High Court refuses cross-examination on affidavit for interlocutory injunction where trial will be plenary hearing.

Neutral Citation: [2015] IEHC 149

THE HIGH COURT

COMMERCIAL

[2015 No. 1736 P.]

BETWEEN

GOVERNOR AND COMPANY OF BANK OF IRELAND AND

TOM KAVANAGH

PLAINTIFFS

AND

BRIAN O’DONNELL AND MARY PATRICIA O’DONNELL

DEFENDANTS

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 12th day of March, 2015

1. At the hearing of the motion for interlocutory injunction brought by the plaintiffs and heard on 5th March, 2015, the defendants

applied to cross examine Brian O’Connor of Bank of Ireland in respect of an affidavit of 3rd March, 2015 and Mr. Tom Kavanagh, the

second named plaintiff of Kavanagh Fennell Limited in respect of his affidavit of 3rd March, 2015. The notice of motion is grounded

upon an un-sworn affidavit which cannot be accepted or received by the court. In any event, all that the un-sworn affidavit does is

refers to the notice of motion to cross examine and a notice to produce and ask the court for the relief set out in the notice of

motion. However, in his affidavit sworn on 4th March, 2015, in opposition to the application for an interlocutory injunction, Mr.

O’Donnell raises issues concerning the affidavits of Mr. Brian O’Connor and Mr. Tom Kavanagh.

2. These are pleadings commenced by plenary summons and in due course, if they come to trial, the plaintiffs will have to prove their

case by adducing evidence and calling witnesses. The affidavits which have been sworn to date are in respect of an interlocutory

motion for an injunction restraining the defendants from trespassing on the premises known as Gorse Hill at Vico Road, Killiney, Co.

Dublin. The test for cross examination of a deponent on his affidavit is set out in the Director of Corporate Enforcement v. Seymour

[2006] IEHC 369. In the course of his judgment, O’Donovan J. stated at p. 5 thereof:-

“In my view, it is axiomatic that, when, in the course of applications to the court which are required to be heard and

determined on affidavit, as is the situation in this case, it becomes apparent from the affidavits sworn in those

proceedings that there are material conflicts of fact between the deponents of those affidavits, the court must, if

requested to do so, consider whether or not to direct a plenary hearing of the proceedings or that one or more of the

deponents should be cross examined on his or her affidavit. This is so because it is impossible for a judge to resolve a

material conflict of fact disclosed in affidavits. However, while it seems to me that, where it is debatable as to whether

or not the cross examination of a deponent on his or her affidavit is either necessary or desirable, the court should tend

towards permitting the cross examination, at the end of the day it is within the discretion of the court as to whether or

not such a cross examination should be directed and that discretion should only be exercised in favour of such a cross

examination if the court considers that it is necessary for the purpose of disposing of the issues which the court has to

determine. That appears to me to be the import of a statement of Keane C.J. in the course of an unreported judgment

of the Supreme Court delivered on the 15th day of December, 2003, in a case of Holland v. The Information

Commissioner and represents the current jurisprudence in that behalf in this country.”

3. The court was referred to an extract from Delaney and McGrath’s Civil Procedure in the Superior Courts, discussing the position in

relation to injunction proceedings. The authors stated at para. 20-87:-

“However, on interlocutory applications in proceedings commenced by issuing a notice of motion, a notice to cross

examine may only be served with the leave of the court. It was emphasised by Denham J. in Bula v. Crowley (No. 4)

that a trial judge has a discretion in relation to such an application. In general, leave can only be granted if there is a

conflict of facts upon the affidavits that is necessary to resolve in order to determine the proceedings.”

4. This is an application for an interlocutory injunction. The test set out for such an application is to be found in the Campus Oil v.

Minister for Industry and Energy & Ors (No. 2) [1983] I.R. 88. The court is not determining the proceedings at this stage. Counsel for

the plaintiffs argues that they simply have to set out an arguable case at this stage. On that basis there is no material conflict of

fact that has to be resolved in order for the court to determine the application before it. In Bula v. Crowley (No. 4) [2003] 2 I.R. 430,

the Supreme Court was concerned, inter alia, with the issue of cross examination on an application under s. 316 of the Companies Act

1963. This is a section which entitles the court to make an order approving the sale of assets by a receiver on foot of his power to

apply to the court for directions. Denham J. (as she then was) expressed the view of the court that there was no right to cross

examine in such circumstances and it falls to the court to determine whether or not to allow cross examination. At p. 459, she said:-

“I am satisfied that the issue of cross-examination in an application under s. 316 is a matter for the judicial discretion of

the court in an application or motion. It is not a right as is expressed for trials on affidavit.”

5. In the present case, if the matters in issue proceed to trial, it will be a trial by way of a plenary hearing. Insofar as the application

for interlocutory injunction is concerned, the plaintiffs have to meet the Campus Oil test and the court must decide this having regard

to the affidavits. The court does not decide the issues in the case at this stage. The matters raised by Mr. O’Donnell in his affidavit

as being in controversy are all matters to be dealt with at the trial of the action. This is not an action being tried on affidavit. In

Director of Corporate Enforcement v. Seymour, O’Donovan J. said that if it becomes apparent from the affidavits sworn in the

proceedings that there are material conflicts of facts between the deponents of those affidavits: “…the court must, if requested to

do so, consider whether or not to direct a plenary hearing of the proceedings or that one or more of the deponents should be cross

examined on his or her affidavit” (emphasis added). The cross examination should be ordered if the court considers that it is

necessary for disposing of the issues which the court has to determine. But if, as in this case, the trial of the action will be a plenary

hearing, it seems to me that it is not necessary to direct cross examination of either Mr. Brian O’Connor or Mr. Tom Kavanagh on their

affidavits for the purpose of deciding whether or not the plaintiffs have made out a case for an interlocutory injunction. Accordingly, I

refuse the defendants’ application to cross examine Mr. Brian O’Connor and Mr. Tom Kavanagh.