Establishing a Bona Fide Defence of Non est Factum and Misrepresentation Precludes Summary Judgment

1. Introduction

In M. Kelliher 1998 Ltd v Ashe [2025] IEHC 269, the High Court considered whether summary judgment should be granted against a director-defendant, Jennifer Ashe, who had signed a personal guarantee to secure credit facilities extended by the plaintiff to Postbrook Limited. The plaintiff sought €121,550.69 under the guarantee. Ashe admitted execution but claimed she never read the document and that she was misled about its character, raising defences of non est factum and misrepresentation. Four affidavits—those of the bank’s branch manager (Gerard O’Reilly), Ashe’s husband (Michael Ashe), and Ashe herself (two affidavits)—contained conflicting accounts of the circumstances surrounding execution. The court had to decide whether there was a “real or bona fide defence” sufficient to defeat summary judgment.

2. Summary of the Judgment

• The plaintiff’s application for summary judgment was refused.
• The court found significant disputes of fact over:
  • The purpose and outcome of a September 2016 meeting between Postbrook representatives and the bank;
  • The circumstances of the October 11, 2016 meeting at which the guarantee was signed;
  • Whether Ashe brought the guarantee form with her or was handed it on the spot;
  • What representations were made to Ashe about the nature of the document.
• The disputes were material to the limbs of the non est factum test and to a misrepresentation defence.
• On the affidavits at their highest, the defendant demonstrated a reasonable probability of a bona fide defence.
• Accordingly, justice required a plenary hearing rather than summary disposal.

3. Analysis

3.1 Precedents Cited

• Aer Rianta Cpt (No. 1) v Ryanair Ltd [2001] 4 IR 607 – summary judgment test: a real or bona fide defence must exist to resist summary judgment.
• Harrisrange Ltd v Duncan [2003] 4 IR 1 – bare assertions will not suffice to create a bona fide defence.
• McGrath v O’Driscoll & Ors [2007] 1 ILRM 203 – similar principles on the threshold for summary judgment.
• Saunders v Anglia Building Society [1971] AC 1004 – House of Lords’ formulation of the three-limb test for non est factum:
  1. Fundamental difference between what was signed and what was thought to be signed;
  2. Mistake as to general character, not mere legal effect;
  3. Lack of negligence—reasonable precautions must have been taken.
• Ted Castle McCormack & Co Ltd v McCrystal (unreported, High Court, 15 March 1999) – application of Saunders in summary judgment context.

3.2 Legal Reasoning

The court applied the well-established Irish test for summary judgment: whether the defendant shows a reasonable prospect of success on a bona fide defence. Ashe’s affidavits asserted that she believed she was merely signing a form to reactivate her company’s account, not a personal guarantee. The plaintiff countered that Ashe admitted she signed a guarantee and failed to read it, breaching the non est factum requirement of taking reasonable precautions.

Justice O’Higgins weighed nine material factors, notably:

1. Conflict over the September pre-signing meeting and whether the blank guarantee form was handed out then;
2. Disagreement on the real purpose of Ashe’s October 2016 branch visit;
3. Contrasting accounts of what was said at the signing, including alleged casual references and prior dealings;
4. Whether Ashe brought the form or was handed it in-branch (bearing on her opportunity to read it);
5. The absence of a copy given to Ashe post-signature;
6. Non-receipt of a follow-up letter of claim, relevant to her credibility;
7. Lack of sworn evidence from other meeting attendees;
8. Unclear state of Postbrook’s account and precise terms of extension;
9. The cumulative impact of these disputes on her ability to meet all three Saunders limbs.

Finding these conflicts material, the judge concluded that Ashe’s defence was more than a “bare denial” and that it would be unjust to deprive her of cross-examination and fuller testing of evidence. Summary disposal was therefore inappropriate.

3.3 Impact

This decision clarifies and reinforces the principle that even in commercial contexts—where business people are expected to read documents—summary judgment will be refused if the defence of non est factum (or misrepresentation) is supported by material disputes of fact. Key implications include:

• Defendants who raise a credible, fact-based misunderstanding of a document’s character may secure a trial.
• Plaintiffs seeking summary relief must show that no real dispute of fact exists on foundational issues.
• Affidavits must address the three limbs of non est factum in detail if summary judgment is opposed on that ground.
• Courts will adopt a holistic, cumulative assessment of disputed circumstances, not a hyper-technical approach.

4. Complex Concepts Simplified

Summary Judgment

A quick procedure to dispose of claims without a full trial, available only if the defendant has no real defence.

Non est Factum

Latin for “it is not my deed.” A defence allowing a signer to avoid a document if they fundamentally misunderstood its character and were not negligent in failing to read it.

Misrepresentation

When one party induces another to sign a document on the basis of false statements or misleading conduct.

Bona Fide Defence

A genuine defence, grounded in evidence, that has a realistic prospect of succeeding at trial.

5. Conclusion

M. Kelliher 1998 Ltd v Ashe underscores that commercial parties cannot lightly dispense with a trial if a defendant raises credible, disputed facts on key issues—especially where non est factum or misrepresentation is asserted. The High Court’s refusal of summary judgment preserves the defendant’s right to cross-examine witnesses and test evidence fully on matters central to whether she truly understood, or was misled about, the guarantee she signed. This judgment will guide practitioners in framing affidavits and advising clients on the realistic prospects of summary relief in contract enforcement cases.