Beakey v Bank of Ireland Mortgage Bank

JurisdictionIreland
JudgeMr. Justice Binchy
Judgment Date17 November 2020
Neutral Citation[2020] IECA 313
Docket NumberAppeal No.: 2018/390
CourtCourt of Appeal (Ireland)
Date17 November 2020
BETWEEN/
EOIN BEAKEY
APPELLANT
- AND -
BANK OF IRELAND MORTGAGE BANK
RESPONDENT

[2020] IECA 313

Donnelly J.

Collins J.

Binchy J.

Appeal No.: 2018/390

2020/65

THE COURT OF APPEAL

Slip rule – Admission of affidavits – Statutory interpretation – Appellant appealing from the rejection of an application pursuant to O. 28, r. 11 of the Rules of the Superior Courts – Whether a literal interpretation ought to be applied to the rules

Facts: The appellant, Mr Beakey, appealed to the Court of Appeal from decisions of Faherty J made on 2nd October 2018 and 16th December 2019. In her decision of 2nd October 2018, delivered by way of reserved judgment, Faherty J rejected arguments made by the appellant that affidavits grounding a motion issued by the respondent, Bank of Ireland Mortgage Bank, to dismiss the proceedings should not be admitted for the purpose of considering the motion. In her decision of 16th December 2019, delivered ex tempore, Faherty J rejected an application advanced by the appellant pursuant to O. 28, r. 11 of the Rules of the Superior Courts (the slip rule) to amend what the appellant claimed were errors or omissions in the decision of Faherty J of 2nd October 2018. The appellant insisted that the Court apply a literal interpretation to the rules.

Held by Binchy J that, regarding the first appeal, even on a literal interpretation of O. 40, r. 6, it clearly provides that the court may permit the admission of an affidavit which has not been completed in full accordance with O. 40, r. 6. Binchy J noted that the appellant argued that the Court is bound to apply a literal interpretation of O. 40, r. 9 notwithstanding over two centuries of decisions of the courts giving a purposive and common-sense interpretation to the rule. Binchy J held that O. 40, r. 15 and O. 124 afford the Court discretion in deciding whether or not to admit an affidavit that has not been completed in strict compliance with the Rules of the Superior Courts, and that the Court should exercise that discretion in favour of admitting the affidavit where to exclude it for this reason alone would result in an absurdity or injustice. Binchy J held that such an absurdity would result in this case, were the Court to exclude the affidavits of Ms Dorris and Mr Buckley for this reason, as the appellant urged the Court to do. Regarding the second appeal, Binchy J noted that Faherty J rejected the application for the simple reason that she considered that there was no error or omission in her judgment that required correction, that the slip rule was therefore of no application and that what the appellant really sought to do through the motion was to ask the court to revise, amend and substitute certain findings of fact and law with arguments canvassed by the appellant. Faherty J concluded, correctly in Binchy J’s view, that all of the matters contended for by the appellant in the context of the motion were more properly matters to be raised by way of appeal from the decision of Faherty J of 2nd October 2018.

Binchy J held that the appeals would be dismissed.

Appeals dismissed.

JUDGMENT of Mr. Justice Binchy delivered on the 17th day of November 2020
1

This is a judgment on two appeals from decisions of Faherty J. made on 2nd October 2018 and 16th December 2019. In her decision of 2nd October 2018, delivered by way of reserved judgment, Faherty J. rejected arguments made by the appellant that affidavits grounding a motion issued by the respondent to dismiss these proceedings should not be admitted for the purpose of considering the motion. In her decision of 16th December 2019, delivered ex tempore, Faherty J. rejected an application advanced by the appellant pursuant to O.28, r.11 of the Rules of the Superior Courts (the “slip rule”) to amend what the appellant claims are errors or omissions in the decision of Faherty J. of 2nd October 2018.

Background
2

On 21st July 2016, the appellant issued proceedings against the respondent in which he claimed that the respondent had caused the appellant “serious prejudice” in bringing what he described as malicious proceedings in the Circuit Court against him. The proceedings about which the appellant complained in his plenary summons were proceedings issued by the respondent whereby it sought possession of the appellant's dwelling house arising out of non-payment of the mortgage. While the respondent was unsuccessful with those proceedings in the Circuit Court, it was successful, on appeal, in the High Court, and on 15th February 2016, Noonan J. made an order for possession against the appellant.

3

On 14th September 2016, the appellant delivered a statement of claim in these proceedings. Thereafter, a notice for particulars was served by the respondent on 16th December 2016 and replies were delivered on 2nd February 2017. The respondent delivered its defence on 27th February 2017.

4

On 14th March 2017, the respondent issued a motion whereby it sought an order striking out the appellant's claim on several bases:

(1) That the claim is an abuse of process, and is contrary to the doctrine of res judicata and the rule in Henderson v. Henderson;

(2) His claim failed to disclose any reasonable cause of action against the respondent, and accordingly is bound to fail;

(3) In the alternative that his claim is frivolous and vexatious; and

(4) That he has failed to plead lawfully his claims of fraud against the respondent.

This application is grounded on an affidavit of Helen Dorris who describes herself as a legal case manager based in the arrears support unit of the respondent.

5

On 29th May 2017, the appellant issued a motion to cross examine Ms. Dorris, and Ms. Dorris swore an affidavit in reply to the appellant's grounding affidavit on 13th July 2017. She swore a further affidavit on 12th September 2017.

6

On 26th September 2017, a Mr. Buckley, a manager in the employment of the respondent, swore an affidavit to verify Ms. Dorris’ capacity to swear affidavits in the proceedings. In each case, when swearing affidavits, both Ms. Dorris and Mr. Buckley provided their working address in the opening paragraph of their affidavits, being New Century House, Lower Mayor Street, IFSC, Dublin 1. They did not provide their residential addresses. Also in each case, the affidavits sworn by Ms. Dorris and Mr. Buckley, while dated, gave no indication as to the time of day on which the affidavits were sworn.

7

Both motions came on for hearing before Faherty J. in the court below on 6th November 2017. In the course of the opening by counsel for the respondent of its motion to strike out the proceedings, the appellant objected to counsel opening the grounding affidavit of Ms. Dorris, on the grounds that the affidavit was invalid because it was not in compliance with either or both of O.40 rr. 6 and 9 of the Rules of the Superior Courts. This objection in effect gave rise to a preliminary issue which resulted in the judgment of Faherty J. of 2nd October 2018, whereby she dismissed the appellant's objections. This decision is the subject of the appellant's first appeal before the Court.

The First Appeal: O. 40, rr. 6 and 9 of the Rules of the Superior Courts
8

O.40, r.6 of the RSC provides:

“Every commissioner to administer oaths shall express the time when and the place where he shall take any affidavit, or the acknowledgement of any deed, or recognisance, otherwise the same shall not be held authentic, nor be admitted to be filed or enrolled without leave of the Court; and every such commissioner shall express the time when, and the place where, he shall do any other act incident to his office.”

9

In her decision, Faherty J. noted that the affidavits of Ms. Dorris were sworn before a Commissioner for Oaths who attested that Ms. Dorris is known to him. The place and dates where the affidavits were sworn are set out, and the only objection raised by the appellant under this heading is that the time of day at which the affidavits were sworn is not recorded. Faherty J. stated that she did not consider that the absence of the time of day rendered the affidavits “unauthentic”, as claimed by the appellant. Adopting the words of Kelly P. in the case of Kearney v. Bank of Scotland Plc and Horkan [2015] IECA 32, a case in which similar objections were raised, Faherty J. considered that it would be absurd to exclude the affidavits of Ms. Dorris simply because the time of day is not stated thereon. In any case, Faherty J. considered that she was entitled to rely on O.40, r.15 of the RSC which provides:

“The Court may receive any affidavit sworn for the purpose of being used in any cause or matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received.”

10

In its submissions on the issue, the respondent also relied upon Kearney and other authorities including Allied Irish Banks Plc & Others v. Gibney & Others [2018] IECA 362, a judgment of Peart J. in this Court, and in which he rejected the argument that the failure to specify the time of day could render an affidavit inadmissible. At paras. 14-17, he said:

“14. I would further add that the construction of Ord. 40, r. 6 which is urged upon by the appellant, that is in relation to the time of day in the jurat, would lead to a manifest absurdity. A statement that a particular affidavit was taken by the Commissioner of Oaths at, say, 10 a.m. without adding the date in question would be meaningless and pointless. In that regard I would refer again to the provisions of Ord. 40, r. 6 which say that every Commissioner shall express the time when and the place where he shall take any affidavit.

15. Now if that is to be given a literal interpretation the jurat would simply say e.g. ‘sworn at 4.15 at Ormond Quay, Dublin 7 …’ and it would have to omit...

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