Bank Debt/Summary Judgment Cases-Lessons from the Supreme Court in Bank of Scotland PLC v Jerry Beades

You may have heard of Mr. Jerry Beades, who is a well-known anti eviction activist and businessman.

The High Court in 2012 granted a judgment against him in favour of the Bank of Scotland plc in the sum of €9,684,987.04 together with costs. This judgment was in respect of a number of loans Mr. Beades had obtained from the bank.

Mr. Beades appealed this decision to the Court of Appeal and the case ended up in the Supreme Court who delivered a judgment on 29th July 2019. (Read the full decision here).

Mr. Beades represented himself in the High Court and Supreme Court and a review of the Supreme Court decision is worthwhile on a number of levels. Let’s take a look at the Supreme Court decision.

Supreme Court

The legal proceedings had originally commenced by way of a summary summons and Mr. Beades eventually filed a replying affidavit before the case was heard in the Commercial Court.

The claim by the bank was on foot of four facility letters and the application for judgment was grounded on sworn statements (affidavits) of Bank of Scotland and Certus employees.

Mr. Beades swore a replying affidavit in which he made a number of claims:

  • That one of the bank affidavits was ‘fraudulent’ by reason of being sworn in front of a person who Mr. Beades asserted was not a registered practicing solicitor in Ireland
  • The bank was in breach of its contract and its duty of care to him
  • There were delays with drawdown of facilities
  • The bank was in breach of its own terms and conditions by reason of its alleged failure to serve a demand letter on Mr. Beades at his Fairview address

The High Court found against Mr. Beades, however, because he had not denied in any of his affidavits signing the loan agreements or receiving the money from the lender. Accordingly, he had not demonstrated any arguable issued to prevent judgment being granted against him and judgment was granted to the bank. (Read the High Court decision here).

Even if he had a counterclaim it would not be a defence to the summary judgment application because Mr. Beades had put into evidence the following extract from the bank’s terms and conditions,

‘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 . . .’

The substantive issue-did you receive the money?

The Judge in the High Court had asked Mr. Beades directly if he had received the money.

Mr. Beades viewed this as an inappropriate question but the Supreme Court agreed with Kelly J. of the High Court that this was the substantive issue in the case.

The Supreme Court went on to point out that when you are defending a debt claim such as this one you must pin your colours to some mast or other. That is to say, the defendant could claim he never made the agreement, or it is a case of mistaken identity, or an agreement was made but not performed, or that he did not receive the money.

He could also argue that he received the money but the agreement was breached by the lender, or that there was some issue of illegality, or undue influence, or unconscionability, or estoppel which prevents recovery.

This is a non-exhaustive list of issues which could have been advanced by Mr. Beades but he did not put any of these arguments forward and the Supreme Court went on to point to the old rule that the denial of a debt alone is not a defence.

Moreover Mr. Beades made a number of observations at the Supreme Court appeal which were entirely consistent with him having received the money-for example, ‘they gave me the wrong facility’ and ‘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)’ and ‘the unfinished development at Fairview could be finished and the bank could get its money back, why this Mexican standoff?’

All of these statements were admissions that he had received the loan monies.

The Supreme Court also noted that notwithstanding that it was 7 years since the bank had obtained judgment against Mr. Beades he had never put forward the argument that the bank had not lent him the money.

Mr. Beades’ Arguments

The arguments put forward by Mr. Beades were based on technical matters relating to procedure, the admission of evidence, and the swearing of affidavits.

Mr. Beades had also put forward the argument that had the High Court case been heard by a different Judge there would have been a different outcome (Mr. Beades had claimed bias against him in the High Court although did not repeat this in the Supreme Court appeal).

The Supreme Court did not agree that a different judge would have arrived at a different decision and judgment would have been awarded against him based on the facts and evidence.

Inadmissible Evidence

Mr. Beades put forward the argument that the evidence to be offered by the bank must be sworn by a bank employee and the evidence of an employee of Certus, who provided support services to the Bank of Scotland, was insufficient and inadmissible. He was relying on 4 of the Bankers’ Books Evidence Act 1879.

This argument, held the Supreme Court, was misconceived as the section on which Mr. Beades relied referred to an entry in a book held by the bank. This did not cover a situation where someone was giving sworn evidence on affidavit as to facts within their knowledge.

The Supreme Court referred to Ulster Bank Ireland Ltd. v. O’Brien [2015] IESC 96, [2015] 2 I.R. 656 as authority for the proposition that “an affidavit sworn by a person other than the plaintiff who can swear positively to the relevant facts is sufficient”.(J. Laffoy)

The essential fact in this case was the Supreme Court was satisfied that Ms Tracy, who swore the affidavit, was capable of swearing positively to the facts showing that the Bank of Scotland was entitled to judgment.

In summary the Court held the contention that there was no admissible evidence of the arrangements between the bank, its predecessor, and the borrower, Mr. Beades, was misconceived.

No demand letter served

Mr. Beades also made the argument that a letter of demand was not properly served upon him.

However, the Supreme Court held that Mr. Beades had failed to explain why evidence of delivery of a demand letter was a necessary proof when the original loan was for a facility for a fixed term and repayment was to be made at the end of the facility term and the term was up.

Affidavit evidence inadmissible

Mr. Beades had also raised a question about a further affidavit by the Bank’s side by reason of an allegation of fraud as a consequence of the solicitor who witnessed it being allegedly not a solicitor practicing in Ireland. He withdrew the allegation of fraud in the Supreme Court and accepted the solicitor was a registered practicing solicitor.

The Supreme Court also held

“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…”.

Decision

The appeal was dismissed.

Read the full Supreme Court decision here: Bank of Scotland PLC v Beades [2019] IESC 61

Read the High Court case here: Bank of Scotland PLC v Jerry Beades

Conclusion

If you are facing debt collection proceedings the substantive, fundamental issue is whether you received the money or not. If you did it is unlikely any technical defence or arguments based on alleged procedural deficiencies will save the day for you.

Courts in Ireland-Where to Pursue Your Legal Action

differential costs order

The legal system in Ireland is comprised of four jurisdictions:

  1. The Supreme Court
  2. The High Court
  3. The Circuit Court
  4. The District Court.

Supreme Court

The Supreme Court is principally a court of appeal as it hears appeals from the High Court against judgments and orders.

High Court

The High Court can hear virtually all actions, regardless of the amount involved. However, the Circuit Court has jurisdiction up to a value of €38,092.14 so the High Court will normally involve cases exceeding this amount.

It can also hear appeals from the Circuit Court and cases stated from the District Court. This occurs when a District Court judge refers a case on a point of law to the High Court for its determination before deciding a case.

Circuit Court

The Circuit Court can deal with actions up to a monetary value of €38,092.14 and there are 8 circuits:

  • Dublin
  • Cork
  • Midland
  • South eastern
  • Eastern
  • Northern
  • South western
  • Western.

The Circuit Court has jurisdiction in civil, criminal, and family law matters and can hear appeals from the District Court.

The Circuit Court can also hear equity proceedings eg an action for the dissolution of a partnership, for the administration of an estate of a deceased person, an action for the specific performance of a contract for the sale of land or the partition of an interest in land.

Generally, cases in the Circuit Court are brought in the Circuit Court area where the defendant lives or carries on business.

District Court

The District Court can deal with legal actions with a monetary value of €6,348.69.

It cannot hear actions arising from defamation, malicious prosecution or false imprisonment.

District Courts generally deal with

  • Debt recovery
  • Breach of contract
  • Actions in tort
  • Family law
  • Licensing matters
  • Recovery of arrears of rates
  • Ejectment proceedings (non-residential)
  • Debt collection enforcement applications.

2014 changes to monetary limits

Note: the monetary limits of the Courts were changed in 2014 as follows-
District Court up to €15,000, Circut Court up to €75,000.

The High Court hears cases in excess of €75,000.

Defendant outside the Jurisdiction

Where a defendant is abroad and outside the jurisdiction, it will be essential to establish that the Irish Court has jurisdiction.

Under Common Law Rules re jurisdiction an Irish court has jurisdiction if the defendant is physically served with the proceedings in this jurisdiction or where his solicitor accepts service of proceedings here.

An Irish court will also have jurisdiction where the parties agree.

If it is necessary to serve proceedings on someone outside the jurisdiction, the permission of the court must be obtained first.

The European Union has also sought to standardise the rules of jurisdiction between member states through:

  • Council regulation 44/2001 (‘Brussels 1’) which deals with jurisdiction and enforcement and recognition of judgments between member states in civil and commercial matters
  • European enforcement orders (regulation (EC) 805/2004)
  • Regulation (EC) 1896/2006 which introduced a new procedure for the recovery of cross border debts
  • The Lugano Convention
  • Council Regulation (EC) 44/2001 which deals with service of documents in civil or commercial matters in EU member states
  • The Hague Convention (later superseded by Regulation 1348/2000.

Supreme Court rules Registered Employment Agreements Unconstitutional

The Supreme Court has today (9th May, 2013) ruled that REAs (registered employment agreements) are unconstitutional.

registered-employment-agreement-rea
Registered employment agreements outlawed by Supreme Court in 2013

These agreements are provided for under the Industrial Relations Act, 1946.

This case had previously been in the High Court where J. Hedigan dismissed the application..

The applicants are electrical contractors who in various ways, set out in these proceedings, seek to challenge a Registered Employment Agreement (“REA”) on grounds of invalidity ab initio and for unconstitutionality.

Read the full High Court decision here. NOTE: this is the June, 2011 decision of the High Court.

The full decision of the Supreme Court of 9th May, 2013 will be analysed here once made available.

A recommended resource for employers and employees to learn more about employment law in Ireland is http://EmploymentRightsIreland.com.