When can a bank deponent be cross-examined in a debt case

The High Court (Simons J), in a recent decision delivered on 18 January 2021 [AIB v Joe O’Callaghan & others [1]] considered and ultimately refused the plaintiff bank’s (the “Bank”) application for special leave to use their deponents’ affidavit evidence without producing the deponents for cross-examination.

Facts

The Bank issued summary judgment proceedings against the defendants in 2016 seeking to recover monies allegedly owed to it pursuant to a 2008 loan facility. In March 2017, it brought a motion seeking liberty to enter final judgment against the first, second and fourth named defendants. Judgment was entered against the third named defendant via the Central Office as he had not entered an Appearance.

The fourth named defendant (the “Defendant”) filed two detailed affidavits seeking leave to defend the proceedings. A deponent on behalf of the Bank swore an affidavit in reply. Thereafter, the Defendant served a notice requiring the production of that deponent and another of the Bank’s deponents, for cross-examination pursuant to Order 37, Rule 2.2 of the Rules of the Superior Courts. This Rule further provides that if the deponent does not attend, his affidavit will not be used as evidence without special leave of the court.

In those circumstances, in March 2020, the Bank issued a motion seeking special leave of the court to use its affidavit evidence without producing either deponent for cross examination. This motion was heard as a stand-alone application in December 2020, as a result of which this decision was delivered. The Bank had initially sought for this motion to be heard together with their motion for judgment, but the Defendant successfully objected to the two matters being heard together.

The Affidavits

The Defendant’s affidavits claimed that the loan facility had been granted to the defendants as a partnership, that the Bank were aware of this and were aware that the Defendant only held a 10 per cent shareholding in that partnership. In response, the Bank’s deponent averred that the Bank was a stranger to those allegations and that monies were advanced to the defendants on a joint and several basis.

The Defendant’s affidavits further claimed that as a result of misrepresentations made to him by the Bank’s employees, he was induced not to sell his AIB shares and instead to secure them as repayment for the debt. The Bank’s deponent denied that any advice was given to the Defendant regarding the value of his shares and commented that such advice couldn’t have been given as shares by their nature, rise and fall. He further averred that there was no documentary evidence to show such advice had been given or that the Defendant was induced to provide the shares as security.

The Defendant’s affidavits also complained about how the Bank dealt with the proposed sale of apartments erected on the mortgaged property. The Bank’s deponent denied that the delays in the sale were the fault of the Bank and asserted that they were due to the inability of the defendants to obtain vacant possession.

Decision

Judge Simons, in refusing the special leave sought, found that the Bank’s affidavit consisted of “sweeping statements” that went well beyond commenting upon the content of documents exhibited in the proceedings and instead made a number of averments which contradicted what was in the Defendant’s affidavit. The court found that the Defendant was entitled to cross-examine both of the Bank’s deponents due to the link between the Bank’s two affidavits in terms of exhibited documents.

Judge Simons in making his decision, considered the caselaw relied on by Counsel for both parties [2] and held:

• That the paramount consideration for the court must be the interests of justice.
• That it wasn’t necessary that the Defendant demonstrate prejudice in resisting the application for special leave. Cross examination is intended as a protection for a defendant and there must be some justification for dispensing with this protection, for example if there is no conflict of fact on any issue relevant to determining the motion for judgment.
• That Order 37 provides an opportunity for each party to test the other sides affidavit evidence by cross-examination and this is particularly important where a defendant does not have the benefit of a plenary hearing.
• That there was some merit in the Defendant’s submission that if he failed to seek to challenge the averments made by the Bank’s deponents by way of cross-examination this might go against him. In this regard Judge Simons seemed to agree with the decision in RAS Medical Ltd v. The Royal College of Surgeons in Ireland [3] which held that the onus is on the party wishing to urge a court not to accept affidavit evidence, to ask the court to take measures such as granting leave to cross-examine, so that the credibility or reliability of the evidence can be tested as to its accuracy.

Comment

It is not uncommon, particularly in cases involving banks (the same could be said for financial institutions and funds) and lay litigants, for defendants to seek to cross examine a bank’s deponent. This is often done as a tactic to delay the proceedings and/or to increase costs for the bank involved.

However, this decision should not cause undue concern for banks, financial institutions and funds as it doesn’t change the position as regards Notices to Cross Examine that are served by defendants where there is no conflict of fact. In such a case an application can still be made to set aside a Notice to Cross Examine. Courts have shown themselves to be willing to set aside such Notices where there is no conflict of fact and/or the Notices are spurious.

In a decision delivered by Judge McDonald of the High Court on the 15 June 2018 [4] he set aside a Notice issued by a lay litigant defendant in possession proceedings. Judge McDermott of the High Court had previously set aside a similar Notice issued by the defendant in the same matter where he saw no factual issue relevant to the proceedings that needed to be determined. Judge McDermott described many of the issues raised by the defendant as “vexatious, frivolous and scandalous” and found that they should not be the subject of cross examination of the bank’s deponent in that case.

Judge McDonald, in setting aside the subsequent Notice, acknowledged that cross examination can be crucial to resolve material conflicts in the absence of a plenary hearing but that in order for the right to cross examine to arise, there must be a conflict of evidence in relation to a material or relevant issue. Even where there are inconsistencies between a deponent’s affidavits / affidavits sworn on behalf of the same party, cross examination will only be necessary where those inconsistencies relate to a material issue. In considering each of the alleged inconsistencies relied on by the defendant in that case, Judge McDonald found that there were no material inconsistencies between the affidavits filed by the bank’s deponent, that no material issues arose, that there was no benefit to cross examination and that certain documents could be relied on to clarify certain issues.

Despite the option to remit to plenary hearing being present in most summary summons cases, Judge Simons’ decision highlights that Order 37 does expressly provide for cross examination if required in summary cases and care needs to be taken by deponents to avoid making any sweeping statements or they run the risk of being requested to come before the court to be cross examined.

In order to place oneself in the best position to defeat a Notice to Cross Examine, deponents should, particularly where they do not have first-hand knowledge of the ins and outs of the lending relationship between the parties, be careful to avoid blanket denials of alleged facts raised in the other side’s affidavit and focus on exhibiting and commenting on documentation held on the bank’s file which supports its position. This is particularly important in respect of “material” issues that need to be determined by the court in order to make a decision.

The full decision of Judge Simons can be read here.

The full decision of Judge McDonald in PTSB v Brian Donohoe can be read here.

[1] Allied Irish Banks Plc And Joe O’Callaghan, Anthony Peyton, Paddy Lawlor, Brendan Neligan 2016 No. 1703S

[2] Ulster Bank Ireland Ltd v. Quinn [2015] IEHC 376 High Court (McDermott J.)

Danske Bank v. Connotes Ltd [2016] IEHC 183 High Court (McDermott J.)

AIB v. Lynskey [2017] IEHC 197 High Court (Eagar J.)

RAS Medical Ltd v. The Royal College of Surgeons in Ireland [2019] IESC 4; [2019] 1 I.R. 63

Aer Rianta cpt v. Ryanair Ltd (No. 1) [2001] 4 I.R. 607

[3] [2019] IESC 4; [2019] 1 I.R. 63

[4] Permanent TSB PLC formerly Irish Life & Permanent PLC v Brian Donohoe [2018 IEHC 355]