AIB Mortgage Bank v Lynskey

Factual and Procedural Background

The Plaintiff initiated proceedings by way of summary summons dated 5th June 2014, seeking judgment for €1,241,762.62 based on three loan facilities provided to the Defendant in March and July 2006. The Plaintiff issued a letter of demand on 10th September 2013 for repayment of all monies due. The Defendant appeared in court representing himself. A notice of motion for liberty to enter final judgment was issued on 9th December 2014 for €1,149,808.72, initially returnable before the Master and subsequently transferred to the common law motions list and then to the nonjury list. The hearing was adjourned multiple times, with the substantive matter scheduled for 31st March 2017. The Defendant served notices to cross-examine two deponents who had sworn affidavits on behalf of the Plaintiff. The Plaintiff applied for special leave to use these affidavits as evidence without producing the deponents for cross-examination. The Defendant opposed this application by affidavit. The substantive proceedings concern an application for liberty to enter final judgment.

Legal Issues Presented

1. Whether the court should grant the Plaintiff special leave under Order 37, rule 2 of the Rules of the Superior Courts to use affidavits without producing the deponents for cross-examination.
2. Whether the Defendant has raised a fair or reasonable probability of a real or bona fide defence sufficient to warrant sending the matter to plenary hearing rather than granting summary judgment.
3. The proper application of the test for summary judgment and leave to defend in light of the affidavits and procedural rules.

Arguments of the Parties

Plaintiff's Arguments

• The affidavits of the deponents set out the Plaintiff’s position based on documents and correspondence and do not warrant cross-examination.
• The Defendant’s defence is advanced through replying affidavits, and the Plaintiff has properly set out the circumstances of the loan, demand, and repayment.
• Allowing cross-examination would cause unnecessary delay and consume additional resources.
• One deponent has been on sick leave since October 2016, making cross-examination impractical.
• The affidavits relate to factual matters such as sums due, loan agreements, and letters of demand.
• The Plaintiff contends that the Defendant has no defence to the claim, supported by subsequent affidavits.

Defendant's Arguments

• The Defendant alleges dishonesty by the Plaintiff during the proceedings and contends that the deponents made untrue averments in their affidavits.
• The Defendant seeks to cross-examine the deponents, asserting that their affidavits contain disputed facts.
• He presented handwritten notes from one deponent which he claims contradict the Plaintiff’s position.
• The Defendant claims he did not receive certain correspondence from the Plaintiff, which is not denied by the Plaintiff.
• The Defendant believes the Plaintiff’s application for special leave is intended to avoid cross-examination and conceal disputed facts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Criminal Assets Bureau v. Kelly [2001] ILRM 271	Summary judgment may be granted despite the presence of factual disputes; presence of dispute does not preclude summary disposal.	The court referenced this case to reject the argument that any factual dispute prevents summary judgment.
Harrisrange Ltd. v. Duncan [2002] IEHC 14	The court must do what best meets the justice of the situation when deciding summary judgment or leave to defend.	The court applied the principle of achieving a just result in assessing the Defendant’s defence.
First Commercial Bank plc. v. Anglin [1996] 1 IR 75	Test for summary judgment requires court to assess if there is a fair and reasonable probability of a bona fide defence.	The court applied this test to assess the credibility of the Defendant’s defence.
Banque de Paris v. de Naray (1984) 1 Lloyds Rep 21	Test for summary judgment requires assessment of the whole situation to determine if defence is credible.	Endorsed by First Commercial Bank case and applied to evaluate Defendant’s affidavits.
Aer Rianta cpt. v. Ryanair Ltd. [2001] 4 IR 607	Endorsed the test for summary judgment and leave to defend as requiring credibility assessment of defence.	Supported the application of the bona fide defence test in the instant case.
Shepherds and Co. v. Wilkinson and Garvis [1889] 60 LR 13	Jurisdiction to grant summary judgment must be exercised with great care; defendant should not be shut out unless no case exists.	The court emphasized caution in granting summary judgment, consistent with this precedent.
Harrisrange Ltd. v. Duncan [2003] 4 IR	Set out detailed principles for summary judgment including caution, assessment of all evidence, and the test for a fair or reasonable probability of a bona fide defence.	The court applied these principles extensively in its analysis of the Defendant’s defence and the appropriateness of summary judgment.

Court's Reasoning and Analysis

The court carefully reviewed the procedural history and the affidavits filed by both parties. It noted the relevant procedural rules under Orders 37 and 40 of the Rules of the Superior Courts governing the use of affidavits and the conditions under which cross-examination may be required or dispensed with. The court recognized that motions for summary judgment are generally heard on affidavit evidence unless oral evidence is necessary, in which case the matter should be adjourned to plenary hearing.

The court examined the affidavits of the deponents and the Defendant’s allegations of dishonesty and disputed facts. It acknowledged the Defendant’s right to cross-examine but balanced this against the Plaintiff’s contention that the affidavits merely set out factual matters supported by documents, and that cross-examination would cause delay without substantive benefit.

Applying the legal tests from cited precedents, the court identified that the Defendant had raised issues amounting to an arguable defence, thus warranting caution in granting summary judgment. It emphasized that summary judgment should only be granted when it is very clear that no defence exists. The court found that the Defendant’s defence was not so far-fetched or inherently incredible as to justify refusal of leave to defend.

Consequently, the court granted the Plaintiff special leave to use the affidavits without producing the deponents for cross-examination at this stage but indicated that the proceedings should be sent to plenary hearing for full argument and evidence, including oral testimony and cross-examination if necessary.

Holding and Implications

The court granted the Plaintiff special leave under Order 37, rule 2 to use the affidavits of the two deponents as evidence without producing them for cross-examination in the current application for summary judgment.

However, the court also indicated that the issues raised by the Defendant constitute an arguable defence, making it appropriate to send the matter to plenary hearing for a full trial. This means that while the affidavits may be used at this stage, the ultimate resolution of the dispute will require oral evidence and cross-examination.

No new legal precedent was established; the decision follows established principles emphasizing caution in summary judgment and the right to a fair opportunity to defend.