THE SUPREME COURT

BETWEEN:

1. I agree with both judgments which have been delivered today. I would wish to make a few observations on the burden and standard of proof.

2. What is in issue in summary judgment applications is whether or not a prima facie case can be made out by the plaintiff. The burden of proof is on the party who asserts the debt is owed. As a general principle, a prima facie case will be made out when, on the evidence available, it would be open to a tribunal of fact, if no other evidence was given, or if that tribunal accepted that evidence even though contradicted in its material facts, to enter a verdict for that party (See O’Toole v. Heavey [1993] ILRM 343 at 344).

3. As described in the judgments of my colleagues, when one is dealing with applications for summary judgment the test is somewhat nuanced for the protection of a defendant. If there is a real conflict on the facts or law, the matter must be remitted for plenary hearing. I would point out that a simple, bald, denial of indebtedness, whether in correspondence, or on affidavit, will not be sufficient to discharge the burden, so far as a defendant is concerned. A defendant’s evidence must set out in a clear way why the sum claimed is said not to be due and owing to a plaintiff.

4. I turn to the instant case. There was no conflict whatever on the facts. No affidavit was filed by the defendant/appellant. Ms. Mary Murray, an Ulster Bank official, swore an affidavit for the plaintiff. She deposed that she, herself, was one of the signatories of the bank’s letter of demand dated the 1st February, 2013. This letter demanded immediate repayment of the sums due and owing on foot of the facility letters. Ms. Murray’s testimony was primary evidence of her own actions. By no stretch of the imagination, could this be characterised as “hearsay” evidence. This was, rather, first hand evidence adduced by the main plaintiff’s deponent, as a signatory of the letter. As described in the judgments of my colleagues, the plaintiff’s threshold test in this case is satisfied. Here it is also satisfied, particularly by virtue of the fact that the Bank’s deponent can herself testify that the letter was written and sent, which letter contained the averments as to the defendants’ indebtedness. Ms. Murray was in a position to swear there was no response to that letter. There is no suggestion it was not received. As Charleton J. points out in his judgment herein, these were the assertions in that letter which, under the rules of evidence, called for a denial. In the absence of such a denial, a court will be entitled to act on the evidence, and grant summary judgment.

5. I mention this feature to illustrate the simple point that, if a plaintiff’s deponent is the author of a letter of demand, then there can be no question of hearsay evidence. As Laffoy J. points out, in her judgment herein, the facts of this case are, therefore, are quite distinct from Criminal Assets Bureau v. Hunt [2003] 2 I.R. 168, and Ulster Bank v. Dermody [2014] IESC 140. If there is no response to the letter of demand, a plaintiff’s case is proved.

6. When seen from these perspectives, the highly technical argument advanced on behalf of the defendants/appellants, and described in my colleagues’ judgments, becomes entirely untenable. The plaintiff’s case is not based on hearsay. It is only common sense that, if a plaintiff makes out a prima facie case, and a defendant does not adduce any, or any meaningful, evidence to rebut it, a plaintiff will be found to have discharged the burden of proof devolving upon it. Similarly, if the facts do not support a legal argument, a defence based on that legal argument will fail, and summary judgment may be granted. Here there was a demand, and the only response was the legal defence put forward, and addressed in the other judgments herein.

7. The summary judgment evidential tests are, by now, well established. I reiterate them here for convenience. The fundamental question is whether there is a fair and reasonable probability of a defendant having a real or bona fide defence, either in law, or on the facts, or both? It is not necessary to show that the defence will succeed, or even will probably succeed. The questions, therefore, can be reduced to the following: First, is it very clear that a defendant has no case? Second, are the issues simple and easily determined? Third, has a defendant disclosed even an arguable defence? Fourth, where there is no notice to cross-examine, can a court be confident, on the affidavit evidence alone, where the justice of the case lies? These tests are set out in more detail in the three leading authorities, viz. First National Commercial Bank v. Anglin [1996] 1 I.R. 75, per Murphy J; Aer Rianta c.p.t. v. Ryanair [2001] 4 I.R. 607, McGuinness J. and Hardiman J.; Harrisrange Ltd. v. Duncan [2003] 4 I.R. 1, per McKechnie J.. As emphasised in each of these decisions, in exercising this jurisdiction, a court should proceed with care and caution.

8. I, too, would dismiss the appeal.