Mars Capital Finance Ireland Designated Activity Company v Farrell and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Micheál O'Higgins,Micheál O'Higgins
• Judgment Date: 04 June 2025
• Neutral Citation: [2025] IEHC 351
• Docket Number: [Record No. 2017/65S]

Between

Mars Capital Finance Ireland Designated Activity Company

Plaintiff

and

Sean Farrell and Veronica Farrell

Defendants

[2025] IEHC 351

[Record No. 2017/65S]

THE HIGH COURT

Summary proceedings – Admission of affidavits – Cross-examination – Plaintiff seeking special leave to admit its affidavits without the necessity for the deponents to attend for cross-examination – Whether the interests of justice would be served by granting leave

Facts: The plaintiff, Mars Capital Finance Ireland DAC (Mars Capital), applied to the High Court for an order pursuant to O. 37, r. 2 of the Rules of the Superior Courts 1986 granting the plaintiff special leave in summary proceedings to admit its affidavits without the necessity for the deponents to attend for cross-examination. The plaintiff contended that cross-examination was unnecessary as the defendants, Mr and Ms Farrell, had failed to identify specific conflicts of fact to justify such cross-examination. The plaintiff emphasised the summary nature of the proceedings, and contended that the issues in the case fell to be determined by reference to the loan documentation. The defendants disagreed, stating that sufficient conflicts of fact and inconsistencies in the plaintiff’s case had been identified so as to warrant cross-examination. The defendants submitted that, while the plaintiff had chosen to bring its case by way of summary summons, it was striking that it had filed countless affidavits from different deponents. Those affidavits addressed substantive issues as well as procedural points. The defendants said that the multiplicity of affidavits is an unusual feature in summary proceedings and difficult to reconcile with summary process. On that basis, the defendants said that the issues in the case were neither straightforward nor devoid of factual conflict.

Held by O’Higgins J that the plaintiff had a valid point in contending that some of the defendants’ suggested conflicts of fact involved matters that could be pursued by way of legal submission. However, for a number of reasons, O’Higgins J held that this could not be determinative of the question. He thought that the defendants were guilty of over-reach in issuing notices to cross-examine in respect of every one of the plaintiff’s deponents; to allow cross-examination of all deponents would risk rendering the proceedings unwieldy and protracted, and would be unlikely to contribute to the prospects of an orderly hearing. It seemed to O’Higgins J that there was a balance to be struck: a balance that recognised the emphasis in the case law that the provisions of O. 37 should be viewed as being protective of the defendant, versus the necessity not to allow summary proceedings which are ordinarily dealt with on affidavit to become unwieldy. Applying the legal principles identified by Simons J in Allied Irish Banks PLC v O’Callaghan & Ors [2021] IEHC 14 to the facts of the case, O’Higgins J was not persuaded that the plaintiff should be granted special leave with respect to the following three deponents: (a) Mr Hackett of Mars Capital on his affidavit sworn 27 February 2017; (b) Mr Noonan of Mars Capital on his affidavit filed 19 July 2019; (c) and (e) Mr Carter of Mars Capital on his affidavits filed 13 February 2020 and 13 February 2023.

O’Higgins J held that the interests of justice would be served by granting the plaintiff special leave with respect to the following two deponents only: (d) Ms Brady, solicitor on her affidavit filed on 21 July 2022; and (f) Mr McKeever on his affidavit filed on 8 February 2024.

Application granted in part.

Appearances:

For the plaintiff, Rudi Neuman B.L. instructed by Lavelle Partners LLP.

For the defendants, Cian Farrell, Solicitor of Fitzwilliam Legal.

Judgment delivered by Mr. Justice Micheál O'Higgins on the 4 ^th day of June 2025

Introduction

1 . This is an application by the plaintiff (“Mars Capital”) for an order pursuant to O.37, r.2 of the Rules of the Superior Courts, 1986 granting the plaintiff special leave in summary proceedings to admit its affidavits without the necessity for the deponents to attend for cross-examination.

2 . The plaintiff contends that cross-examination is unnecessary as the defendants have failed to identify specific conflicts of fact to justify such cross-examination. The plaintiff emphasises the summary nature of the proceedings, and contends that the issues in the case fall to be determined by reference to the loan documentation. The defendants disagree, stating that sufficient conflicts of fact and inconsistencies in the plaintiff's case have been identified so as to warrant cross-examination. The defendants submit that, while the plaintiff has chosen to bring its case by way of summary summons, it is striking that it has filed countless affidavits from different deponents. These affidavits address substantive issues as well as procedural points. The defendants say that the multiplicity of affidavits is an unusual feature in summary proceedings and difficult to reconcile with summary process. On this basis, the defendants say that the issues in the case are neither straightforward nor devoid of factual conflict.

Procedural background to the underlying proceedings

3 . These proceedings were commenced by summary summons dated 16 ^th January 2017. An appearance was filed on the 24 ^th January 2017, and the plaintiff issued a motion for liberty to enter final judgment in the sum of €3,010,421.01 on 28 ^th March 2017. The grounding affidavit of John Hackett, sworn 27 ^th February 2017, avers that on foot of a Letter of Loan Offer dated 15 ^th March 2007, the plaintiff's predecessor advanced a loan facility to the defendants in the sum of €2,200,000. It is averred that the defendants defaulted in their repayment obligations such that €3,010,421.01 remains due as of the 23 ^rd February 2017, despite demand having been made for repayment of the debt.

4 . An important detail to bear in mind is that Sean Farrell, the first named defendant, is now deceased. The late Mr. Farrell has sworn some seven affidavits in the proceedings, including procedural affidavits. I am not concerned here with any admissibility issues concerning Mr. Farrell's affidavits.

5 . On the 5 ^th March 2018, Mr. Farrell swore a replying affidavit challenging the sufficiency of the plaintiff's proofs. A supplemental affidavit of the plaintiff was sworn on the 17 ^th July 2019 updating the plaintiff's proofs. On the 18 ^th October 2019, Mr. Farrell swore a second affidavit and criticised aspects of the facility letter and transfer deeds exhibited by the plaintiff. This affidavit also referenced Circuit Court proceedings between the parties. At para. 5 of that affidavit, Mr. Farrell states that he has closely examined the 2014 deed which purportedly transferred the 2007 loan from Irish Nationwide Building Society (INBS) to Anglo Irish Bank Corporation Ltd and its purported sale to Mars Capital. Further, he stated that his and his wife's names appear on an unnumbered page after page 48. He says this is the only page where their names appear on the 2014 deed provided by the plaintiff. He says that this page is of critical importance as its authenticity is a cause of concern in light of the plaintiff having produced what was claimed to be the “same” deed in the Circuit Court. However, the deed so produced exhibits an entirely different layout of this critical page. Mr. Farrell contrasts the page as it appears in the present proceedings with a copy of the same page as relied upon by the plaintiff in the Circuit Court proceedings.

6 . At para. 6 he says that, by virtue of the Circuit Court proceedings, he became aware that at least one page in the 2014 deed, which he says indicates that a 2002 INBS loan in his and his wife's names was transferred to the plaintiff, had been redacted. He says he and his wife were not aware of the transfer of this redeemed 2002 INBS loan. He says this fact contradicts the plaintiff's claim that the 2007 loan was transferred to it, and denotes the possibility that the plaintiff purchased a 2002 INBS loan, but not the 2007 loan the subject of these proceedings. He contends that the redaction of this page, along with other information relating to himself and his wife, prejudices their ability to defend the proceedings. He says that the plaintiff wrongly relied upon this page to assert that it held security over their family home. He states that it took the filing and serving of three affidavits in the Circuit Court proceedings by him before the plaintiff, after much delay, conceded that it did not have legal title to the 2007 security/mortgage. In that connection, he refers to Circuit Court affidavits of Joe Carter dated the 4 ^th April 2019 and the 13 ^th August 2019. Based upon these matters, he contends at para. 8 of this affidavit that he and his wife dispute the 2007 loan and any purported transfer of it to the plaintiff. He also says the plaintiff has not to date provided a full statement for the 2007 loan account back to origination, outlining the interest rate applicable at each period.

7 . On the 7 ^th February 2020, the plaintiff swore a further affidavit in answer to the defendant's most recent affidavit. This affidavit exhibited the “Hello” and “Goodbye” letters, together with the executed version of the facility letter the subject matter...