Discovery application dismissed in summary judgment proceedings as discovery is not an instrument to establish a defence.

[2017] IEHC 304

THE HIGH COURT

[2013 No. 4073 S.]

BETWEEN

ACC LOAN MANAGEMENT LIMITED

PLAINTIFF

AND

OLIVER KELLY AND MARGARET KELLY

DEFENDANTS

JUDGMENT of Mr. Justice Eagar delivered on the 15th day of May, 2017

1. This is a judgment on the application by way of notice of motion for discovery by the defendants dated the 3rd of November, 2014.

2. The proceedings in this case were initiated by the plaintiff by summary summons issued on the 5th of December, 2013.

The First Loan Facility

3. The special endorsement of claim in its particulars identified that on or about 2nd of August, 2006 pursuant to a loan agreement,

the plaintiff provided a loan facility to both defendants of up to €300,000.00.

4. By deed of appointment dated the 21st of July, 2010 Simon Coyle of Mazars (the receiver) was appointed by the plaintiff as

receiver over 3 St. Laurence’s Park, Wicklow Town, Co. Wicklow and 9 Glenside Road, Wicklow Town, Co Wicklow pursuant to a

mortgage dated the 22nd March, 2007 and a mortgage dated the 15th of November, 2007 made between the defendants of the one

part and the plaintiff of the other part. The properties were to be sold by the receiver and the net proceeds of sale in the amount of

€191,744.24 were applied against the first loan facility as was repayment by the borrowers in the sum of €37,000.00 in reduction of

the amount due and owing by the defendants to the plaintiff pursuant to the first loan facility. By letter of formal demand dated the

23rd of October, 2013 the plaintiff’s solicitors demanded repayment of €71,097.44 which sum remained due and owing by the

defendants pursuant to the first loan facility.

The Second Loan Facility

5. On or about the 22nd of November, 2006 pursuant to a loan agreement, the plaintiff provided a loan facility to the defendants of

€600,000.00. By letter of formal demand dated the 23rd of October, 2013 the plaintiff’s solicitors demanded repayment of the principle

sum of €600,000.00 then due and owing to the plaintiff by the defendants on foot of the second loan facility.

6. The plaintiff claimed judgment in the sum of €671,097.44 being the sum demanded as due and owing by the defendants as of the

23rd of October, 2013.

Proceedings

7. The defendants entered an appearance on their behalf and represented themselves in these proceedings.

8. By notice of motion dated the 1st of April, 2014 the plaintiff sought summary judgment in the sum of €671,097.44 and interest.

This affidavit detailed the two loan facilities referred to above and the demand for payment as against the defendants. On the 20th of

April, 2015 the title of the plaintiff in the proceedings was amended from ACC Bank Plc. to ACC Loan Management Ltd. together with a

copy of the certificate of title in relation to this.

9. The defendants swore an affidavit in their joint names on the 21st of May, 2014. The affidavit of the defendants indicated that in

relation to the first loan facility, the first legal mortgage in charge was not on 5 St. Laurence’s Road but on 3 St. Laurence’s Park,

Wicklow Town. In relation to the second loan facility the defence indicates that payments were made prior to the loan being taken

down, and that this is a mistake in the affidavit of the plaintiff’s affidavit sworn by Mr. Pierce. However, it is quite clear to the Court

that the payments that were paid related to the first loan, and not the second loan. By affidavit sworn on the 3rd of July, 2014 Ronan

O’Flaherty, a manager of ACC Loan Management Ltd. says that he believes no defence is made to the plaintiff’s claim. He states that

the plaintiff sues on sums advanced pursuant to two loan facilities, one dated the 2nd of August, 2006 and the second dated the

22nd of November, 2006. There is no dispute that the monies provided for in these facilities were advanced and similarly no dispute

that to the extent referred to in the proceedings the monies have not been repaid.

10. He states that the defendants made a number of arguments in their affidavit and which he identifies as follows:

(1) There were inaccuracies in the affidavit of Edmund Pierce sworn on the 25th of March, 2014 and in some of the loan

documentation exhibited referring to the addresses; and

(2) There was overcharging of interest and fees, undercharging of funds on deposit and missing or taken funds

(3) That the Bank gave a binding commitment to advance sums to the defendant for further development in 2007 and the

Bank had to make good on that promise

He says that he has examined the background to each of the claims and having done so he says he believes there is no substance to

these claims. Much of what is said in their claims has been traversed in correspondence with the Bank, which had addressed the

claims.

11. In relation to the errors in the loan documentation, he states that the plaintiff has already apologised in writing for these errors

but that the actual identity of the secure properties was never in doubt. He says that a number of complaints had gone unanswered

by the plaintiff and he says that this was not the case. He also says that the defendants in their affidavit referred to a refund of an

amount of €24,143.23. This sum related to an arrangement fee which the Bank charged (in error) to a consumer loan and was

refunded to the defendants by agreement and not included in the claim.

12. He states that the defendants queried at a number of points what occurred in relation to the proceeds of their houses by way of

the actions of the receiver appointed on behalf of the Bank. He says that the plaintiff retained complete discretion under its loan and

security documentation as to where the receivership proceeds were to be applied, and that the net sale proceeds of the receivership

and other payments fall far short of paying the defendants debt obligations to the plaintiff.

13. The next affidavit is that of Aidan McLoughlin of ACC Loan Management Ltd. dated the 3rd of July, 2014 and he says he is

employed by the plaintiff as Agri-Banking Manager and was formerly employed by the plaintiff as portfolio manager in the Wicklow

town branch of the plaintiff Bank. He said that he had read and considered the affidavit of Edmund Pierce sworn on behalf of the

plaintiff on the 25th of March, 2014 and he agrees and confirms every averment.

14. He also says that he did not accept that the Bank gave the defendants any assurance that the Bank would provide development

finance for a proposed development of 3-4 St. Laurence’s Park, Wicklow Town, Wicklow. He did not explain to the defendants that

the loan facility provided pursuant to letter of sanction dated the 22nd of November, 2006 was a first instalment in the alleged

agreement to provide development finance.

15. On the 4th of November, 2014 by way of notice of motion the defendants applied for discovery of documents in the plaintiff’s

power, procurement or possession founded on affidavit of both defendants. This is the issue which this Court proposes to decide.

16. Mr. Kelly expressed a wish to progress a motion in respect of discovery and has now issued such a motion. Counsel for the

plaintiff takes objection to the motion coming before the court in a summary judgment application. She says that such an application

is inappropriate in the context of summary proceedings.

Discovery in summary summons proceedings

17. The Court is clear that the issue of discovery does not correspond with the requirements of an application for summary judgment.

The Court refers to the Irish Life and Permanent plc. trading as Permanent TSB v. John Hanrahan & Celina Hanrahan [2015] IEAC 125,

where Moriarty J. in the High Court refused discovery in summary summons proceedings. The defendants appealed to the Court of

Appeal and in a judgment delivered on the 10th day of June, 2015 Kelly J. (as he then was) stated as follows:

“4. The adjudication will be as to whether an arguable defence has been laid out by Mr. Hanrahan on foot of the affidavit

evidence which he has already filed or indeed on foot of any further affidavit evidence which he may file between now

and the matter being determined by the judge.

5. The application for discovery was dealt with in the High Court by Moriarty J. who pointed out and in my view pointed

out quite correctly, that normally an application for discovery does not fall to be dealt with at this stage of proceedings.

In that regard the judge was on solid ground because discovery ordered in respect of issues that will fall to be tried at

the trial of the action.

7. We are a long way indeed from the delivery of a formal defence in the present action as I have already pointed out the

matter is pending before the Master who will have to go to a judge’s list. A judge will have to decide whether there is a

prima facia defence made out. If he takes the view that there is such a defence, then the case will be adjourned for

plenary hearing and there will be an order made for the exchange of formal pleadings.

8. It is by reference to the pleadings that the question of the entitlement to discovery falls to be determined. There is

ample case law demonstrating that it is by reference to pleadings alone that one has to identify the issues that fall to be

tried.

9. It is clear that, if that is the view of the matter which found favour with the Supreme Court in the case of Keating v.

RTE. Mr. Hanrahan has said he wants this discovery in order to be able to put his defence before the Master or before the

judge by way of affidavit. But it is clear from the decision of the Supreme Court in Keating v. RTE that as is said there

“discovery is an instrument to advance the calls of justice, it’s purpose is to aid a party in the progress of litigation”. It is

not designed to identify grounds capable of establishing a cause of action, that is it cannot be used to enable a person to

plead a course of action for a defence which he is not otherwise in a position to plea.”

18. This Court finds that it is only when a court decides that a plaintiff is not entitled to summary judgment, on the basis that a

defence has been raised by a defendant, that the issue of discovery arises. In those circumstances the Court will refuse the reliefs

sought by way of an order for discovery in relation to these matters, and the Court will proceed to deal with the issue of whether or

not there is any defence raised in relation to these proceedings.