Kearney v Bank of Scotland Plc

JudgeMr. Justice Kelly
Judgment Date23 February 2015
Neutral Citation[2015] IECA 32
CourtCourt of Appeal (Ireland)
Date23 February 2015

[2015] IECA 32


Kelly J.

Irvine J.

Hogan J.

No. 17/2015
Kearney v Bank of Scotland plc & Horkan


Thomas Kearney


Bank of Scotland plc and Patrick Horkan

Practice & procedure – Appeal – Time limit – Application for extension of time – Admissibility of affidavit – Ord 40, Rules of the Superior Courts 1986

Facts: The plaintiff sought to appeal against an order of the High Court, and applied by affidavit for an extension of time to appeal. The plaintiff had raised concerns about the affidavit of the second defendant.

Held by Justice Kelly, in an ex tempore judgment), that the plaintiff took issue with the admissibility of the second defendant”s replying affidavit in respect of the address provided, and of the matters the second defendant contended to have knowledge of. Having considered earlier case law and the provisions of the Rules of the Superior Courts 1986, the Court was satisfied those objections were unfounded. Haslope v Thorne [1813] 1 M & S 102, Blackwell v. England [1857] 8 EL & BL 540 & Harte v McCullagh IR 5 CL 537 considered


1. There is before the court this morning a motion which has been brought by Mr. Kearney in which he seeks an extension of time within which to appeal against an order of the President of the High Court of the 18 th November, 2014. His motion was issued on the 12 th January, 2015 and originally came before the court on the 6 th February when directions were given and the matter was listed for hearing today.


2. That motion was grounded on Mr. Kearney's own affidavit and in due course the second named defendant in the proceedings Mr. Horkan swore an affidavit in response.


3. Objection is now taken to the admissibility of that affidavit by Mr. Kearney. He makes his objection on two bases. First, he says that the affidavit contains material which Mr. Horkan would not have known of and could not have known of at first hand. Second, he says that there has a been failure to comply with the rules of court in that in swearing the affidavit, Mr. Horkan gave his address as Dock Gate, Dock Road, Galway and that is not his place of abode. He says that under the relevant rules of the court, the deponent of an affidavit must give his place of residence and not his place of business.


4. Two rules of the court are relevant to these objections. Order 40, r. 4 provides:

"Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of any affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall not be allowed."


5. Order 40, r. 9 reads:

"Every affidavit shall state the description and true place of abode of the deponent; and every affidavit of service shall state when, where, and how, and by whom, such service was effected and in the case of delivery to any person, shall state that the deponent was at the time of such delivery acquainted with the appearance of such person."


6. They are two relevant provisions of O. 40 which encompass both the objections which Mr. Kearney has mooted to the court this morning. I will deal with the second of them first.


7. Mr. Kearney is quite correct when he says that the rules of court we operate under are those which were published and promulgated in 1986. They constitute a revision of the rules of court which pertained until that time. He asks us to apply a literal interpretation of what is contained at O. 40, r. 9 which I have just read out. He says that because the affidavit did not show the place of residence of Mr. Horkan that it should be ruled out.


8. Unfortunately, like many lay litigants, he fails to take into consideration that the rules of court, just like any other piece of legislation, fall to be interpreted from time to time by the courts. The objection which he takes today is nothing new. It is a form to objection which has been taken in the past and the courts have had to rule on it. When I say the past, I go right back to the beginning of the 19 th century, because Ms. Tighe's researches have been able to produce to a series of...

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  • Gilroy v Callanan
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    • 11 January 2019
    ... ... 2 In the McQuaid litigation, the plaintiff bank was represented by the third-named defendant firm. It appears that the first-named defendant ... I am bound by, and fully agree with the approach of the Court of Appeal to this point in Kearney v. Bank of Scotland plc and another (23 February 2015) and Allied Irish Banks and others v ... ...
  • Tyrrell v Gibney
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    • 24 June 2019
    ...with the Rules of the Superior Courts and the Court of Appeal was asked to depart from its decision in Kearney v Bank of Scotland plc [2015] IECA 32. In addition, in submissions to the Court the appellants strongly argued that they were entitled to see the original unredacted documents reli......
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    ...satisfied to admit them in evidence notwithstanding such suggested defects or irregularities (see Kearney v. Bank of Scotland and Horkan [2015] IECA 32). 22 The second affidavit of 12th February 2018 purports to outline the circumstances in which Mrs. Davis came to enter the mortgage loan ......
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    ...order. Counsel for the applicant has referred me to a recent judgment of Kelly J. in the Court of Appeal in the case of Kearney v Bank of Scotland plc & Patrick Horkan [2015] IECA 32 where Kelly J. referred to an argument made by the litigant before him, Mr. Kearney, in substantially simil......
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