Incorporating Terms By Reference

Introduction

A recent decision1 has reaffirmed that, depending on the facts, terms and conditions of lending can be incorporated and apply to a bank/client relationship in circumstances where it is contended that those terms and conditions were never furnished to the borrower as part of a summary judgment application. Although the decision was given in the specific context of a bank/client relationship, it is of broader interest in terms of the incorporation of contractual terms and also sets out a useful overview of the summary judgment jurisdiction, which is typically used for liquidated damages (or debt) claims.

Background

The plaintiff was the national agency which took over non-performing loans from the state's banks. The defendant was involved in a property investment transaction for which money was loaned by one such bank. The loan was subsequently transferred to the plaintiff, which ultimately sought summary judgment against the defendant for over €1.25 million.

Summary judgment process

The court outlined that the summary judgment jurisdiction involves a decree being entered on foot of affidavits exhibiting contracts and scrutinising any replying affidavits to see whether there is a defence. This jurisdiction, it noted, is an exception to the constitutionally mandated requirement that courts should hear witnesses, allow cross-examination and listen to any submissions made at the end of such a process. However, summary judgment is a means whereby liquidated sums can be recovered in short form...