JIMMY COEN AND BREDA COEN
Background
Problems with the Sum Sought
(i) The Summary Summons .
b) The sum of €26,958.00 repayable in from estate of P Greaney on completion of administration thereof. The purpose of the advance was made on the 5th April 2002 and the Annual Percentage Rate of interest charged thereon was a One to Three Year Term Loan rate varying at the time 10.55% per annum.
c) The sum of €6,176.00 repayable over 2 months from 5th April 2002 by consecutive payments of €312.36 per month by way of standing order commencing on 10th May 2002 for a tractor purchase. The said advance was made on the 5th April 2002 and the Annual Percentage rate of interest charged thereon was a One to Three Year Term Loan rate varying at the time 10.55% per annum.
The Defendants made default in the payments due under the Agreement and the Plaintiff sent a letter of demand to the Defendants dated the 25th November, 2014.
There is now due and owing to the Plaintiff on foot of the said Letter of Sanction the sum of €446,408.52.”
The Defendants made default in the payments due under Facility Number 1 in the Letter of Sanction and the Plaintiff sent a letter of demand to the Defendants dated the 25th November, 2014….
By reason of such termination aforesaid, the Defendant became liable to pay to the Plaintiff the sum of €446,408.52 under Facility Number 1 of the Letter of Sanction.
The Plaintiff claims the sum of €446,408.52 in respect of the amount due and the costs of these proceedings.”
Problems with the (Possibly Draft) Letters of Sanction
Problems with the Evidence as to Drawdown
Unfortunately, even when it came to drawdown, there were grave difficulties with the evidence before the court. The (what appear to be draft) letters of sanction before the court are dated 5th April, 2002. There are also a bundle of bank statements before the court which are exhibited together but which relate to different accounts, one ending with ‘9’ and one ending with ‘6’. When the court asked at hearing which statement/s showed the amount/s that had been loaned pursuant to the letters of sanction, it was referred to the statements most contemporaneous to the 5th April, 2002. But if the court looks to those statements:
– the account ending in ‘6’ this shows four debit entries on 9th April, 2002, a reversal of a debit of €15,332.76, two debits marked ‘DRAFTS’, one for €153,26.46 and one (presumably the one reversed) for €15,332.76, and a separate debit, again in the name of a firm of solicitors for €9,777.10.
If a bank is going to come to court seeking summary judgment and wishes to point to a letter of sanction coupled with drawdown as indicative of acceptance of a loan on particular terms and conditions, then the least the bank must do is to provide the court with the necessary averments and exhibits as will enable the court properly to reach the conclusion desired by the bank.
Possible Problem under the Statute of Limitations
AIB claims that there was a fresh acknowledgement of debt by a solicitor acting for Mr Coen, which acknowledgement came in a letter of 20th December, 2013. (To further complicate matters, it is not clear whether the solicitor was acting for Mrs Coen). Mr Coen or both of Mr and Mrs Coen, as appropriate, intend to argue that the said solicitor’s letter issued in any event on a ‘without prejudice’ basis (though, it is acknowledged by Mr Coen in his affidavit evidence that there is some level of debt owing to the bank, but nothing like what the bank maintains is owed).
If it is established that the solicitor’s letter was issued on a ‘without prejudice’ basis, then, inter alia , the issue of whether and when a ‘without prejudice’ letter may be admitted as an acknowledgement of debt will then arise for consideration. This last issue, the court understands, has been the subject of consideration by the House of Lords in Bradford & Bingley plc v. Rashid [2006] 4 All ER 705 , but appears not yet to have been considered in this jurisdiction.
Possible Problem under the Consumer Credit Act
Applicable Legal Principle
(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…
(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…
(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?’…
(viii) this test is not the same as and should not be 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 is 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.”
Conclusion