was sworn by Caoimhe Tracey. She states that she made the affidavit from facts within

her own knowledge and from perusal of the plaintiff’s books and records. She exhibited a copy of Jack Sheehy’s practising certificate

showing that he is an Irish solicitor practising in the firm of A&L Goodbody at their London offices. She also referred to the letter of

demand exhibited in the first affidavit, which she said had been delivered by DHL to the address at 30 Richmond Avenue, and

exhibited a copy of the delivery receipt. The affidavit also took issue with and sought to refute certain of the factual allegations made

by Mr. Beades.

9 In his comprehensive judgment, Kelly J. pointed out that Mr. Beades had studiously avoided denying that he had received the

monies under the respective loan agreements, and once again refused to do so in the course of the High Court hearing. At paras. 48

to 56 of the judgment, the learned High Court judge dealt with the matters of substance raised by Mr. Beades, which Kelly J.

observed were lacking in any specific detail. At para. 60, he concluded:-

“Nowhere in his affidavit did Mr. Beades deny executing the agreements in question. Neither did he deny receiving the

monies. He made a number of allegations which have nothing to do with any defence which he might have to the

proceedings. Insofar as he alleged any form of defence, it was nothing more than mere assertion. It was mere allegation

or averment of an alleged situation without any information being given to sustain it. Even if there is a defence, it appears

to me that at most it could only amount to some form of counterclaim. That would not constitute a defence to these

proceedings. In this view, I am fortified by the general conditions which Mr. Beades put in evidence and which expressly

provide at para. 25.13 as follows:

‘All sums payable in respect of principal interest or otherwise shall be payable gross without deduction on account of

taxes, any set-off or counterclaim or on account of any charges, fees, deductions or withholdings of any nature . . .’

Thus, even it could be said that there is some form of intangible counterclaim, it cannot serve as a defence to these

proceedings.”

10 The trial judge concluded that Mr. Beades had not demonstrated any triable issue or arguable issue to warrant summary judgment

being refused. It was, he considered, very clear that Mr. Beades had no defence to this claim and accordingly judgment was entered

against Mr. Beades in the terms already set out.

The substantive issues

11 While it might be thought that the merits of a claim, and any possible defence, whether by way of separate defence, counterclaim,

or set off, would occupy the bulk of the evidence and argument in a contested application for summary judgment, that was not so in

this case. In truth, very little was said by Mr. Beades about this matter on affidavit, or indeed in submissions in this court. Mr. Beades

did take issue with the fact that Kelly J. in the High Court had asked him directly whether he had received the monies the subject

matter of the proceedings. While Mr. Beades appears to consider that this was inappropriate, it is in truth central to any claim such

as this. A defendant may contend that he or she never made the agreement and it is a case of mistaken identity, or that an

agreement was made but not performed, and he or she did not receive the money. He may contend that he received the money, but

that the agreement was breached in circumstances which gave rise to a valid defence or counterclaim, or both, or that he received

the monies but that there is some issue such as illegality, undue influence, unconscionability, or estoppel which prevents recovery.

These are only some of the potential issues that may arise where a defendant disputes a claim. Of course, a defendant may simply

maintain that the plaintiff has not proved the indebtedness, but that is very narrow and uncomfortable ground to stand on. It is an

old rule that a denial of debt alone is not a defence. However, one of the benefits of a form of summary procedure based on affidavit

is that a party must swear on oath to the facts, rather than raise a range of potentially inconsistent matters as in a pleading. It is

thus inevitable that a party must pin their colours to some mast, at least so far as the facts go. A basic matter, therefore, is what

the defendant says about the transaction.

12 Here, while Mr. Beades studiously sought to avoid acknowledgement of the facts, such matters as he did address made it clear, by

inference at least, that he had received the monies in question. Thus, any complaints that he had about the general terms and

conditions of the bank, or allegations that the bank breached its agreement with him, could only make sense in the context of a

relationship in which the bank had agreed to, and had in fact, advanced monies to him. At the hearing of this appeal, Mr. Beades

made a number of observations which, again, were only consistent with him having received the monies. Thus, he said “the first thing

to be said about my losses is that they gave me the wrong facility” (Transcript of Hearing, p. 33). He also stated that “the bank

continued to release funds for the building work. If the bank seriously thought it had no obligation to do so, they would have cut off

the flow (especially when they had liquidity problems)” (Transcript of Hearing, p. 34). Similarly, it was stated that “the unfinished

development at Fairview could be finished and the bank could get its money back, why this Mexican standoff?” (Transcript of Hearing,

p. 36). By contrast, what Mr. Beades had to say about a defence was vestigial at best:-

“As the shape of such contract becomes clearer, my counterclaim could just as easily become a claim for specific

performance of the contract even at a late stage, after all, I am still in possession of the property in occupation.”

(Transcript of Hearing, p. 35).

“The principles of the law of contract are still a work in progress. It may be that we are looking at an anticipatory breach

by the bank.” (Transcript of Hearing, p. 41).

13 It is noteworthy indeed that although seven years have elapsed since the bank obtained a very substantial judgment against Mr.

Beades, he has not sought to adduce any new or additional evidence as to the substance of the matter, either suggesting that the

bank did not lend him the monies, or setting out any matters substantiating a counterclaim.

14 So far as the substance of the matter is concerned, therefore, I am satisfied that the trial judge dealt comprehensively with such

assertions as were made by Mr. Beades by way of possible defence to the claim. He correctly set out the test to be applied on an

application for summary judgment, and applied it both carefully and accurately. In my view, it is not possible to contend that there is

any error or flaw in the analysis conducted. So far as the substance of the dealings between the bank and Mr. Beades are concerned,

therefore, the judge was fully entitled to come to the conclusion he did. On this appeal, the arguments focussed primarily on technical

matters in relation to procedure, the admission of evidence, and the swearing of the affidavits.

Procedure

15 At the hearing of this appeal, Mr. Beades conducted a lengthy analysis of the manner in which the case had come to be heard by

Kelly J. Although he did not maintain the claim of bias which had been made in the High Court, it is clear that he was critical of the

procedural steps taken. In particular, Mr. Beades had obtained the Digital Audio Recordings (“the D.A.R.”) of the short hearing on 26

June 2012 before Peart J., and the hearing of 6 July 2012 which had resulted in the judgment which is appealed against. These were

furnished to the court. It is clear, however, that Mr. Beades was also suspicious, to put it at its lowest, of the application made by

the bank on 25 June 2012 to adjourn the hearing, which resulted in the fixing of the hearing for 6 July 2012. Mr. Beades had also

obtained the D.A.R. for that hearing shortly before the hearing of this appeal and made extensive reference to it in the course of the

hearing. He asked rhetorically, “[Were] correct and fair procedures adopted in this instance is the question” (Transcript of Hearing, p.

40), and “I think the appeal court cannot avoid – or the Supreme Court cannot avoid having to consider whether I really had an

opportunity to ‘effectively participate’” (Transcript of Hearing, p. 40), and, finally, “But, to coin a phrase, was justice seen to be done

in what happened me?” (Transcript of Hearing, p. 41).

16 The details of what occurred on 25 June 2012 were already recorded in the judgment of Kelly J. of 20 July 2012. It was set out

there that Mr. Beades had failed to comply with either of the time limits for delivery of his affidavit, that an application was made, and

that the bank sought either an adjournment of the hearing or that the hearing should proceed on the basis that the affidavit would

not be permitted to be used. Mr. Beades has not pointed to any discrepancy between the account given in the judgment and what is

now disclosed by the D.A.R., still less has he pointed to anything which occurred on 25 June 2012, as recorded in the D.A.R., which in

any way substantiates his complaints or suggests that the judgment was improperly obtained or should be set aside. The underlying

unspoken assumption that if the case had proceeded on a different day before a different judge, the decision would have been

different and judgment would not have been granted, is without substance.

Evidence

17 In his written submissions, Mr. Beades argues that there was no admissible evidence to ground the bank’s claim in this case. This is

because he contends that Ms. Tracey is an employee of Certus, and is not a partner or officer of the bank, and therefore cannot rely

on s. 4 of the Bankers’ Books Evidence Act 1879 (as amended) (“the 1879 Act”). While Ms. Wrightson for her part does swear a

confirmatory affidavit, it does not, he contends, record that she had “conducted a perusal of the books and records of the bank” and

accordingly, it appears to be argued that her evidence cannot supply any defect in the evidence of Ms. Tracey. It is implicit in this

argument that evidence of indebtedness can only be given by an employee or partner in a bank who has perused the books and

records of the bank. While Ms. Tracey has perused the books and records of the bank she is not an employee: while Ms. Wrightson is

an employee of the bank, she has not said that she perused its books and records. It must be observed that these arguments are

somewhat different to those which were made in the High Court. There, it does not appear that any argument was raised in respect

of the 1879 Act. While Ms. Wrightson’s affidavit was challenged, it appears that the basis of that challenge was the manner in which

it was sworn, and no objection was raised that the content of the affidavit, if properly sworn, was nevertheless insufficient.

18 The argument that evidence given on behalf of a bank in debt recovery proceedings must be given by an employee or partner of

the bank and cannot be given by an employee of a company managing the credit recovery process has been considered on a number

of occasions in these courts in recent times. The recent decisions commence perhaps with the judgment of Clarke J. (as he then was)

in Moorview Developments Ltd. v. First Active plc [2010] IEHC 275, (Unreported, High Court, Clarke J., 9 July 2010) and Bank of

Scotland plc v. Stapleton [2012] IEHC 549, [2013] 3 I.R. 683. The leading authority is, however, by now undoubtedly the decision of

this court in Ulster Bank Ireland Ltd. v. O’Brien [2015] IESC 96, [2015] 2 I.R. 656, recently applied in the High Court in Promontoria

(Arrow) Ltd. v. Burke [2018] IEHC 773, (Unreported, High Court, Barniville J., 19 December 2018).

19 The defendant’s written submissions contend that “the construct of [the 1879 Act] is not difficult to follow”. It is said that

“[s]ection 4 of [the 1879 Act] leaves no ambiguity whatsoever where it states; ‘Such proof may be given by a partner or officer of

the bank and may be given orally or by Affidavit…’”. It appears to be suggested, therefore, that Ms. Tracey cannot give evidence of

the transaction by the bank, its dealings with Mr. Beades, or, crucially, its entitlement to recover the sum claimed.

20 In the first place, it is necessary to observe that the quotation from the 1879 Act in the written submissions, and repeated in oral

submissions, is incomplete. The 1879 Act does not purport to lay down a complete code for the giving of evidence in relation to the

affairs of banks or the other institutions listed in the Act and its subsequent amendments. Rather, the 1879 Act permits certain

evidence to be given in a way which avoids the necessity for the production of the original books of the bank. This is apparent from

the full terms of s. 4, which provides as follows:-

“A copy of an entry in a banker’s book shall not be received in evidence under this Act unless it be first proved that the

book was at the time of the making of the entry one of the ordinary books of the bank, and that the entry was made in

the usual and ordinary course of business, and that the book is in the custody or control of the bank.

Such proof may be given by a partner or officer of the bank, and may be given orally or by an affidavit sworn before any

commissioner or person authorised to take affidavits.”

21 It is very clear from the terms of the section, therefore, that the portion relied on by Mr. Beades in his written submission (“such

proof”) refers to the mode of proof of a “copy of an entry in a banker’s book”. The necessary proof is that the relevant book was at

the time of making of the entry one of the ordinary books of the bank, that the entry was made in the usual and ordinary course of

business and that the book is in the custody or control of the bank. On its face, therefore, s. 4 of the 1879 Act clearly deals with a

situation in which it is sought to adduce in evidence an entry in a book held by the bank. The section permits such a matter to be

proved by the production of a copy of the entry, but only where proof is provided by a partner or officer of the bank that the book is

one of the ordinary books of the bank and any entry made is made in the ordinary course of business.

22 The defendant here has not identified any particular entry in any book of the bank which it is sought to prove and rely on for the

purposes of the bank’s case and in respect of which he contends the form of proof required by s. 4 has not been complied with. It

seems to be assumed that the 1879 Act is a mandatory provision governing and limiting the manner in which evidence is given on

behalf of a bank or credit institution. The objection to the evidence of Ms. Tracey on this basis is, I consider, misconceived. This

might be sufficient to dispose of this aspect of the case, but it is perhaps desirable to consider the matter more broadly.

23 As pointed out by Laffoy J. in Ulster Bank Ireland Ltd. v. O’Brien [2015] IESC 96, [2015] 2 I.R. 656, the jurisdiction invoked in this

case is that conferred by O. 37, r. 1 RSC. Order 37, r. 1 permits a motion for liberty to enter final judgment to be brought which shall

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”. As Laffoy J.

observed at p. 663 of her judgment, it is clear on the wording of that rule that as regards proof of the claim, “an affidavit sworn by a

person other than the plaintiff who can swear positively to the relevant facts is sufficient”.

24 In that case, the objection raised was that the evidence of the deponent was hearsay, and that the requirements of sections 4

and 5 of the 1879 Act had not been complied with. Laffoy J. noted that the deponent had described her function at the bank as a

senior relationship manager with the global restructuring group, and stated that she had responsibility for the daily management of the

defendant’s loan facilities with the bank and had made the affidavit with the authority and consent of the bank from facts within her

own knowledge and a perusal of the bank’s books and records, and believed the same to be true and accurate. Laffoy J. considered,

and the other members of the court agreed, that those averments were sufficient to comply with the requirement of O. 37, r. 1. She

rejected the argument based on the 1879 Act, and distinguished the decisions relied on by the defendant (namely Criminal Assets

Bureau v. Hunt [2003] 2 I.R. 168, Ulster Bank Ireland Ltd. v. Dermody [2014] IEHC 140, (Unreported, High Court, O'Malley J., 7

March, 2014) and Bank of Scotland plc v. Stapleton [2012] IEHC 549, [2013] 3 I.R. 683), on the basis that they were of no relevance

to the outcome of the bank’s motion in this case, because “the bank did not have to take advantage of the [1879 Act] to establish

its entitlement to judgment in the sum claimed, because the bank put evidence before the High Court which was not contradicted,

which as I have found above, showed the plaintiff was entitled to summary judgment in that sum”.

25 In this case, of course, Ms. Tracey, at the time she swore her affidavit, was not an employee of the bank, but rather of Certus.

Nevertheless, the function of Certus was to manage the credit recovery business of the bank in Ireland, she had perused the books

and records of the bank in respect of Mr. Beades, and, moreover, was personally involved in the events set out in her affidavit. Order

37, r. 1 is itself authority that a person other than the plaintiff can give evidence sufficient to establish the plaintiff’s claim so long as

that person can, in the words of the order, “swear positively to the facts showing that the plaintiff is entitled to the relief claimed”.

On the evidence set out in Ms. Tracey’s affidavit, I am satisfied that she was a person in a position to do so under O. 37, r. 1 and,

accordingly, there was no valid objection to the sufficiency of evidence in this regard. The parallels between Ulster Bank Ireland Ltd.

v. O’Brien [2015] IESC 96, [2015] 2 I.R. 656 and this case are clear.

26 However, the matter does not rest there. In Promontoria (Arrow) Ltd. v. Burke [2018] IEHC 773, (Unreported, High Court,

Barniville J., 19 December 2018), Barniville J. in the High Court had to consider a large number of matters raised in defence to a claim

brought by the plaintiff company, Promontoria (Arrow) Ltd., against the defendants. One of the issues raised was the sufficiency of

the evidence in circumstances where the plaintiff had acquired the loan facility and related security in question from National Asset

Loan Management Ltd., which had obtained it in turn from the original lender, EBS Building Society. The relevant affidavits were sworn

by employees of Capita, a firm which at the relevant time performed loan administration services for Promontoria (Arrow) Ltd. under a

servicing agreement. Unlike the position in this case, none of the individuals had been involved in the dealings with the defendant.

The defendant sought to distinguish Ulster Bank Ireland Ltd. v. O’Brien [2015] IESC 96, [2015] 2 I.R. 656 on the basis that there had

been no denial of the underlying debt in that case, whereas in this case there were a number of issues raised denying the plaintiff’s

entitlement to recover. At para. 57 of his judgment, Barniville J. observed that the relevant deponent explained that she was an

employee of Capita which at the relevant time was the servicing agent for Promontoria (Arrow) Ltd. in respect of the administration of

loans including the loan in question, that she made the affidavit with the authority of Promontoria (Arrow) Ltd., and that she had

access to the computer records and other books and records of that firm relating to the accounts and alleged liability. Barniville J.

considered that it was arguable that this in itself might not be sufficient compliance with O.37, r. 1, but when combined with the

second reason which he had identified, it was sufficient to defeat the objection. The second reason was that the defendants did not

dispute the facility letters which were exhibited in the affidavits. Indeed, they accepted them for the purposes of contending that, if

there was an indebtedness, the proceedings were statute barred. Nor did they deny that received the loan from EBS Building Society.

The defendants’ acknowledgement that they received the monies was clear from the evidence of the defendants in response to the

plaintiff’s application.

27 Something very similar can be said in this case. Insomuch as the plaintiff’s affidavit raises any issue of fact, then, as already

observed, it is only on the basis that the loan agreements were in place and that monies had been drawn down under them. Thus it is

asserted that the bank was in financial difficulty, that it was unable to meet its contractual commitments under the loan agreements,

that the senior lending manager, John Walsh, who signed the loan offer of 27 July 2007 (which should be the 25 July of that year)

resigned after 27 years with the bank, and that the defendant experienced constant delays with regard to drawdowns of the

construction money. Furthermore, he alleged breach of condition 9 of the loan offer letter in relation to every drawdown request,

which provision required the borrower, that is, Mr. Beades, to give to the bank three days’ prior written notice. While this was in any

event an obligation on the borrower rather than the lender, it is a further illustration of the extent to which Mr. Beades implicitly

acknowledged the existence of the facility and drawdown by him. Furthermore, he refers to correspondence from him to an employee

of the bank including updated documents and a completion programme for the proposed development which he contends met with no

meaningful response, culminating in a contention that the bank breached “its contract and duty of care to me”, and, later, that the

bank “failed to fulfil its legal obligations to me as set out in the loan offer letters”. As set out above, the submissions made on the

hearing of this appeal were in similar, if not indeed more forceful, terms.

28 In the circumstances, the contention that there is no admissible evidence of the arrangements between the bank, its predecessor,

and the defendant, or of indebtedness by the defendant to the bank, is misconceived. The positions of Ms. Tracey and Ms. Wrightson

and the evidence they gave of their involvement and knowledge of the dealings between the bank and Mr. Beades, meant that their

evidence was consistent with what was outlined in Ulster Bank Ireland Ltd. v. O’Brien [2015] IESC 96, [2015] 2 I.R. 656, and allowed

them to state of their own knowledge as to the fact of the indebtedness of Mr. Beades and the amount of that indebtedness. Where

there is no denial or contest as to the facts, this is sufficient evidence to justify judgment. However, it should be said that in some

cases there may not be witnesses who can give such direct evidence, or there may be cases where, by virtue of the nature of the

claim, or matters raised in defence, it may become necessary to adduce evidence of books or statements of the bank. The decision of

the House of Lords in Myers v. Director of Public Prosecutions [1965] A.C. 1001 was almost immediately reversed by statute in the

United Kingdom but has had much greater staying power in Ireland, although its effects are almost always unhelpful to the fair

resolution of cases. A somewhat strange position has been reached in Ireland where the decision has been abrogated by statute in

respect of criminal proceedings (see s. 5 of the Criminal Evidence Act 1992), but not in civil proceedings. It is surely desirable that

the question should be addressed in the context of civil proceedings generally and modern practices and technology, and not merely

where questions under the 1879 Act arise in respect of claims made against financial institutions. In this regard the recommendations

contained in the Law Reform Commission’s report on consolidation and reform of aspects of the law of evidence (L.R.C. 117-2016) are

pertinent.

Letter of demand

29 In the written submissions delivered in respect of this appeal, the defendant stated that “I have always maintained I did not

receive any demand letter which the bank claimed was delivered and have produced DHL paperwork for the alleged delivery address

30 Richmond Ave”. There follows a submission contending that “for the purposes of clarity, my addresses on Richmond Ave are 21, 23

& 31. There is no number 30 Richmond Ave. The new Eircode register system has no [E]ircode number for number 30 Richmond Ave

Fairview”. Furthermore, the defendant contends that it is clear that his address was changed by Caoimhe Tracey of Certus and then

used in correspondence by Bank of Scotland plc, and was eventually the address that the alleged demand letter was sent to. It is

also contended that the alleged change of address was without his approval or authority and was, accordingly, a breach of the bank’s

general conditions.

30 Although issues were raised in the High Court in relation to service of the demand, it appears that the point which is now made

was not made in the High Court, at least in this form. As appears from the submissions quoted, it now appears to be asserted that

the purported delivery of the demand was to “an address that does not exist” and, furthermore, that the address was wrongfully

changed by Certus. However, a letter of 3 October 2011 from the bank to Mr. Beades, exhibited to Caoimhe Tracey’s affidavit, states,

“[a]s authorised by you at the meeting with Certus on the 29th June 2011, all correspondence in relation to your loan facilities are to

be sent to the above address of 30 Richmond Avenue, Fairview, Dublin 3”. Furthermore, in the sworn affidavit delivered by Mr. Beades

in the High Court proceedings, the complaint made was that service had not been made to his address. Paragraph 28 of the affidavit

states as follows:-

“I say and confirm that no request or demands were served or delivered to my confirmer address with [Bank of Scotland

(Ireland) Ltd.] of 30 Richmond Ave, Fairview. I further say that no proof of registered letter has been produced or of

personal service of said demands.”

31 It seems clear that the address of 30 Richmond Avenue which Mr. Beades now says is an address that does not exist was an

address specified by him as the address to which correspondence should be sent. In addition to these manifest difficulties, the

argument now raised faces the further problem that it has not been established why proof of service of a demand is a necessary

proof in order to obtain judgment in this case. On its face, this is not a case where facilities were extended to a borrower terminable

only on demand being made. Instead, in each case the relevant loan facility was a term loan and repayment was to be made at the

end of the facility term. Again, Mr. Beades has not explained why evidence of delivery of a letter of demand is a necessary proof in

this case.

Affidavit

32 The written submissions also seem to maintain a complaint about the swearing of the affidavit by Clare Wrightson. It is stated in

the written submissions that “I should point out and except [sic] now, that Jack Sheehy was indeed a practising solicitor in Ireland at

the time Ms. Wrightson’s affidavit was sworn. It was sworn outside the jurisdiction and in a jurisdiction which actually he was not a

registered practising solicitor. Mr. Sheehy was a member of the firm A&L Goodbody branch in the UK, their main office was in Ireland

and they acted for the plaintiffs. Members of a firm are prohibited from swearing their client’s affidavits”.

33 It now appears to be accepted by Mr. Beades that his allegation of fraud in the swearing of the affidavit was itself false. In those

circumstances, the allegation, made on oath, ought to have been withdrawn much more explicitly than by the mere acceptance that

Mr. Sheehy was a practising solicitor in Ireland. No evidence is advanced in respect of the new allegation made by him, nor does it

appear to be correct to assert that A&L Goodbody acted for the plaintiff. They are certainly not the firm acting for the plaintiff in

these proceedings. In oral submissions, Mr. Beades asserted that the firm was involved in the incorporation of Certus, although no

evidence was adduced in that regard. No argument has been advanced as to the legal consequences, if any, of that fact (if it be

one) or that the affidavit was sworn in England before an Irish solicitor. In any event, O. 40, r. 15 RSC provides that “the court may

receive any affidavit sworn for the purpose of being used in any cause or matter notwithstanding any defect by misdescription of

parties or otherwise in the title or jurat, or any other irregularity in the form thereof…”. Mr. Beades has not sought to explain why this

provision would not itself be a complete answer to any irregularity in the manner of swearing of the affidavit, even if such an

irregularity were established. Finally, there remains the fact that evidence was given by Ms. Tracey from her personal knowledge as

to Mr. Beades’s indebtedness, which is not in any way dependent on the evidence of Ms. Wrightson, or the swearing of her affidavit.

This only emphasises the distance between the matters raised on this appeal and the substance and merits of the claim.

Conclusion

34 I would dismiss the appeal.