High Court dismisses defendant's motion for summary judgment on bank guarantee claim against company director.

[2016] IEHC 60

THE HIGH COURT

[2014 No. 1674 S]

ALLIED IRISH BANKS PLC

PLAINTIFF

AND

DEIRDRE YATES

DEFENDANT

JUDGMENT of Mr. Justice Noonan delivered the 5th day of February, 2016

1. This matter comes before the court by way of motion for summary judgment on foot of a summary summons issued on the 27th of

June, 2014, wherein a sum of €1,648,147.97 is claimed by the plaintiff (“the bank”) against the defendant on foot of a guarantee of

the 13th of April, 2010.

Facts.

2. The guarantee in issue in these proceedings relates to the borrowings of a company called Celtic Bookmakers Ltd (“Celtic”) which

appears to have been operated and managed by the defendant’s husband, Mr. Ivan Yates. Both the defendant and her husband were

at all material times directors of Celtic.

3. In early 2010, Celtic sought and obtained certain facilities from the plaintiff. These were initially provided for by way of letter of

sanction dated the 26th of February, 2010, from the bank to the directors of Celtic. The first letter of sanction provided for four

different facilities to be afforded to Celtic. Facility 1 is described as an overdraft and is in the amount of €1,000,000 for the purpose

of working capital. Facility 2 is described as a standby overdraft in the amount of €300,000 and is also described as being for the

purpose of working capital. Facility 3 is described as a revolving credit facility in the amount of €300,000 its purpose being described

as a revolving credit facility to assist with capital expenditure. Facility 4 is described as a loan account in the amount of €5,169,000

for the purpose of funding capital expenditure projects in relation to the expansion of the Celtic Bookmakers Ltd chain. The letter of

sanction provided a number of special conditions which included that fresh letters of guarantee would be signed for company facilities

by the defendant and Mr. Yates. It further provided for certain security to be put in place to secure the various facilities and these

included at item 6:

“Letter of guarantee for €6,769,000 in favour of the bank from Deirdre Yates for the obligations of Celtic Bookmakers Ltd

supported by all sums mortgage over house on 1.3 acres at Blackstoops, Enniscorthy, County Wexford vesting in the

names of Ivan and Deirdre Yates.”

The sanction letter appears to have been signed by Mr. Yates only although nothing turns on this.

4. By letter dated the 9th of March, 2010, Mr. Philip McDermott, the bank’s business banking manager at its branch at Enniscorthy,

County Wexford wrote to the defendant in the following terms:

“Re: Celtic Bookmakers Ltd.

Facility: Overdraft facility for €1,000,000, standby overdraft facility for €300,000, revolving credit facility for €300,000

and loan facility for €5,169,000.

Dear Deirdre,

Our above named customer has nominated you as guarantor for the above facilities and I enclose a copy of the terms of

the facilities to be guaranteed.

Your guarantee is to be secured by the following items of security:

All sums mortgage over house on 1.3 acres at Blackstoops, Enniscorthy, County Wexford.

I also enclose two copies of the guarantee form, one for you to sign and return to AIB, and the other for you to keep.

Your signature to this guarantee will need to be witnessed by either your solicitor or an AIB bank official. In either case,

you should bring along personal identification, such as your driving licence or passport. You are advised to obtain

independent legal advice before signing the guarantee. I would also suggest that you keep copies of the guarantee,

this letter and the terms of the facilities for future reference.

Please return the guarantee, duly signed and witnessed, to me at the above address.

I look forward to hearing from you in due course.

Yours etc.” (Emphasis as in original)

5. There is no dispute that the defendant received this letter. On the 2nd of April, 2010, Celtic passed a resolution to accept the

offer of these facilities from the bank. This resolution is signed by Mr. Yates as chairman and the defendant as secretary of Celtic.

6. The guarantee, the subject matter of these proceedings is dated the 13th of April, 2010, approximately five weeks after the letter

referred to above. It is a standardised pro forma document. At the top of the first page of the document, the following appears in a

separate box:

“WARNING: - As guarantor of the credit facilities you will have to pay off the credit facilities, the interest and all

associated charges if the borrower does not. Before you sign this guarantee you should get independent legal advice.”

7. The guarantee in the schedule identifies the borrower as Celtic and the limit of the guarantee as being €6,769,000. There is now no

dispute about the fact that it was signed by the defendant. The defendant’s signature was witnessed by a bank official of the

Enniscorthy branch. Clause 6 of the guarantee, insofar as relevant to these proceedings, provides as follows:

“[6.] The bank shall be at liberty without obtaining any consent from the guarantor and without thereby affecting its

rights or the guarantor’s liability hereunder at any time:-…

(v) To enforce in whatever order it thinks fit all rights to recover and all securities and guarantees (including this

guarantee) for the above mentioned liabilities of the borrower.”

8. Clause 7 provides, inter alia:

“[7.] This guarantee shall be an addition to and shall not be in any way prejudiced or affected by any collateral or other

security now or hereafter held by the bank for all or any part of the monies hereby guaranteed, nor shall such collateral or

other security or any lien to which the bank may otherwise be entitled or the liability of any person or persons not parties

hereto for all or any part of the monies hereby secured be in anywise prejudiced or affected by this present guarantee…”

9. The final clause of the guarantee provides as follows:

“[21.] I certify that I have read the within guarantee and have received a copy thereof for my use.”

10. On the 23rd of November, 2010, a further letter of sanction was issued to the directors of Celtic this time relating to two facilities

only, the first being an overdraft for €1.3 million for the purpose of working capital and the second being the loan account of

€5,169,000 in identical terms to the earlier facility letter. The security section of the new facility letter included the following:

“[6.] Letter of guarantee for €6,769,000 in favour of the bank from Deirdre Yates dated 13/04/2010 for the obligations of

Celtic Bookmakers Ltd. Supported by all sums mortgage over house on 1.3 acres at Blackstoops, Enniscorthy, County

Wexford, vesting in the names of Ivan and Deirdre Yates.”

11. The second sanction letter was signed on the 26th of November, 2010, by both Mr. Yates and the defendant. On the same date,

a further resolution of Celtic was passed accepting the offer of these facilities, which again is signed by Mr. Yates as chairman and

the defendant as secretary of Celtic. Funds were drawn down by Celtic on foot of these sanctions.

12. On the 21st of December, 2010, the board of Celtic passed a resolution requesting the bank to appoint a receiver over its assets

pursuant to the provisions of a debenture of the 28th of March, 2007, issued by Celtic to the bank. This resolution was again signed

by Mr. Yates as chairman and the defendant as secretary of Celtic.

13. On the 4th of January, 2011, a receiver was appointed by the bank. On the 16th of March, 2012, a resolution was passed by

Celtic to appoint a liquidator to the company.

14. Thereafter, it would appear that in May, 2012, bankruptcy summonses were issued by the bank against both the defendant and

Mr. Yates in which a sum of €3,692,852.13 was said to be due by the defendant to the bank. The summons against Mr. Yates was

dismissed by this court (Dunne J.) on the 21st of August, 2012, and the summons against the defendant was not proceeded with. On

the 31st of August, 2012, Mr. Yates was adjudicated bankrupt in Swansea County Court.

15. On the 10th of June, 2014, the bank’s solicitors demanded payment of the sum claimed in these proceedings from Celtic and on

the 12th of June, 2010, called in the guarantee by demanding payment of the same sum from the defendant.

The Affidavit Evidence.

16. The bank’s application is grounded upon an affidavit of Lynne Allan, a team leader in the bank’s litigation management team. Ms.

Allan exhibits all of the documents referred to above and avers that the sum due by the borrower is €1,648,147.97. This figure is

arrived at in the following manner. A bank statement of the 28th of January, 2011, in relation to Celtic’s loan account shows that as

of the 18th of January, 2011, the sum due by Celtic was €4,524,831.97. This relates to Celtic’s loan account only and not to any of

the other facilities described in the letters of sanction. That amount is then reduced by the total of the receipts in the receivership

up to the 23rd of August, 2013, amounting to €2,876,684, the balance representing the sum claimed herein.

17. In her first replying affidavit, the defendant avers that she qualified as a primary school teacher and worked for 3 years in that

capacity before taking a career break in the late 1980s. Celtic was established by her husband. She remained as a director and

secretary of the company until it went into liquidation. At para. 4 of her affidavit, the defendant avers:

“I did take responsibility for administrative filings and I had some dealings with employment issues but I never had any

responsibility for financial matters. I had no qualifications or expertise in relation to financial matters and I have never

professed to have such expertise.”

18. She returned to work as a teacher in 2011. At para. 7, the defendant says:

“[7.] The reason why I signed banking documents in relation to the business of the company – including guarantee

documents – was because I was asked to do so by the plaintiff and I understood that this was necessary for the business

of the company. My clear understanding at all times when I signed these documents was that I was signing them for

administrative purposes only and that the plaintiff would not be entitled to have recourse to any assets other than the

assets of the company and certain lands owned by my husband in respect of which the plaintiff had been granted a fixed

charge. I did not believe that the guarantee documents exposed me to a personal liability over and above those items or

gave the plaintiff an entitlement to pursue our family home and I would not have signed those documents if I thought this

to be the case. I never thought that the plaintiff was seeking to put itself in a position to have personal recourse against

me, as I believe it must have known that I was not a person of any financial standing and that I had no realisable

assets.”

19. This paragraph underlies one of the issues raised by way of defence by the defendant, being that of non est factum to which I

will return. In the next paragraph of her affidavit, the defendant avers:

“I did not receive any legal advice in relation to the consequences of signing the guarantee and at no stage was I aware

of the consequences of signing the guarantee. The plaintiff never suggested to me that I get legal advice,

notwithstanding that it was aware that I had no realisable assets and no substantive financial experience, and the

plaintiff took no steps whatsoever to ensure that I understood the nature of the obligation I was assuming on execution

of the guarantee.”

20. In the light of the undisputed correspondence to which I have already referred and indeed the terms of the guarantee itself in its

opening paragraph, the averment by the defendant that the bank never suggested that she obtain legal advice is patently incorrect.

21. In her second affidavit, Ms. Allan, at para. 9, avers:

“It is noteworthy however, that the defendant was also the secretary of the company and regularly attended meetings

with the bank and was therefore appraised of its financial affairs and its dealings with the bank.”

22. This averment is uncontroverted in the defendant’s subsequent two affidavits. Ms. Allan further exhibits the last annual return of

Celtic filed in the Companies Registration Office on the 16th of April, 2010, which discloses that the total number of shares held in the

company was 1,000, of which 990 were held by the defendant.

The Issues Considered

23. Counsel for the defendant, Mr. Conroy B.L., identified three grounds upon which the defendant resists the plaintiff claim for

summary judgment as follows:

1. The bank ought not be permitted to obtain judgment against the defendant until it has executed in full against the

other security available in respect of the guaranteed debt;

2. The defendant is entitled to rely on non est factum;

3. The plaintiff has failed to adequately explain the calculation of the sum due.

24. On the first issue, counsel for the defendant makes two points. The first is that the equitable doctrine of marshalling applies in

this case as explained by Andrews and Millet in Law of Guarantees 6th edition, where the authors say (at para. 11-015):

“The doctrine applies to guaranteed debts. Once a demand is made of him by the creditor, the surety has the right to

compel the creditor first to have recourse to a security held by that creditor before suing him.”

However, as pointed out by Mr. Fitzpatrick B.L. for the bank, the doctrine of course has no application where it is expressly excluded

by the terms of the guarantee itself, as here. Consequently I am satisfied that there is no substance in this point.

25. In addition, the defendant seeks to rely on the decision of the Supreme Court in Whelan and Ors v. AIB [2014] IESC 3 as authority

for the proposition that in circumstances such as arise in the present case, the bank ought not in equity be entitled to enforce the

guarantee without first realising the other security available to it. In Whelan, the six plaintiffs were members of the same family. The

third plaintiff was Mr. Philip Lynch, a very wealthy business man, the fourth plaintiff was his wife and the other plaintiffs were his

children. The case concerned a land acquisition deal whereby Mr. Lynch was to acquire, with another party, potential development

land for €25 million, 100% financed by AIB. The purchase agreement was executed on the 8th of February, 2007. The deal was

months in the making but at the last moment on the 7th of February, 2007, it was decided that Mr. Lynch’s children would also

become borrowers and purchasers in the transaction. The reason for this last minute change was that the transaction potentially

provided Mr. Lynch with a vehicle for family wealth management in a tax efficient way. The judgment of the Supreme Court was given

by O’Donnell J. who explained the Lynch strategy in the following terms (at p. 7):

“In very simple terms, if the family members were included as participants in the transaction at the outset, then that

would assist in making them liable to pay tax only on the increased value of the investment. From the outset therefore, it

was the advice given to the plaintiffs, and their clear objective, that all the Lynch family members were to be borrowers

of the monies advanced. However, it is noteworthy that this tax strategy meant the family members would have to

become participants in their own right in the transaction, and crucially, in the loans.”

26. The introduction of Mr. Lynch’s wife and children into the transaction was considered further by O’Donnell J. (at pp. 52-53) as

follows:

“When Mrs. Lynch and the Lynch children were introduced into the transaction it was for Mr. Lynch’s own,

understandable, private wealth management purposes. The bank had no interest in those parties, and their addition to the

transaction neither created additional risk for the bank, nor provided any additional security in terms of repayment….The

position is that the extended members of the family were introduced into the transaction and indeed the loan, at a very

late stage. At the last minute a change was made by the bank which was capable of causing confusion, and did, and

which had the effect of exposing these individuals whose net worth may have been, in relative terms, limited, to the

possibility which transpired in the High Court, of a potential individual liability in excess of €25 million.

[99.] … Nevertheless the fact is that these individuals whose net worth may be limited now face a potentially ruinous

personal liability of which they were not advised, and which the bank never sought or relied upon at least from a

commercial perspective and only obtained in order to facilitate the enforcement against the principal borrowers. In those

circumstances there may be a residual question whether in all the very particular circumstances of this case, it would be

equitable to permit the bank to enforce its legal claim against the wider members of the Lynch family, or at least to do so

without having first pursued execution against the principal borrowers including Mr. Lynch. I would accordingly, and to this

limited extent, set aside the judgment obtained by the bank against [Mrs. Lynch and the Lynch children]. It will be a

matter for the parties if there is any merit on either side in pursuing the issue further.”

27. I do not believe that in reaching this conclusion, O’Donnell J. intended to introduce any radically new principle of law intended to

have general applicability. He placed emphasis on the very particular circumstances of that case, circumstances which appear to me

to bear no relation to those that arise in this case. The Lynch family members concerned were last minute, and perhaps unwitting,

inclusions in a deal in which neither Mr. Lynch or the bank ever intended they would be involved. Nothing of that nature arises here.

28. The loans in this case were for the benefit of Celtic, a company in which the defendant was the major shareholder as well as the

secretary and a director. On her own admission she was involved in the affairs of the company and although she denies responsibility

for financial matters, she was clearly aware of them as she regularly attended meetings with the bank. In those circumstances, I

cannot see how Whelan can be regarded as of any assistance to the defendant in this case. In China and South Sea Bank Ltd v. Tan

Soon Gin [1990] 1 A.C. 536, the plaintiff sued the defendant on foot of a guarantee in respect of the liabilities of a company. The

Privy Council held that the creditor owed no duty to the surety to exercise its power of sale over the mortgage securities and could

decide in its own interests whether to sell and when to do so. The law is succinctly summarised by Lord Templeman (at p. 545):

“In the present case the security was neither surrendered nor lost nor imperfect nor altered in condition by reason of

what was done by the creditor. The creditor had three sources of repayment. The creditor could sue the debtor, sell the

mortgage securities or sue the surety. All these remedies could be exercised at any time or times simultaneously or

contemporaneously or successively or not at all. If the creditor chose to sue the surety and not pursue any other

remedy, the creditor on being paid in full was bound to assign the mortgaged securities to the surety. If the creditor

chose to exercise his power of sale over the mortgaged security he must sell for the current market value but the creditor

must decide in his own interest if and when he should sell. The creditor does not become a trustee of the mortgaged

securities and the power of sale for the surety unless and until the creditor is paid in full and the surety, having paid the

whole of the debt is entitled to a transfer of the mortgaged securities to procure recovery of the whole or part of the sum

he has paid to the creditor.”

29. I am satisfied that this represents a correct statement of the law and I do not think for the reasons already explained that the

judgment of the Supreme Court in Whelan had either the intent or effect of altering the law in that respect. Accordingly, I am

satisfied that the defendant has demonstrated no arguable defence on this ground.

30. Turning now to the issue of non est factum, the law in this regard was considered by Kelly J. (as he then was) in IBRC v. Quinn

[2011] IEHC 470 where he said (at p. 8):

“Non Est Factum

[24.] The first line of defence is that of non est factum. This is a defence which is only rarely invoked successfully. The

law, both in England and in this jurisdiction on the topic is clear.

[25.] The leading case is that of Saunders v. Anglia Building Society [1971] AC 1004, which was followed by Morris J. (as

he then was) in this country in Tedcastle McCormack and Company Limited v. McCrystal (15th March, 1999) and by me

in Allied Irish Banks Plc v. Higgins & Ors. [2010] IEHC 219.

[26.] Morris J. said as follows:-

‘I am satisfied that a person seeking to raise the defence of non est factum must prove:-

(a) That there was a radical or fundamental difference between what he signed and what he thought

he was signing;

(b) That the mistake was as to the general character of the document as opposed to the legal effect;

and

(c) That there was a lack of negligence i.e. that he took all reasonable precautions in the

circumstances to find out what the document was.’

[27.] In his speech in the Saunders case, Lord Reid, having pointed out that there is a heavy burden of proof on the

person who seeks to invoke this remedy, went on to say:-

‘The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at

least the general effect of the document. Many people do frequently sign documents put before them for signature

by their solicitor or other trusted advisors without making any inquiry as to their purpose or effect. But the essence

of the plea non est factum is that the person signing believed that the document he signed had one character or

one effect, whereas in fact, its character or effect was quite different. He could not have such a belief, unless he

had taken steps or been given information which gave him some grounds for his belief.’

[28.] Lord Hodson in his speech in the same case said:-

‘Want of care on the part of the person who signs a document which he afterwards seeks to disown is relevant.

The burden of proving non est factum is on the party disowning his signature; this includes proof that he or she

took care. There is no burden on the opposite party to prove want of care.’ ”

31. The defendant relies on the judgment of Charleton J. in Friends First Finance v. Lavelle [2013] IEHC 201 where the defence of

non est factum succeeded. He said (at p. 6):

“[18.] There are strong policy reasons underpinning the requirement for care in signing legal documents. The stringency of

the test whereby liability may be resiled from reflects the proposition that those who enter into contractual relations on

the basis of documents must take care as to what they are signing. I accept the commercial sense of the propositions

which underpin the defence and note that chaos might be the result were defendants held to a less stringent

circumscription of the defence.

[19.] On the very particular circumstances of this case, however, a situation arises which has rarely, if ever, been seen

before and that is that a financial institution in seeking to make someone bound by a loan agreement should not see fit to

meet with the borrower face-to-face, explore what requirements they have and ensure that they sign the documents

establishing the mutuality of obligations of borrower and lender. Those basic steps of the ordinary establishment of a

proper relationship of borrower and lender did not happen here. The plaintiff financial institution has accepted in evidence

that they do not know the circumstances under which Charlotte Lavelle signed any of the relevant documents; that they

never met her; that they do not know whether she received any of the letters in relation to the borrowing that was in her

name; that they could not comment whether these letters which habitually came from Quinlan Private Investments were

distinctively marked with the entity of the logo on the envelope (a large embossed golden ‘Q’ apparently); that they did

not witness the relevant documents within their premises or even through their own personnel; and that they trusted

Quinlan Private Investments to do all which they normally would have done as a matter of prudence. This constitutes a

radical departure from the procedures of the plaintiff financial institution. ”

32. Charleton J. himself described the facts of that case as being possibly unique. Far from departing from the views expressed by

Kelly J. cited above, Charleton J. quotes with approval the passage I have above referred to and says of it (at p. 6):

“This judgment is based on sound authority and of its origin is in itself firm precedent. I base my decision on the principles

therein set out.”

33. Here again, those facts could not in any sense be equated with those arising here. The only evidence before the court which

could conceivably give rise to the defence of non est factum is contained in para. 7 of the defendant’s first affidavit which I have

referred to above. She says that she signed the guarantee “for administrative purposes only” without explaining what that means. At

no stage does she identify what she thought she was signing if it was not a guarantee. She merely says that she understood that the

plaintiff would only be entitled to have recourse to the assets of the company and her husband. She does not explain the basis for

that understanding. Insofar as she was under any misapprehension, it appears to have been as to the legal effect of the document

she was signing. However, as Morris J. makes clear in Tedcastle McCormack, that is not sufficient. The mistake must be as to the

general character of the document. Furthermore, there is no suggestion of any kind that the guarantee was in some way radically or

fundamentally different from what the defendant thought she was signing. The defendant is clearly an educated woman and does not

purport to suggest that she had any particular difficulty in understanding the document. She had some five weeks to consider it and

plenty of time to get legal advice on it, as she was plainly advised to do by the bank. In those circumstances, even if the defendant

was under a general misapprehension as to what she was signing, it could not in my view be said that she took all reasonable

precautions to find out what the document was.

34. In this regard, the comments of Kelly J. in IBRC v. Quinn are apposite (at p. 12):

“[36.] Second, in order to establish an entitlement to rely on this defence, there has to be a lack of negligence on the

part of the person seeking to set it up. What could more negligent than willy-nilly signing formal legal documents without

giving any thought as to their effect? Mrs. Quinn has failed to provide any evidence of the existence of the third

ingredient identified by Morris J. On this topic, I agree fully with the observations made by Clarke J. in ACC Bank v. Kelly,

where he said:-

‘By signing a commercial banking arrangement, a borrower agrees to be bound by the terms of that arrangement and

if the borrower has not taken the trouble to adequately read the document or be adequately informed as to its

meaning then the borrower must accept the consequences of having signed a commercially binding agreement in

those circumstances.’ ”

35. At the end of the day, the defendant’s assertions on affidavit are just that i.e. mere assertions. As Clarke J. stated in giving the

judgment of the Supreme Court in IBRC v. McCaughey (Supreme Court, unreported, 11th July, 2014) in dealing with the summary

judgment jurisdiction of the High Court in bank debt cases (at p. 11):

“The sort of factual assertions, which may not provide an arguable defence, are facts which amount to a mere assertion

unsupported either by evidence or by any realistic suggestion that evidence might be available, or, facts which are in

themselves contradictory and inconsistent with uncontested documentation or other similar circumstances such as those

analysed by Hardiman J. in Aer Rianta. It needs to be emphasised again that it is no function of the Court on a summary

judgment motion to form any general view as to the credibility of the evidence put forward by the defendant.”

36. Even accepting the defendant’s averments at face value without any consideration or assessment of their credibility, it is clear

that they cannot sustain the defence of non est factum.

37. The defendant’s final ground of defence relates to the alleged failure to adequately explain the calculation of the amount claimed.

I have difficulty in understanding the basis for this assertion. The bank have explained the calculation of the figure on multiple

occasions. The defendant has not engaged with this explanation in any way or sought to say why it is wrong. Rather, she asserts

that because a different sum was said to be due in the bankruptcy proceedings which were aborted, this gives rise to a defence. I

cannot see the relevance of those proceedings to the bank’s claim here. If it has decided for its own reasons to pursue the plaintiff

for a lesser sum, due on one account only by Celtic, then that is a matter for them and not something of which the defendant can

complain. There is also a suggestion under this heading that the bank are seeking to pursue double recovery and not giving credit for

sums realised from the sale of a property owned by Mr. Yates in the course of the UK bankruptcy and indeed costs recovered by him

against the bank in the successful defence of the bankruptcy summons. As counsel for the bank points out, realisations in the

bankruptcy are for the credit of the bankruptcy trustee, not the bank.

38. However in any event, the bank cannot at the end of the day recover more than is due to it and there is no question of double

recovery. A plaintiff may well have recourse to multiple defendants for the same debt but that does not mean that he can recover it

multiple times. This is explained by Clarke J. in Londis v. Arman Retail [2006] IEHC 309:

“However, it seems to me that the fact that there may be a different basis upon which the Plaintiff might also recover the

same sum of money does not disentitle the Plaintiff in principle to recovery against the Defendants if it is otherwise

appropriate that the Plaintiff should so recover.

It is frequently the case that in appropriate circumstances the court grants judgment jointly and severally against two

individuals. It is axiomatic in

such circumstances that a Plaintiff cannot recover the full sum against both Defendants and it equally follows, therefore,

that to the extent that the Plaintiff may recover against one Defendant in those circumstances, it is precluded from

executing as against the other Defendant for a sum which would amount to double recovery.

But that fact does not prevent the Plaintiff from getting judgment against both Defendants jointly and severally for the

full sum. By analogy, it seems to me, that the fact that the Plaintiff may have the ability to recover some of these monies

from another source does not prevent the Plaintiff from being entitled to also obtain judgment against these Defendants.

It is clearly the case that, to the extent that the Plaintiff may actually recover the same monies by some other route, it

would be precluded from issuing execution as against these Defendants for the relevant sums.”

39. I am therefore satisfied that the defendant has made out no arguable defence under this heading either.

Conclusion

40. For these reasons therefore, applying the test set by the Supreme Court in Aer Rianta v. Ryanair [2001] 4 I.R. 607, the defendant

has not to my mind established that she has a fair or reasonable probability of having a real or bona fide defence. It is in my view

clear that she has no defence.

41. Accordingly, the plaintiff is entitled to judgment in the sum claimed of €1,648,147.97.