Warning over human rights breach in bank judgments

The Master of the High Court warned "fast-track" procedures under which banks get final-money judgments solely on a judge’s view of the credibility of any sworn written defence, may breach the entitlements of defendants under the European Convention on Human Rights.

The demands of justice, and the fact that he must adhere to the State’s obligations under the convention, mean he must refuse to list applications for liberty to enter final judgment in the High Court list unless satisfied they are ready to be heard “fairly”, said Master Edmund Honohan.

The master questioned the fairness to defendants of procedures under which applications by banks and others for liberty to enter final judgments are decided on the basis of a judge’s view of the “credibility” of any defence outlined in sworn documents.

Noting that the Irish Commission on Human Rights had urged changes to the relevant court rules, he said it seemed there was “a clear likelihood” of the European Court of Human Rights finding the Irish procedure infringes Article 6 of the convention.

If the fast-track procedure breaches the convention, and if court rules exclude due process, then organs of the State, including himself, must act in accordance with the State’s obligations, said Master Honohan.

Because he could not assume a High or Supreme Court judge would “put the matter right”, he could not list motions for liberty to enter final judgment in the High Court motions list unless satisfied the matter “is ready to be heard fairly”.

The procedure is increasingly “plaintiff favoured” with “quite perfunctory” proofs required for judgment, in contrast to the US procedure where the onus is on plaintiffs, not defendants, to prove their case for money judgments, he added.

If credibility of a defence is “the litmus test” being applied to a defendant’s affidavit evidence on the hearing of a summary judgment application, the procedure is prima facie unfair to defendants, he said.

In the case before him, where AIB was seeking a final judgment, the defendant was entitled to time to prepare evidence.

The master directed the defendant was entitled to an adjournment after finding to do otherwise would mean listing this motion for hearing when it was not immediately ready for a fair hearing.