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[2018] IEHC 355

THE HIGH COURT

McDonald J.

[RECORD NO. 2015 85 SP]

BETWEEN
PERMANENT TSB PLC
FORMERLY IRISH LIFE & PERMANENT PLC
PLAINTIFF
AND
BRIAN DONOHOE
DEFENDANT

Notices of motion – Notice for particulars – Notice to cross-examine – Defendant seeking an order directing the plaintiff to reply to his notice for particulars – Whether plaintiff should be compelled to respond to the defendant's notice of particulars

JUDGMENT of Mr. Justice Denis McDonald delivered on the 15th day of June 2018
1

In these proceedings the plaintiff seeks an order pursuant to s. 62(7) of the Registration of Title Act 1964 for possession of two rental properties, one in Co. Galway and the other in Clondalkin, Dublin 22. The special summons was listed for hearing before me on 10 and 11 May 2018 together with two notices of motion as follows:-

(a) A notice of motion dated 19 December 2017 brought by the defendant seeking an order pursuant to O. 19, r. 7 of the Rules of the Superior Courts directing the plaintiff to reply to his notice for particulars dated 1 December 2017; and

(b) A notice of motion dated 17 April 2018 brought by the plaintiff seeking an order setting aside a notice to cross-examine served by the defendant on 26 February 2018, or in the alternative, an order pursuant to O. 38, r. 3 and O. 40, r. 31 granting the plaintiff special leave to use the affidavit of Jacqueline O'Brien sworn on 7 September 2017 as evidence at the trial without requiring her production for cross-examination.

2

The hearing of the special summons could not proceed without first hearing each of the above notices of motion. Due largely to the length of the affidavits filed in the proceedings (as described below), the hearing of those notices of motion took up the entire of 10 and 11 May 2018.

3

Before turning to the relief claimed in the respective notices of motion, I should explain, by way of background, that these proceedings were commenced in 2015. The defendant Mr. Donohoe is acting in person. An unusually large number of affidavits have been filed in the proceedings. This is in circumstances where Mr. Donohoe has sought to air an extensive range of issues in his defence of the claim. The background to the proceedings is more fully described in the judgment of McDermott J. delivered on 24 February 2017, in which McDermott J. deals with a previous application made by the plaintiff to set aside service of a notice to cross-examine which had been served by the defendant at that time. The same judgment also refers to an earlier notice for particulars served by the defendant dated 30 November 2016. As McDermott J. records, in paragraph 35 of his judgment, Mr. Donohoe made a submission to the court during the course of the hearing before McDermott J. that the plaintiff should be directed to answer the notice for particulars of November 2016. It should be noted that Mr. Donohoe's request was made on a relatively informal basis during the course of the hearing before McDermott J. of the plaintiff's application to set aside service of the previous notice to cross-examine. No notice of motion had been served at that time by Mr. Donohoe seeking to compel the plaintiff to respond to the notice for particulars dated 30 November 2016. Nonetheless, in light of the request made to him by Mr Donohoe in the course of the hearing before him, McDermott J. expressed the view in his written judgment that he was not satisfied that a response to the notice for particulars was necessary for Mr. Donohoe to understand the plaintiff's claim which, as McDermott J. observed, is absolutely clear from the affidavit submitted in support of the special summons.

4

In the same judgment, McDermott J. came to the conclusion that there was no need for cross-examination of Ms. Jacqueline O'Brien, the deponent of the principal affidavits sworn on behalf of the plaintiff. It is fair to say that the principal focus of McDermott J's judgment is the proposed cross examination of Ms O'Brien. McDermott J. held that the notice to cross-examine was defective in form. In addition, McDermott J said, at paragraph 38, that:-

'Even if that were not so I am satisfied that there is no factual issue relevant to these proceedings to be determined on the basis of the affidavits furnished by both sides to date. Furthermore, I am satisfied that insofar as there are issues raised by the defendant in his replying affidavits, many of them are vexatious, frivolous and scandalous and ought not to be the subject of cross-examination of Ms. O'Brien. In addition, a number of the matters raised amount to legal submissions upon which the defendant may rely at the hearing without the necessity for cross-examination.'

5

Since the judgment of McDermott J. was delivered on 24 February 2017, the following additional affidavits have been filed:-

(a) An affidavit of Mr. Donohoe sworn on 30 March 2017;

(b) An affidavit of Jacqueline O'Brien sworn on 7 September 2017;

(c) A short and commendably succinct affidavit sworn by Mr. Donohoe on 19 December 2017 grounding the application to compel the plaintiff to respond to his notice for particulars dated 1 December 2017;

(d) A remarkably lengthy and detailed affidavit sworn by Mr. Donohoe on 27 February 2018. This affidavit is 78 pages long and comprises 602 paragraphs. There are approximately 226 pages of exhibits;

(e) An affidavit of Jacqueline O'Brien sworn on 10 April 2018. This is not a response to the lengthy affidavit described in subparagraph (d). It is sworn in response to the application to compel the delivery of particulars and in support of the application brought by the plaintiff pursuant to the notice of motion dated 17 April 2018 seeking to set aside the notice to cross-examine.

(f) A further affidavit of Mr. Donohue sworn on 26 April 2018.

6

Having briefly set out the background, I now turn to the motions before the court. I deal first with the application in relation to particulars. I then deal with the application in relation to the notice of cross-examination.

The Application to Compel the Plaintiff to Provide Particulars
7

The first issue which I have to consider is whether it is appropriate for me to embark upon a consideration of this application in circumstances where Mr. Donohoe, in the course of the hearing before McDermott J. in 2017, asked the court on that occasion to direct the plaintiff to provide the particulars sought pursuant to Mr. Donohoe's previous notice for particulars dated 30 November 2016. In this context, I should explain that, while the form of the questions set out in Mr. Donohoe's notice for particulars dated 1 December 2017, is different to the earlier notice for particulars dated 30 November 2016, in substance, many of the requests for particulars are the same or virtually the same. An issue therefore arises as to whether the determination of McDermott J. gives rise to an issue estoppel which prevents Mr. Donohoe from re-litigating his request for particulars now. While the matter is by no means clear-cut, I have come to the conclusion (with some reservation) that no issue estoppel arises here. I have come to that conclusion in circumstances where no formal application was brought before McDermott J. in 2017 by notice of motion seeking an order compelling the plaintiff to provide the particulars sought at that time. Instead, the matter appears to have been mentioned by Mr Donohoe to McDermott J. on an informal basis and thus there is no significant discussion about the issue in the judgment delivered by McDermott J. on 24 February 2017. That judgment is concerned for the most part with the application to set aside the notice to cross-examine. I do not believe that it can safely be concluded that the defendant's entitlement or otherwise to raise particulars was fully or properly before the court on the last occasion before McDermott J. In these circumstances, it seems to me that the better view is that no issue estoppel arises such that Mr. Donohoe is not estopped from pursuing his present application and I will therefore proceed to consider it.

8

The next issue which arises is whether it is open to a party in special summons proceedings (which have not been adjourned for plenary hearing) to seek particulars. In this context, it is important to record that the particulars sought are not raised in relation to anything pleaded in the Indorsement of Claim on the Special Summons. They relate in part to the affidavit evidence before the court and in part they seek answers to questions which Mr. Donohoe believes will assist him in his defence of the proceedings. Counsel for the plaintiff has strongly urged that there is no basis under O. 19 to seek particulars of anything other than a pleading. Counsel has drawn attention to the language of O. 19, r. 7 (which is the rule on which Mr. Donohoe has expressly sought to rely) which refers solely to pleadings. O. 19, r. 7 (1) provides as follows:-

'A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.'

9

Counsel has also relied on the definition of 'pleadings' contained in O. 125, r. 1 where 'pleading' is defined as follows:-

''pleading' includes an originating summons, statement of claim, defence, counter-claim, reply, petition or answer'.

10

None of the documents mentioned in the definition of 'pleading' in O. 125, r. 1 comprises an affidavit. While Mr. Donohoe sought to...

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