Summary Judgment Refused Where Original Bank Mandate Could Not be Found
In Allied Irish Bank Plc v O'Donovan & anor  IEHC 494, High Court, Eagar J, 27 July 2017 AIB sought summary judgment against the defendants, who were formerly partners in a law firm.
The second named defendant (Mr Crowley) resisted the application for summary judgment, arguing that while AIB had furnished the demand letter in the proceedings, it had not provided the terms and conditions of the alleged overdraft and therefore the claim was not properly constituted. The sum at issue arose on an overdraft on a business account (the Account) held by the defendants for the purposes of their solicitors' practice.
Mr Crowley denied that the Account was in joint names but rather in the sole name of the first named defendant having been opened by him before Mr Crowley joined the legal practice. He claimed that the Account was at all times operated solely by the first named defendant and that he was never an account holder. AIB acknowledged that the Account was originally opened by the first named defendant in about 1994 but claimed that, in November 2005, the Account was converted into a joint and several account by the defendants. AIB claimed that it was authorised to act on the signature or on the instructions of any one of five persons named in a mandate who expressly agreed and declared they would be jointly and severely liable for any debts occurred by them. The mandate was exhibited, and was certified as a true copy. It did not contain an account number and it was signed by the first named defendant, Mr Crowley, and three others.
Mr Crowley told the Court that he was putting AIB on full proof of the mandate alleged to have been signed by him in November 2005. He noted that following a data access request AIB indicated that the original mandate could not be located. He pointed out that there was no account number on the mandate and stated that he believed that the mandate related to some other matter.
The Court noted the mandate, the original of which could not be found, did not mention the Account. It also noted that AIB had failed to demonstrate the original loan agreement, or any documents setting out the detailed terms and conditions in respect of the loan agreement. In these circumstances, the Court refused to grant summary judgment and adjourned the claim to plenary hearing.
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Date Published:12 September 2017