Court of Appeal remits summary judgment proceedings to plenary hearing

Collins J (nem diss): Appeal of a decision to grant the plaintiff/respondent Bank summary judgment to the against the appellant in the sum of €1,500,000 on foot of a guarantee dated 3 September, 2009 - the appellant appealed the decision contending that he had an arguable defence to AIB’s claim on two grounds and that the claim ought therefore to be remitted for plenary hearing - whether the claim was statute barred - Statute of Limitations 1957 - public policy - the appellant also claimed that he entered into the guarantee on foot of an earlier and continuing representation to the effect that his liability as guarantor would be limited to recourse to a warehouse owned by him and that there is a binding collateral contract to that effect - the appellant averred that he had a meeting with employees of the respondent and as a result of this meeting and certain further exchanges between his financial advisor and the Bank, the appellant's clear understanding was that the Bank’s recourse on foot of any guarantee would be limited to the warehouse - the respondent denies that there was a limited recourse - Order 37 of the Rules of the Superior Courts - whether the evidence before the Court sufficiently discloses a potential defence that the appellant was induced to enter into the guarantee in favour of the Bank by a representation to the effect that his liability under that guarantee would be limited to recourse to his warehouse and thus giving rise to a collateral contract to that effect - appeal allowed - matter remitted to plenary hearing.

"There are likely to be “formidable obstacles” in the way of Mr Cuddy’s defence (as Birmingham J considered that there were in IBRC v Kelly [2014] IEHC 160), not least by reason of the matters referred to in paragraph 47 above. However, it is not, in my opinion, clear that Mr Cuddy has no defence. I have commented on the evidence above and I do not consider it appropriate to say much more about it, other than to observe that (i) the detail of what is said by Mr Cuddy and Mr Comerford; (ii) the availability of the evidence of Mr Comerford (a factor which, in itself, is of very significant weight in my view) and (iii) the fact that the sole security sought by AIB in connection with the guarantee was in respect of the warehouse lead me to conclude – with some hesitation – that that the evidence here is more than mere assertion and, exceptionally, is sufficient to warrant leave to defend being given on the Limited Recourse Ground, even in the absence of supporting documentary material."

Costello J (concurring): whether the evidence satisfies the threshold to have the matter remitted to plenary hearing - whether defence was a bare assertion - evidence of the appellant's financial advisor - appeal allowed.