RSC. He states that the proceedings herein are to recover all amounts due to SHI in respect of its interests in and claims relating to Xxxxxx & Co Capital Partners VI LP and Xxxxxx & Co Capital Partners VII LP.
RSC. However, given the inclusion of reliefs other than the seeking of judgment for the amount claimed, these proceedings could not have been commenced by way of Summary Summons. It was appropriate to commence by way of Plenary Summons therefore. Having done so, however, the procedures for plenary summons proceedings must be followed and adhered to. Once the defendants entered an appearance in which they called for delivery of a Statement of Claim, a plaintiff before proceeding in any way further was required by Order 20, r.3 RSC to deliver a statement of claim within 21 days of the date of receipt of that appearance. There is nothing in the Rules which makes any provision, even by consent, for the plaintiff to issue and serve a Notice of Motion for liberty to enter final judgment returnable before the Master of the High Court either before delivery of a Statement of Claim or thereafter. It is simply not permissible, and it is surprising indeed that this was not picked up in the Central Office when the plaintiffs’ solicitor was issuing the Notice of Motion…” [Emphasis in original]
RSC. It further contends that the defendants were in fact silent in the face of demands made and that such can be treated as acknowledgment of their indebtedness which is admissible by way of an exception to the rule against hearsay. Promontoria does not seek to, nor could it, rely on the provisions of the Bankers’ Books Evidence Act, 1879 (the “1879 Act”).
RSC. She held that the deponent could and did swear positively to the relevant facts to establish the plaintiff’s claim and did so in her capacity as a “senior relationship manager” within the plaintiff bank who had responsibility for the daily management of the defendants’ loan facilities with the plaintiff. The deponent averred that she made the affidavit with the authority and consent of the plaintiff in order to ground its application for liberty to enter final judgment and that she made the affidavit from facts within her own knowledge and from a perusal of the plaintiff’s books and records which she believed to be true and accurate. Xxxxxx X. noted that those averments were uncontroverted and were sufficient to comply with the requirement in O. 37, r. 1 that the deponent had to swear positively to the relevant facts to establish the plaintiff’s claim. Xxxxxx X. then went on to consider in more detail the terms of the affidavit relied on and, in doing so, also stressed that the deponent was one of the signatories of the letter of demand. Noting again that the averments in the deponent’s affidavit were uncontradicted, Xxxxxx X. found that the plaintiff had made out a prima facie case that the defendants were liable to the plaintiff in the sum claimed. She held that the High Court had been entitled to conclude that, on the basis of the deponent’s affidavit, there was a sufficient evidential basis for granting judgment to the plaintiff.
RSC. However, the second reason combined with the first is, I believe, sufficient to defeat the defendants’ objection to the admissibility of the evidence adduced by Xxxxxxxxxxx on its application for summary judgment. The second reason is as follows. Xx. Xxxxx exhibited to her first affidavit the facility letter of 6th February, 2009 (as amended). She also exhibited the letter of demand of 18th January, 2017 (issued by Xxxxxxxxxxx and signed by a representative of Promontoria) as well as correspondence evidencing the contacts and communications made on behalf of the defendants with Capita on behalf of Promontoria in the period between February/March 2016 and March 2017. Finally, she exhibited copies of the account statements dated 31st May, 2017, in respect of the three accounts referred to in the letter of demand of 18th January, 2017. Significantly, the defendants do not dispute any of those documents. On the contrary, the defendants accept and admit the facility letter of 6th February, 2009 (as amended) and the letter of demand of 18th January, 2017. Xx. Xxxxxxxx, the second named defendant, referred to and exhibited the facility letters of 6th February, 2009 and 17th February, 2009, at exhibits “JD1” and “JD2” to his affidavit of 18th June, 2017. He did so for the purpose of contending that if he and Xx. Xxxxxxx are indebted to Promontoria in the sum claimed, Xxxxxxxxxxx’s proceedings are statute barred. To make that point he exhibited the two facility letters to his affidavit. Xx. Xxxxx made it clear in the affidavit which he swore on 22nd June, 2017, that he was supportive of and was also relying upon that affidavit sworn by Xx. Xxxxxxxx. Xx. Xxxxxxxx also referred to and exhibited to his affidavit (at exhibit “JD3”) the letter of demand issued by Xxxxxxxxxxx on 18th January, 2017. While exhibiting these documents and not disputing their existence or validity as documents, the defendants maintain that the facility letter of 6th February, 2009 (as amended) does not reflect the full agreement which they reached with the defendants. However, in my view, the fact that the defendants seek to contend that the facility letter of 6th February, 2009 (as amended), did not reflect the full agreement between the parties does not undermine the admissibility of those letters and other documents in circumstances where they have been referred to, described and exhibited in an affidavit sworn by one of the defendants on his behalf and on behalf of another defendant and c...
RSC. Holdings hereby agrees that its guaranty under this Article 10 is an absolute ---------- guaranty of payment and is not a guaranty of collection. 105
RSC. Energia shall provide the UCP and the design of the cargo integration on the UCP per SPACEHAB requirements. SPACEHAB has contracted with Daimler-Benz Aerospace ("DASA") of Bremen, Germany, for production of the Keel Yoke Assembly and Engagement Mechanism Assembly, and for integration of the IICC into the Space Shuttle. RSC-Energia is expected to work directly and informally with DASA engineers as required for integration of the UCP into the IICC system. However, all interface specifications, technical direction and contract deliverables under this Letter Agreement shall be dictated solely by SPACEHAB.
RSC. 6. At SF 1, para 4 the plaintiff explains the reason for the amendments sought – it has come into possession of documents and other information that raise additional issues for determination, including inter alia:
