Coyne v Ulster Bank Ireland Ltd and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Kennedy
• Judgment Date: 15 May 2024
• Neutral Citation: [2024] IEHC 290
• Docket Number: [Record No. 2016/2053P]

Between

Seán Coyne

Plaintiff

and

Ulster Bank Ireland Limited

and

Kieran Wallace

Defendants

[2024] IEHC 290

[Record No. 2016/2053P]

THE HIGH COURT

JUDGMENT of Mr Justice Kennedy delivered on the 15 ^th day of May 2024 .

1 . The Plaintiff seeks leave to cross-examine deponents who have sworn affidavits on behalf of the Defendants in the context of the latter's application seeking, inter alia, to strike out the proceedings on the basis that they are “ frivolous, vexatious, bound to fail and/or an abuse of process” (“the Defendants' Application”).

2 . The application has been brought under Order 40, rule 36 of the Rules of the Superior Courts (“the RSC”), but I will deal with it under O.40, r.1 because rule 36 relates to cross-examination at trial rather than at an interlocutory hearing, whereas rule 1 provides that:

“ Upon any … motion, or other application, evidence may be given by affidavit, but the Court may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit.”

3 . The Plenary Summons identifies the substantive claim as a claim for damages for trespass and nuisance. The Plaintiff issued proceedings on 7 March 2016, followed by an injunction application on 2 December 2022, but the latter was struck out on consent on 1 December 2023, by which time the dismissal application had issued.

4 . The thrust of the Plaintiff's evidence and submissions was that he was entitled to test the Defendants' case. His affidavits in support of the application did not identify specific conflicts of evidence but his counsel's submissions referenced “ huge differences” in the affidavits, differences so great that a “ 100-page affidavit” would have been required if all such variations had been enumerated. Faced with such a daunting task, the Plaintiff went to the other extreme, failing to identify specific conflicts of evidence which would give rise to a need for cross examination for the purposes of the motion. In oral submissions, the Plaintiff denied having entered into the mortgage or having received the loan (which underpinned the First Defendant's appointment of the Second Defendant as receiver) but his position was not articulated with clarity in his Statement of Claim or his affidavits grounding his application.

5 . The Plaintiff's submissions also raised the possibility of fraud on the part of the Defendants. No such claim was articulated in the Plenary Summons. The nearest the Plaintiff seems to have come to pleading such a serious allegation was the suggestion in (one of two competing versions of) the statement of claim that the Defendants acted “ negligently or fraudulently” by enforcing the alleged mortgage over the Plaintiff's property. However, the Plaintiff has not provided the particulars required to ground any such plea in accordance with the Rules of the Superior Courts.

6 . The Plaintiff gave no meaningful indication as to the subject matter of the proposed cross examination. Paragraph 2 of his grounding affidavit refers in general terms to the affidavits exchanged on his (abandoned) injunction application, but he failed to identify conflicts of evidence requiring resolution for the purposes of the Defendants' application. He explained at paras. 8 – 9 of his affidavit:

“ 8. I would wish to set out in full the paragraphs and the averments to which I would wish to confine by cross examination. However, I say that the four Affidavits are so voluminous and convoluted that it would be extremely prolix if I were to particularise each instance of a material and relevant fact upon which there are bone fides and direct contradictions, and which lack credibility and reliability, and the source of knowledge and basis of belief for which is unclear, and to which, I say, the Court should give no weight.

9. However, I say that I only wish to cross-examine on those Affidavits, and on those averments within those Affidavits, as set out in the Notice attached hereto, that contain bone fides contradictions of evidence on material and relevant facts, and upon the source of knowledge or basis of belief, where that appears to me to be unclear or not well founded, and where the evidence tended by the Deponents lacks credibility and reliability.”

7 . The Plaintiff's grounding affidavit concluded:

“ 11.…it is incumbent upon me to cross-examine the Deponents concerned and to put to the Deponents the basis on which I say that their evidence lacks veracity, credibility and reliability, and where the source of knowledge or the basis of belief is unclear or not well founded.

12. In all the circumstances, I say it is in the interest of Justice that I should be permitted to cross-examine the Deponents and I therefore pray this Honourable Court for orders in terms of my Notice of Motion herein.”

8 . I have considered affidavits sworn by the Plaintiff in support of the application to cross examine in response to the Defendant's application to dismiss and in respect of his abandoned injunction application, and I have reviewed both versions of the Statement of Claim. However, I find it difficult to comprehend the basis for the Plaintiff's claim, save that he appears to deny that he entered into the mortgage on which the Defendants rely. However, according to para. 4 of the undated Statement of Claim (which differs from the 18 October 2016 version), he acknowledges that he sought a loan from Ulster Bank in 2005 and that:

“ At the first named defendant's request a draft mortgage deed was signed by the plaintiff and monies advanced for the purchase of the property”.

Accordingly, the Plaintiff appears to accept that he: (i) signed what he characterises as a “ draft mortgage”; and (ii) received monies for the purpose of the purchase of the property, but he claims that:

“ No substantive mortgage deed was completed or signed by the plaintiff or on behalf of the first named defendant and there was no meeting of minds on a finalized mortgage deed.”

9 . The Plaintiff also alleges that:

“ On or about July 2006 to January 2007 all the plaintiff's personal and company loans, including monies advanced for the purchase of the property, were bought over by Danske Bank trading as National Irish Bank”,

and that accordingly the First Named Defendant was no longer a creditor of the Plaintiff.

10 . On that basis, the Plaintiff claims damages for negligence, fraud, trespass, nuisance and unlawful interference with the Plaintiff's economic interests. By contrast, the Defendants rely on the deed of mortgage to assert a lawful right to occupy the premises and a valid appointment of the receiver and as a complete answer to the Plaintiff's claim for trespass and nuisance.

The Law

11 . There are significantly different rules pertaining to cross examination depending on context. For example, Order 37 RSC provides for the hearing of claims brought by special summons. It is envisaged that such proceedings should generally be dealt with on affidavit. However, the effect of Order 37, rule 2 is that any party may serve a notice requiring the production for cross examination of any deponent who has sworn an affidavit. If such deponents are not produced for cross examination, then the affidavits may not be used without special leave of the Court. Accordingly, the default position in a summary summons context is that an application is not required in the first instance – it is sufficient to serve a notice requiring the deponents' production for cross examination and their affidavits will then only be admissible with special leave unless they are produced for cross examination (but such special leave may still be forthcoming where cross examination is considered unnecessary, as in Ulster Bank Ireland Limited v Michael and Brigid Quinn [2015] IEHC 376 (“ Quinn”) and AIB Mortgage Bank v Alan Lynskey [2017] IEHC 197 (“ Lynskey”)).

12 . By contrast, there is no automatic or presumed entitlement to cross examine in the context of an interlocutory application. An application to the Court is required under Order 40. The Court has a discretion as to whether to allow cross-examination in the circumstances. It may be ordered if necessary to resolve material conflicts of facts which need to be resolved for the purposes of determining the particular application. For example, in McElhinney v Williams [1995] 3 IR 382 (“ McElhinney”), the Court rejected a motion to cross examine an official from the Northern Ireland Office who had sworn an affidavit in the proceedings (while reserving the right to consider the matter further as the case developed). Costello J. (as he then was) observed that:

“ in a case of this sort the court is not called upon to decide controversial questions of fact. The court considers the claim made on the pleadings, and I have done so. …matters raised in this affidavit are in a number of instances not relevant to the issues which I had to decide and there was no need to consider controversial issues of fact in reaching my conclusion – and I did not do so. Therefore I will refuse the plaintiff's application”.

13 . Denham J. (as she then was) recognised the judicial discretion in Bula Limited v Crowley (No. 4) [2003] 2 IR 430 at 459 (“ Bula”) and discussed considerations relevant to its exercise, including delay in seeking to cross-examine.

14 . In Director of Corporate Enforcement v Seymour [2006] IEHC 369, O'Donovan J. held that cross-examination should only be allowed if required to resolve the issues the Court was required to determine.

15 . In Irish Bank Resolution Corporation Ltd v Moran [2013] IEHC 295 (“ Moran”), Kelly J. (as he then was) stated (at para. 15):

“ It is incumbent upon an applicant for such an order to demonstrate (1) the probable presence of some conflict on the affidavits relevant to the issues to be determined and (2) that such issue cannot be justly decided in the absence of cross...