Allied Irish Banks v Gibney, Allied Irish Banks v Gibney

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 09 November 2018
• Neutral Citation: [2018] IECA 362
• Date: 09 November 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 363 Record Number 2017/177 Record Number 2017/612

[2018] IECA 362

THE COURT OF APPEAL

Peart J.

Peart J.

McGovern J.

McCarthy J.

Neutral Citation Number: [2018] IECA 363

Record Number 2017/177

Record Number 2017/612

BETWEEN:

ALLIED IRISH BANKS PLC

AND

AIB MORTGAGE BANK

AND

DECLAN MCDONALD

PLAINTIFFS

AND

DAMIAN GIBNEY

AND

IRENE GIBNEY

DEFENDANTS

ALLIED IRISH BANKS PLC

AND

AIB MORTGAGE BANK

PLAINTIFFS

AND

DAMIAN GIBNEY,

AND

IRENE GIBNEY

AND

MARIE LYONS

DEFENDANTS

Banking and finance – Practice – Affidavit – Ord 40, rr 6, 9 & 15 of Rules of the Superior Courts

Facts: The defendants had entered into a mortgage with the 2nd plaintiff bank. Judgment was obtained against the defendants and an injunction granted against the alleged interference with the receiver appointed in respect of property. The defendants now appealed against the judgment and the grant of the injunction.

Held by the Court, that the appeal would be dismissed. The defendants’ submissions that the affidavits sworn were defective in the light of Ord 40, rr 6 and 9 of the Rules of the Superior Courts were without merit.

JUDGMENT ( EX TEMPORE) OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 9TH DAY OF NOVEMBER 2018

1 There are two appeals before the Court. The first appeal is an appeal against a judgment given by Ní Raifeartaigh J. on the 16th November 2017 when she granted judgment against the defendants in those proceedings, that is Mr. Gibney and Ms. Gibney. She granted judgment, first of all, in the sum of €1,011,992.39 and she went on to give judgment in favour of AIB Mortgage Bank then against Mr. Gibney & Maire Lyons in the sum of €394,829.83. The second appeal is one against an order made by O'Connor J. when he was asked to grant an interlocutory injunction against the defendants in those proceedings to restrain them from interfering with the activities of the receiver who had taken possession of property after which it was alleged in affidavits that the defendants had changed the locks and had confronted and intimidated receiver's agents and so on.

2 The particular facts behind each of those decisions do not really need to be recited since the appellants, who are present in court, are aware of them already. It is convenient to state at this stage that in each of these appeals which are against orders granted on foot of applications that were grounded upon affidavits, there are two objections common to both appeals, and only two objections, which are been relied on for the purpose of the appeals.

3 Those objections relate to the manner in which the affidavits have been drafted and sworn. The appellants rely upon the provisions of Ord. 40, r. 6 and Ord. 40, r. 9 of the Rules of the Superior Courts. They submit that those Rules have not been complied with, and in support of that submission they urge upon this Court that the High Court judge in each case was wrong to have admitted those affidavits on the basis that they were defective by not complying with the Rules which they refer to, and they urge upon this Court that therefore the judges in question ought not to have admitted them, as I have said.

4 They make a general submission, first, to say that this Court must apply the strict letter of the law in accordance with our judicial oath under the Constitution. They also make the point that the Rules of Court are the equivalent of Statute Law made pursuant to Regulations made under primary Acts, and that it is the Acts of the Oireachtas which comprise the law of the country and that case law ought not to be relied upon by this Court and that this Court should apply only a literal interpretation of the Rules. The Rules which they refer to are Ord. 40, r. 6 and Ord. 40., r. 9, as I have said, and I will read the relevant parts. Rule 6 provides:

‘Every commissioner to administer oaths shall express the time when and the place where he shall take any affidavit…’

Rule 9 provides:

‘Every affidavit shall state the description and true place of abode of the deponent.’

5 In each of the affidavits upon which the applications before the respective judges were grounded, the deponent gave a business address as opposed to a place of residence or abode as the Rule describes it. In addition, in the affidavits upon which the applications in the Court below were grounded, the time of day at which the affidavits were sworn was not stated in the jurat. It simply expressed, as is almost invariably the case, the date on which the affidavit was sworn and the place at which it was sworn, but did not give the time of day.

6 So those are the bases on which the appellants seek to succeed on this appeal and they have made it quite clear to this Court in answer to the specific question in that regard that those are the only two grounds upon which they are relying in each appeal.

7 Now, the appellants have submitted that these Rules have to be given a literal interpretation since the words used are clear, and they submit that in circumstances where various judges have permitted affidavits to be adduced in evidence and relied upon in Court those judges are facilitating what they described as perjury. They go on to urge that until these points of law have been fully addressed and determined to their satisfaction that this Court has what was described as “no subject to jurisdiction” to proceed with the appeals.

8 Now in my view these points are without any real merit. I would just say that even though the appellants have submitted that this Court cannot rely on case law, that is simply not correct. Courts interpret Acts of the Oireachtas and they interpret the Rules of the Superior Courts from time to time where arguments are made as to a lack of clarity in those provisions. Those decisions of the Court by way of...