Reasons for seeking to cross-examine bank's deponents in judgment proceedings must be placed on affidavit

Ian Fitzharris BL, April 15 2019 (© Decisis)

April 16, 2019

Governor and Company of the Bank of Ireland v Ward [2019] IEHC 208 

 

Judgment of MacGrath J, delivered on 8 February 2019

High Court, in summary judgment proceedings, extends time for a borrower to submit an affidavit in an application to cross examine a plaintiff bank's officials, having found that: (a) it had jurisdiction to hear and determine proceedings seeking sums due on foot of two loan agreements between the bank and a borrower in default, despite certain technical errors in the affidavits lodged on behalf of the bank, and (2) the borrower's application to cross-examine the bank's deponents regarding their respective affidavits required the borrower to set out his reasons for such application in an affidavit of his own. 

Summary judgment application - two loan agreements - computerised mortgage account system constituted plaintiff's bankers' book - motions brought by defendant seeking to dismiss proceedings - purported promissory note sent by defendant to official in plaintiff bank proposing to discharge sums due - no evidence of acceptance - proposed points of law of defendant application to cross-examine plaintiff deponent based on allegation of perjury - no meaningful engagement by defendant borrower with bank regarding sums due - challenge to court's jurisdiction based on alleged deficiencies in plaintiff's affidavit - jury - court rules not a penal statute - time and place of abode on affidavit - no prejudice - technical defect - application to cross-examine - leave of court required given timing of application - interests of justice - defendant application required to place its reasons on affidavit as to why he wishes to have deponents cross-examined. 

 

Quotation from judgment (courtesy of the Courts Service of Ireland): 

'That an affidavit may not be in perfect form does not, in my view, in any event go to the root of the court's jurisdiction to entertain the proceedings or to deal with any applications which may be made within the proceedings particularly where such imperfection is capable of being dealt with by the court.

...

I am willing to treat the application before the court as an application for an extension of time within which to serve notice to cross-examine the deponents in question. However, I see no good reason to depart from what are stated to be the directions given by McDermott J that the defendant be required to place on affidavit the reasons why he wishes to have the deponents examined. A potential reason raised thus far, which one might interpret from the submissions to the court, is that Mr Ward did not have the addresses of the deponents examined. A potential reason raised thus far, which one might interpret from the submissions to the court, is that Mr Ward did not have the addresses of the deponents of the affidavits to enable him to serve proceedings on them because their true addresses do not appear in the affidavits; and he wishes to examine them on at least this aspect of the affidavit. There may be other reasons as he also submits at para 25 of his written submissions that certain matters were not provided to him prior to the institution of the proceedings and that cross-examination will clarify the issues. 

 

Key cases cited:

Dankske Bank v Kirwan [2016] IECA 99

Fennell v Ward [2018] IECA 270

Ulster Bank Ireland Ltd v O' Brien [2015] 2 IR 656

Ulster Bank v Egan [2015] IECA 85

 

 


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