Difficulties have arisen in recovery cases where the Plaintiff company in the proceedings were not a party to the original loan facilities in question. This update gives a summary of the Judgment Ulster Bank Ireland Limited – v – O’Brien [2015] IESC 96 which deals with the issue.
There were a number of conflicting judgements in the High Court recently examining similar issues and it made it difficult to assess with certainty what information should be inserted into the Grounding Affidavit to show to the court before judgment could be granted. A recent decision of the Supreme Court has clarified this to a certain extent and we set out the salient points of the case for your information below.
In this case, the Defendants alleged that the bank’s employee’s evidence that money was due and owing was hearsay and it did not comply with the Bankers Book of Evidence Act 1879 and as such, proceedings should be struck out. The judgement in this case was delivered on the 16th December 2015 and Judge Laffoy held that there was no requirement to comply with the 1879 Act and instead the facts and details which had been adduced in the Grounding Affidavit was sufficient to enter final judgment.
This could be instrumental in forecasting the position the courts may take in cases (notwithstanding that all cases will turn on their own individual merit) where banks, or a company who has bought a loan facility are seeking to recover monies. Judge Laffoy set out a number of points in her Judgment which convinced her to grant a judgment in the case. Although cases differ in that difficulty surrounds the plaintiff company not being a party to the original proceedings, we have examined the relevant information we would need to insert into Grounding Affidavits as follows:
Difficulties may arise in gathering the documentation required under point 9. However, this is evidentially one of the most important items and we will need you to gather as much documentation as possible if the original statements of account cannot be obtained.
Similarly, the logistics behind the transfer of the loan in question will need to be set out in explicit detail. In the O’Brien case discussed above, much turned on the fact that there was an absence of any contradiction from the Defendant that the sum was due and owing. However, the issues of transfer and the detail in the affidavit must be looked at carefully in all cases.
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