Affidavit Rules

Cases

Aston Colour Print Ltd., Re

 

[1997] IEHC 33 (21st February, 1997)Judgment of Mr. Justice Kelly delivered the 21st of February, 1997.

 

1. On the 5th February, 1997 a Petition was presented to this Court in the names of Declan Campion and Norman Blakely seeking the appointment of an Examiner to Aston Colour Print Limited (the Company). On the same day an Interim Examiner was appointed to the Company by Shanley J..

 

2. On Monday the 17th February, 1997 the Petition was listed for hearing before me. On that occasion the two named Petitioners were separately represented by Counsel. Counsel for Mr. Blakely indicated that he was taking objection to the course which had been followed and he filed an Affidavit which seriously controverted material which had been placed before Shanley J.

 

3. On Monday last I made Orders, at the request of the parties, pursuant to Order 40, Rule 1 of the Rules of the Superior Courts requiring the production for cross-examination on their respective Affidavits, both Mr. Campion and Mr. Blakely. I also gave leave for the issue of subpoenae in respect of any other witnesses which either side wished to call.

 

4. On foot of this Order, yesterday, both Mr. Campion and Mr. Blakely were cross-examined and in addition I heard evidence from Mr. Lyons and Mr. Power.

 

5. The Company was formed in April 1996 under the name Rahan Holdings Limited. On the 15th June, 1996 the name of the Company was changed to Aston Colour Print Limited. It has a nominal capital of £1,000,000.00 divided up into 100,000,000.00 ordinary shares of 1p each. Its paid up capital is £1,000. Mr. Campion is a shareholder to the extent of 15,000 1p shares. Mr. Blakely holds no shares in the Company. The other shareholders are Sean Power, Eugene McCarthy, Paschal Taggart, Terry Cooney and Eugene Gibney.

 

6. The Company was acquired as a shelf company with a view to taking over the business of a company called Aston Colour Press Limited. Mr. Blakely was a Director of that company for three years.

 

7. The Company took over the plant and machinery of Aston Colour Press Limited together with its customers. It also took over the work force but reduced staff numbers from 79 to 59.

 

8. The Company traded since the take-over but it is clear that by January of this year it was in serious financial difficulties.

 

9. On the 27th January, 1997 a meeting took place which was attended by Messrs. Power, McCarthy, Lyons, Blakely and Campion. The meeting was chaired by Mr. Power.

 

10. Only two of those persons present were Directors of the Company. They were Messrs. Campion and Blakely. All of the others were shareholders, save Mr. Lyons who was the Financial Controller of the Company. He is an Accountant and prior to being Financial Controller was a consultant to the Company.

 

11. The evidence satisfies me that meetings of this sort involving the attendance of the persons in question were a matter of regular occurrence within the Company. They were known as executive meetings or sometimes were called management meetings. They were usually held on a weekly basis and discussed the day to day running of the Company. No formal notices were issued convening such meetings.

 

12. The meeting of the 27th January, 1997 was little different from its predecessors, save that the news given to it at the outset was gloomy indeed. Mr. Lyons gave the cash flow figures for December and on the basis of the financial information available indicated that the Company could not continue to trade.

 

13. I am satisfied that a number of options were discussed which might address this problem. They were:-

 

1. more investment,
2. the appointment of a Liquidator, and
3. the appointment of an Examiner.
4. Mr. Lyons gave an explanation to the meeting as to the difference in function between a Liquidator and an Examiner.

 

15. I am satisfied on his own evidence that Mr. Blakely had, as a result of Mr. Lyons’ explanation, a reasonable idea of what benefits might result from the appointment of an Examiner. He told me that it would give the Company a chance to freeze its cash-flow problems and allow time for investment.

 

16. I am also satisfied that at no stage was there ever put to the meeting a formal resolution to the effect that the protection of the Court be sought for the Company. Neither was any vote taken on the topic. This way of proceeding was, I believe, not by any means out of the ordinary since such meetings were regularly conducted in a fairly informal way with a consensus emerging rather than matters being put to a vote. Whilst such an approach may be understandable in the running of a small company, it suffers from the disadvantage that at the conclusion of such meetings, persons who were present may leave it with very different understandings of what was the subject of the consensus.

 

17. Mr. Campion believed that everyone agreed that the appointment of an Examiner would be sought. Mr. Blakely had no objection to the appointment of an Examiner but he did not understand that the meeting had decided to apply for such, still less that his name would be used as Petitioner. Mr. Lyons believed a decision was taken at the meeting to apply for an Examiner. Mr. Power, who chaired the meeting, thought that all at the meeting agreed that the examinership was the best route for the Company but no resolution was put or vote taken. He was under the impression that there was a form of tacit agreement for the appointment of an Examiner between all present and likened it to a rather homely analogy which he gave concerning the purchase of his first house in the joint names of himself and his wife, which was done with this wife’s tacit but unexpressed agreement.

 

18. Following the meeting, Mr. Lyons did two things. He made a note in his diary concerning the meeting which had taken place, the relevant parts of which reads:-

 

 

“Discussion re solvency. Decision to seek Examiner. D.C. to get on with it.”.

 

19. He also made contact with Mr. McStay (who was ultimately appointed Interim Examiner by Shanley J.) on the following day, namely, Tuesday the 28th January, 1997.

 

20. Later in the week on the 29th of January, 1997, Mr. Blakely resigned as a Director.

 

21. On Friday the 31st January, Mr. Campion made a note or minute of the meeting of the 27th January, 1997. It is wrongly dated the 27th of February, 1997 but nothing turns on that. It has been produced in evidence at my request since the Affidavit of Mr. Campion verifying the Petition purports to exhibit as Exhibit DC2, a copy of the minute of the board meeting held on the 27th January, 1997.

 

22. Whatever else it may be, Exhibit DC2 is not a copy of anything contained in the minute prepared by Mr. Campion on the 31st January, 1997 which is apparently the only minute of the meeting of the 27th January, 1997.

 

23. Nowhere in the note or minute prepared on the 31st January, 1997 is it recorded that the meeting of the 27th January agreed or resolved to apply for the appointment of the Examiner. Rather it says, as one of the options “seek Examiner – J. McStay/P. Wise conflict?” . Neither does it record what is contained in the second paragraphs of Exhibit DC2 concerning Mr. Campion being entitled to act on his own in relation to the matter. Rather it speaks of Mr. Campion keeping all informed on actions and developments.

 

24. If anything, the note prepared by Mr. Campion on the 31st January, 1997 is supportive of Mr. Blakely’s understanding that although examination was discussed at the meeting, it was not decided that such should occur.

 

25. I am of the view that Mr. Blakely left the meeting with a different understanding to the other participants as to what would occur.

 

26. Be that as it may, what was presented to this Court was a document which purported to be a copy of a minute of a board meeting. I am satisfied that Exhibit DC2 is not such.

 

27. Whatever the level of informality which operated in this Company, I must have regard to the legal requirements which must be met on an application to appoint an Examiner.

 

28. Under Section 3 of the 1990 Act, the right to present a Petition is given to certain persons. Amongst such persons are the directors. In this case it was represented on oath to the Court that a board resolution was unanimously passed on the 27th January, 1997 that Court protection should be sought for the Company.

 

29. Two issues arise for decision on this topic, they are:-

 

 

1. Was there a board meeting on the 27th January, 1997?
2. If there was, was such a resolution passed?

 

WAS THERE A BOARD MEETING?

30. The Company had only two Directors. Both were present at the meeting on the 27th January, 1997. Mr. Campion has experience as a director of other companies. Non-directors sometimes attended them. This meeting was no different to other regular executive meetings held by the Company.

 

31. Mr. Blakely did not regard the meeting as a board meeting. It did not differ from earlier ones attended by him, including those meetings which he attended in Aston Colour Press where he had been a director for three years but never in his view attended a directors’ meetings.

 

32. I have come to the conclusion that the meeting of the 27th January, 1997 was not a board meeting. I have so concluded for a number of reasons. They are:-

 

 

1. Whilst board meetings may be held on an informal basis, the directors must at least appreciate or have a basis for appreciating that they are attending such a meeting. Mr. Blakely did not so appreciate, nor was there any reason why he should. The meeting was not so described; it did not differ from other management or executive meetings; it was not chaired by the Chairman of the board.
2. If the meeting was that of the board, why was it not chaired by Mr. Campion? He was the Chairman of the board yet it was Mr. Power, a non-director, who presided at the meeting.
3. Mr. Lyons, who is a man of some experience on the financial side, told me in evidence that he did not consider that he was attending a board meeting of the Company.
4. Mr. Power who chaired the meeting, as he did the other executive meetings, believed he was presiding over a meeting of the Company in general meeting which subsequently became a board meeting, to quote his evidence. But subsequent to what? And when did this change occur? And how was Mr. Blakely to know when the metamorphosis occurred?

 

33. It appears to me that the gathering which took place on the 27th January, 1997 could not on any view be regarded as a board meeting in any real sense.

 

 

WAS THE NECESSARY RESOLUTION PASSED?

34. If I am wrong in the view which I have formed concerning the lack of a board meeting, was there passed at the meeting which did occur, the resolution which is contended for in the Petition and Affidavit verifying it?

 

35. It is common case that there was no formal resolution and certainly no vote taken on the topic at the meeting which took place.

 

36. The presentation of a Petition to this Court and the invocation of the jurisdiction given to the Court under the 1990 Act is a matter of some considerable solemnity and importance, not merely for the Company but also for its creditors and its work-force.

 

37. A decision by a board of directors to take such a step must be made in a manner which makes the will of the board clear. The usual way to do that is by the proposal of a resolution and its being voted upon. That did not occur here. Had it occurred, I think that Mr. Blakely would have voted against it since he did not want his name associated with the Petition.

 

38. In this case there is considerable doubt that any, even informal resolution, was put to the meeting. First, the minute of the 31st January, 1997 prepared by Mr. Campion does not make it clear that the decision was made to apply for the appointment of an Examiner. On the contrary, that minute merely says “no choice but examiner or liquidate”. Secondly, Mr. Power cannot recall who decided that these steps should be taken. He was the Chairman of the meeting.

 

39. I believe that there was a general understanding arrived at between four of the five people present at the meeting. It was to the effect that an application would be made to Court for the appointment of an Examiner. But the fifth person was of course the second Director. He did not appreciate what was to happen. The level of informality was such that I do not think that he can be blamed or criticised for this. There was no resolution put before him nor was there any question put in such a way as to alert him as to what was to occur. Such being so, I do not accept that there was any resolution, formal or informal, passed by the board. Having answered both questions in the negative it is not therefore necessary for me to deal with the other submissions which were made, particularly those concerning the effect of Article 103 of the Articles of Association of the Company.

 

40. As a result of my findings, it is clear that the Petition was improperly presented to the Court. There was no entitlement to present it and it must now be struck out and the Interim Examiner discharged.

 

41. Before concluding, however, it is right that I should record that I do not believe that any of Mr. Campion’s actions, or those of the other persons who have given evidence, were done mala fide. Neither do I believe that there was any deliberate attempt to misrepresent the position to the Court or to mislead the Court. On the contrary, I think that the steps which were taken were carried out with the genuine intention of doing the best for the Company. Unfortunately, such was the inattention to the necessary details and the level of informality that prevailed that these efforts have been unsuccessful.

 

42. Although this Petition is struck out for the reasons stated, I do not regard any of the matters which I have dealt with in this Judgment as precluding the presentation of a further Petition by a party or parties duly authorised so to do.

 

 

 

 

Director of Corporate Enforcement v. Seymour

 

[2006] IEHC 369 (16 November 2006)JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 16th day of November, 2006

In this case, the applicant has applied to the court pursuant to Order 75B, rule 7 and/or Order 40, rule 1 of the Rules of the Superior Courts and/or under the courts inherent jurisdiction for an order that the respondent herein do attend the trial of this action and be cross examined on his affidavits sworn and filed herein and that, if he fails to attend for cross examination, the said affidavits shall not be used at the trial of this action. For his part, the respondent maintains that his cross examination on his affidavits sworn herein is entirely inappropriate and, accordingly, he disputes the applicant’s entitlement to the relief sought herein. In that regard;

Order 75B, rule 7 of the Rules of the Superior Courts provides:-

“Every application under the Act (the Companies Act, 1990 {my insertion}) shall be grounded upon the affidavit of the party making such application and shall be heard and determined on affidavit unless the court otherwise orders.”

and

Order 40(rule 1) of the Rules of the Superior Courts provides:-

“Upon any petition, motion or other application, evidence may be given by affidavit, but the court may, on the application of either party, order the attendance for cross examination of the person making any such affidavit.”

Order 75B, rule 9 of the Rules of the Superior Courts also enables a court to direct a plenary hearing “in any case in which the court considers that it is either necessary or desirable in the interests of justice to do so (the emphasis is mine).”

BACKGROUND

In these proceedings, the applicant seeks an order that the respondent be disqualified from acting as a director of a company under s. 160(2)(b) and/or s. 160(2)(d) and/or s. 160(2)(e) of the Companies Act, 1990. This application arises from a report of inspectors appointed under s. 8 of the Companies Act, 1990, to investigate the affairs of National Irish Bank Limited and National Irish Bank Services Limited, which report was published by order of the High Court (Kelly J.) made on the 23rd day of July, 2004. The respondent was executive director and de facto chief executive of National Irish Bank Limited between the months of April 1994 and July 1996. In that report, there are findings of improper conduct on the part of National Irish Bank Limited and of National Irish Financial Services Limited and findings as to the responsibility of persons in the bank and in the financial services for this conduct. In particular, there were findings that internal audit reports, which had been copied to the respondent, pointed to the likelihood that the non-resident accounts therein referred to were in fact bogus and that the extent of reported documentary non-compliance was on such a scale that it constituted a further indication that a substantial proportion of the non-resident accounts could be bogus. Moreover, there were findings that the DIRT Theme Audit of December, 1994, highlighted the extent of the irregularities and that the respondent had been made aware of significant issues of documentary non-compliance, the lack of understanding at branches of the National Irish Bank’s duty to satisfy itself on non-resident status and the resultant failure to deduct DIRT at the standard rate from interest paid or credited where the conditions for the operation of accounts whilst DIRT-exempt non-resident accounts were breached. Accordingly, the report concluded that the respondent should not only have been aware of the failure of the branches to hold properly completed non-resident accounts declarations, but should also have been aware of the fact that bogus non-resident accounts existed throughout the branch network. The report also found that, although the respondent attended meetings of senior management of National Irish Bank Limited convened to consider what corrective action was needed to remedy the situation disclosed by the DIRT Theme Audit, he failed to address or raise the question of potential liability of the bank to the Revenue Commissioners resulting from the irregularities. Furthermore, the report found that, despite corrective action taken by National Irish Bank Limited following the DIRT Theme Audit, there continued to be non-compliance in the branches with the requirements for DIRT-exempt status during the remainder of the respondent’s term of office. While the report acknowledged the acceptance of a submission by the respondent that DIRT compliance procedures improved during his term of office, given that, as executive director, the respondent held ultimate responsibility to ensure that DIRT was deducted from interest paid or credited on all accounts subject to DIRT under the Finance Act, 1986, the respondent had failed to discharge that responsibility.

As I have already indicated, the said report was published by order of the High Court (Kelly J.) made on the 23rd day of July, 2004, following which, by notice of motion dated the 18th day of July, 2005 and grounded upon the affidavit of one Dick O’Rafferty, an officer of the Director of Corporate Enforcement, the applicant sought the relief sought in these proceedings. In that regard, the said affidavit of the said Dick O’Rafferty was sworn on the 18th day of July, 2005, in response to which the respondent swore a replying affidavit on the 29th day of September, 2005, to which Mr. O’Rafferty replied in an affidavit sworn on the 3rd day of November, 2005, which, in turn, was responded to by the applicant in an affidavit sworn on the 14th July, 2006, to which Mr. O’Rafferty replied in an affidavit sworn on the 14th July, 2006, which, in turn, was followed by a third affidavit sworn by the respondent on the 6th day of October, 2006. In each of the said affidavits, there is reference to exhibits which I do not consider it necessary to review for the purpose of this judgment.

DISCUSSION

While the applicant concedes that, in the course of the several affidavits sworn by him as aforesaid, the respondent raises few (if any) material points of factual disagreement with the averments in the said affidavits sworn by Mr. O’Rafferty, it is clear that he strenuously disputes all and any criticisms of his conduct in the said inspector’s report. In particular, he disputes the inferences and opinions which the inspectors drew from the evidence which was before them and he maintains that it is not fair that he should be criticised for the fact that problems with DIRT compliance were not all eradicated by the time that he left the National Irish Bank Limited given that, as he asserts, once the problem was brought to his attention, he put in train a series of measures to correct the problem which, he says, did improve matters significantly. Accordingly, the respondent maintains that, as it is clear from the said affidavits sworn by him that he does not dispute any of the factual findings of the inspectors in the said report which are material to the relief sought by the applicant in these proceedings, it is not an appropriate case in which to direct a cross examination of the respondent on those affidavits.

In my view, it is axiomatic that, when, in the course of applications to the court which are required to be heard and determined on affidavit, as is the situation in this case, it becomes apparent from the affidavits sworn in those proceedings that there are material conflicts of fact between the deponents of those affidavits, the court must, if requested to do so, consider whether or not to direct a plenary hearing of the proceedings or that one or more of the deponents should be cross examined on his or her affidavit. This is so because it is impossible for a judge to resolve a material conflict of fact disclosed in affidavits. However, while it seems to me that, where it is debatable as to whether or not the cross examination of a deponent on his or her affidavit is either necessary or desirable, the court should tend towards permitting the cross examination, at the end of the day it is within the discretion of the court as to whether or not such a cross examination should be directed and that discretion should only be exercised in favour of such a cross examination if the court considers that it is necessary for the purpose of disposing of the issues which the court has to determine. That appears to me to be the import of a statement of Keane C.J. in the course of an unreported judgment of the Supreme Court delivered on the 15th day of December, 2003, in a case of Holland v. The Information Commissioner and represents the current jurisprudence in that behalf in this country. In this case, in an affidavit sworn herein on the 3rd day of October, 2006, to ground the applicant’s application herein, Ms. Anne Keating, the principal solicitor at the office of the Director of Corporate Enforcement, purports to identify the issues raised by the respondent in the several affidavits which he has sworn herein which she suggests amount to areas of conflict which entitle the applicant to have the respondent cross examined on those affidavits. While the respondent has not sworn a replying affidavit to that of Ms. Keating, it is submitted on his behalf that the conflicts identified by her relate; not so much to matters of fact, but rather to inferences and opinions drawn and expressed by the inspectors in the said report which the respondent challenges and constructions which the inspectors have put on a variety of facts which the respondent accepts but rejects the construction put by the inspectors thereon. In that regard, having considered the several affidavits heretofore sworn by the respondent, it seems to me that there is substance to the suggestion that he does not dispute the facts relied on by the inspectors in support of their findings in any material way. However, while that may be so, does it follow that the applicant is not entitled to test, by way of cross examination, the respondent’s interpretation of those facts or to challenge the adequacy of the steps taken by the respondent to eradicate the departures from acceptable practice of which the respondent accepts that he was aware? While the respondent may not dispute material facts upon which the inspectors base their findings, given that he challenges virtually every conclusion that the inspectors drew from those facts which reflect unfavourably on himself, is it reasonable to ask a judge to resolve that challenge in the absence of its being tested by cross examination of the respondent? The respondent would submit that, in the absence of a dispute on material facts, it is neither appropriate or desirable that he should be required to submit to cross examination on the several affidavits which he has sworn herein and he points to the fact that, if, in the course of the hearing, the trial judge was of the view that he ought to be cross examined on those affidavits, it would be open to the trial judge to so order.

CONCLUSIONS

The function of cross examination is to cast doubt upon the veracity, accuracy or reliability of evidence given by a witness. In this case, the issue to be determined by the court is, as laid down by Kelly J. in the course of an unreported judgment which he delivered on the 26th October, 2005, in a case of the Director of Corporate Enforcement v. D’Arcy the commercial probity of the respondent’s conduct. In that regard, s. 22(b) of the Companies Act, 1990, provides that the report of an inspector appointed under s. 8 of the Act shall be evidence of the opinion of the inspector and, accordingly, it seems to me that, if that opinion is challenged, notwithstanding that the facts upon which the opinion is based are not disputed, the court is entitled to know the mindset of the challenger and, in my view, the only way that that can be ascertained is by confronting the challenger under cross examination. In that regard, it seems to me that the volume of affidavit material sworn by the respondent in defence of the applicant’s claim herein, incorporating, as it does, a total rejection of the opinions and conclusions of the inspectors is, in itself, a justification for testing by cross examination of the respondent the reliability and, indeed, reasonableness of the contrary views expressed by him. In my view, in the absence of such a cross examination, it would be difficult, if not impossible, for the trial judge to come to a reasoned conclusion with regard the commercial probity of the respondent and, accordingly, it seems to me that the interests of justice require that such a cross examination be conducted.

In all the foregoing circumstances, I hereby direct that the respondent, Barry Seymour, attend the trial of this action for the purpose of being cross examined on his affidavits sworn and filed herein and, in the event that he fails to attend for such cross examination, the said affidavits shall not be used at the hearing.

 

 

Director of Corporate Enforcement -v- Bailey & Anor

[2007] IEHC 365 (01 November 2007) Irvine J

 

iven that the Rules of the Superior Courts provide for a wide range of proceedings to be determined solely on affidavit it is not surprising that the Rules of the Superior Courts require affidavits, in general, to exclude hearsay evidence and that such rules provide a mechanism for ensuring compliance therewith. The existence of such a mechanism makes the argument that the respondents’ motion is premature difficult to sustain. It is clear that the evidence supporting any alleged wrongdoing at a hearing which is dealt with on affidavit must be just as admissible as evidence which would be given to a court by a witness at an oral hearing. In this regard O.40, r. 4 of the Superior Court Rules provides as follows:-

“Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of any affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall not be allowed.”

Order 40, r. 12 provides:-

“The Court may order to be struck out from any affidavit any matter which is scandalous, and may order the costs of any application to strike out such matter to be paid as between solicitor and client.”

Order 40, r.4 appears almost mandatory in its terminology when referring to non-interlocutory matters, and seems to be designed to ensure that there is no falling short of proper evidential proof when proceedings are to be disposed of on affidavit rather than by way of oral evidence.

The reasoning behind the exception to normal hearsay rules for interlocutory matters is clearly explained by Hodson L.J. in Rossage v. Rossage [1960] 1 W.L.R. 249. That was a case where a father applied to the Court to suspend the right of the mother to access to their child. The application was not of an interlocutory nature and the mother applied to have certain affidavits delivered by the father removed from the file on the basis that they contained both scandalous and hearsay material.

Hodson L.J. in his judgment referred to the distinction to be drawn between evidence which might be deemed admissible in proceedings designed solely to maintain the status quo but which would be inadmissible in proceedings destined to decide the ultimate rights of the parties. The learned trial judge referred to the decision of Cotton L.J. in the Court of Appeal in Gilbert v. Endean [1878] 9 Ch. Div. 259, who, when dealing with the equivalent English rule advised at p.268:-

“… for the purpose of this rule those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in statu[s] quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties. Now many of the cases which are brought before the Court on motions and on petitions, and which are therefore interlocutory in form, are not interlocutory within the meaning of that rule as regards evidence. They are to decide the rights of the parties, and whatever the form may be in which such questions are brought before the Court, in my opinion the evidence must be regulated by the ordinary rules, and must be such as would be admissible at the hearing of the cause. In my opinion, therefore, on such applications, if an affidavit on information and belief is made, the other side is not called upon to answer it under the peril of its being said to him, ‘You have in fact admitted this by not denying it, and therefore the court may act upon the admission.’ But I must add this: where in the Court below the evidence not being strictly admissible, not being that upon which the Court can properly act, if the person against whom it is read does not object, but treats it as admissible, then before the Court of Appeal, in my judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible. But in such a case the Court does not act on the statement as being evidence properly admissible, but because the party has by the course which he adopted waived proof of the facts stated on information and belief. I have said this because I think that the matter is one of very considerable importance, and that the habit of introducing into applications to decide the rights of parties evidence on information and belief has done great injury in many ways in the Chancery Division.”

The fact that the within proceedings may ultimately be dealt with at an oral hearing does not provide a valid basis for concluding that the respondents’ motion is premature. The affidavits sworn on behalf of the applicant cannot be assumed to be of an interlocutory nature within the meaning of O. 40, r. 4, so as to permit evidence to be introduced which emanates other than from the means of knowledge of the two deponents. Neither does the Court believe that the respondents should be put in the position outlined by Cotton L.J. in Gilbert v. Endean where their failure to address evidence which is not strictly admissible could result in the Court ultimately concluding that they had waived proof of the evidence and opinions therein stated.

The Court is satisfied that it ought to deal with the respondents’ application at this juncture. By doing so the applicant will be in a more favourable position than

he would be in if the Court dismissed this application as premature and then at the full hearing excluded either partially or entirely significant amounts of evidence in the affidavits on the basis that the same was inadmissible. Any ruling adverse to the applicant at this stage will permit him to revisit how he might seek to prove the evidence excluded as inadmissible in its present format. The applicant may decide to try to obtain additional testimony on affidavit. Alternatively, the applicant may seek to have the proceedings referred to plenary hearing subsequent to which he can decide what wrongdoing he proposes to rely upon and then call the relevant oral evidence in support of the same. The Court does not accept the applicant’s submission that following the opening of the full hearing of these proceedings the Court will be better placed to decide whether the material complained of constitutes inadmissible evidence. It goes without saying that in any case an applicant should not be permitted to open facts which he will not seek to prove. Such an approach, in any event, would be to flaunt the plain meaning of O. 40, r. 4. If the Court was to accept the prematurely argument in proceedings of a complicated nature the Court would be forcing respondents to reply to vast swathes of allegations which the applicant might never be in a position to prove by affidavit or oral evidence at the hearing proper. Thereafter, the Court would be faced with trying to excise hearsay evidence from admissible evidence after the opening of the trial. This approach would result in a significant waste of the Court’s time and would lead to the incursion of unwarranted legal costs.

The Court further rejects the applicant’s submission that documents which at this point are hearsay as to the truth of their contents can at a later stage in the proceedings ever become anything other than hearsay. The applicant may well ultimately prove the truth of the content of some of the evidence presently contested as inadmissible by utilising a variety of court procedures of such as interrogatories or notices to admit facts. Alternatively the applicant may obtain supplemental oral or affidavit evidence. However, even if the applicant succeeds in this regard the material presently inadmissible remains inadmissible and the applicant merely proves the contested evidence using an alternative mechanism to the present affidavits.

The Court has been referred by the applicant to the decision the Court in Sun Fat Chan .v. Osseous Ltd [1992] 1 I.R. 425 in support of his assertion that the respondents’ application is premature. That decision related to an application by a defendant to dismiss the plaintiff’s claim for specific performance in relation to a contract for the purchase of certain property on the basis that, the facts not being in issue, there was no basis upon which the plaintiff could succeed.

The Supreme Court, in considering the circumstances in which an action might be dismissed as being frivolous or vexatious concluded that the court should be slow to dismiss an action unless it was clear that the action could not be saved even if the plaintiff was afforded an opportunity to amend his claim.

The issues addressed by the court in Sun Fat Chan were different in many respects from those which arise on the present application.

Firstly, these proceedings were intended by the Rules of the Superior Courts to be disposed of on affidavit evidence only. Hence, there should be little by way of additional evidence post the delivery of the grounding affidavits that should have any real bearing upon the admissibility of evidence in those affidavits. Secondly, the respondents in this application seek relief, not solely pursuant to the Court’s inherent jurisdiction, but specifically by reason of the provisions of O.40, r.4. Thirdly, one can understand the reluctance to accede to the application in Sun Fat Chan the penalty sought to be invoked by the defendant being the dismissal of the plaintiff’s entire action whereas in this case the respondents relief is confined to seeking to rule out as inadmissible a portion of the applicant’s evidence. Finally, in these proceedings even if the respondents are successful in this application, the applicant is not precluded from seeking to introduce any evidence now ruled to be inadmissible by way of supplemental affidavit or oral evidence at a later time. For this reason the Court believes reliance by the applicant on this decision is misplaced.

The most helpful decision in relation to the prematurity argument is that of Gibson L.J. in Savings and Investment Bank v. Gasco Investments (Netherlands) B.V. and Others [1984] 1 All E.R. 296 (“SIB”). That case concerned an action by a plaintiff seeking repayment of a debt owed by the first named defendant. The plaintiff brought a motion seeking an injunction in an effort to restrain the defendants from disposing of their assets until the trial of the action. The plaintiff relied upon an affidavit sworn by Gerhard Weiss on behalf of the liquidator of SIB. A number of the defendants applied to the court for an order under the English equivalent of our O. 40, r. 12 of the Rules of the Superior Courts and also pursuant to the court’s inherent jurisdiction to strike out a number of paragraphs from Mr. Weiss’s affidavit on the ground that the contents thereof were scandalous, inadmissible, irrelevant and/or otherwise oppressive.

One of the documents relied upon by Mr. Weiss in his affidavit was a report of an inspector appointed by the Secretary of State for trade to the fourth named defendant, under the various provisions of the Companies Act, 1948. Mr. Weiss in his affidavit dealt in detail with the final report of the inspector and summarised some of its more important points in his affidavit. He sought to rely upon the report which expressed the concerns of the inspector that there was a danger that the shares of the fourth named defendant might be dealt with in such a way as to dilute the fourth named defendant’s assets.

An application was made to the Court to strike out the references to the report of the inspector and this application was brought prior to the hearing of the motion for the interlocutory injunction. At the hearing the plaintiff urged the Court not to accede to the defendant’s application and invited the Court to postpone an adjudication on the admissibility of the inspector’s report until the hearing of the injunction proper.

The reasoning of Gibson L.J. at p. 301 of the report seems of particular relevance to this application:-

“I shall deal with counsel for SIB’s last point first, as, if correct it would absolve me from the task of considering this application further. Counsel for the defendants explained the reasons why he has applied to strike out as two fold. First, the defendants need to know before the effective hearing of the motion whether they should go to the expense and trouble of putting in a large amount of additional evidence to counter what is contained in the report. He points out that a decision on this point may assist SIB as well, since SIB may wish, if the passages are struck out, to put in admissible evidence to prove what it now seeks to show by way of reference to the inspector’s reports. Second, for a judge other than the judge hearing the motion to strike out passages in the affidavit would avoid the motions judge having to perform the mental gymnastics of putting out of mind the lengthy and inadmissible passages to which he would have been referred.”

The Court is convinced that the appropriate time for a party to object to the admissibility of evidence in an affidavit supporting proceedings brought by way of originating notice of motion is the time at which that affidavit is delivered. Applications such as the present one assist in defining the actual issues which will be pursued by the applicant and thus bring about a reduction in legal costs. In terms of natural justice and fair procedures the Court concludes that it would be unfair to permit an applicant in proceedings which carry a significant potential penalty to swear an affidavit containing a myriad of serious allegations of wrongdoing against a respondent when many of the allegations emanate from the opinion of third parties not under the deponents control, relate to matters outside the deponents own personal knowledge and when neither the deponent nor the author of the opinion can reasonably be challenged thereon. It would be unjust to require the respondents to deliver a sworn reply to such assertions thus exposing them to cross examination thereon when the party responsible for the allegations of wrongdoing is not similarly open to cross examination. Different considerations apply in proceedings of a plenary nature where it is permissible for a plaintiff in an unsworn document, such as a statement of claim, to make wide-ranging unsworn allegations to which the defendant will respond in a similarly unsworn fashion. In such circumstances, both the parties are subjected to the same rules.

To postpone this application until after the respondents have delivered replying affidavits, apart from the injustice previously mentioned would have significant procedural drawbacks for all concerned and these can be summarised as follows:-

(i) The respondents would have to decide whether or not to counter assertions which prima facie appear to be inadmissible. A decision made not to respond to such evidence runs the risk of the applicant contending that such failure on the part of the respondents should be treated as an acceptance of the opinions advanced in the affidavits, a tactic commented upon by Cotton L.J in Gilbert v. Endean.

(ii) If the respondents take the chance of ignoring the evidence in the affidavits which they believe to be inadmissible they run the risk that if the proceedings are advanced on such affidavits at trial that their application to have the evidence ruled out may fail. In such circumstances the respondents would be unlikely to be in a position to counter the evidence ruled to be admissible by the court thus leading to the likely adjournment of the action. Such an adjournment would be difficult to avoid, particularly if the applicant had successfully objected to the issue as to the admissibility of the evidence being dealt with at an interlocutory hearing on the basis that the application was premature.

(iii) Alternatively the respondents might decide that they simply cannot run the risk of not replying to the evidence they believe to be inadmissible. Thereafter, if the respondents were successful in having the evidence excluded at trial they might nonetheless end up being cross examined on affidavits they ought not to have had to file. Alternatively, on this scenario, the applicant might require an adjournment to “mend his hand” to allow him the opportunity of producing additional evidence. Once again such an occurrence would result in delay, additional legal costs and a waste of court time.

(iv) To fail to deal with matters which are claimed to be inadmissible at an interlocutory hearing places the respondents in a much more prejudicial position than they would be in if the proceedings from the outset were plenary in nature. In plenary proceedings on oral evidence a defendant can object to the introduction of inadmissible evidence and seek a ruling then and there from the court. Depending upon the ruling the defendant can then decide how to proceed in terms of his own evidence. On the applicant’s submissions in this case the respondents should be forced to counter, by sworn testimony, any assertions made on his behalf once the same are not scandalous or vexatious, even if these assertions are prima facie inadmissible. The respondent is then expected to prepare to defend all such assertions at trial and await its commencement before he is entitled to a ruling as to the admissibility of such evidence.

(v) It will greatly increase the costs of both parties if clearly inadmissible evidence is left in the affidavits and the respondents are obliged to reply thereto and possibly prepare for trial (including an oral hearing) based on the risk that the evidence might be admitted at trial. This application is not an objection to one inadmissible assertion which, if excluded, would be unlikely to have any major impact on matters such as costs and / or court time. On the contrary this is an application to exclude evidence of opinion covering assertions of professional wrongdoing over many years which if excluded and not proved in some other fashion is likely to substantially curtail the duration of the hearing and the costs of the parties.

(vi) In the interests of justice the trial judge should not be asked to conduct the mental gymnastics referred to by Gibson L.J. in SIB. There is always a risk that a trial judge who proceeds to hear a case having ruled out a swathe of evidence as inadmissible after the opening may find it difficult to proceed to do justice between the parties unaffected by having been privy to such material.

Finally, in relation to the issue of prematurity the Court rejects the submission made by the respondents that any delay on the part of the applicant in contesting the appropriateness of the respondents’ application undermines the legitimacy of the arguments raised on his behalf. The parties were clearly engaged in a significant exchange of correspondence and documentation after the issue of the proceedings. The Court draws no inferences whatsoever from the fact that many of the grounds relied upon by the applicant herein were not raised until such time as their replying affidavit was sworn on the 6th March, 2007.

Whilst the Court accepts that the evidence which the respondents wish to have excluded at this point cannot be described as either scandalous or vexatious such as to justify its exclusion under O. 40, r. 12, there is nothing in O. 40, r.4 which suggests that an application to be made under that section should not be made until a replying affidavit has been delivered. The intent of that rule appears to be to insure compliance with the rules of evidence in affidavits of a non-interlocutory nature, and thereby to provide an efficient and fair mechanism for the disposal of the dispute between the parties.

The Court concludes that having regard to above reasoning, the applicant’s assertion that the respondents’ motion is premature is not well founded.

 

4. The admissibility of evidence objected to by the respondents.

Prior to examining the documents which the respondents wish to have excluded from these proceedings it is worthwhile stating briefly the rule in relation to the inadmissibility of hearsay evidence and evidence of opinion.

 

Inadmissible hearsay evidence and inadmissible evidence of opinion.

Cross & Tapper on Evidence 10th Ed. (Lexis Nexis Butterworths, 2004) on evidence describes the rule against hearsay as follows:-

“… a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact stated.”

The law relating to hearsay in this jurisdiction is clearly set out in Cullen v Clarke [1963] I.R. 368 in which Kingsmill Moore J. at p. 378 stated:-

“… there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness. There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert the reason being that the truth of such words cannot be tested by cross-examination and have not the sanctity of an oath. This is the rule known as the rule against hearsay.”

This is a rule which is operated to potentially exclude statements in circumstances where the maker of that statement will not testify, cannot have their demeanour observed and cannot have their credibility tested on cross examination. The rule is stated to demonstrate the confidence that can be reposed in the power of cross examination.

Insofar as opinion evidence is concerned the general rule is that witnesses must speak only to facts which they have observed and should not give evidence as to the inferences which they believe can be drawn from such facts. The rationale for the exclusion of opinion evidence lies in the acceptance that it is for the court and not the witness to draw conclusions from proven facts.

It is common case that evidence of opinion is permitted in certain exceptional circumstances such as where the court admits evidence from an expert witness. However, in order to permit of this exception the expert must establish their expert credentials before the court and their evidence must be confined to their proven area of expertise. Clearly, once an expert is permitted to give evidence as to his opinion it follows that he is open to having that opinion tested not only by the opposing party on cross examination but also by the trial judge.

In the present case the respondents object to opinion evidence being introduced on affidavit by persons who are not the authors of that opinion and where the respondents have no assurance that the author of the opinion will either swear an affidavit stating the truth of that opinion or give oral evidence thus opening up the possibility of that opinion being challenged by them on cross examination. The height of what has been stated on the applicants behalf is that the respondents may well not dispute many of the assertions of wrongdoing made against them and that if they do it may be possible to prove some of the assertions by the use of additional court procedures. The grounding affidavits refer to the expert opinion of Mr. Lacy, but also refer to the conclusions of wrongdoing against the respondents reached by the Chairman of the Tribunal, Mr. Nolan of the Revenue Commissioners and Mr. O’Toole of McGrath & Co., Chartered Accountants.

A stark approach to the respondents’ motion might be to consider what evidence would be admissible at the instigation of the applicant if the respondents did not appear to the proceedings at all. In such a case the court would only be permitted to take into account evidence received in compliance with Order 40, r.4. The Court is of the opinion that much of the documentation relied upon by the applicant in the affidavits and exhibits to these proceedings could never be considered as admissible evidence even if the respondents chose not defend the present proceedings. As matters stand there is no certainty that there will be an application for a plenary hearing and the Court should therefore at least consider the possibility that the applicant’s evidence at trial will be as it is now.

There are exceptions to the hearsay rule, but it is now common case that most of these exceptions are specifically provided for by enabling legislation. A number of examples of such legislative provisions have been referred to by the respondents in their submissions including:-

1. Section 22 of the Companies Act, 1990 which renders admissible the report of an inspector as evidence of (a) the facts set out therein without further proof unless the contrary is shown and (b) of the opinion of the inspector in relation to any matter contained in the report for the purposes of seeking to have a person disqualified under s.160 (2) of the Companies Act, 1990.
2. Section 23 of the Children Act, 1997 which permits, in limited circumstances, a statement made by a child to be admitted into evidence where in the normal course of events the same would not be admissible if the child was not in a position to personally give oral evidence. The court under s.24 of that Act is given discretion as to the weight which it should apply to that evidence given that it is technically hearsay.

It is noteworthy that the Company Law Enforcement Act, 2001 makes no provision for the right of the applicant to rely, for example, on the findings of a Tribunal of Inquiry or a report from a revenue inspector without further proof of the opinions therein contained. In the light of the provisions of s.22 of the Companies Act, 1990 set out above it is difficult to infer any departure from the normal rules of evidence in these proceedings.

It may well be the case that at the time the Company Law Enforcement, Act 2001 was enacted the need for any provision permitting the Director, in limited circumstances, to depart from the rules of evidence was not seen as necessary where undoubtedly it must have appeared likely that most disqualification proceedings would follow upon the appointment of a court liquidator, examiner or inspector all of whom would be likely from their own investigations to have the evidence required to support any proceedings deemed necessary under s. 160 of the Companies Act, 1990. The difficulties that have arisen in the instant proceedings stem from the fact that the applicant must prove the wrongdoing on the part of the company’s directors through evidence obtained from witnesses other than a liquidator, examiner or inspector.

 

(a) Evidence from interim report of the Tribunal of Inquiry into Certain Planning Matters (“the Tribunal report”) dated 26th September, 2002.

It is clear from the affidavits of Mr. Lacy and Mr. Madden that the report of the Tribunal is not being produced for the purposes of proving that such a report was brought into being by the Chairperson of the Tribunal in September, 2002. The reason the applicant seeks to have the report and extracts therefrom introduced into evidence is for the purpose of asking the Court to attach weight to the opinion of the Chairman of the Tribunal regarding wrongdoing on the part of the respondents over many years when deciding the outcome of these proceedings. As was stated in the written submissions the applicant seeks to rely upon the report to corroborate or otherwise bolster the opinions presented on foot of the Director’s own investigations.

Having regard to the potential penalty that may be imposed as a result of the within proceedings, it is important to reflect upon the rules of evidence as they apply to a tribunal of inquiry and also to review how findings of such a tribunal have been treated in the context of subsequent civil litigation.

Costello J. in Goodman International .v. Hamilton [1992] 2 I.R. 532 in dealing with the rules of evidence as they apply to hearings before a tribunal of inquiry stated:-

“There is no rule of law which requires the Tribunal of Inquiry to apply the rules of evidence applicable in a court of law”.

This brief but succinct statement highlights the potential danger of admitting findings of a Tribunal in subsequent proceedings. The party seeking to rely upon such evidence in an affidavit cannot be challenged in any way as the person who made the finding is not the deponent of the affidavit which introduces the finding into evidence. Not only can the respondent not cross examine the author on their findings which are often in any event made on the basis of hearsay evidence, but the court is also denied the opportunity of testing for itself the opinion or facts so deposed to.

The significance to be attached to findings of a tribunal of inquiry in the context of subsequent litigation is a matter which has been ventilated at length in a series of decisions over the last fifteen years.

The starting point of these decisions is that of Finlay C.J. in Goodman v. Hamilton (No. 1) [1992] 2 I.R. 542. The matters enquired into by that Tribunal included allegations which were at the time the subject of pending civil proceedings, allegations relating to crimes already adjudicated upon by the courts and also criminal conduct in general.

In that case it was argued that the report of the Tribunal could amount to a usurpation of the activities of the courts in cases where either civil cases were pending or were yet to be instituted. Finlay C.J. stated that such a submission arose from what he described as:-

“…a total misunderstanding of the function of the Tribunal. A finding of this Tribunal, either of the truth or the falsity of any particular allegation which may be the subject matter of existing or potential litigation, forms no part of the material which a court which has to decide that litigation could rely upon. It cannot either be used as a weapon of attack or defence by a litigant who, in relation to the same matter is disputing with another party rights arising from some allegation of breach of contract or illegal contract or malpractice.”

The aforementioned statement by Finlay C.J. is a clear indication that any party coming to civil or criminal proceedings following upon or indeed consequent upon the report of a tribunal inquiry, still bears the onus of establishing that claim to precisely the same level of proof as would have been required absent the tribunal finding. It is not open to the applicant to use findings of the chairperson as a weapon of attack against the respondents in these proceedings.

The applicant in the within proceedings submits that the Tribunal report is in fact admissible because it is a public document. The applicant relies upon the Law Reform Commission’s Consultation Paper on Public Inquiries including Tribunals of Inquiry (LRC CP 22/2003) which concluded that even at common law the final report of an inquiry was admissible in subsequent civil proceedings as an exception to the hearsay rule. The Law Reform Commission advised that this was so as such a document concerned a matter of public importance, was made by a public officer acting under a duty to enquire into the matters concerned and was intended to be retained for public reference or inspection. The position adopted by the Law Reform Commission appears to this Court to fly in the face of what was stated by Finlay C.J., referred to above, and is at odds with a significant body of case law referable to legal challenges brought by those being scrutinised by various tribunals in the recent past.

 

In Lawlor v. Flood [1999] 3 I.R. 107, Murphy J. at p. 142 of his judgment described the nature of the work of a tribunal of Inquiry and its reporting function in the following manner:-

“It must be remembered that the report of the tribunal whilst it may be critical and highly critical of the conduct of a person or persons who give evidence before it is not determinative of th

 

 

 

 S. O’Connor & Son Ltd. v. Whelan

Denham J.         [1993] 1 IR   564

H.C.

 

It was argued on behalf of the defendant that the affidavit to register the judgment herein as a mortgage is defective as the deponent did not set out her means of knowledge as required by O. 40, r. 4 of the Rules of the Superior Courts. That that affidavit being defective the plaintiff could not rely on it to ground this application for a well charging order.

Order 40, r. 4 states:

“Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted.”

The affidavit grounding this application sets out the deponent’s means of knowledgesee as set out before herein. The affidavit to

 

 

register the judgment as a mortgage does not. The affidavit to register the judgment as a mortgage is an affidavit mandated by statute: See the Judgment Mortgage (Ireland) Acts, 1850 and 1858. It is not disputed that the affidavit herein to register the judgment as a mortgage meets the statutory scheme as set out in the two said Acts. Of particular importance is s. 3 of the Judgment Mortgage (Ireland) Act, 1858, which states:

“III. In the Construction of the said recited Act and this Act, the Word “Creditor” shall mean and include any Number of Persons jointly interested as Creditors in relation to such Judgment, Decree, Rule or Order, and shall also mean and include all Joint Stock Banking and other Companies and Corporate Bodies; and every Affidavit or Oath necessary to be made by any Creditor may be made by any One or more of such Persons so jointly interested, the public Officer authorised to sue or be sued or to make Oaths on behalf of such Joint Stock Company, or by the Secretary, Deputy Secretary, or Law Agent of any Corporate Body; . . .”

In this case s. 3 is met, the deponent is the secretary of the plaintiff company.

Despite meeting the requirements of the said Acts counsel for the defendant argues that the said affidavit is in breach of O. 40, r. 4 and is therefore defective and that this court may not rely on it. He refers the court to  Credit Finance Limited v. Hennessy  (Unreported, High Court, McWilliam J., 25th May, 1979) and to  Lumley v. Osborne  [1901] 1 K.B. 532. In  Credit Finance Limited v. Hennessy  the judgment mortgage affidavit omitted in the jurat the words ‘And I know the deponent’. The said affidavit was held to be defective. I consider that that case is distinguishable from this case before this court as the irregularity therein was fundamental to the whole affidavit. Thus I do not consider it a binding precedent for this court on the facts of this case.

Where, as here, there is an absence of the means of knowledge clause, but the affidavit is sworn by the company secretary in accordance with the statutory requirements I am of the opinion that the absence of the means of knowledge clause is not a fundamental flaw. It does not render the affidavit invalid. The omission was not such as to render it incapable of being validly filed, of its being a valid affidavit.

In  Lumley v. Osborne  [1901] 1 K.B. 532 there was an issue outstanding to be tried by the court which was whether or not a person was a partner. There is no issue of fact alive in this case. No fact proved in evidence by the plaintiff has been contraverted or even questioned by the defendant.

In construing O. 40, r. 4 which requires the deponent to set out their means of knowledge it is clear that this would apply to the majority of affidavits wherein it is important that such matters be deposed to. However, it does not appear to be an immutable rule.

The affidavit herein to register the judgment as a mortgage is in accordance with the Judgment Mortgage (Ireland) Acts, 1850 and 1858, with long practice, and, indeed, the printed forms. It is the ‘long practice’ of absence of the means of knowledge clause which is being called in question. The fact of long practice is not of itself a reason to uphold the affidavit. However, it is a factor to consider.

The effect of the defendant’s argument would be that in addition to the matters required under the Judgment Mortgage Acts the deponent should also set out the matters in accordance with O. 40, rule 4.

The affidavit to register the judgment mortgage is a special type of affidavit for a special purpose. It appears to me that a means of knowledge clause is not an absolute requirement in an affidavit of this type which is required by statute and which meets the statutory requirements. The affidavit to register the judgment as a mortgage is a special instrument to formally register a judgment as a mortgage. It is deposed to by the person required to do so by statute. The said affidavit meets the statutory requirements. The defendant does not take issue with any of the facts set out in either of the affidavits of the deponent.

The Act of 1858 specifically requires certain persons to swear the required affidavit. They do so under a statutory scheme. It is inferred that the company secretary will know the company business of his own knowledge. This is a special technical affidavit which does not require the averment as to means of knowledge because the statute sets out who is entitled to swear such an affidavit in that situation, and it also sets out what should appear in the affidavit. The Act of 1858 did not require a means of knowledge clause. In the circumstances where the statute has set out who may swear the affidavit a means of knowledge clause is tautologous. In fact, if one looks at the appendices to the Rules of the Superior Courts and sees there the draft affidavits for specific purposes, it is clear that in certain other technical affidavits the means of knowledge averment is omitted.

The affidavit to register the judgment as a mortgage is a specialised affidavit required by statute, whose content is set out in the statutes, and the person who can depose to the said affidavits also being set out in the said statutes. All the statutory requirements being met, I consider the said affidavit admissible in this court as one of the proofs of the deponent’s grounding affidavit.

I do not consider that the non-compliance with O. 40, r. 4 in the affidavit to register the judgment as a mortgage renders the said affidavit void. Thus the deponent herein may rely on the said attested copy of the said judgment mortgage affidavit herein.

In all the circumstances of this case, in spite of the learned argument of counsel for the defendant, I consider that the affidavit to register the judgment as a mortgage was valid and is admissible before this court.

Thus the plaintiff is entitled to the relief claimed.

[Reporter’s note: The defendant appealed to the Supreme Court against the judgment of the High Court (Denham J.). The Supreme Court (Finlay C.J., McCarthy and O’Flaherty JJ.) in an ex tempore judgment delivered on the 20th December, 1991, dismissed the appeal, affirming the judgment and order of the High Court.]