The Governor and Company of Bank of Ireland v Ward

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 09 April 2019
• Neutral Citation: [2019] IEHC 235
• Docket Number: [2017 No. 487 S]
• Court: High Court
• Date: 09 April 2019

BETWEEN

THE GOVERNOR AND COMPANY OF BANK OF IRELAND

PLAINTIFF

AND

GERRY WARD

RESPONDENT

[2019] IEHC 235

[2017 No. 487 S]

THE HIGH COURT

Cross-examination – Conflict of fact – O.40 of the Rules of the Superior Courts – Defendant seeking cross-examination of the deponents – Whether cross-examination of the deponents related to, or concerned, any conflict of fact which was necessary for disposing of the issues which the High Court had to determine

Facts: The High Court, on 8th February, 2019, delivered a judgment in which it determined that the affidavits of Mr Buckley and Ms Enright should be admitted in evidence, subject to any entitlement of the defendant, Mr Ward, to cross-examine those deponents. The court also determined that, in the circumstances, leave of the court was required to cross-examine those deponents on the contents of their affidavits. The application before the court was therefore treated as an application for the extension of time within which to serve notice to cross-examine. It was clear from the court’s previous ruling on the 8th February, 2019 that it did not depart from the directions given by McDermott J on 12th March, 2018 that Mr Ward be required to place on affidavit the reasons why he sought to have these deponents examined. At that stage, the court did not have benefit of sight of the order of McDermott J. When the matter came before the court on the 26th March, 2019, counsel for the plaintiff, the Governor and Company of Bank of Ireland, produced that order made on the 12th March, 2018. It was clear therefrom that it was directed that Mr Ward should file a further affidavit setting out the basis upon which he sought the opportunity to cross-examine Mr Buckley and Ms Enright. In the judgment of the court delivered on the 8th February, 2019, the court saw no good reason to depart from those directions. However, time was extended within which to make the appropriate application. Mr Ward filed two further affidavits. In his affidavit on the 6th March, 2019, Mr Ward reiterated that O.40 of the Rules of the Superior Courts is categorical in relation to the rules governing affidavits. It was his submission that the court has no discretion in relation to such an application and it must direct that the deponents be produced for cross-examination. Mr Ward referred to O.40, r.1, O.40, r.31, O.40, r.32 and O.37, r. 2 in that regard. In essence, Mr Ward’s affidavit of the 6th March, 2019 repeated the legal arguments made by him to the court on a previous occasion as to what he considered to be his absolute entitlement to an order directing the deponents to be presented for cross-examination. In the event of their failure to attend, he submitted that the affidavits sworn by Mr Buckley and Ms Enright should be excluded. In that regard, at para. 2(c) of his affidavit Mr Ward averred that the interests of justice dictate that pursuant to a strict application of the law under O.40, r. 32, the court’s hands are tied and that the deponents should be compelled to attend for cross-examination.

Held by MacGrath J that the requirements for the exercise by the court of its discretion pursuant to the provisions of O.40 had not been satisfied by Mr Ward on this application. MacGrath J found that it had not been displayed by Mr Ward, on whom the onus of proof lies, that cross-examination of the deponents related to, or concerned, any conflict of fact which was necessary for disposing of the issues which the court had to determine. MacGrath J held that no such material conflicts of fact were apparent from the affidavits which had been submitted.

MacGrath J held that the application would be refused.

Application refused.

JUDGMENT of Mr. Justice MacGrath delivered on the 9th day of April, 2019.

1 On the 8th of February, 2019, this Court delivered a judgment in which it determined that the affidavits of Mr. Buckley and Mr. Enright should be admitted in evidence, subject to any entitlement of Mr. Ward, the defendant to cross-examine those deponents.

2 The court also determined that, in the circumstances, leave of the court is required to cross-examine these deponents on the contents of their affidavits. The application before the court was therefore treated as an application for the extension of time within which to serve notice to cross-examine. It is clear from this court's previous ruling on the 8th February, 2019 that it did not depart from the directions given by McDermott J. on 12th March, 2018 that Mr. Ward be required to place on affidavit the reasons why he seeks to have these deponents examined. At that stage, this court did not have benefit of sight of the order of McDermott J. When this matter came before the court on the 26th March, 2019, counsel for the plaintiff produced that order made on the 12th March, 2018. It is clear therefrom that it was directed that Mr. Ward should file a further affidavit setting out the basis upon which he seeks the opportunity to cross-examine Mr. Buckley and Ms. Enright. In the judgment of this Court delivered on the 8th February, 2019, the court saw no good reason to depart from those directions. However, time was extended within which to make the appropriate application.

3 Mr. Ward has filed two further affidavits. The plaintiff has not sought to adduce affidavit evidence in reply but relies upon the legal submissions of Mr. Wade B.L.

4 In his affidavit on the 6th March, 2019, Mr. Ward reiterates that O.40 of the Rules of the Superior Courts is categorical in relation to the rules governing affidavits. As I understand it, it is his submission that this Court...