Summary Judgment: Amendment of pleadings and the pitfalls of affidavit evidence
Summary Judgment: Amendment of pleadings and the pitfalls of affidavit evidence
The Courts Service has recently published two decisions on the evidence required for a party to obtain judgment through the summary process and thereby avoid the time and expense of a plenary trial for the recovery of a debt.
The High Court has confirmed the test which a plaintiff must meet when seeking to amend a summary summons to include particularisation of the debt, in order to comply with the requirements set down by the Supreme Court last November. The High Court decision also includes welcome guidance on how cases should be pleaded in the light of that Supreme Court decision and the particulars required for summary judgment.
The Court of Appeal has upheld a decision of the High Court in a separate case that affidavit evidence may be inadmissible as hearsay, where the party seeking judgment is not a bank and its deponent has not exhibited evidence of a course of dealings between the parties sufficient to enable the Court to draw an inference about the evidence adduced in support of the claim.
Guidance on tangible modification to the law applicable in summary judgment cases
The Court held that the plaintiff satisfied the threefold test for amendment of pleadings; arguability, explanation and lack of irredeemable prejudice. The Court noted that there had been some inconsistency on the issue of the degree of detail of debt required to be included in a summary summons, and held that it would seem unfair to' visit the inconsistencies of the legal system on litigants in general or the plaintiff here in particular.'
Although the plaintiff was successful in its amendment application, the Court awarded the costs of the application to the defendant in finding that the objection was unsuccessful but not unreasonable. It seems that characterisation may be limited to the particular defendant in this case, which was the first amendment application following the Supreme Court's decision in O'Malley. Any subsequent unsuccessful objection to amendment might justify an award of costs against the objector, whose objection might be viewed as unreasonable in the light of the judgment in this case.
The High Court acknowledged the voluminous body of caselaw on the issue of the test for, and the procedure involved in, applications for summary judgment. The High Court expressed a desire to "cut through the complexity" by setting out the test for parties seeking to obtain summary judgments as follows:
the plaintiff's claim must be sufficiently pleaded and particularised
the plaintiff must adduce evidence establishing a prima facie case
the court must inquire whether there is a fair and reasonable probability of the defendant having a real or bona fide defence
the defendant must show that this goes beyond mere assertion and is supported by evidence.
The High Court considered each limb of the test on the facts of the case before it, but it is the guidance on the first limb of the test which has been most welcomed by parties seeking to recover debts through the summary process. The High Court referred to the Supreme Court's ruling in O'Malley that a claim be sufficiently particularised which may be achieved directly in the pleadings or indirectly by referring to an identified document. In O'Malley, the Supreme Court held that the pleadings must specify how interest was charged "from time to time" (i.e. at all times and not just from the time that the proceeding were commenced). The High Court has now confirmed that this requirement for specification is not one which can be considered as a matter for evidence to be dealt with at a later stage in the case after the pleadings have been exchanged.
The High Court also referred to a more recent decision of the Supreme Court in Bank of Scotland v Fergus  IESC 91 which elaborated on the requirement set down in O'Malley. In Fergus, the Supreme Court held that the plaintiff must make clear the "precise basis" on which the sum is owed. The High Court has noted that the effect of the Supreme Court decision in Fergus is that pleadings must include particulars which "put the debtor in a position where on an individualised basis he or she may see where perhaps a mistake has been made or where interest may have been overcharged or penalties may have been misapplied".
In Harris, the High Court found that the plaintiff had not met the requirements set down by the Supreme Court in O'Malley because the plaintiff in its summons referred to an opening balance which was not the amount initially loaned but rather the amount which was outstanding at the time that the plaintiff had acquired its interest in the borrower's loan in the course of a loan portfolio transaction. The High Court held that, for that reason alone, it would not be appropriate to grant summary judgment to the plaintiff.
Inadmissible evidence and insufficient evidence – Fatal to a claim for summary judgment
The second limb of the test for summary judgments as identified in Havbell v Harris was more recently the subject of consideration by the Court of Appeal.
In Promontoria (Aran) Ltd v Burns  IECA 87, the Court of Appeal ruled that averments as to debt made by deponents other than those involved in the original loan transaction (in this case a debt servicing agent) will be inadmissible as hearsay if it cannot be demonstrated that the deponent had access to the historical records of the debt, and there is insufficient evidence of a true ongoing course of dealing between the parties.
The High Court in Burns had adjourned the plaintiff's application for summary judgment to plenary hearing on the single issue of admissibility of the evidence of debt adduced by the plaintiff. Evidence for the plaintiff had been sworn by a senior asset manager employed by a debt servicing company administering debt collection on behalf of the plaintiff which had acquired its interest in the loan the subject of the proceedings from Ulster Bank.
The grounding affidavit did not include an averment that the deponent had had access to the books and records of plaintiff. A supplemental affidavit was sworn to address the evidential issues identified by the High Court, which confirmed that the deponent had access to the books and records of the plaintiff "having relevance to these proceedings". However, it was not clear from the Affidavit evidence what type of records had been reviewed, other than the exhibits, and whether the deponent had access to the records of the bank which originated the loan. It also was not clear if the deponent had access to the originals of those records which were exhibited. The defendant argued that the evidence provided on behalf of the plaintiff was inadmissible as hearsay.
The plaintiff did not seek to rely on the statutory exception to the rule against hearsay in the Bankers' Books Evidence Act 1879-1959 (as it was not a 'bank' within the definition of the Act), but rather relied on a common law exception1 based on a 'course of dealings' between the defendants and the plaintiff or its predecessor in title. The plaintiff argued that, having inspected the books and records of the plaintiff which were relevant, the deponent could give positive evidence of the debt.
The Court of Appeal noted the difficulty in discerning a clear line of authority on the issue of admissibility based on a course of dealing, and commented that an "authoritative decision of the full [Supreme] court is awaited and needed". The Court concluded that 'a claim in debt can be established by credible evidence emanating from a course of dealing, from the nature of business records that show that dealing and which carry indications of reliability, especially if those records are in the form of statements of account sent from time to time in the course of a lending transaction, which taken together with evidence from an authorised person of an analysis and inspection of books and records, whether documentary or electronic, can in the absence of a denial or challenge which is more than a mere bald assertion, be sufficient to establish a claim'.
The Court of Appeal noted that, in this case, the deponent's source of knowledge was not identified save with respect to the specific documents he exhibited and, even in respect of the exhibits, it was not clear whether original books and records had been examined. The only statement of account provided to the Court in this case appeared to have been prepared for the purpose of litigation, and no bank statements or documentation from which a course of dealing could be inferred had been exhibited.
The Court of Appeal concluded that the affidavit evidence in this case did no more than confirm what the plaintiff had been told (by the bank from which the loan was purchased) what amount was due by the borrowers at the time that the loan was acquired and what amount had, on that basis, been calculated as having accrued since then. The Court of Appeal held that the affidavit amounted to "classic hearsay, a statement of what the deponent was told by someone else".
The case is one which is likely to frustrate creditors in circumstances where no argument was made by the borrowers in Burns regarding the particularity of the pleaded claim or the accuracy of the pleaded figures.
In a concurring judgment, Collins J opined that the 'continuing vitality' of the rule against hearsay in the context of summary judgment is almost always almost always unhelpful to the fair resolution of cases, and that it 'clearly deserves the attention of the legislature'.
Creditors will be reassured to note that they will be permitted to amend an existing summary summons to provide sufficient detail to satisfy the requirements of the Supreme Court.
In light of the Court of Appeal decision in Burns, creditors should carefully consider the basis of knowledge of a deponent seeking to swear an affidavit grounding an application for summary judgment.
1This common law exception to the rule against hearsay, has its origins in Moorview Developments v First Active plc  IEHC 275, and was developed in Ulster Bank v O'Brien  2 IR 656, and in Bank of Scotland v Fergus  IEHC 131. It was applied in Bank of Ireland v. Keehan  IEHC 631