Beakey v Bank of Ireland Mortgage Bank

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 02 October 2018
• Neutral Citation: [2018] IEHC 589
• Docket Number: [Record No. 2016/6614 P]
• Court: High Court
• Date: 02 October 2018

[2018] IEHC 589

THE HIGH COURT

Faherty J.

[Record No. 2016/6614 P]

BETWEEN

EOIN BEAKEY

PLAINTIFF

AND

BANK OF IRELAND MORTGAGE BANK

DEFENDANT

Affidavits – Admission – Validity – Plaintiff seeking to object to the admission of affidavits – Whether the affidavits ought to be admitted

Facts: The proceedings came before the High Court in the context of two motions. The first was the motion of the defendant, Bank of Ireland Mortgage Bank, which issued on 11th March, 2017. The motion was grounded on the affidavit of Ms Dorris, Legal Case Manager in the Arrears Support Unit of the defendant bank, sworn 10th March, 2017. The second was the motion of the plaintiff, Mr Beakey, which issued on 29th May, 2017. The plaintiff's application was grounded on his affidavit sworn 23rd May, 2017. Ms Dorris swore a replying affidavit to the plaintiff's motion on 13th July, 2017. The plaintiff swore a replying affidavit to the defendant's motion on 14th July, 2017. Therein, he repeated his application to have Ms Dorris cross-examined on the contents of her affidavit grounding the defendant's motion to dismiss the proceedings. On behalf of the defendant, Ms Dorris swore an affidavit on 12th September, 2017, supplemental to her affidavits sworn 10th March, 2017 and 13th July, 2017 and in response to the plaintiff's application to have Ms Dorris and other unidentified personnel cross-examined. Furthermore, Mr Buckley, a manager with the defendant bank, swore an affidavit on 26th September, 2017 averring, inter alia, that Ms Dorris is an employee and therefore an Officer of the Governor and Company of the Bank of Ireland, that she works as a legal officer for the defendant and she is authorised to swear affidavits on the defendant's behalf for the purposes of legal proceedings. In the course of the opening by counsel for the defendant of the defendant's motion to have the plaintiff's proceedings struck out, the plaintiff took objection to counsel opening Ms Dorris' affidavit as sworn by her on 10th March, 2017. He did so for the reasons set out in his replying affidavit sworn 14th July, 2017. In his oral submissions to the Court, he maintained that Ms Dorris' affidavit was invalid and that it breached O. 40, rr. 6 and 9 RSC. Accordingly, the plaintiff sought a ruling from the Court on the issue of the validity or otherwise of Ms Dorris' affidavit. His principal submission was that Ms Dorris's affidavit could not be opened to the Court on the basis that she gave as her address New Century House, Mayor Street Lower, IFSC, Dublin 1, which he submitted was not the "true place of abode" of Ms Dorris as required by O. 40, r. 9 RSC.

Held by Faherty J that, having considering the plaintiff's submission that Ms Dorris' affidavit sworn 10th March, 2017, was rendered "unauthentic" and invalid by her not identifying her home address but rather giving her address as "New Century House, Mayor Street Lower, IFSC, Dublin" (the address of her employer), the objection made by the plaintiff was without foundation for the reasons set out in Kearney v Bank of Scotland plc and Horkan [2015] IECA 32 and Danske Bank A/S Danske Bank v Kirwin [2016] IECA 99. Insofar as the plaintiff made objection to Ms Dorris' affidavits under O 40, r. 6, Faherty J did not find merit in such objection; the Commissioner for Oaths had attested that Ms Dorris was known to him and the place and date where the affidavits were taken was also set out. Insofar as the plaintiff took issue with the absence in Ms Dorris' affidavits to the time of day same were sworn, Faherty J did not perceive that such absence rendered the affidavits unauthentic. She was satisfied that there was sufficient compliance with O 40, r. 6.

Faherty J held that she was satisfied to admit Ms Dorris' affidavits (and indeed that of Mr Buckley) for the purpose of the substantive hearing of the two motions which were before the Court.

Judgment approved.

JUDGMENT of Ms. Justice Faherty delivered on the 2nd day of October, 2018

1 The plaintiff commenced the within proceedings by plenary summons on 21st July, 2016. An appearance was entered by the defendant on 28th July, 2016. The plaintiff delivered a statement of claim on 14th September, 2016. The defendant served a notice of particulars arising from the statement of claim on 16th December, 2016 which was responded to on 2nd February, 2017.

2 In essence, the plaintiff's claim is that the defendant is responsible for serious prejudice caused to the plaintiff by virtue of the defendant having commenced proceedings in the Circuit Court against the plaintiff which the plaintiff now says were malicious and an abuse of process and where fraud underlies the proceedings and pleadings in the Circuit Court. The plaintiff further claims that the defendant is guilty of neglect and deceit, failing to observe and enforce proper and adequate protocols and regulations and of failing to ensure that the plaintiff was a correct entity for the defendant to legally pursue in the Circuit Court. It is further pleaded that the defendant is in breach of its duty of care to the plaintiff by the defendant's absolute failure, refusal and neglect in ensuring that proper practices and procedures were adhered to pertaining to the plaintiff. It is also pleaded that the defendant is in breach of its fiduciary duty to the plaintiff in circumstances where the defendant was entrusted with the safe and proper care and handling of the plaintiff's financial status. The plaintiff further pleads that the defendant is in breach of its duty of candour to the plaintiff and that the defendant is guilty of concealment and the withholding of material facts and evidence. Arising from the aforesaid, the plaintiff seeks damages from the defendant.

3 On 27th February, 2017, the defendant delivered a full defence to the plaintiff's claim. In particular, the defendant claims that the plaintiff is estopped from making the claim set out in his proceedings by virtue of the doctrine of res judicata. It is also pleaded that insofar as any matters pleaded against the defendant are not contrary to the doctrine of res judicata, the defendant is estopped from making those pleas by virtue of the rule in Henderson v. Henderson. Furthermore, insofar as any claims of the plaintiff are not captured by the aforementioned doctrine and rule, the defendant claims that the plaintiff's claim against the defendant does not disclose any reasonable cause of action, is frivolous, vexatious and bound to fail or is not lawfully pleaded.

4 The Circuit Court proceedings referred to by the plaintiff in the plenary summons and in his statement of claim concerned the defendant's application for possession of a residential dwelling owned by the plaintiff and mortgaged to the defendant. It is common case that the defendant issued possession proceedings in the Circuit Court under the title Bank of Ireland Mortgage Bank v. Eoin Beakey and bearing record number 2015/1139 (hereinafter 'the Circuit Court proceedings') seeking possession of a residential property owned by the plaintiff. In the course of those proceedings, the defendant filed a number of affidavits. It appears that the plaintiff in the Circuit Court proceedings did not file any affidavit in response to the defendant's affidavits. The Court is advised however that he did however participate in and attend before the Circuit Court at the hearing of the bank's application for possession on 8th October, 2015 and 12th November, 2015.

5 By order of the Circuit Court dated 12th November, 2015 the defendant's claim for possession was struck out.

6 The defendant issued a notice of appeal of the order of the Circuit Court on 16th November, 2015. The defendant's appeal of the Circuit Court Order was duly heard by the High Court (Noonan J.) on 15th February, 2016. The plaintiff appeared in Court in person and made submissions to the High Court concerning the defendant's appeal. The Court has been advised that having heard the submissions of both parties, Noonan J. rejected the arguments of the plaintiff herein that the defendant did not have locus standi to maintain the application and accordingly granted the defendant an order for possession of the property together with the costs of the proceedings, which order was stayed for a period of three months.

7 By notice of motion dated 20th April, 2016, grounded on an affidavit of the plaintiff sworn 6th May, 2016, the plaintiff sought an order setting aside the Order of Noonan J. of 15th February, 2016.

8 The said notice of motion came on for hearing before Noonan J. on 20th June, 2016. Having heard the submissions of the plaintiff and the defendant, Noonan J. dismissed the plaintiff's application with costs against the plaintiff.

9 The within proceedings comes before this Court in the context of two motions. The first in time is the defendant's motion which issued on 11th March, 2017 wherein the defendant seeks:

(1) An order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff's claim on the grounds that it is an abuse of process, is estopped by the doctrine of res judicata and/or is contrary to the rule in Henderson v. Henderson;

(2) In the alternative, an order pursuant to the inherent jurisdiction of the Court and/or pursuant to O. 19, r. 28 of the Rules of Superior Courts (RSC) dismissing the plaintiff's claim on the grounds that the plenary summons and statement of claim fail to disclose any reasonable cause of action against the defendant and that the claim is bound to fail;

(3) In the alternative, an order pursuant to the inherent jurisdiction of the Court and/or pursuant to O. 19, r. 28 RSC dismissing the plaintiff's claim herein on the grounds that the pleadings comprising the plenary summons and statement of claim are frivolous and vexatious; and

(4) An order pursuant to the inherent jurisdiction of the Court striking out the plaintiff's claim on the...