Start Mortgages DAC v Larkin & Anor (Approved)

Factual and Procedural Background

The Plaintiff, Company A, initiated possession proceedings against the Defendants by Civil Bill Record No. 2014/305. A verifying affidavit sworn by a deponent on 17 April 2014 was challenged by the First Named Defendant, who sought to cross-examine the deponent. The Circuit Court granted this relief, which was affirmed on appeal. The deponent’s whereabouts are now unknown, rendering the affidavit unreliable without cross-examination.

On 6 March 2023, before the County Registrar, Company A applied to strike out the proceedings, which was done without prior notice or consent from the First Named Defendant. The First Named Defendant contested this and subsequently brought a motion before the Circuit Court to review the strike out order. The Circuit Court struck out the motion with costs to the Plaintiff. The First Named Defendant appealed this decision to the High Court.

The High Court was tasked with rehearing the motion of 10 March 2023 concerning whether the proceedings were properly struck out based on the Plaintiff’s decision not to proceed.

Legal Issues Presented

1. Whether the County Registrar had jurisdiction to strike out the proceedings without the Defendant’s consent.
2. Whether the Plaintiff validly discontinued the proceedings under the relevant Circuit Court Rules.
3. Whether the strike out order should be overturned to allow the Defendants to continue litigating substantive issues, including alleged fraud and malicious deception by the Plaintiff.
4. The appropriate application and interpretation of discontinuance and strike out procedures under the Circuit Court Rules and Superior Courts Rules.
5. The implications of the unavailability of the deponent for cross-examination on the admissibility of the verifying affidavit in subsequent proceedings.

Arguments of the Parties

Appellant's Arguments

• The strike out order was made without the Defendant’s consent and deprived the Defendants of the right to litigate important points of law on the record.
• The verifying affidavit contains inaccuracies and shortcomings, and the First Named Defendant should be entitled to cross-examine the deponent.
• The Plaintiff’s discontinuance of proceedings was not properly effected as no written notice was served, nor was leave of the court obtained as required by the rules.
• The First Named Defendant seeks to have the strike out order overturned to allow the proceedings to continue or for the issues to be addressed properly.

Respondent's Arguments

• The Plaintiff acknowledges shortcomings in the affidavit but maintains disagreement on the extent and nature of these.
• The Plaintiff contends the strike out was appropriate and was effectively consented to by the Defendant’s failure to demur at the County Registrar hearing.
• The Plaintiff asserts that the decision not to proceed was clearly expressed and consistent since 6 March 2023.
• The Plaintiff relies on the discontinuance provisions in the Circuit Court Rules and Superior Courts Rules to justify the strike out.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by clarifying the nature of the application before it as a rehearing of the First Named Defendant’s motion to review the County Registrar’s strike out order, pursuant to Order 18 rule 7 of the Circuit Court Rules. The Court acknowledged the legal framework governing affidavits, cross-examination, and discontinuance procedures under the Circuit Court Rules and Superior Courts Rules.

The Court found that the Plaintiff’s decision not to proceed with the case was clearly expressed on 6 March 2023 and consistently maintained thereafter. However, the Court noted procedural deficiencies in how the Plaintiff purported to discontinue the proceedings, namely the absence of written notice and failure to assume responsibility for Defendants’ costs as required by the rules.

The Court recognized that discontinuance without leave of the court, when required, must be subject to the Court’s discretion and may be granted on terms that ensure justice between the parties. The Court relied on established precedents to affirm the broad discretion to grant leave to discontinue and impose terms such as costs.

Importantly, the Court considered the substantive grievances raised by the First Named Defendant regarding the verifying affidavit and the prior orders permitting cross-examination. The Court held it would be unfair to preclude the Defendant from raising these issues in any subsequent proceedings.

Accordingly, the Court permitted discontinuance on the basis that the verifying affidavit and prior cross-examination orders are to be treated as if filed and ordered in any subsequent proceedings, subject to the rules regarding the unavailability of the deponent. This approach preserves the Defendants’ rights to challenge the affidavit while respecting the Plaintiff’s decision to discontinue.

Holding and Implications

The Court’s final decision was to ALLOW the motion to review the strike out order and to permit the discontinuance of the proceedings on terms that:

• The verifying affidavit of the original deponent is to be considered as if filed in any subsequent proceedings.
• The prior orders permitting cross-examination of the deponent are to be treated as if made in any subsequent proceedings.
• The parties may make appropriate arguments regarding the affidavit’s admissibility in future hearings, consistent with the rules.

No order for costs was made on the appeal due to partial success on both sides.

The direct effect of this decision is to allow the Plaintiff to discontinue the current proceedings while preserving the Defendants’ ability to challenge the affidavit and related issues in any future litigation. The Court did not establish any new precedent but applied existing principles of discontinuance, procedural fairness, and affidavit evidence rigorously to the facts before it.