Kearney v Bank of Scotland plc & Anor

Factual and Procedural Background

This opinion addresses a motion brought by the Plaintiff seeking an extension of time to appeal against an order of the President of the High Court dated 18th November 2014. The motion was issued on 12th January 2015 and initially heard on 6th February 2015, with directions given and the matter listed for hearing on the date of this judgment. The motion was supported by the Plaintiff's affidavit, and the second named Defendant responded with an affidavit. The Plaintiff objected to the admissibility of the Defendant's affidavit on the grounds that it contained material not known firsthand by the deponent and that the affidavit failed to comply with court rules regarding the deponent’s stated place of abode.

Legal Issues Presented

1. Whether the affidavit of the second named Defendant is admissible despite containing material not known to the deponent firsthand.
2. Whether the affidavit is invalid for failing to state the deponent’s true place of abode, instead giving a place of business, contrary to the requirements of Order 40, rules 4 and 9 of the Rules of Court.

Arguments of the Parties

Plaintiff's Arguments

• The affidavit contains material that the deponent could not have known firsthand, rendering it inadmissible.
• The affidavit fails to comply with Order 40, rule 9, as the deponent gave a business address rather than his true place of residence, thus breaching procedural rules.

Defendant's Arguments

• The affidavit is proper in an interlocutory application context, where hearsay evidence is permissible under Order 40, rule 4.
• The place of abode requirement should be interpreted purposively to include the deponent’s place of business, consistent with longstanding legal authority.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Haslope v. Thorne [1813] 1 M & S 102	Interpretation of "place of abode" in affidavit rules as the place where the deponent is usually found, not necessarily residence.	The court adopted a purposive approach, holding that a business address can satisfy the place of abode requirement.
Blackwell v. England [1857] 8 EL & BL 540	Purpose of stating residence is to identify and trace the deponent; the place where the deponent attends daily (office) suffices.	Supported the interpretation that "residence" in affidavit rules includes place of business for identification purposes.
Harte v McCullagh IR 5 CL 537	An affidavit by a party need not contain the residence of the deponent if the deponent is identified as plaintiff or defendant.	Confirmed that stating the party’s role in the action may suffice without specifying residence, supporting a flexible approach.

Court's Reasoning and Analysis

The court first addressed the objection concerning the place of abode stated in the affidavit. It emphasized that the Rules of Court must be interpreted purposively rather than literally. Drawing on authorities dating back to the early 19th century, the court held that the term "place of abode" includes the place where the deponent is most usually found, which for many business persons is their place of business rather than their home. The court found that the Defendant’s affidavit complied with Order 40, rule 9 despite listing a business address.

Alternatively, the court noted that Order 40, rule 15 permits the court to receive affidavits despite defects or irregularities in form, further supporting admission of the affidavit.

Regarding the objection that the affidavit contained hearsay evidence, the court referred to Order 40, rule 4, which explicitly permits affidavits in interlocutory motions to include statements based on belief and hearsay with grounds thereof. Since the motion was interlocutory, the hearsay content did not render the affidavit inadmissible, though it may affect the weight given to it.

The court also noted the Plaintiff’s failure to explain his absence at the prior hearing, underscoring the propriety of admitting the affidavit to provide a full procedural context.

Accordingly, both objections were rejected, and the affidavit was admitted for consideration.

Holding and Implications

The court REJECTED the Plaintiff's objections and ADMITTED the affidavit of the Defendant for the purpose of the motion.

The direct effect of this decision is that the motion for extension of time to appeal will proceed with the affidavit considered as evidence. The ruling clarifies that affidavits listing a place of business as the deponent’s place of abode comply with the Rules of Court when interpreted purposively and that hearsay evidence is admissible in interlocutory applications. No new precedent was established beyond affirming existing principles.