Permanent TSB Plc (Formely Irish Life and Permanent Plc) v Donohoe

Factual and Procedural Background

The Plaintiff initiated proceedings by way of special summons under Order 1, rule 4 of the Rules of the Superior Courts seeking possession of two investment properties located in County Galway and County Dublin. The Plaintiff advanced a loan facility of €543,450.00 to the Defendant pursuant to a mortgage loan agreement dated 30th April 2007, secured by an indenture of mortgage and charge over the properties. The Defendant defaulted on repayments since 16th December 2013, resulting in arrears and a total amount due of €636,662.60 by April 2015. The Plaintiff demanded possession and vacant delivery of the properties, asserting entitlement under the mortgage terms. The Defendant appeared in person and challenged aspects of the Plaintiff’s evidence and standing, alleging forgery and fraud without denying receipt of the loan or ownership of the properties. Procedurally, the matter was transferred from the Master’s Court to the special summons list, and the Defendant sought to cross-examine the Plaintiff’s principal deponent, Ms. O’Brien, on her affidavits. The Plaintiff objected to the notice to cross-examine on grounds of form and substance.

Legal Issues Presented

1. Whether the Plaintiff is entitled to possession of the properties pursuant to the mortgage and the Registration of Title Act 1964 given the Defendant’s default.
2. Whether the Defendant is entitled to cross-examine the Plaintiff’s deponent on the affidavits filed in support of the special summons.
3. The proper interpretation and application of Order 38, rule 3 and Order 40, rule 31 of the Rules of the Superior Courts concerning cross-examination in special summons proceedings.
4. Whether the Defendant’s allegations of forgery, fraud, and other legal challenges affect the admissibility or sufficiency of the Plaintiff’s affidavits.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff relied on the loan agreement, mortgage deed, and evidentiary affidavits to establish the Defendant’s default and entitlement to possession.
• The Defendant’s notice to cross-examine was defective in form, naming a non-existent deponent and issued outside the prescribed time limits.
• The Plaintiff contended that the Defendant’s allegations were vexatious, frivolous, and scandalous, lacking any factual basis to justify cross-examination.
• The Plaintiff asserted that the Code of Conduct on Mortgage Arrears did not apply as the properties were investment properties, not the Defendant’s primary residence.
• The Plaintiff was prepared to allow inspection of original documents for forensic examination but denied any obligation to respond further to particulars or notices beyond what had been furnished.

Defendant's Arguments

• The Defendant challenged the authenticity of certain loan documents, alleging forgery of signatures and incorrect acceptance of loan offers.
• The Defendant sought a verifying affidavit from the Plaintiff for original documents and refused to accept inspection without such verification.
• The Defendant issued a notice for cross-examination of the Plaintiff’s deponent and sought to reserve the right to file further affidavits before cross-examination.
• The Defendant claimed the contract was rescinded due to the Plaintiff’s failure to respond adequately to his queries.
• The Defendant raised legal issues including securitisation, validity of mortgage registration, and alleged breaches of the Code of Conduct on Mortgage Arrears.
• The Defendant asserted entitlement to cross-examination under the Rules and argued that without it, the Plaintiff should not rely on the affidavits.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the affidavits and evidence submitted by both parties. It found that the Defendant did not deny key facts such as signing the loan acceptance, receipt of the loan amount, or ownership of the mortgaged properties. The Defendant’s challenges largely raised legal arguments, allegations of forgery, and assertions of fraud without supporting evidence or factual disputes. The Defendant’s notice to cross-examine was defective in form, naming a non-existent deponent and issued outside the prescribed time frame under the Rules of the Superior Courts.

The court emphasized its jurisdiction to control proceedings and prevent abuse, noting that frivolous, vexatious, or scandalous material should not prolong litigation unnecessarily. It held that there was no relevant factual conflict requiring cross-examination of the Plaintiff’s deponent. Legal submissions could be addressed at the hearing without cross-examination. The court also clarified the meaning of “special leave” and concluded that the Plaintiff could rely on the affidavits even if the deponent was not produced for cross-examination, as it was in the interest of justice.

The court thus exercised its discretion to set aside the defective notice to cross-examine and directed that the hearing proceed on affidavit evidence. It left open the possibility for the trial judge to order cross-examination or oral evidence if a genuine factual dispute emerges later.

Holding and Implications

The court SET ASIDE the Defendant’s notice to cross-examine the Plaintiff’s deponent and directed that the hearing of the special summons proceed on affidavit evidence alone.

The direct effect is that the Plaintiff may rely on the affidavits of Ms. O’Brien without requiring her attendance for cross-examination at this stage. The Defendant remains entitled to raise legal submissions at the substantive hearing. The court’s ruling prevents abuse of process by frivolous or vexatious attempts to delay possession proceedings. No new precedent was established; the decision applies the established principles governing cross-examination and procedural control in special summons cases.