[2018] IEHC 589
THE HIGH COURT
[ Record No. 2016/6614 P]
EOIN BEAKEY
PLAINTIFF
AND
BANK OF IRELAND MORTGAGE BANK
DEFENDANT
JUDGMENT of Ms. Justice Faherty delivered on the 2nd day of October, 2018
1. The plaintiff commenced the within proceedings by plenary summons on 21st July, 2016. An appearance was entered by the defendant on 28th July, 2016. The plaintiff delivered a statement of claim on 14th September, 2016. The defendant served a notice of particulars arising from the statement of claim on 16th December, 2016 which was responded to on 2nd February, 2017.
2. In essence, the plaintiff's claim is that the defendant is responsible for serious prejudice caused to the plaintiff by virtue of the defendant having commenced proceedings in the Circuit Court against the plaintiff which the plaintiff now says were malicious and an abuse of process and where fraud underlies the proceedings and pleadings in the Circuit Court. The plaintiff further claims that the defendant is guilty of neglect and deceit, failing to observe and enforce proper and adequate protocols and regulations and of failing to ensure that the plaintiff was a correct entity for the defendant to legally pursue in the Circuit Court. It is further pleaded that the defendant is in breach of its duty of care to the plaintiff by the defendant's absolute failure, refusal and neglect in ensuring that proper practices and procedures were adhered to pertaining to the plaintiff. It is also pleaded that the defendant is in breach of its fiduciary duty to the plaintiff in circumstances where the defendant was entrusted with the safe and proper care and handling of the plaintiff's financial status. The plaintiff further pleads that the defendant is in breach of its duty of candour to the plaintiff and that the defendant is guilty of concealment and the withholding of material facts and evidence. Arising from the aforesaid, the plaintiff seeks damages from the defendant.
3. On 27th February, 2017, the defendant delivered a full defence to the plaintiff's claim. In particular, the defendant claims that the plaintiff is estopped from making the claim set out in his proceedings by virtue of the doctrine of res judicata . It is also pleaded that insofar as any matters pleaded against the defendant are not contrary to the doctrine of res judicata , the defendant is estopped from making those pleas by virtue of the rule in Henderson v. Henderson . Furthermore, insofar as any claims of the plaintiff are not captured by the aforementioned doctrine and rule, the defendant claims that the plaintiff's claim against the defendant does not disclose any reasonable cause of action, is frivolous, vexatious and bound to fail or is not lawfully pleaded.
4. The Circuit Court proceedings referred to by the plaintiff in the plenary summons and in his statement of claim concerned the defendant's application for possession of a residential dwelling owned by the plaintiff and mortgaged to the defendant. It is common case that the defendant issued possession proceedings in the Circuit Court under the title Bank of Ireland Mortgage Bank v. Eoin Beakey and bearing record number 2015/1139 ( hereinafter "the Circuit Court proceedings") seeking possession of a residential property owned by the plaintiff. In the course of those proceedings, the defendant filed a number of affidavits. It appears that the plaintiff in the Circuit Court proceedings did not file any affidavit in response to the defendant's affidavits. The Court is advised however that he did however participate in and attend before the Circuit Court at the hearing of the bank's application for possession on 8th October, 2015 and 12th November, 2015.
5. By order of the Circuit Court dated 12th November, 2015 the defendant's claim for possession was struck out.
6. The defendant issued a notice of appeal of the order of the Circuit Court on 16th November, 2015. The defendant's appeal of the Circuit Court Order was duly heard by the High Court (Noonan J.) on 15th February, 2016. The plaintiff appeared in Court in person and made submissions to the High Court concerning the defendant's appeal. The Court has been advised that having heard the submissions of both parties, Noonan J. rejected the arguments of the plaintiff herein that the defendant did not have locus standi to maintain the application and accordingly granted the defendant an order for possession of the property together with the costs of the proceedings, which order was stayed for a period of three months.
7. By notice of motion dated 20th April, 2016, grounded on an affidavit of the plaintiff sworn 6th May, 2016, the plaintiff sought an order setting aside the Order of Noonan J. of 15th February, 2016.
8. The said notice of motion came on for hearing before Noonan J. on 20th June, 2016. Having heard the submissions of the plaintiff and the defendant, Noonan J. dismissed the plaintiff's application with costs against the plaintiff.
9. The within proceedings comes before this Court in the context of two motions. The first in time is the defendant's motion which issued on 11th March, 2017 wherein the defendant seeks:
(1) An order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff's claim on the grounds that it is an abuse of process, is estopped by the doctrine of res judicata and/or is contrary to the rule in Henderson v. Henderson ;
(2) In the alternative, an order pursuant to the inherent jurisdiction of the Court and/or pursuant to O. 19, r. 28 of the Rules of Superior Courts (RSC) dismissing the plaintiff's claim on the grounds that the plenary summons and statement of claim fail to disclose any reasonable cause of action against the defendant and that the claim is bound to fail;
(3) In the alternative, an order pursuant to the inherent jurisdiction of the Court and/or pursuant to O. 19, r. 28 RSC dismissing the plaintiff's claim herein on the grounds that the pleadings comprising the plenary summons and statement of claim are frivolous and vexatious; and
(4) An order pursuant to the inherent jurisdiction of the Court striking out the plaintiff's claim on the grounds that he has failed to particularise his alleged claims in fraud against the defendant contrary to O. 18, r. 5(2) RSC.
10. The defendant's motion is grounded on the affidavit of Ms Helen Dorris, Legal Case Manager in the Arrears Support Unit of the defendant bank, sworn 10th March, 2017.
11. The second motion is the plaintiff's motion which issued on 29th May, 2017 and which seeks the following:
"1. An Order to compel Helen Dorris to appear before this honourable Court for cross-examination pertaining to her purportedly "Sworn Affidavit of the 10th day of March, 2017, owing to serious discrepancies inter alia pertaining to "Sworn Matters of Fact" inter alia contained therein.
2. An Order to compel the specific Officer of the Defendant pertaining to Fitness and Probity inter alia to appear before this honourable Court for cross-examination pertaining to the fitness and probity inter alia of the said Helen Dorris [who] Swears to numerous tasks which she must be a fit, proper and qualified person inter alia to undertake in her purportedly "Sworn Affidavit of the 10th day of March, 2017, and owing to serious discrepancies inter alia pertaining to these tasks/duties and her fitness and qualifications pertaining to same inter alia and contained within her alleged "Sworn Matters of Fact" inter alia contained within her purported "Sworn Affidavit".
3. An Order to compel the specific Officer of the Defendant pertaining to the granting of Authorisations inter alia to appear before this honourable Court for cross-examination pertaining to the authorisation inter alia of the said Helen Dorris to "Swear" Affidavits on behalf of the Bank inter alia , which the said Helen Dorris Swears numerous tasks inter alia which she must be a fit, proper and qualified person inter alia to undertake in her purportedly "Sworn Affidavit of the 10th day of March, 2017, and owing to serious discrepancies inter alia pertaining to these tasks/duties pertaining to her alleged "Sworn Matters of Fact" and her fitness and qualifications pertaining to same inter alia and contained therein.
4. A declaratory Order pertaining the actual and legal status of the property the subject matter of the herein and previous proceedings that same is NOT the P.P.R. of the Plaintiff and that Helen Dorris and the Defendant inter alia were and are at all material times aware of this critical information and situation.
5. A declaratory Order that the Plaintiff does have a valid claim against the Defendant, and an absolute right to prosecute same, and that the Defendant will refrain from attempting to prevent the timely prosecution of same."
12. The plaintiff's application is grounded on his affidavit sworn 23rd May, 2017.
13. Ms Dorris swore a replying affidavit to the plaintiff's motion on 13th July, 2017.
14. The plaintiff swore a replying affidavit to the defendant's motion on 14th July, 2017. Therein, he repeats his application to have Ms. Dorris cross-examined on the contents of her affidavit grounding the defendant's motion to dismiss the within proceedings. In particular, he avers:
"I seek to move this Honourable Court to compel the said Helen Dorris to appear on behalf of the Defendant for Cross Examination pertaining to her claims, qualifications, authorisations, and suitability inter alia to "Swear" such a Sworn Affidavit, and whether the seriousness and ramifications of "Swearing" such an Affidavit inter alia were critically explained to her by the Defendant prior to her "Swearing" of the same "Sworn Affidavit" inter alia ."
15. More particularly, and for the purposes of the within judgment, the plaintiff goes on to aver: "6. I further raise as further points of law that the purported and alleged "SWORN AFFIDAVIT" of the said Helen Dorris are factually and legally in breach of Order 40 Rules 6 and 9 of S.I. 15 of 1986 being the Rules of the Superior Courts and that the Court is legally and mandatorily obliged to adhere to and administer the laws as they are written, and that the Court is not legally or otherwise entitled to interpret Order 40 Rules 6 and 9 or any other Orders/Rules for that matter in any manner which will give a different meaning to what is written in law, as to do so would usurp the function and duties of the [Houses of the Oireachtas] inter alia which would and is beyond the scope and duties of any and all Judges.
7. I say that I am aware that Judges have relied upon "Case law" pertaining to point 6 above, where a Judge has previously stated that it may be OK for a person to use their "WORK" address instead of their "True place of abode" which I must formally and legally object to such nonsensical "interpretation(s)" of the LAW and raise these objections herein as serious points of law under Order 25 of the RSC, as the Law in Order 40 Rules 6 and 9 is very clearly and unambiguously written, and failure to comply and to implement same as is written is factually a breach of the law and cannot be condoned for a moment and any such condoning and/or approval of the taking and swearing of a "SWORN AFFIDAVIT" contrary to the law pertaining to the taking and swearing of same by any Judge were blatant breach of the "OATH" of said Judge, and furthermore very serious breaches of the law by, and the Duties of the solicitors whom took and filed and served such spurious and legally unauthentic "Affidavits".
8. I say and raise as a point of law that there is NO law which allows for the breach and breaking of the laws which are Order 40 Rules 6 and 9 of the RSC … and that as a further point of law there CANNOT be a law which permits the breach or breaking of another law, as such anomaly undermine the very structure of the Republic and the Democracy in which the Constitution of Ireland rests.
9. I say that the fact that I am raising and relying upon various specific points of law with which in strict adherence to same render the purportedly "SWORN AFFIDAVIT" of Helen Dorris "UNAUTHENTIC" and therefore unusable in a properly constituted Court of Law, that the onus is on the said Helen Dorris to Cite and proffer me and the Court with the specific "LAW" she is relying upon to "AUTHENTICATE" her spurious "Affidavit". I further say that there is NO such law, nor can there ever be such a law.
10. I say that the fact that I am raising and relying upon the various specific points of law which in strict adherence to same render the purportedly "SWORN AFFIDAVIT" of Helen Dorris "UNAUTHENTIC" and therefore unusable in a properly constituted Court of Law, that the onus is on the presiding Judge herein to seek from the said Helen Dorris and the Defendant herein, to Cite and proffer me and the Court the specific "LAW" she is relying upon to ""AUTHENTICATE" her spurious "Affidavit". I further say that there is NO such law, nor can there ever be such a law.
11. I say and raise as a point of law that in the absence of the above that the spurious "Affidavit" of Helen Dorris must be Struck Out in accordance with law, which in turn renders the Motion to Strike Groundless inter alia wherefore same must also be struck out and a file ought to be prepared and sent to the DPP and the Garda Commissioner pertaining to same and the issues of Perjury which are criminal in nature pertaining to same ought to be thoroughly investigated, and a stop put to this wholesale abuse of taking and swearing of "SWORN AFFIDAVIT" within the legal system which our democracy is dependent upon.
12. I say that as a point of law I wholly refuse to accept the purported "Affidavit" of Helen Dorris as being "AUTHENTIC" and I say that same Unauthentic and illegal in the absence of any LAW providing otherwise, and the presiding Judge being unable and/or unwilling to strike, and perhaps legally unsure on this very serious matter, I formally require the case be stated into the Court of Appeal, or perhaps the Supreme Court would be the most appropriate place owing to the Constitutional and legal issues concerned.
13. Failing the above I formally require as a point of law that the presiding Judge herein would make a declaratory Order confirming the absolute "Authenticity" and "legality" of the purported "Sworn" "Affidavit" of Helen Dorris, which I will then as a point of law and constitutional issue and in the public interest Appeal into the Higher Courts."
16. On behalf of the defendant, Ms Dorris swore an affidavit on 12th September, 2017, supplemental to her affidavit sworn 10th March, 2017 and 13th July, 2017 and in response to the plaintiff's application to have Ms Dorris and other unidentified personnel cross-examined.
17. Furthermore, Mr. Sean Buckley, a manager with the defendant bank, swore an affidavit on 26th September, 2017 averring, inter alia , that Ms Dorris is an employee and therefore an Officer of the Governor and Company of the Bank of Ireland and that she works as a legal officer for the defendant and she is authorised to swear affidavits on the defendant's behalf for the purposes of legal proceedings such as the instant proceedings.
18. In the course of the opening by counsel for the defendant of the defendant's motion to have the plaintiff's proceedings struck out, the plaintiff took objection to counsel opening Ms Dorris' affidavit as sworn by her on 10th March, 2017. He did so for the reasons set out in his replying affidavit sworn 14th July, 2017, as recited above. In his oral submissions to the Court, he maintained that Ms. Dorris' affidavit was invalid and that it breached O. 40, rr. 6 and 9 RSC. Accordingly, the plaintiff sought a ruling from the Court on the issue of the validity or otherwise of Ms. Dorris' affidavit.
19. In essence, his principal submission is that Ms. Dorris's affidavit cannot be opened to the Court on the basis that she gave as her address New Century House, Mayor Street Lower, IFSC, Dublin 1, which he submits is not the "true place of abode" of Ms. Dorris as required by O. 40, r. 9 RSC.
20. Counsel for the defendant submits that there is no merit in the plaintiff's objection to Ms. Dorris' affidavit. It is submitted that Ms. Dorris's affidavit properly includes the defendant's address since Ms. Dorris swears the affidavit in her capacity as an employee of the defendant bank and on the basis that she has authority from the defendant to swear such affidavit. Counsel states that it is thus very appropriate that address cited is the address of Ms Dorris' employer. Counsel further submits that it has always been the practice that the address that is provided in such cases as the present is the address of the individual in the capacity in which they swear their affidavit. It is submitted that there are obvious reasons as to why this is the case. Deponents such as Ms. Dorris swear their affidavits with the authority of the corporate entity by which they are employed. Accordingly, the address of the said corporate entity is in fact the employee's place of residence when they state their place of abode for the purpose of an affidavit.
21. Counsel further contends that even if she is incorrect in this regard, the Court is entitled, if it wishes, to state that it wishes to accept Ms Dorris' affidavit. It is further submitted that the plaintiff has not made any submissions to the Court in relation to any issues he says arise from the alleged misdescription of Ms Dorris' abode and that the plaintiff does not point to any prejudice which he suffers as a result of Ms Dorris not having given her residential address.
22. In any event, counsel for the defendant submits that such issues simply do not arise as the manner in which Ms Dorris has sworn her affidavit is in accordance with the manner in which all such affidavits have been sworn in cases such as the present.
23. Counsel further points to the pleadings in the defendant's possession proceedings against the plaintiff as were before the Circuit Court (and the High Court on appeal). In those proceedings, the bank employees who swore affidavits gave their address as that of the defendant, namely New Century House, Lower Mayor Street, IFSC, Dublin 1, in like manner as Ms Dorris has done in the within proceedings. Counsel points to the fact that the plaintiff did not raise the abode issue in the possession proceedings, either in the Circuit Court or in the High Court on appeal. He chose not to put sworn evidence either before the Circuit Court or the High Court on appeal. Counsel thus submits that even if the plaintiff is correct and that Ms Dorris has misdescribed her place of abode, the plaintiff's objection must fail under the principle in Henderson v. Henderson .
24. Counsel further submits that lest thereby any doubt in relation to this matter, it is open to the Court pursuant to O. 40, r. 15 RSC to receive Ms. Dorris' affidavit. Order 40, r. 15 provides:
"The Court may receive any affidavit sworn for the purpose of being used in any cause or matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received."
25. In response to counsel's submissions, the plaintiff submits that O. 40, r. 15 is no authority for the High Court to accept Ms Dorris' affidavit given that O. 40, rr. 6 and 9 have been clearly breached by the defendant. He further submits that it is not sufficient for counsel for the defendant to state that this is the way it has always been done. He submits that the Rules of Superior Court must be adhered to. Accordingly, he maintains his position that Ms Dorris' affidavit is unauthentic and cannot be allowed to be opened to the Court.
Considerations
26. Order 40, r. 6 RSC provides:
"Every Commissioner to administer oaths shall express the time when and the place where he shall take any affidavit, or the acknowledgment of any deed, or recognisance, otherwise the same shall not be held authentic, nor be admitted to be filed or enrolled without leave of the court; and every such commissioner shall express the time when, and the place where, he shall do any other act incident to his office."
27. O. 40, r. 9 RSC states: "Every affidavit shall state the description and true place of abode of the deponent; and every affidavit of service shall state when, where and how, and by whom, such service was effected and in the case of delivery to any person, shall state that the deponent was at the time of delivery acquainted with the appearance of such person."
28. The first the issue the Court must decide is whether the fact that Ms Dorris has not identified her home address in her affidavit sworn 10th March, 2017, but rather gives her address as "New Century House, Mayor Street Lower, IFSC, Dublin" (the address of her employer), renders her affidavit "unauthentic" and invalid, as is submitted by the plaintiff to the Court.
29. I am satisfied that there is no merit in the plaintiff's submissions in this regard.
30. The point raised by the plaintiff has been decisively determined by the Court of Appeal in Kearney v. Bank of Scotland plc and Horkan [2015] IECA 32. There, complaint was made by Mr. Kearney to the admissibility of the second named defendant's (Mr. Horkan's) affidavit on the ground, inter alia , that Mr. Horkan had given his address as Dock Gate, Dock Road, Galway which was not his place of abode. Mr. Kearney argued that under the relevant rules of court, the deponent of an affidavit must give his place of residence and not his place of business.
31. In Kearney , Kelly J. addressed the matter in the following terms:
"7. Mr. Kearney is quite correct when he says that the rules of court we operate under are those which were published and promulgated in 1986. They constitute a revision of the rules of court which pertained until that time. He asks us to apply a literal interpretation of what is contained at O. 40, r. 9 which I have just read out. He says that because the affidavit did not show the place of residence of Mr. Horkan that it should be ruled out.
8. Unfortunately, like many lay litigants, he fails to take into consideration that the rules of court, just like any other piece of legislation, fall to be interpreted from time to time by the courts. The objection which he takes today is nothing new. It is a form to objection which has been taken in the past and the courts have had to rule on it. When I say the past, I go right back to the beginning of the 19th century, because Ms. Tighe's researches have been able to produce to a series of authorities which considered this question throughout that century. These are some of the cases where this question has been considered.
9. In Haslope v. Thorne [1813] 1 M & S 102, Lord Ellenborough C.J. is reported in relation to this form of objection as follows:- ". . . the words ‘place of abode' did not necessarily mean the place where the deponent sleeps, that the object of the rule was to ascertain the place where the deponent was most usually to be found, which in the present case was the office at which he is employed during the greater part of the day and not the place where he would retire for the purpose of rest". So there, as far back as 1813, one finds a common sense approach being taken to the interpretation of the rule. The court asked itself "what is the purpose of this rule"? The purpose of the rule is to apprise the reader of the affidavit as to where the deponent of the affidavit may be found. For most people in business life, they are much more likely to be found at their place of business during ordinary business hours than they are at their homes.
10. Again one finds the topic being considered by Lord Campbell C.J. in Blackwell v. England [1857] 8 EL & BL 540. He said in the course of that decision:
"I am of opinion that in this Act also the object of the legislature is better attained by giving as a description of the residence of the solicitor's clerk the office where he attends all day then if it gave the place where he passes the night. The object of the legislature was to secure means of identifying and tracing the attesting witness, this is the description which best fulfils that object and such I think is the object of the legislature when it requires a statement of his residence and occupation."
Again a purposive approach was taken to a similar statutory requirement.
11. Coming then to the Irish authorities, my attention has been drawn to the decision in Harte v McCullagh IR 5 CL 537. That is authority for the proposition that an affidavit made in an action by one of the parties who was described in the affidavit as plaintiff or defendant need not contain the residence of the deponent. In that case the affidavit described the deponent as "the defendant in this action" but did not give his address. Chief Baron Pigot determined that to be sufficient. So, there is a line of authority going back to over many, many years indicating that although the rule speaks of a "place of abode", it is not be taken literally as meaning the place where one resides. It can be one's place of business.
12. In this case, Mr. Horkan, who is a defendant in the proceedings, swore the affidavit giving his place of business as his "place of abode". That, to my mind, conforms completely with what is required under the rules. It did so under the pre 1986 rules, where the same expression "place of abode" was used and does so under the current rules of court.
13. But if I am wrong in all that and even if all of these authorities are wrong, I draw Mr. Kearney's attention to O. 40, r. 15, which provides as follows:
"The Court may receive any affidavit sworn for the purpose of being used in any cause or matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received."
14. So, even if Mr. Kearney is correct and all of those judges going back through the 19th century were wrong and I am wrong in what I say today, nonetheless the provisions O. 40, r. 15 have to be taken into account. In my view that is a rule which the court ought to apply if it were necessary to do so, because frankly, it would be absurd to rule out this affidavit simply because the deponent gave as his place of abode his place of business. I do not believe it is necessary to rely upon the provisions of O. 40, r. 15, but if it were I would have no hesitation in applying it and overruling this objection on that basis."
32. I note that a similar approach was adopted by the Court of Appeal in Danske Bank A/S Danske Bank v. Kirwin [2016] IECA 99, where, addressing a similar complaint as that made in the present case, namely that the deponent of a particular affidavit did not give her home address, Irvine J. stated: "(iii) As to the fact that Ms. O'Connell has not identified her home address in her affidavit as required by O. 40, r. 9, it should be recalled that in Bank of Ireland Scotland v. Horkan [2015] IECA 32 Kelly J. concluded that an affidavit was not invalid by reason of the inclusion of the business address of the deponent rather than their own address. However, even if Mr. Kirwan's argument could be sustained as a matter of law, it is difficult to see any judge failing to exercise their jurisdiction under Ord. 40, r. 15 to admit the affidavit regardless of any such defect. The purpose of requiring a deponent to include their address is, for example to ensure that a deponent can be easily located if they are required for any reason to give evidence at a later date. Mr. Kirwan has not alleged any prejudice arising from the inclusion by Ms. O'Connell of her business address."
33. I am satisfied that the aforesaid dicta of Kelly J. and Irvine J. in Kearney and Kirwin , respectively, represent the law in relation to the issue raised by the plaintiff. I am thus satisfied that the objection made by the plaintiff is without foundation, for the reasons set out in Kearney and Danske Bank A/S Danske Bank v. Kirwin .
34. Equally, insofar as the plaintiff makes objection to Ms Dorris' affidavits under O 40, r.6, I do not find merit in such objection. The Commissioner for Oaths has attested that Ms Dorris is known to him. The place and date where the affidavits were taken is also set out. I note that as regards the plaintiff's own affidavits, the time at which the affidavits were sworn is set out, along with the date and place. Insofar as the plaintiff takes issue with the absence in Ms Dorris' affidavits to the time of day same were sworn, I do not perceive that such absence renders the affidavits unauthentic. I am satisfied that there is sufficient compliance with O 40, r. 6. Adopting the words of Kelly P. in Kearney , it would be " absurd " to rule out Ms Dorris' affidavits simply because the time of day at which the affidavits were sworn is not stated. Even if I am wrong in this view, I have no hesitation in applying O.40, r.15 and overruling the plaintiff's objection on that basis.
35. In all the circumstances, I am satisfied to admit Ms Dorris' affidavits (and indeed that of Mr. Buckley) for the purpose of the substantive hearing of the two motions which are before the Court.
