Discovery in summary summons proceedings - is there ever a right time?

In the recent case of ACC Loan Management Ltd v Kelly, Oliver and anor [2017] IEHC 304, the High Court refused a defendant’s application for discovery in summary summons proceedings, on grounds that it is only when a court decides that a plaintiff is not entitled to summary judgment that the issue of discovery arises.

Proceedings

The defendants entered an appearance in person and represented themselves in proceedings for judgment against them in respect of loan facilities provided by the plaintiff (the “Bank”). The defendants made a number of arguments in their replying affidavit to include the following:

• there were inaccuracies in the Bank’s affidavit and in some of the loan documentation exhibited therein referring to the addresses of the properties;
• there was overcharging by the Bank of interest and fees, undercharging of funds on deposit and missing or taken funds; and
• the Bank gave a binding commitment to advance sums to the defendants for further development in 2007 and the Bank had to make good on that promise.

The Bank denied that there was any substance to the claims outlined above and submitted that much of what was argued by the defendants had already been addressed by the Bank in correspondence between the parties. The defendants subsequently sought discovery of certain documents claiming that the receiver was appointed over the wrong properties. The Bank objected to a motion for discovery coming before the court in a summary judgment application.

Decision

The Court was of the view that an application for discovery should not be dealt with at the stage of summary proceedings. When delivering his judgment, Mr Justice Eagar referred to the case of Irish Life and Permanent plc. trading as Permanent TSB v John Hanrahan & Celina Hanrahan [2015] IEAC 125, where Mr Justice Moriarty in the High Court refused discovery in summary summons proceedings. The defendants in that case appealed the decision to the Court of Appeal where Mr Justice Kelly upheld the decision of the High Court stating that an application for discovery does not fall to be dealt with at summary proceedings, in the normal course. Mr Justice Kelly emphasised that it is by reference to the pleadings that the question of the entitlement to discovery falls to be determined. In the present case, the Court held that it is only when a court refuses a plaintiff’s application for summary judgment on the basis that a defence has been raised by a defendant and the matter goes to plenary hearing, that the issue of discovery arises. In this instance, the Court refused the defendants application for discovery and proceeded to consider whether there was a prima facie defence to the proceedings. The Court ultimately found that the defendants had raised no arguable defence and so granted an order for summary judgment to the Bank. Please click here for link to the full judgment.