High Court of Ireland Decisions

[2025] IEHC 213

THE HIGH COURT

[2018/1072S]

BETWEEN:

CABOT FINANCIAL (IRELAND) LIMITED

PLAINTIFF

AND

DARREN HANNEY

DEFENDANT

 

JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 10^th day of April, 2025

 

INTRODUCTION

 

1.                  This judgment is concerned with an application by the plaintiff for summary judgment in connection with a claim that the defendant owes a debt to the plaintiff arising from a loan agreement entered into in 2008. The proceedings were commenced by a Summary Summons on the 27 August 2018.

 

2.                  As set out in this judgment, two main issues emerged from the hearing. First there is the question of whether the plaintiff has established a cogent case such that it should be entitled to summary judgment. In that respect, there was an issue in relation to the evidence that was relied upon by the plaintiff to demonstrate that it was a proper assignee of the plaintiff's debt.  Second, there is the question of whether the defendant's evidence and the submissions that he made by way of response demonstrates that he has a fair or reasonable probability of having a real defence. The defendant has represented himself throughout the proceedings, and while he presented his case at hearing with care and courtesy, it would be fair to observe that a number of elements in his case were framed in a manner that were difficult to follow.

 

3.                  For the reasons set out below I have concluded that the plaintiff has not persuaded the court that the current state of the evidence demonstrates an entitlement to summary judgment and I will adjourn the matter for plenary hearing.

 

THE PROCEEDINGS

 

4.                  The proceedings were commenced by a summary summons dated the 27 August 2018 issued by Cabot Asset Purchases (Ireland) Ltd (hereafter referred to as "CAPI"). The indorsement of claim recites that Ulster Bank Ireland Ltd agreed to lend €280,000 to the defendant. The loan agreement was contained in a letter of loan offer dated the 23 April 2008.

 

5.                  The indorsement of claim states, without setting out the date or the nature of the instrument concerned, that Ulster Bank had transmitted its interest in the loan facility to Promontoria (Finn) Ltd. Thereafter, by a Global Deed of Transfer dated the 12 January 2018 pursuant to a Portfolio Acquisition Deed dated the 8 November 2017, CAPI acquired certain legal and beneficial rights and interests - including the benefits of the loan agreement - from Promontoria (Finn) Ltd.

 

6.                  The indorsement pleads that the defendant defaulted on his repayment obligations to Ulster Bank and its successors. On the 23 March 2018, the solicitors for the plaintiff wrote to the defendant demanding payment. The then plaintiff noted that it was waiving its claim for further simple interest and claimed the sum of €223,278.51.

 

7.                  The current plaintiff, Cabot Financial (Ireland) Ltd (hereafter "Cabot Financial") issued this application by notice of motion dated the 7 September 2023 in which judgment was sought in the amount of €222,561.32.

 

THE EVIDENCE

 

8.                  That application was grounded on an affidavit sworn by Tom Dillon on the 29 August 2023. Mr. Dillon is a director of Cabot Financial. Mr. Dillon states that he made the affidavit, inter alia, "from an examination of the books, records and accounts of the Plaintiff company and such books, records and accounts include information compiled by the Plaintiff's predecessors in title, within the ordinary course of business; and where so compiled by the Plaintiff's predecessors in title, were supplied to, and received by, the Plaintiff company within the ordinary course of its business in accordance with Section 14 of the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020."

 

9.                  Certain aspects of Mr. Dillon's affidavit are out of chronological order, so I will deal with matters in the order in which they took place rather than in the way they are presented in the affidavit.

 

10.              Mr. Dillon goes on to refer to, and exhibits, the letter of loan offer dated the 23 April 2008 and its acceptance. The exhibited documents show a letter of loan offer referable to an identified mortgage account number. The attached acceptance document appears to bear the defendant's signature, and is dated the 28 April 2008.

 

11.              Mr. Dillon then describes the various transfers of interest that are said to lead to Cabot Financial holding the loan and associated rights.

 

12.              First there was a transfer from Ulster Bank to an entity described in the affidavit as Promontoria (Aran) Ltd by way of a global deed of transfer dated the 29 September 2015. The affidavit does not refer to any redactions to that document or the reasons for same.

 

13.              The exhibited document actually shows a transaction between Ulster Bank Ireland Limited and Promontoria (Finn) Ltd. In the deed, Ulster Bank conveys "all its right, title, interest, benefit and obligation ... in and under" a variety of headings, such as the "Finance Documents". While the terms appear to be presented as defined terms, no definitions are apparent from the exhibited document. The entirety of clause 2 of the deed is redacted and it is not possible to identify what is dealt with in that clause. Likewise, clauses 3, 4, and 5 are fully redacted.

 

14.              The first schedule to the deed, lists the underlying loan agreements that appear to have been the subject of the transfer. The schedule is largely redacted, and while no explanation is given, the court understands that ordinarily this is because the schedules are made up of lists of accounts, loans, securities and matters of that like, which invariably contain confidential information relating to parties other than the particular defendant. In any event, the unredacted portion of the schedule of loan agreements provides the following information "Loan Offer  - 23 April 2008 - (1) Mr Darren Hanney (2) First Active plc" The information is organised in a table form but the column headings are also redacted.

 

15.              Next, Mr. Dillon stated that CAPI acquired the rights and interests to the loan under the terms of a Global Deed of Transfer dated the 12 January 2018. The exhibited documents here include a deed by which three Promontoria companies, Aran, Arrow and Finn, transferred all of their rights title and interest in what appear to be defined matters, but again where there are no definitions on the face of the deed. The document also contains redactions that are not explained at all.

 

16.              There follows what appears to be an extract from a schedule to that deed. This appears to show that Promontoria (Finn) transferred a facility identified as "50637795" connected with a document identified as "23/04/2008" and referrable to Darren Hanney.

 

17.              The next document in this exhibit is a letter to the defendant from Cabot Financial dated the 19 January 2018. This bears a reference number "DM/6102534". This informs the defendant (a) by reference to earlier correspondence that has not been exhibited, that he had been informed that Promontoria (Finn) DAC had assigned its rights and interests to CAPI, (b) that Cabot Financial has been appointed to provide portfolio services to CAPI, and (c) that payments should be made to an identified account held by Cabot Financial.  

 

18.              Immediately following that letter in same exhibit appears to be the signature / seal pages of the deed that was exhibited at the start of the exhibit.

 

19.              Returning to Mr. Dillon's affidavit, he then explains that the solicitors for CAPI wrote to the defendant on the 23 March 2018 demanding payment of the debt, and he states that the sum of €222,561.32 remains due and owing. I should note that later in his affidavit, Mr. Dillon explains that after the issue of the summary summons a credit of €717.19 had been applied. Mr. Dillon does not explain the reason why the credit was applied. The exhibited letter of demand was sent by CAPI. The letter informs the defendant of the assignments from Ulster Bank to the Promontoria companies, and their subsequent assignment from Promontoria to CAPI.

 

20.              The letter demands full payment of the amounts then stated to be outstanding, which was the pre-credit amount of €223,278.51.

 

21.              Mr. Dillon also exhibits an extract from an account statement dated the 18 January 2018, which appears to have been prepared by Link ASI acting as a service provider for Promontoria (Finn) Ltd. It is addressed to the defendant but identifies an account number "55002105". It addresses the period from the 24 October 2015 to the 17 January 2018. The statement shows a balance as of the 17 January 2018 of €223,278.51.

 

22.              Mr. Dillon then goes to explain in the body of his affidavit that CAPI entered into a deed dated the 31 May 2019 with Cabot Financial. By that deed, Mr. Dillon states, the defendant's loan facilities transferred to Cabot Financial. Mr. Dillon states that the defendant was notified in writing of the assignment. 

 

23.              The relevant exhibited deed is in much the same form as the earlier deeds and is in a redacted format, with no explanation given for the redactions. There is what appears to be a 2-page extract from a schedule to the deed, although it is not clear what precisely is being recorded in the schedule (i.e. it is not clear if this records a loan facility that is being transferred or some other matter). The extracts are in the form of a type of spread sheet presentation that can be read across both pages. From the column headings all that can be discerned is that there is an "originator reference", a "reference", a "customer name", a "customer address", a "balance", a "court record number" and "judgment date". Under those headings, the following is set out: "Ulster Bank - 6102534 - Darren Hanney - 73 Cloonmore Park, Dublin 24" - "223,278.51" - "2018/10725". The entry for judgment is blank. The schedule that was exhibited is not explained in Mr. Dillon's affidavit, however it appears to be - and this cannot be stated with any certainty - a description of proceedings concerning a debt that has been transferred.

 

24.              The next documents in this set of exhibits are what appear to be "hello" and "goodbye" letters to the defendant dated the 19 June 2019. These each bear a reference number "6102534". The letters inform the defendant that CAPI has transferred the defendant's credit agreement to Cabot Financial.

 

25.              Finally, in his first affidavit Mr. Dillon exhibits a number of letters sent between January 2023 and August 2023. The letters, as noted by Mr. Dillon, invite the defendant to consent to the transfer of the proceedings for plenary hearing. The letters appears to propose that if the consent of the defendant is not forthcoming Cabot Financial will bring an application to the High Court. It is not clear if that application is for judgment or to have the matter sent to plenary hearing. On my reading of the correspondence and in the absence of any clarification in Mr. Dillon's affidavit, the implication of the letters is that there will be an application to have the proceedings transferred to plenary hearing.

26.              Mr. Hanney, who at all times represented himself, filed a replying affidavit on the 3 November 2023. Mr. Hanney disputes that the plaintiff is entitled to the relief claimed. The manner in which he framed his defence was unorthodox and somewhat difficult to follow. It appears reasonably clear that Mr Hanney is seeking to argue (a) that there was no valid contract; it is not clear if this is intended as a reference to the original contract with Ulster Bank or targets the relationship that arose on foot of the assignments; (b) that the original contract with Ulster Bank was vitiated by fraud, where there is an argument that the interest charges applied were manipulated improperly; and (c) that the consequent claim made by the plaintiff is unenforceable as it was rendered void prior to any assignment. Mr. Hanney also makes a complaint about the manner in which the assignment documents produced by the plaintiff have been redacted.

 

27.              Ultimately aside from the redaction issue, it was clear that, although Mr. Hanney opposed the relief sought, he did not adduce any evidence beyond very bare assertions to support his claims.

 

28.              Mr. Dillon swore a further affidavit on the 26 January 2024. Mr. Dillon relies on the letter of loan offer and signed acceptance to show that there was a contract between Ulster Bank and the defendant. In relation to the fraudulent interest claim, Mr. Dillon states that this is simply a bald assertion. However, he accepts that the plaintiff does not hold "statements of account in relation to some of its predecessors in title." Mr. Dillon asserts in relation to the assignments that "the Plaintiff has clearly demonstrated the transmission of the debt and there is ample evidence" in that regard. He notes that no other party is seeking recovery of the debt that is the subject of the proceedings.

 

29.              Mr. Hanney delivered a replying affidavit on the 26 February 2024. He continues to assert that the original contract was void due to fraud, again without suggesting why this would be so and without providing any evidence to bolster that assertion. He continues to complain about the redactions to documents - which Mr. Dillon did not address or explain. Mr. Hanney asserts that the plaintiff is not a bank and therefore cannot rely on the provisions of the Bankers' Books Evidence Act 1879 - but he does not engage with the reliance on the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 by the plaintiff.

 

30.              Shortly prior to the hearing Mr. Hanney delivered a further document which was in the form of a hybrid submission and commentary on the evidence. One of the points raised was that the plaintiff's claim is not properly quantified or supported by sufficient evidence. Mr. Hanney sought to rely on letters addressed to him by Ulster Bank from 2019 to 2024, i.e. after the assignments. The letters appear to form part of a larger correspondence in which complaints were made that Ulster Bank applied an incorrect interest rate to the account for a period. One of the letters, dated the 26 March 2019, involves Ulster Bank stating that the defendant "may not have received the benefit of the lowest tracker margin rate to which you may have been entitled." There is an apology letter dated the 12 June 2019 which refers to the defendant receiving €15,228.12 in "redress and compensation". The final letter of the 22 August 2024 states that the defendant had been informed on the 27 October 2015 that the Ulster Bank loan had been assigned to Promontoria (Finn) Ltd. The letter states that, it appears in or around July 2019, in connection with the amendment of the payment history, Ulster Bank "would also have contacted Promontoria, as owners of the mortgage at the time and advised them of the situation and to provide them with the relevant information."

 

 

THE PRINCIPLES TO BE APPLIED

 

31.              The principles that are to be applied to an application of his type are very well established and uncontroversial, and do not require to be set out in detail. The tests to be applied have been set out by the Supreme Court in First National Commercial Bank v. Anglin [1996] 1 IR 75, and Aer Rianta cpt v. Ryanair Limited [2001] 4 IR 607. In Harrisrange Limited v. Duncan [2003] 4 IR 1, after considering the relevant authorities, McKechnie J. summarised the applicable principles as follows:

"9. From these cases it seems to me that the following is a summary of the present position:-

(i)           The power to grant summary judgment should be exercised with discernible caution,

(ii)         In deciding upon this issue the Court should look at the entirety of the situation and consider the particular facts of each individual case, there being several ways in which this may best be done,

(iii)       In so doing the Court should assess not only the Defendant's response, but also in the context of that response, the cogency of the evidence adduced on behalf of the Plaintiff, being mindful at all times of the unavoidable limitations which are inherent on any conflicting Affidavit evidence,

(iv)        Where truly, there are no issues or issues of simplicity only or issues easily determinable, then this procedure is suitable for use,

(v)          Where however, there are issues of fact which in themselves are material to success or failure, then their resolution is unsuitable for this procedure,

(vi)        Where there are issues of law, this summary process may be appropriate but only so, if it is clear that fuller argument and greater thought, is evidently not required for a better determination of such issues,

(vii)     The test to be applied, as now formulated is whether the Defendant has satisfied the Court that he has a fair or reasonable probability of having a real or bona fide defence; or as it is sometimes put, "is what the Defendant says credible?", - which latter phrase I would take as having as against the former an equivalence of both meaning and result,

(viii)   This test is not the same as and should be not elevated into a threshold of a Defendant having to prove that his defence will probably succeed or that success is not improbable, it being sufficient if there is an arguable defence,

(ix)        Leave to defend should be granted unless it is very clear that there is no defence,

(x)          Leave to defend should not be refused only because the Court has reason to doubt the bona fides of the Defendant or has reason to doubt whether he has a genuine cause of action,

(xi)        Leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence and finally,

(xii)     The overriding determinative factor, bearing in mind the constitutional basis of a person's right of access to justice either to assert or respond to litigation, is the achievement of a just result whether that be liberty to enter Judgment or leave to defend, as the case may be."

 

32.              More recently, in Feniton Property Finance DAC v. McCool [2022] IECA 217, in the Court of Appeal, Murray J. noted:

"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 reasonably 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."

 

DISCUSSION

 

33.              Without addressing the questions raised by the defendant regarding admissibility, it is helpful to consider whether the plaintiff has made a cogent case for summary judgment on the assumption that all matters were admissible, and directed to considering, even if the defendant has not independently raised sufficiently weighty issues to warrant a remittal to plenary hearing, whether the plaintiff effectively established a prima facie entitlement to judgment.

 

34.              It is apparent from the outline of the evidence set out above, that the plaintiff relies on the initial loan agreement between Ulster Bank and the defendant, an argument that the loan agreement was breached and that sums are due, and a further argument that the benefit of the initial loan agreement has made its way to Cabot Financial by virtue of the various assignments. In that regard the following matters are of importance:

 

35.              First, the plaintiff itself has exhibited three letters from 2023 in which it sought the defendant's agreement to the matter being adjourned to plenary hearing. The plaintiff has not provided any explanation for that proposal or why it is no longer being pursued. On any analysis the correspondence is starkly at odds with the position adopted in this application and called for an explanation.

 

36.              Second, there clearly is some issue in relation to the manner in which Ulster Bank calculated interest. This led to an apology from Ulster Bank and a payment made for redress and compensation. However, the correspondence does not set out the amount of any potential overcharge, and the court cannot separate out the compensation element and redress elements in the payment. This is combined with Mr. Dillon's general observation that the plaintiff does not hold "statements of account in relation to some of its predecessors in title." If that is so, then it is not clear how the plaintiff can assert with confidence its knowledge of what precisely is said to be due and owing. The earliest account statement addressed the period 2015 to 2018 and was produced by Link ASI. There is very little evidence of what occurred in relation to the account prior to 2015, or how the figures up to that point were calculated.

37.              Third, the presentation of the assignment documents is concerning. Terms are not defined, redactions are not explained and the nature and purpose of the schedules are not clear. It is not for the court to speculate as to the reasons for the redactions or what may be contained in the redacted portions. At the very least, the court would expect some level of explanation in relation to those matters. This means that the full nature of the transactions may not be apparent.

 

38.              Fourth, the chain of title is unclear. The 2015 deed of transfer from Ulster Bank to Promontoria (Finn) Limited has a schedule. The schedule certainly refers to a loan agreement dated the 23 April 2008 concerning Darren Hanney, but this refers to a loan originated by First Active plc and there is no account number or further information given to identify the loan as the same loan that is the subject of these proceedings.

 

39.              At the hearing of the application, the plaintiff pointed to S.I. No. 481 of 2009, Central Bank Act 1971 (Approval of Scheme of First Active PLC and Ulster Bank Ireland Limited) Order 2009. That Order records the approval of a transfer of banking business from First Active plc to Ulster Bank. However, there is no evidence whatsoever to show that the loan offer was made by First Active plc or that the loan formed part of the business of First Active plc. In fact, the loan acceptance form and a conditions page attached to the loan offer both refer to Ulster Bank and there is no mention in the loan documents of First Active plc. Hence it is not at all clear that if a loan concerning the defendant was transferred by Ulster Bank to Promontoria (Finn) Limited it was the same loan addressed in these proceedings.

 

40.              Fifth, the 2018 deed between Promontoria (Finn) Limited and CAPI suffers from the same difficulties with unexplained redactions and a lack of clarity around defined terms. The schedule does refer to a facility identified as "50637795" dated "23/04/08" and referable to Darren Hanney. That is the same facility or account number that appears in the letter of loan offer of the 23 April 2008, and I take it to be the same loan; however, the evidence of the prior assignment is unclear.

 

41.              Sixth, the 2019 deed of transfer between CAPI and Cabot Financial also contained unexplained redactions and undefined terms. It is not clear what the exhibited schedule intends to record. My view is that it notes the existence of the proceedings, rather than demonstrating that the underlying loan facilities themselves were transferred.

 

42.              In those premises, even proceeding on the basis that the matters averred to by Mr. Dillon are admissible, I cannot be satisfied that the plaintiff has demonstrated on the current evidence that it is entitled to summary judgment. That does not mean that the defendant has made out a defence. The defendant did not deny that he entered a loan agreement with Ulster Bank or that the loan was in arrears. Aside from raising an issue in relation to the calculation of the arrears, and what on their face were very weak arguments about the enforceability of the underlying contract, the most he pointed to by way of evidence related to the presentation of the plaintiff's proofs. It may well transpire that the deficits set out above are capable of being addressed and that ultimately the plaintiff will prove its case.

 

43.              I consider that the matter should be adjourned to plenary hearing so that the parties have an opportunity to place the relevant evidence before the court so that the matter can be adjudicated upon in a more satisfactory manner. In those premises, it is not necessary to engage with the issues around the admissibility of evidence raised by the defendant.

 

44.              As this judgment is being delivered electronically, I express the provisional view that the defendant should be entitled to the costs of the application to the extent that he has incurred any recoverable costs. I will adjourn the matter for mention before me at 10.30am on Thursday, the 1 May 2025 to finalise orders and I invite the parties to attempt to agree on proposed directions before the matter is adjourned to the Non-Jury list for further management.