Kearney v Bank of Scotland Plc

 
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[2015] IECA 32

THE COURT OF APPEAL

Kelly J.

Irvine J.

Hogan J.

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

Between

Thomas Kearney
Plaintiff

and

Bank of Scotland plc and Patrick Horkan
Defendant

17/2015 - Kelly Irvine Hogan - Court of Appeal - 23/2/2015 - 2015 IECA 32

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

1

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

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

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

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

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...

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