Feniton Property Financial DAC & Anor v McCool (Unapproved) [2022] IECA 217 (06 October 2022)

Feniton Property Financial DAC & Anor v McCool (Unapproved) [2022] IECA 217 (06 October 2022)

The Court of Appeal held that, in line with recent Supreme Court authority, affidavit evidence from a person with access to the relevant records of a financial institution is admissible to prove indebtedness in summary judgment proceedings, even if the deponent was not personally involved in the underlying transactions and the plaintiff is not a bank. The defendant failed to establish a fair and reasonable probability of a bona fide defence, and the High Court was correct to grant summary judgment.

Citation
[2022] IECA 217
Parties
Plaintiff/respondent: Feniton Property Finance Designated Activity Company; Plaintiff/respondent: Pepper Finance Corporation (Ireland) DAC; Defendant/appellant: Eugene McCool
Jurisdiction
Ireland
Judgment Date
06 October 2022
Procedural Posture
Civil Appeal / Appeal From High Court Summary Judgment
Outcome
appeal dismissed
Legal Topics
Summary Judgment, Hearsay Evidence, Bankers' Books Evidence, Assignment of Debt, Guarantees, Business Records Admissibility
Banking Law Evidence Law Civil Procedure Summary Judgment Hearsay Evidence Bankers' Books Evidence Assignment of Debt Guarantees +1 more

Case Brief

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Parties

Feniton Property Finance Designated Activity Company

Plaintiff/respondent

Pepper Finance Corporation (Ireland) DAC

Plaintiff/respondent

Eugene McCool

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From High Court Summary Judgment

Legal Issues

  1. 1 Whether the affidavit evidence of a director of the plaintiff, who was not personally involved in the underlying loan transactions, is admissible to prove the debt in summary judgment proceedings where the plaintiff is not a bank and cannot rely on the Bankers' Books Evidence Acts.
  2. 2 Whether the defendant has established a fair and reasonable probability of a bona fide defence to the claim for the debt.

Ratio Decidendi

The Court of Appeal held that, in line with recent Supreme Court authority, affidavit evidence from a person with access to the relevant records of a financial institution is admissible to prove indebtedness in summary judgment proceedings, even if the deponent was not personally involved in the underlying transactions and the plaintiff is not a bank. The defendant failed to establish a fair and reasonable probability of a bona fide defence, and the High Court was correct to grant summary judgment.

Court Disposition

appeal dismissed

Orders

  • Summary judgment for the plaintiff/respondent in the sum of €2,429,789.73 is affirmed.
  • Order amending the title of proceedings to reflect the first plaintiff's voluntary liquidation.