Beades; Beades; Beades v KBC Mortgage Finance Unlimited Company, formerly known as IIB Homeloans Ltd ; Anderson ; Anderson
|Mr Justice Dignam
|07 March 2023
| IEHC 127
|Record Number 2021/5661 P Record Number 2022/730 P
 IEHC 127
Record Number 2021/5661 P
Record Number 2022/729 P
Record Number 2022/730 P
THE HIGH COURT
Cross-examination – Strike out – Affidavits – Defendants seeking to have proceedings struck out or dismissed – Whether the plaintiff should be granted leave to cross-examine deponents
Facts: The defendants in each set of proceedings applied to the High Court to have the proceedings struck out or dismissed on various grounds. The plaintiff, Mr Beades, brought applications for leave to cross-examine the deponents of the grounding affidavits for those applications, Mr Langan, Mr McHugh and Ms Keely. The plaintiff said that Mr Langan did not set out the basis upon which the 2021/5661P proceedings offended against the rule in Henderson v Henderson (1843) 3 Hare 100 and he needed to cross-examine him as to his understanding of the new evidence which the plaintiff said had come to light and how that impacted on the plaintiff’s entitlement to bring fresh proceedings. The plaintiff pointed out that many of the paragraphs in Mr McHugh’s affidavit were identical to paragraphs in affidavits sworn by other people. He also points out that Mr McHugh averred to matters which occurred well before the first defendant in the 2021/5661P proceedings, KBC (his employer), became party to the action. He also said that by referring to previous proceedings Mr McHugh was relying on third party information which was hearsay. The plaintiff said that Mr McHugh was not qualified to express the view that the proceedings were frivolous and vexatious because he was not a judge or to express the view that the prosecution of the proceedings was prohibited by the operation of the doctrine of estoppel because he was not legally qualified. The plaintiff suggested that the terms of the affidavit must have been advised by someone with legal training. The plaintiff said that Ms Keely should be cross-examined in the 2022/730P proceedings because she purported to adopt the evidence of Mr McHugh in an affidavit sworn on the 10th April 2022 and she had to give evidence herself of the knowledge that she had of the proceedings and be cross-examined on it to establish if her evidence could be relied upon to ground the application.
Held by Dignam J that the basis upon which Mr Langan said the 2021/5661 proceedings offended against the rule in Henderson v Henderson was the factual material contained in his affidavit and exhibits and therefore it was not correct to say that the basis was not set out. Dignam J held that Mr Langan’s “understanding of the new evidence” and how “it impacts on the plaintiff’s entitlement to bring fresh proceedings” was largely irrelevant; it was for the Court to assess whether what the plaintiff described as “the new evidence” impacted on his entitlement to bring the proceedings by reference to the test in respect of applications to dismiss/strike out. Dignam J noted that the plaintiff had not challenged the correctness of any of the factual averments in Mr McHugh’s affidavit so whether those contents came from third party information or hearsay was largely irrelevant. Dignam J held that only a judge could decide whether the proceedings were frivolous and vexatious or an abuse of process or precluded by the doctrine of estoppel; thus, Mr McHugh’s lack of qualification did not mean that it was necessary to permit cross-examination in order for that issue to be determined. Dignam J held that the plaintiff could not cross-examine Mr McHugh as to the substance of legal advice received by him. Dignam J noted that there was no affidavit of the 10th April 2022; in fact, Ms Keeley subsequently corrected this to make clear that she was referring to the affidavit of Mr McHugh sworn on the 6th April and that this was the affidavit which she had originally exhibited. Dignam J noted that the factual evidence that Ms Keely relied upon was set out in the affidavit of Mr McHugh and the Court dealing with the motion to dismiss/strike out would have to decide the application on the basis of that evidence; there was no need to cross-examine Ms Keely in order for the Court to do so.
Dignam J refused the relief sought.
Judgment of Mr Justice Dignam delivered on the 7th day of March 2023 .
An application has been made by the defendants in each of these sets of proceedings to have the proceedings struck out or dismissed on various grounds. In response, the plaintiff (“ Mr. Beades”) has brought applications for leave to cross-examine the deponents of the grounding affidavits for those applications. This judgment deals with Mr. Beades' applications for leave to cross-examine. The applications were heard together and it is convenient and appropriate to deal with them in one judgment.
There is a very protracted history to these matters, all of which relates to two properties in Dublin: 31 Richmond Avenue and 21 Little Mary Street. It is not necessary to consider or set out that background in any detail. The starting point of that history is that an Order for possession in respect of those properties was made by Dunne J on the 23 rd June 2008 by which Mr. Beades was directed to deliver up possession of the properties to Pepper Finance Corporation (Ireland) DAC in proceedings entitled “ . ” Mr. Beades appealed against that Order and the Supreme Court affirmed it on the 12 th November 2014. Since then, there have been a large number of applications and appeals including in the 2006/623P proceedings and in other proceedings issued by Pepper Finance Corporation (Ireland) Limited against occupants of the premises. It is stated in one of the grounding affidavits that “ Mr. Beades has issued no fewer than three sets of High Court plenary proceedings, six appeals in the Court of Appeal and Supreme Court and various applications for stays on High Court Orders…”
On the 4 th October 2021 Mr. Beades issued fresh proceedings, entitled “ . ” I will refer to these as the 2021/5661P proceedings. Mr. Beades seeks an Order setting aside the Order of Dunne J dated the 23 rd June 2008 ordering him to deliver up possession of the two properties, a declaration that he is entitled to possession of those properties and damages for various wrongs.
On the 23 rd February 2022, Mr. Beades issued both the second set of proceedings with which this judgment is concerned, entitled “ ”, and the third set, bearing the same title with record number 2022/730P. I will refer to these as the 2022/729P and 2022/730P proceedings respectively. These two sets of proceedings are almost identical to each other but the first set concerns 31 Richmond Avenue and the second concerns 21 Little Mary Street. The Plenary Summons in these two sets of proceedings seek a large number of reliefs. I do not propose to set them out in full. In summary these are reliefs challenging the title of the second-named defendant to the premises, challenging the appointment of the first-named defendant as receiver over the properties on a number of grounds including that there was no valid mortgage and no valid deed of appointment, reliefs seeking to prevent the sale or letting of the properties or any dealing in respect of the properties, reliefs seeking to prevent the defendants from entering or interfering with the properties, and orders freezing any bank accounts that might contain the proceeds of any sale of the properties. This final relief arises because the premises have already been sold.
By Notice of Motion dated the 23 rd February 2022 the first-named defendant in the 2021/5661P proceedings (“ ”) applied to dismiss those proceedings pursuant to the inherent jurisdiction of the Court on the basis that they amount to an abuse of process, are frivolous and vexatious and are bound to fail. This is grounded on an affidavit of Mr. Daragh Langan sworn on the 21 st February 2022.
By Notice of Motion dated the 7 th April 2022 the second-named defendant in the 2021/5661P proceedings (“ ”) applied to strike out or dismiss or place a stay on those proceedings pursuant to Order 19 Rule 28 of the Rules of the Superior Courts or the inherent jurisdiction of the Court on the grounds that the Plenary Summons does not disclose a reasonable cause of action or that the proceedings are frivolous and/or vexatious, constitute an abuse of process, are bound to fail, that their initiation and/or prosecution is prohibited by operation of the doctrine of issue estoppel, the rule in and/or the doctrine of res judicata, and that the contents of the Plenary Summons are scandalous. They also seek what is commonly known as an “ Isaac Wunder Order” prohibiting Mr. Beades from issuing any further proceedings without prior leave of the Court against certain named parties. This motion is grounded on an affidavit of Mr. Gerard McHugh sworn on the 6 th April 2022.
By two identical motions dated the 7 th April and the 20 th April 2022 the defendants in the 2022/729P and 2022/730P proceedings (“ Mr. Anderson” and “ ”) applied to dismiss, strike out or stay those proceedings on the same bases as the 2021/5661P proceedings. These motions are grounded on an affidavit of Mr....
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