Permanent TSB Plc t/a Permanent TSB v Jerry Beades

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 25 February 2014
• Neutral Citation: [2014] IEHC 81
• Judgment citation (vLex): [2014] 2 JIC 2502
• Court: High Court
• Date: 25 February 2014

[2014] IEHC 81

THE HIGH COURT

[No. 331 SP/2012]

Permanent TSB PLC t/a Permanent TSB v Beades

No Redaction Needed

BETWEEN

PERMANENT TSB PLC. TRADING AS PERMANENT TSB

PLAINTIFF

AND

JERRY BEADES

DEFENDANT

RSC O.124 r1

SANDY LANE HOTEL LTD v TIMES NEWSPAPERS LTD & ORS 2011 3 IR 334 2010 1 ILRM 411 2009/53/13245 2009 IESC 75

RSC O.63 r1(15)

RSC O.15 r14

RSC O.36

RSC O.36 r3

RSC O.40 r31

RSC O.122

RSC APPENDIX C FORM 21

BANKERS BOOKS EVIDENCE ACT 1879 S3

BANKERS BOOKS EVIDENCE ACT 1879 S4

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & ORS UNREP CLARKE 9.7.2010 2010/37/9346 2010 IEHC 275

BANK OF IRELAND v KEEHAN UNREP RYAN 16.9.2013 2013 IEHC 631

BANK OF SCOTLAND PLC v FERGUS UNREP FINLAY GEOGHEGAN 30.3.2012 2012/3/807 2012 IEHC 131

BANK OF SCOTLAND PLC v STAPLETON UNREP PEART 29.11.2012 2012/4/848 2012 IEHC 549

BANKERS BOOKS EVIDENCE ACT 1879 S9(2)

BANKERS BOOKS EVIDENCE (AMDT) ACT 1959 S2

CENTRAL BANK ACT 1989 S131

RSC O.41 r3

START MORTGAGES LTD v GUNN UNREP DUNNE 25.7.2011 2011/46/13101 2011 IEHC 275

REGISTRATION OF TITLE ACT 1964 S62(7)

Practice and procedure - Possession order - Default - Defect - Letter of demand - Cross- Examination - Bankers Books Evidence Act 1879

Facts: The proceedings concerned an application for a possession order. The plaintiff claimed that it was entitled to possession of the premises at issue as an event of default had taken place under loan agreements. The letters of demand were alleged to have defects. The Court considered whether cross-examination was required to satisfy proof as to bankers” books pursuant to the Bankers Books Evidence Act 1879.

Held by McGovern J. that the Court would grant the plaintiff an order for the possession of the lands and premises set out in the Schedule to the special summons. The Court was satisfied on the evidence that the plaintiff entered into the loans, the properties set out in the special summons were duly mortgaged as security for the loan and that the loan was in default.

1 1. This is an application for an order for possession of the premises set out in the Schedule in the special endorsement of claim. The properties are situated at Nos. 2, 3 and 4, Fairview Avenue in the city of Dublin. The plaintiff claims that it is entitled to possession of the premises as an event of default has taken place under loan agreements between the predecessor in title of the plaintiff, of the one part, and the defendant of the other part. The defendant has raised a number of technical defences to the plaintiff's claim but, significantly, he does not deny that the sums claimed, or a substantial part thereof, are due and owing.

2 2. At the commencement of the hearing, I dealt with a number of preliminary issues which I will record in this judgment. The first was a technical objection raised by the defendant that the summons should have been re-served on him. It was not quite clear whether this objection was based on the fact that amendments had been allowed to the description of the properties in the Schedule in the summons or whether it was based on the amendment of the title. The first of those orders was made by the Master of the High Court. At the end of his order, it was specifically recorded that he dispensed with re-service of the summons when amended in accordance with his order of 19 ^th December, 2012. On 16 ^th December, 2013, I made an order which provided, inter alia, that the title of the proceedings be amended by deleting the reference to "Irish Life and Permanent plc. trading as Permanent TSB Plaintiff and substituting "Permanent TSB plc. trading as Permanent TSB Plaintiff in lieu thereof. That order was made having heard counsel for the plaintiff and having heard the defendant who appeared in person. On that occasion, I did not make an order dispensing with re-service of the summons when the title was amended. The defendant maintains that the summons ought to have been re-served. Having regard to the fact that the defendant was in court when the order was made and when the matter came before me again on 11 ^th February, 2014, I decided to dispense with the necessity for re-service as I could see no possible prejudice to the defendant who was at all times aware that the order was made. In any event, it was merely an order affecting the title of the action, having regard to a change of name of the plaintiff. If there was any want of form in failing to re-serve the summons, the matter was capable of rectification by an order dispensing with re-service made in accordance with 0.124, r.l of the Rules of the Superior Courts, 1986 (the "Rules").

3 3. In his affidavit, the defendant sought that that the plaintiff's application be dismissed, relying upon the judgment of Hardiman J in Sandy Lane Hotel Ltd. v. Times Newspapers Ltd. [2011] 3 IR 334, wherein it was held that the incorrect designation of a party to those proceedings on the facts of the case did not constitute a "clerical error" such as may be amended by the Master of the High Court, pursuant to 0.63, r.l (15) of the Rules. This case does not assist the defendant, however, not least for the reason that the order amending the title of these proceedings was not one granted by the Master pursuant to 0.63, r.l(15), but rather was an order summarily made by me pursuant 0. 15, r. 14 to reflect the change of name of the plaintiff company.

4 4. The defendant sought an order directing that Mr. Leo Gallagher and Ms. Margaret Ferns attend for cross-examination on affidavits sworn by them in connection with these proceedings. The affidavit grounding that application was sworn on 16 ^th December, 2013, which was the date of the last hearing of this matter before me and on which date I adjourned the hearing to 11 ^th February, 2014, as the matter was not suitable to be dealt with in a special summons list on a Monday. In that affidavit, the defendant raises a number of technical points. With regard to Mr. Gallagher's affidavit, he claims that it is not sworn in the correct format in keeping with the provisions of the Bankers' Books Evidence Act 1879 (as amended) (the "Act of 1879"), and he also claims that the affidavit of Mr. Gallagher sworn on 28 ^th August, 2012, has not been amended to reflect the changes directed by the Master of the High Court made on 20 ^th December, 2012. In addition, the defendant denies that he received the demand letters which are exhibits "LG6" and "LG7" in Mr. Gallagher's affidavit.

5 5. The defendant makes no reference in that affidavit to Ms. Margaret Ferns. However, at the hearing of the motion before me he claims that she was not an officer of the plaintiff within the meaning of the Act of 1879, and she was therefore not competent to swear the affidavit sworn by her on 8 ^th November, 2013.

6 6. On 16 ^th December, 2013, I directed that the defendant do serve and file any replying affidavit by close of business on Friday, 31 ^st January, 2013, and that the plaintiff do serve and file any replying affidavit by close of business on Thursday, 6 ^th February, 2014. The last affidavit (apart from that dealing with the application for Kelly J. to recuse himself) was sworn by the defendant on 16 ^th December, 2013, and no further affidavits were filed by either party. Notices to cross-examine dated 5 ^th February, 2014, were served by the defendant on Mr. Leo Gallagher and Ms. Margaret Ferns and further notices dated 9 ^th February, 2014, were served on them as there was some confusion about the return date for the hearing of the application.

7 7. Order 36 of the Rules deals with the appropriate procedures in a hearing of a proceeding commenced by Special Summons. Rule 3 thereof states:-

"Save in so far as the Court shall otherwise order, proceedings commenced by special summons shall be heard on affidavit: provided that any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination, and unless such deponent is produced accordingly his affidavit shall not be used as evidence unless by the special leave of the Court."

8 8. The procedure governing the service of a notice for cross-examination as referred to in 0. 36, r.3 is set out in O. 40, r. 31 of the Rules, which states:-

"When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court may specially appoint; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the leave of the Courthellip; The notice shall be in the Form No. 21 in Appendix C."

9 9. The defendant acknowledged the applicability of the provisions of O. 40 r.31, but urged upon the court that the rule should be interpreted as allowing for a period of fourteen days beyond the last possible nominal date of filing of the final affidavit in the proceedings. I do not accept that argument. Under O. 40, r. 31, the defendant had 14 days from "hellip; the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court may specially appointhellip;" within which to serve notice to cross-examine. The only affidavit sworn by the defendant in answer to the plaintiff's claim, and the affidavits of Mr. Gallagher and Ms. Ferns, was that of 16 ^th December, 2013. There was no further affidavit...