Permanent TSB plc formerly Irish Life & Permanent plc

Factual and Procedural Background

The Plaintiff initiated proceedings in 2015 seeking an order pursuant to section 62(7) of the Registration of Title Act 1964 for possession of two rental properties located in The State. The Defendant, acting in person, filed numerous affidavits raising a wide range of issues in defence. A prior judgment by Judge McDermott in February 2017 addressed an earlier application by the Plaintiff to set aside a notice to cross-examine served by the Defendant, and also touched on a previous notice for particulars served by the Defendant. In that judgment, Judge McDermott found the notice to cross-examine defective and held that many issues raised by the Defendant were vexatious or frivolous. Since then, multiple additional affidavits have been filed by both parties, including a notably lengthy affidavit by the Defendant comprising 78 pages and 602 paragraphs with extensive exhibits.

The current hearing, conducted by Judge McDonald in June 2018, concerned the Plaintiff’s application for possession and two notices of motion: one by the Defendant seeking to compel the Plaintiff to reply to a notice for particulars dated 1 December 2017, and another by the Plaintiff seeking to set aside a notice to cross-examine served by the Defendant on 26 February 2018 or alternatively to admit certain affidavit evidence without cross-examination. The hearing of the special summons was adjourned pending resolution of these motions.

Legal Issues Presented

1. Whether the Defendant is entitled to compel the Plaintiff to provide particulars in respect of matters raised in affidavits and other documents pursuant to Order 19, rule 7 of the Rules of the Superior Courts or otherwise under the court’s inherent jurisdiction.
2. Whether the Plaintiff’s application to set aside the Defendant’s notice to cross-examine should be granted, specifically whether cross-examination of the Plaintiff’s deponent is necessary given alleged inconsistencies in affidavit evidence.
3. The scope and application of procedural rules concerning particulars and cross-examination in special summons proceedings heard on affidavit.
4. The relevance and effect of securitisation arrangements on the Plaintiff’s title and entitlement to possession.
5. The applicability of the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and related principles of fairness in the proceedings.

Arguments of the Parties

Defendant's Arguments

• The Defendant sought to compel the Plaintiff to respond to a notice for particulars dated 1 December 2017, arguing the Plaintiff had failed to provide necessary information to properly defend the claim.
• He contended there were inconsistencies between affidavits sworn by the Plaintiff’s deponent, justifying a right to cross-examine on these matters.
• The Defendant challenged the Plaintiff’s title based on securitisation processes, alleging a transfer of legal ownership away from the Plaintiff and disputing the validity of certain mortgage conditions as unfair under the Unfair Terms Regulations.
• He requested various documents, including unredacted transaction documents, details of receivership appointments, and confirmation of compliance with Central Bank codes.
• The Defendant asserted rights under data protection legislation concerning access to information and questioned the origin of funds advanced by the Plaintiff.

Plaintiff's Arguments

• The Plaintiff argued that Order 19, rule 7 applies only to pleadings and not to affidavits or other evidence, and thus the Defendant’s application for particulars was not properly grounded in the rules.
• It was submitted that the Defendant’s requests were often speculative, vexatious, or irrelevant, and many issues raised did not amount to sustainable defences.
• The Plaintiff relied on established case law confirming that securitisation does not transfer legal ownership and does not affect the Plaintiff’s right to enforce the mortgage.
• The Plaintiff contended that the Defendant’s requests for documents relating to receivership and data protection were either irrelevant to the possession claim or matters for other regulatory bodies.
• The Plaintiff sought to set aside the notice to cross-examine on the basis that there were no material issues requiring cross-examination and that the proceedings should be heard solely on affidavit.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined whether the Defendant’s application to compel particulars under Order 19, rule 7 was properly founded. It concluded that this rule applies only to pleadings and similar documents, not to affidavits or other evidence. The court rejected the Defendant’s argument that an “answer” includes affidavits and held that the rules governing affidavits (Order 40) do not provide for particulars in the same manner as pleadings.

Recognising the Defendant as a lay litigant, the court considered whether it could exercise its inherent jurisdiction to order disclosure of further material necessary for fairness. The court outlined strict criteria for such intervention: the material must be necessary for a triable issue, the request must not undermine legitimate procedural rules, and the request must not be speculative or unfair to the responding party.

Applying these principles, the court reviewed each category of particulars sought by the Defendant. It found most requests either irrelevant, speculative, or adequately addressed by existing evidence. The court emphasised that many of the Defendant’s contentions were unsubstantiated assertions lacking a sustainable defence.

However, the court identified the securitisation process as a potentially material issue that had not been adequately evidenced by the Plaintiff. Given the Defendant’s allegations that legal ownership might have transferred in the securitisation and that the Plaintiff’s title could therefore be questioned, the court directed the Plaintiff to file a further affidavit providing detailed information and relevant documents on the securitisation and subsequent “de-securitisation” of the loan and mortgage. The court acknowledged possible commercial sensitivity and left open the question of redactions.

Regarding the Plaintiff’s application to set aside the notice to cross-examine, the court accepted established principles that cross-examination is appropriate only where material conflicts of fact arise. While the Defendant alleged inconsistencies in affidavits, the court found no material or relevant contradictions sufficient to justify cross-examination. Allegations of perjury were dismissed as unsupported by evidence. The court concluded that the proceedings should continue to be heard solely on affidavit and legal submissions.

The court also considered submissions relating to the Unfair Terms Regulations and principles of fairness, acknowledging their importance but noting that substantive issues related to those matters would be addressed at the hearing of the special summons.

Holding and Implications

The court made the following orders:

• Directed the Plaintiff to file a further affidavit addressing the securitisation process, including exhibiting relevant securitisation and de-securitisation documentation and explaining the Plaintiff’s continuing right to enforce the mortgage.
• Refused the remainder of the Defendant’s application to compel the Plaintiff to respond to the notice for particulars dated 1 December 2017.
• Set aside the Defendant’s notice to cross-examine dated 26 February 2018.
• Confirmed that the proceedings will be heard exclusively on affidavit and legal submissions as previously directed by Judge McDermott.

The court’s decision limits the scope of particulars and cross-examination in special summons proceedings heard on affidavit, reinforcing the distinction between pleadings and affidavit evidence under procedural rules. The ruling ensures procedural fairness while preventing speculative or vexatious discovery requests and cross-examination. The direction to file further affidavit evidence on securitisation reflects the court’s commitment to addressing substantive triable issues where necessary to ensure justice. No new precedent was established beyond the application of existing principles to the facts of this case.