High Court grants summary judgment to creditor against guarantor for capped debt despite defendant's procedural and factual defenses.

THE HIGH COURT [2025] IEHC 740 Record No. 2019/1277 S BETWEEN CREDEBT EXCHANGE LIMITED PLAINTIFF

- AND -

PHILIP DORAN DEFENDANT

EX TEMPORE RULING of Ms. Justice Siobhán Phelan, delivered on the 15th day of December, 2025

INTRODUCTION

1. This matter comes before me as an application for liberty to enter final judgment in summary proceedings in reliance on a guarantee and indemnity which the Defendant allegedly provided in respect of indebtedness of a company, Rap Fast Limited (hereinafter “the Company”), to the Plaintiff. The Defendant is a litigant in person.

2. In summary, the Plaintiff sues on foot of a personal guarantee signed by the Defendant on the 16th of February, 2017, in which liability was capped at €300,000. The Plaintiff claims the Company owed €1,009,650.82 to it as of March, 2018, but advances its entitlement to summary judgment with reference to the principal sum traded, namely €898,319.68, to avoid necessity to engage with technical and complex interest and sellrate calculations.

3. The Defendant disputes the figures relied upon by the Plaintiff and argues, inter alia, that the Plaintiff’s figures are inaccurate, the Plaintiff improperly caused the business of the Company to implode by appointing a receiver prematurely and the Plaintiff is not entitled to summary judgment by reason of delay. The Defendant also contends that the application should not be permitted to proceed having been struck out for nonappearance and reinstated later that same day on the return date on the Motion.

BACKGROUND AND CHRONOLOGY

4. The following pre-litigation chronology emerges from the papers in this case:

06 May 2016 A Master Agreement was executed between Plaintiff and the Company under which agreement the Plaintiff advanced finance facilities to the Company. In summary, under the terms of the Master Agreement, the Plaintiff financed the supply of raw materials (for onward manufacturing of shrink wrap to the Company), essentially acting a re-seller on agreed terms, with the raw materials being delivered directly to the Company by the supplier, paid for by the Plaintiff and then invoiced by the Plaintiff to the Company. Once the product was manufactured and sold, under the terms of the Master Agreement between the Plaintiff and the Company, the purchase price received in respect of the manufactured product was paid to the Plaintiff with the proceeds of sale being applied first in satisfaction of the sums owing to the Plaintiff and the balance being paid to the Company.

01 Nov 2016 First Debenture granted by the Company to the Plaintiff.

27 Jan 2017 The Defendant (Philip Doran) contacts Plaintiff re: trade transaction in process and it was confirmed the Company owed approximately €470,000.

30 Jan 2017 In correspondence with the Defendant it was confirmed that the Company owed €470,000 as at that date.

15 Feb 2017 The Defendant communicated with the Plaintiff by letter concerning a potential personal guaranteed for the debts of the Company.

16 Feb 2017 Personal Guarantee & Indemnity signed by Defendant (limit €300,000) in respect of Company’s indebtedness. The Guarantee and Indemnity as executed by the Defendant defined “Guaranteed Obligations” as:

“…all monies, obligations and liabilities (including, without limitation in respect of principal, interest, discount commission, fees and expenses, which now are or at any time in the future may be or become due, owing or incurred by the Originator [i.e. Rap Fast Limited] to Credebt Exchange pursuant to the Repayment Agreement and where the context so permits any reference to the “Guaranteed Obligations” includes a reference to any of them; the Guaranteed Obligations will not exceed EUR300,000

Under the terms of the Guarantee and Indemnity (Clause 2.1.1) executed by the Defendant he agreed he:

“irrevocably and unconditionally guarantees to Credebt Exchange, forthwith upon written demand being made by Credebt Exchange (the due and punctual, payment, observance, performance and discharge of, and undertakes to pay or discharge, all of the Guaranteed Obligations;”

He further agreed (Clause 2.5):

“In the event that the Guarantor fails to make any payment due under this Guarantee and Indemnity (the "Liquidated Sum”), the-Guarantor consents to judgment·being registered against him in respect of the Liquidated Sum.”

In addition, it was agreed (Clause 4.12) that:

“The parties acknowledge that they have been afforded the opportunity to take Independent legal advice on the terms of this Agreement prior to entering into it. Each party further acknowledges that it understands the effect and implications of this Agreement and that it has entered Into this Agreement without any coercion of any description.”

20 Mar 2017 Second Debenture executed by the Company in favour of Plaintiff.

27 Apr 2017 Receiver appointed over the Company’s assets under Debentures.

15 Mar 2018 Demand letter issued by Plaintiff to Company directors for €1,009,650.82. In this letter it was stated:

“We refer to the Loan Agreements. Terms defined in the Loan Agreements shall have the same meaning where used in this letter.

We refer also to the facilities made available to you thereunder (the "Facilities").

We refer also to the security and guarantees (the "Security")

provided and relied upon under and in connection with the Loan Agreements, which Security has been provided to Credebt Exchange Limited (the "Secured Lender") in respect of all sums due and owing from time to time from you to the Secured Lender, including, without limitation, all amounts owing under the Loan Agreements.

We hereby notify you that an Event of Default has occurred under clause 8.1(a) of the Loan Agreements.

At the close of business on 2018-03-15, the aggregate sum of €1,009,650.82 (one million and nine thousand six hundred and fifty Euro eightytwo cents representing the principal sum of €

886,327.33 together with interest of €123,323.00 was due to the Secured Lender under the Loan Agreements.

We hereby notify you that we are demanding payment forthwith from you of the sum of €1,009,650.82 (one million and nine thousand six hundred and fifty Euro eighty-two cents and all interest thereon to the date of payment of the said sum in full at the rates provided for in the Loan Agreements. Interest is presently accruing at the rate of per day in aggregate.

We hereby give you notice that if such monies and interest are not paid and received by us forthwith, we may exercise all or any of our rights, including without prejudice, our rights to enforce the Security (including without limitation, the personal guarantee of Philip Doran dated 16th Day of February 2017 in respect of the obligations owing by you to the Secured Lender), and appoint a receiver, without giving you further notice or warning, and further, we hereby demand payment of all costs, claims, charges damages, expenses or losses incurred by the Secured Lender whether in making this demand or otherwise.”

23 Mar 2018 In response to the letter of demand, the Company disputed Plaintiff’s figures in writing stating:

“Your position of withholding all funds lodged into our account in Credebt caused the implosion of our business.”

24 Apr 2018 The Plaintiff wrote to the Defendant with reference to his Guarantee and Indemnity stating:

“We hereby notify you that an Event of Default has occurred under the Loan Agreements including, without limitation, pursuant to Clause 8.1(a) thereof.

At the close of business on 15 March 2018 the aggregate sum of EUR1,009.650.82 (one million, nine thousand, six hundred and fifty euro and eighty-two cent) representing the principal sum of EUR886,327.33 together with interest of EUR123,323.00 was due to Credebt Exchange under the Loan Agreements.

On 15 March 2018 we demanded from Rap Fast the sum of EUR1,009,650.82 (one million, nine thousand, six hundred and fifty euro and eighty two cent) and this amount has not been paid.

In accordance with the limited recourse provisions contained in the Guarantee, we hereby notify you that we are demanding payment forthwith from you of the sum of EUR300,000 (three hundred thousand euro).

We hereby give you notice that if such monies and interest are not paid and received by us forthwith, we may exercise all or any of our rights, including without prejudice, our rights to enforce the Security and appoint a receiver, without giving you further notice or warning, and further, we hereby demand payment of all costs, claims, charges damages, expenses or losses incurred by Credebt Exchange whether in making this demand or otherwise.”

26 Apr 2018 Arthur Cox Solicitors, for the Plaintiff, rejected the Company’s dispute of indebtedness and provided reconciliation data including emails from the Company’s own accountant showing the total value of c-ETRs traded and booked in the accounts of the Company from 10th October until 21st of June, 2017 as being a sum of in excess of €2,700,000. A statement was enclosed with this letter and referred to the Plaintiff’s online portal which provides access to reports on transactions. In the letter it was confirmed:

“Pursuant to its rights under Clause 6.19 of the Master Agreement, our client applied all payments, reserves and deposits received in reduction of the liabilities owing to it by Rap Fast pursuant to the Loan Agreements. Accordingly, as is shown in the statement attached at Appendix 3, the sums demanded of you by Credebt on

15 March 2018 represent the net amounts owing after those funds have been lawfully applied against the debt owing under the Loan Agreements.”

The letter continued to state:

“Pursuant to the Master Agreement, Rap Fast was accepted as a member of the Exchange and Credebt agreed to acquire and on supply to Rap Fast certain raw materials required to manufacture its products. Rap Past's liability to Credebt with respect to the supply of those raw materials was reflected in the ten11S of the Loan Agreements. It was further agreed that, following the supply of the finished product to its customers, each of the receivables owing by them to Rap Past's would be traded on the Exchange and the proceeds of sale would be applied against the debt owing to Credebt under the Loan Agreements. However, Rap Fast acted in flagrant breach of its obligations to Credebt under the Master Agreement by failing to sell those receivables on the Exchange, and this has directly resulted in its inability to discharge the debt that is due and owing to Credebt.

Credebt Exchange has exercised considerable forbearance with respect to its entitlements under the Loan Agreements and associated security documents over the last number of months in circumstances where the debt largely fell due in from January 2017 to July 2017. During that period, Rap Fast has made no meaningful attempt to engage with Credebt Exchange with respect to its debts, and has failed to make any acceptable proposal with respect to how those debts will be discharged.

We are instructed to confirm that Credebt Exchange has now made the decision, following your failure to make payment on foot of its demand of 15 March 2018, to proceed immediately to exercise its rights under the relevant debentures to appoint a receiver and manager over all of the business, assets and undertaking of Rap Fast so that any remaining value can be realised and applied against the secured debt owing under the Loan Agreements. We are further instructed that the receiver and manager, once appointed, will be in touch, with Rap Fast and its directors directly to request their co-operation with respect to the perfom1ance of his duties as is required under the Companies Act 2014, and we trust that such co-operation will be forthcoming.”

15 March 2019 Solicitors for the Plaintiff demanded repayment from the Defendant of the sums due and owing pursuant to the Debentures and the Guarantee and Indemnity. The total amount specified in the Letter of Demand to be due and owing as of the 14th of March, 2019 was €300,000.

5. By summary summons issued on the 21st of November, 2019, the Plaintiff sued the Defendant on foot of a guarantee and indemnity which it was claimed had been provided by the Defendant in consideration for the Plaintiff entering into a repayment agreement with the Company on the 3rd of January, 2017. As pleaded, the repayment agreement was in respect of indebtedness secured by dentures entered into by the Company on the 1st of November, 2016 and the 20th of March, 2017.

6. By the terms of the Indemnity and Guarantee, the Plaintiff claimed that the Defendant had irrevocably and unconditionally agreed to guarantee to the Plaintiff, forthwith upon written demand being made by the Plaintiff, the due and punctual payment, observance, performance and discharge of, and undertakes to pay or discharge, all of the Guaranteed Obligations.

7. As pleaded in the summary summons, it is the Plaintiff’s case that by the terms of the Guarantee and Indemnity executed, the Defendant covenanted to guarantee the obligations of the Company to the Plaintiff subject to a monetary limit of €300,000. It is further pleaded that by Deed of Appointment made on the 27th of April, 2018, one Micheál Leydon was appointed as receiver and manager of certain charged assets of the Company by the Plaintiff pursuant to the debentures. It is pleaded that the Plaintiff has been unable to recover any sums due and owing from the Company pursuant to the Debenture and in consequence, by letter dated the 14th of March, 2019, solicitors for the Plaintiff wrote demanding repayment from the Defendant.

8. The total amount due and owing by the Defendant to the Plaintiff as of March, 2019, was said to be €300,000, being the monetary limit of the guarantee in circumstances where the total amount due by the Company (in receivership) was in excess if €1,100,000.

9. The Defendant entered an appearance in person which was filed in the Central Office on the 8th of January, 2020.

10. Thereafter, no further steps were taken in the proceedings, other than the filing of a Notice of Intention to Proceed on the 16th of April, 2021, until a Notice of Motion issued on the 3rd of January, 2024, seeking liberty to enter final judgment in the sum of €300,000.00 against the Defendant. This application was grounded on the affidavit of Sharon Lynch, Treasury Manager with the Plaintiff, sworn on the 19th of December, 2023, but filed on the 3rd of January, 2024.

11. In her grounding affidavit, Ms. Lynch expressly sets out monies owing on foot of the face value of the trades and the face value of settled amounts without application of the sell rate or any other interest entitlements (reserving the Plaintiff’s position in this regard in respect of any further action) as against the Defendant and confirmed that the total outstanding on this basis was €898,319.68. Having exhibited a full statement of the “Rap-Fast b-ETR – Trading”, the sums claimed were depicted in tabular format in Ms. Lynch’s affidavit as follows:

Total Traded 2,705,121.38 Total Paid 1,806,801.70 Total Outstanding 898,319.68

12. She further confirmed that in addition to the Guarantee and Indemnity executed by the Defendant in November, 2016, the company had also entered into a further denture in March, 2017, whereby it had granted to the Plaintiff, inter alia, fixed security over certain assets owned by it resulting in the appointment of a receiver of certain charged assets by the Plaintiff consequent upon a claimed significant default by the company of its obligations pursuant to its Master Agreement.

13. The application for liberty to enter final judgment was not preceded by a further Notice of Intention to Proceed, despite the passage of more than two years from the previous Notice of Intention to Proceed.

14. A Notice of Change of Solicitors was filed on the 7th of February, 2024, followed at this stage by the filing of a further Notice of Intention to Proceed dated the 14 th of April, 2024.

15. A document bearing a title of “Affidavit of Philip Doran” dated the 24th of May, 2024, included in the Book of Pleadings, appears not to have been filed but no objection was taken to it being put before me and the Plaintiff included it in its Book of Pleadings.

16. In this document, the Defendant asserted a breach of his right to fair procedures referable to a lack of adequate time to respond to matters raised. He invoked a right to legal certainty and a legitimate expectation that legal matters will be resolved conclusively such that when the matter was struck out, he was entitled to rely on a belief that it was closed. He invoked the Court’s jurisdiction to guard against an abuse of process where litigation was vexatious or was established as constituting harassment.

He put the Plaintiff on proof that a default on the loan to the Company had occurred, disputing that they had done so in these proceedings. He further referred to a:

“multitude of discrepancies present in Credebt's claims. The former directors claim that none of the amounts claimed by the plaintiff were accurate or agreed upon, and that the plaintiffs billing methods were constantly in dispute despite many meetings between the parties involved. These discrepancies cast doubt on the validity and accuracy of Credebt's demand for payment under the personal guarantee. It is my understanding that it is critical for lenders to provide accurate and reliable evidence in support of their claims.”

17. He exhibited no documentation recording his requests to the Company and their response in respect of documents or witnesses nor did he identify any particular discrepancy in this regard. Finally, he referred to delay stating:

“the significant passage of time since the inception of this dispute has rendered it exceedingly difficult, if not impossible, to effectively resolve the myriad of claims and counterclaims between the parties. It is widely recognised that the challenges posed by prolonged legal disputes emphasize the need for timely resolution to ensure justice. Given the abundance of claimed discrepancies and the protracted nature of this dispute, there exists a substantial risk of a miscarriage of justice in this matter. The subjectivity inherent in attempting to ascertain a fair and equitable outcome poses a grave concern for the integrity of the legal process. This is important in safeguarding against miscarriages of justice in legal proceedings.”

18. Despite the fact that the document described as the Defendant’s Affidavit had not been filed, a replying Affidavit thereto was sworn by one Mr. Neil Byrne, Operational Manager with the Plaintiff on the 18th of November, 2024. He addressed in detail what had occurred in the Master’s Court on the 7th of March 2024 when the application was struck out for non-appearance as counsel for the Plaintiff was detained in another court. Upon his arrival in court, the Deputy Master informed the Plaintiff’s Counsel, that the Plaintiff’s application had been conditionally struck out unless counsel, the plaintiff, or a representative appeared in court before the end of the day with an application to reinstate. It was confirmed that the Defendant attended in court on the adjourned date and raised concerns about the reinstatement in his absence and indicated his intention to defend the proceedings and submit a replying affidavit. He cited the need for additional time to gather witness evidence. On that date, the Deputy Master granted the Defendant until 1st of July, 2024, to submit his replying affidavit and adjourned the matter for hearing to 16 July 2024.

19. Full particulars of the sums claimed as due were set out in the said affidavit.

20. By affidavit sworn and filed on the 11th of February, 2025, the Defendant replied to dispute the amounts claimed, in essence contending that the Plaintiff had forced closure of an otherwise viable business thereby creating a financial crisis which led to circumstances which caused the guarantee to become enforceable. It was further contended that delay in pursuing the action meant that business records and members of the management team were no longer available or accessible respectively, prejudicing the Defendant’s ability to challenge the claims made. Bad faith is alleged against the Plaintiff on the basis of the Defendant’s claim that they ignored disputes regarding the accuracy of their claims and took unjustified foreclosure action against a viable and profitable business and waited an excessive period before pursuing the claim.

21. Once the exchange of affidavits had completed, the matter was transferred to the Non- Jury/Judicial Review list and was listed for hearing on the 11th of December, 2025, on the 30th of April, 2025, at which point directions were made regarding the delivery of written submissions by the Defendant, if any.

22. In subsequent undated correspondence, the Defendant has raised issues in relation to the Statute of Limitations asserting that the claim is statute barred. He has also asserted wrongful impairment of the underlying security on the basis of his “understanding” that the assets of the company’s secured property, with a fair market value of €500,000.00 had been disposed of by the Receiver for less than €50,000, reiterating a dispute regarding the underlying debt asserting “substantial irregularities and miscalculations in the amounts claim by the invoice discounter at the time of receivership” and prejudice by reason of delay. In addition, he has requested a certified copy of the Personal Guarantee relied upon, the Receiver’s full report of asset disposals (although he has already deposed to the fact that the disposals were for less than €50,000), including valuations, marketing efforts, bids received, a full statement of account and copies of all demands, correspondence and notices allegedly sent to the Defendant, as guarantor.

23. No response to this correspondence is exhibited.

APPLICABLE LEGAL PRINCIPLES

24. The law in this area has recently been synopsised in Digan v. O’Brien [2025] IEHC 23 (Barr J.). As identified in that decision, the relevant test in an application of this nature was set down by the Supreme Court in First National Commercial Bank v. Anglin [1996] IESC 1, [1996] 1 I.R. 75. In that case, Murphy J, giving the judgment of the court, endorsed the following test laid down in Banque de Paris v. DeNaray [1984] 1 Lloyd’s Law Rep 21, which had been referred to in the judgment of the President of the High Court and reaffirmed in National Westminster Bank PLC v. Daniel [1993] 1 WLR 1453:-

“The mere assertion in an affidavit of a given situation which was to be the basis of a defence did not of itself provide leave to defend; the Court had to look at the whole situation to see whether the defendant had satisfied the Court that there was a fair or reasonable probability of the defendants having a real or bona fide defence.”

25. The appropriate test was more recently set out in Aer Rianta CPT v. Ryanair Limited [2001] 4 I.R. 607 in which case Hardiman J. stated as follows at page 623:-

“In my view the fundamental questions to be posed on an application such as this remain: is it ‘very clear’ that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendants affidavits fail to disclose even an arguable case?”

26. In Harrisrange Limited v Duncan [2002] IEHC 14, [2003] 4 I.R. 1, McKechnie J., having analysed the relevant case law, set out a helpful summary of the relevant principles.

27. More recently, in Feniton Property Finance DAC v. McCool [2022] IECA 217, the Court of Appeal noted with regard to the test to apply to an application for summary judgment that:

“the fundamental question to be addressed is whether there is a fair and reasonable probability of the defendant having a real bona fide defence, in law, on the facts or both”.

28. In Feniton, the Court of Appeal (Murray J.) confirmed that in addressing this question the court must proceed with caution stating (at para. 11):

“At the same time, while the court must be cautious in granting summary judgment, and while the requirement that a defendant establish a fair and reasonable probability of the defendant having a defence is a relatively low threshold, it is a threshold: it is neither in the public interest nor in the interests of the parties that straightforward claims for a debt or liquidated demands should require to be determined by plenary hearing, with the additional delay and cost that such a hearing involves and the additional burden thereby placed on the resources of the courts (see Promontoria (Aran) Ltd. v. Burns [2020] IECA 87 (‘Burns’ at para. 4). The defendant must, accordingly, lay a basis on which the court can conclude that there is in truth an issue to be tried, and that that issue is neither simple nor capable of being easily determined (see Prendergast v. Biddle, Unreported, Supreme Court, 31 July 1957). Thus, in IBRC Ltd. v. McCaughey [2014] 1 IR 749, Clarke J. (as he then was) stated that the type of factual assertions which may not provide an arguable defence are those that amount to a mere assertion unsupported either by evidence or by any realistic suggestion that evidence may be available, or which comprise facts which are in and of themselves inconsistent or contradictory.”

29. The approach which the court should take to an application such as this is now well settled in law. In particular, the court should not accord substantive relief to defendants in summary judgment motions who raise spurious, fanciful or conjectural contentions to resist judgment, must be alert to defendants who seek merely to defer the evil day based on arguments that “do not pass muster, and must remain mindful of the de minimis rule in assessing summary judgment applications” (per Barr J. in Digan at para. 23 referencing the dicta of Moriarty J. in Allied Irish Banks v. Killoran [2015] IEHC 850).

30. As for delay, the Supreme Court has offered recent guidance in its recent decision in Kirwan v. Connors & Ors [2025] IESC 26 in relation to the circumstances in which the Court will dismiss proceedings for want of prosecution. In his judgment in which he draws together the ratio of the majority judgments, O’Donnell C.J. identifies the type of delay which may warrant dismissal. From his synthesis of the judgments of the Court the approach now endorsed by the Supreme Court is that generally, where a delay is up to 2 years, a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under O’Domhnaill principles.

31. Although after 2 years, a claim may be dismissed for want of prosecution, to secure a dismissal order the Plaintiff should be able to point to additional prejudice or other factor. If a court does not dismiss the claim in circumstances of inactivity exceeding 2 years, it is entitled to make strict case management directions. O’Donnell C.J. in his judgment in Kirwan counsels a stricter approach where there has been 4 years of inactivity. In such circumstances, the claim should be dismissed if it is dependent on oral evidence - unless the plaintiff persuades the court otherwise.

32. Finally, where there has been a cumulative period of complete inactivity for more than five years, the Supreme Court endorses a generous power to dismiss and the court in exercising its inherent jurisdiction should feel free to dismiss the proceedings unless

satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial.

33. Applying Kirwan in Doyle v. The Commissioner of An Garda Síochána & Ors. [2025] IEHC 591, Dignam J. found (at para. 124 of his judgment) that the test in Kirwan imposes a general rule that there must be a two year period of inactivity immediately prior to the application to dismiss for want of prosecution, although this is not absolute and there may be exceptional circumstances in which a shorter period may be sufficient to engage the jurisdiction and, when taken with the overall progress of the case, to warrant an Order dismissing the proceedings.

DISCUSSION AND DECISION

34. The Plaintiff exhibits the signed Guarantee and Indemnity executed by the Defendant in its favour on the 16th of February, 2017. Under its terms, the Defendant irrevocably and unconditionally agreed to guarantee the due and punctual payment, observance, performance, and discharge of all “Guaranteed Obligations” of the Company to the Plaintiff and to indemnity the Plaintiff against any losses, costs, or expenses arising from the Company’s failure to fulfil those obligations or from illegality/unenforceability of any obligations.

35. As noted above, the guaranteed obligations are defined as all monies, obligations and liabilities (including, without limitation, in respect of principal, interest, discount commission, fees and expenses) which “now are or at any time in the future may be or become due, owing or incurred by Rap Fast Limited to Credebt Exchange pursuant to the Repayment Agreement.”

36. The Guarantee was executed in consideration of the Plaintiff entering into a Repayment Agreement with the Company. By entering into the Guarantee, the Defendant consented to judgment being registered against him in respect of the liquidated sum if payment was not made. None of these facts are disputed. It is manifestly clear that the Defendant is legally bound by the Guarantee he knowingly entered into in respect of the Company’s indebtedness to the Plaintiff in the event of default.

37. Nor is it disputed that an event of default occurred and that a demand letter issued by the Plaintiff to Company directors in March, 2018, for €1,009,650.82. Furthermore, there is no suggestion that any of this indebtedness has been reduced other than by the amount the Defendant claims was achieved by the receiver of less than €50,000.00 on the sale of Company assets in receivership. It bears note that even had the receiver realised the valuation which the Defendant contends for (€500,000.00) on the basis of a bare assertion, this would still not have been enough to save the Defendant from exposure to full liability on his Guarantee as there would, in any event, have been a sum in excess of €300,000.00 due and owing to the Plaintiff from the Company.

38. Although the claim made has been fully particularised, the Defendant suggests that the computations are wrong. In making this claim, however, the Defendant has not identified any specific discrepancy in the Plaintiff’s calculations. Indeed, such correspondence as was available in evidence from an accountant on behalf of the Company in communication with the Plaintiff for reconciliation purposes does not suggest any significant or material errors in the Plaintiff’s computations. In any event, by presenting the claim with reference to the actual money advanced by the Plaintiff in respect of product supplied to the Company and excluding sums due arising from the sell rate or contractual interest due under the Master Agreement, the Plaintiff has rendered the computation exercise straightforward and uncomplicated.

39. When regard is had to the very significant disparity between the limit on the Guarantee and the extent of the Company’s indebtedness, no arguable basis for contending that the Company’s indebtedness has been reduced below the €300,000.00 limit of the Defendant’s personal guarantee is demonstrated.

40. A demand letter dated the 14th of March, 2019, sought €300,000 (the guarantee limit)

from the Defendant. It is not disputed that he has not paid this sum or any amount under the Guarantee. The Defendant’s only response to this is that he is unable to pay the sums and judgment in these proceedings will not be executed. In view of the established indebtedness of the Company, the undisputed evidence of the issue of a demand letter and the accepted fact that no sums have been paid by the Defendant on foot of the Guarantee, the Plaintiff has demonstrated a proper basis for the grant of summary judgment.

41. While the Defendant alleges prejudice in the defence of the action because he does not have documents or witnesses available to him by reason of the passage of time, no correspondence is exhibited seeking to ascertain the availability of documentary records or witnesses. No particulars are given of documents which might have been available but were no longer available. The Defendant has done nothing to substantiate in any way his claim of prejudice.

42. Similarly, the members of the management team who are no longer accessible were not identified and it is unclear on what basis it is contended they are no longer “accessible”.

43. When it was pointed out to Defendant that he had adduced no evidence in support of his contentions, he replied that he did not understand that he needed to. The Defendant was somewhat inconsistent in this regard on the one hand claiming that witnesses were not accessible whilst on the other hand stating that had he understood the need to substantiate the basis for his contended for defence, he could have produced witness evidence. Explaining that he could not afford legal representation, he claimed that he was unaware of an entitlement to seek legal aid, subject to a means and merits test.

44. In circumstances where the Defendant has pursued litigation in person all the way to the Supreme Court in other proceedings (see Stapleton v. Doran [2019] IESC 19) and has sought time in these proceedings to gather evidence and swear affidavits, his asserted ignorance of what was required of him in establishing an arguable defence to resist summary judgment in these proceedings is not plausible. I am quite satisfied that he has had every opportunity to provide an evidential basis for any defence that could potentially be available to him.

45. The issue of the Statute of Limitations raised by the Defendant appears to reflect a fundamental misunderstanding as to the operation of the statute and no appreciation of the fact that time ceases to run once proceedings have been properly instituted. It is clear that no issue under the Statute of Limitations arises by way of defence to these proceedings.

46. While the Defendant has made various other assertions including allegations bad faith and asserted wrongful impairment of the underlying security based on his “understanding” that the assets of the Company’s secured property, with a fair market value of €500,000.00 had been disposed of by the Receiver for less than €50,000.00, are not substantiated in any way beyond bare, vague assertion. It is telling that there is no evidence has been adduced that either the Company or the Defendant are pursuing the Receiver for any alleged wrongful impairment of security.

47. As for delay, it is true that these proceedings, having issued in 2019, were not pursued with any proper dispatch. The only activity in the proceedings following the entry of an appearance in January, 2020 and before the bringing of the Motion for Judgment in January, 2024, was the filing of a Notice of Intention to Proceed.

48. The Plaintiff seeks to excuse the level of inactivity with reference to the fact that summary judgment proceedings generally were adjourned for almost two years during this time because of Covid19 through assertion of counsel on his feet. It is acknowledged on behalf of the Plaintiff that there was a delay during 2023, but it is contended that this was not inordinate given the need for the Plaintiff to consider whether to pursue these proceedings in the light of contentions made as to the Defendant’s inability to meet any judgment against him.

49. It is further pointed out that once the application was brought in 2024 that delays thereafter were occasioned by the fact that the Defendant required longer adjournments for the purpose of preparing replying affidavits because of absences from the jurisdiction.

50. Although a delay since the filing of an appearance in 2020 of almost four years, if the filing of a Notice of Intention to proceed is discounted and some two years otherwise, before proceeding by way of motion for summary judgment is inordinate, the Defendant has not made application to dismiss these proceedings for want of prosecution. Instead, the Defendant only raises delay as an issue now that the proceedings have become very active and notably, he has not proceeded by motion seeking to strike out proceedings for want of prosecution.

51. In circumstances where there has been considerable activity in the case since January, 2024, I am satisfied that there would be no reality now to the Defendant succeeding on a motion to dismiss at this time simply by reason of the length of inactivity not least because he could not establish a requisite lengthy period of activity which would entitle him to bring a dismissal application as at the date of the application for summary judgment came before the Court for hearing. As observed by Dignam J. in Doyle, it would be (para. 120):

“illogical and unfair to a plaintiff for a defendant to be able to allow the plaintiff to take steps in the proceedings and, indeed, perhaps to take steps itself, and, in the absence of any fresh period of inactivity, to be entitled to an Order dismissing the proceedings solely on the basis of a period or periods of inactivity at some point earlier in the proceedings. It therefore seems to me that the application must be immediately preceded by a period of inactivity.”

52. It is also significant that the Defendant has not sought to support in evidence, beyond bare assertion, in what way he considers he has been prejudiced by delay given that this is classically a documents case which turns on the establishment of simple facts: money secured by personal guarantee is owed to the Plaintiff who has unsuccessfully sought to call in the guarantee from the Defendant.

53. The claim that the Defendant’s right to fair procedures was breached when the case against him was reinstated having been struck out for non-attendance of counsel is untenable. No unfairness to the Defendant arose through the reinstatement of the application on the same day it was struck out. The Defendant was afforded time to put in any replying affidavit he wished. The account outlined on affidavit of what transpired when the matter was struck out as relayed by the Deputy Master is entirely consistent with a practitioner’s experience of a not infrequent occurrence in Court. I do not accept that the Defendant could have been left with any false impression that the proceedings were at an end. I am satisfied that he was fully aware of the possibility that proceedings would be reinstated. His assertions to the contrary are wholly implausible and he does not engage on affidavit with the account of the Deputy Master’s report to the Plaintiff’s legal representatives.

54. I am satisfied that the points of defence identified by the Defendant are spurious, fanciful or conjectural contentions conjured up to resist judgment. He has not met the low threshold of demonstrating a fair and reasonable probability of having any defence to these proceedings. It seems to me that this is precisely the type of case which it was intended should be excluded by the threshold as explained in Feniton.

55. It is neither in the public interest nor in the interests of the parties that straightforward claims for a debt or liquidated demands should require to be determined by plenary hearing, with the additional delay and cost that such a hearing involves and the additional burden thereby placed on the resources of the courts.

56. Where the Defendant has failed to lay a basis on which I can conclude that there is, in truth, an issue to be tried, and that the issue is neither simple nor capable of being easily determined, then I am satisfied that I should grant summary judgment. Mere assertions, unsupported either by evidence or by any realistic suggestion that evidence may be available, of the type made by the Defendant in these proceedings do not “pass muster.”

CONCLUSION

57. For the reasons given, I am satisfied that the Plaintiff is entitled to judgment as sought.

No arguable or fair or reasonable basis for defending these proceedings has been established. I will grant summary judgment in the sum of €300,000.00 in favour of the Plaintiff and hear the parties in relation to the form of my final order.