The Governor and Company of Bank of Ireland v Ward

Factual and Procedural Background

This opinion concerns an application by the Defendant for leave to cross-examine two deponents on their affidavits in proceedings initiated by the Plaintiff, Company A. The Court had previously ruled on 8th February 2019 that the affidavits of the two deponents should be admitted in evidence, subject to any entitlement of the Defendant to cross-examine them. The Defendant sought an extension of time to serve notice to cross-examine, which required leave of the court. The Defendant was directed to file affidavits explaining the basis for seeking cross-examination. The Defendant filed two such affidavits, while the Plaintiff did not file any replying affidavit but relied on legal submissions. The matter was before the Court to determine whether leave to cross-examine should be granted.

Legal Issues Presented

1. Whether the Defendant is entitled as of right to cross-examine the deponents of affidavits under Order 40 of the Rules of the Superior Courts.
2. Whether leave of the court should be granted to the Defendant to cross-examine the deponents given that the time for serving notice of cross-examination had expired.
3. What is the test for granting leave to cross-examine a witness on affidavit in the context of conflicting facts and the necessity for resolving such conflicts to dispose of the issues before the court.

Arguments of the Parties

Defendant's Arguments

• The Defendant contends that under Order 40, Rules 1, 31, and 32, the Court has no discretion and must direct that the deponents be produced for cross-examination.
• The Defendant argues that failure of the deponents to attend should result in exclusion of their affidavits.
• The Defendant submits that the interests of justice require strict application of Order 40, Rule 32, compelling attendance for cross-examination.
• The Defendant alleges that the Plaintiff’s failure to file a replying affidavit amounts to contempt of court.

Plaintiff's Arguments

• The Plaintiff did not file a replying affidavit but relied on legal submissions by Attorney Wade B.L.
• The Plaintiff contends that the Court has discretion under the relevant rules and that the Defendant has not demonstrated any material conflict of fact necessitating cross-examination.
• The Plaintiff denies any contempt of court arising from the decision not to file a replying affidavit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Director of Corporate Enforcement v. Seymour [2006] IEHC 369	Test for cross-examination of a witness on affidavit; court discretion to allow cross-examination only if necessary to resolve material conflicts of fact.	The Court applied this precedent to confirm that cross-examination is discretionary and only justified where conflicts of fact exist that are necessary to resolve the issues.
Irish Bank Resolution Corporation Limited (in special liquidation) and ors v. Sean Quinn and ors [2015] IEHC 134	Illustration of application of test for cross-examination on affidavit in ex parte proceedings.	Referenced to support the principle that leave to cross-examine is not automatic and must be justified by necessity.
Bula v. Crowley (No. 4) [2003] 2 IR 430	Discretion of the court to grant leave to cross-examine deponents; leave only granted where there is a material conflict of fact.	Cited to reinforce the court’s discretion and the requirement of a conflict of fact to justify cross-examination.

Court's Reasoning and Analysis

The Court examined the Defendant’s affidavits and submissions, noting that the Defendant relied heavily on a strict interpretation of Order 40 rules claiming an absolute entitlement to cross-examination. However, the Court emphasized that Order 40, Rule 32 must be read in context, and that time for serving notice of cross-examination had expired, requiring leave of the Court. The Court referred to established jurisprudence which holds that the discretion to allow cross-examination on affidavit is exercised only if there is a material conflict of fact that must be resolved to dispose of the issues before the Court.

The Defendant failed to identify any such material conflict in the affidavits of the deponents. Allegations of contempt based on the Plaintiff’s failure to file a replying affidavit were rejected as unfounded. The Court noted that the Defendant indicated some substantive issues would be explored in cross-examination but these were not supported by the affidavits before the Court. Consequently, the Court concluded that the Defendant did not satisfy the onus of demonstrating that cross-examination was necessary.

Holding and Implications

The Court REFUSED the Defendant’s application for leave to cross-examine the deponents on their affidavits.

The direct effect of this decision is that the affidavits of the deponents stand admitted without cross-examination, and the Defendant’s request for extension of time to serve notice to cross-examine is denied. No new legal precedent was established; the ruling affirms the established discretionary approach to cross-examination on affidavit under Order 40, emphasizing the necessity of a material conflict of fact to justify such an order.