Judgment: 2014-03-06 · Court archive

Bankrupt must apply to question Official Assignee over Churchfield property dispute

The High Court ruled that court permission is required to cross-examine the Official Assignee in his official capacity. It directed the bankrupt to specify the affidavits and issues, but did not decide whether questioning should be allowed.

High Court · [2014] IEHC 113

Who, what, where, when and why

Who
  • Official Assignee
  • Gayle Dunne
  • John Dunne
What

The High Court ruled that court permission is required to cross-examine the Official Assignee in his official capacity. It directed the bankrupt to specify the affidavits and issues, but did not decide whether questioning should be allowed.

Where

Places mentioned in the report

  • 19, Churchfield, Straffan, County Kildare
  • Isle of Man
  • Straffan
  • County Kildare
When

Judgment:

Why

Reasons reported in the judgment

The judge accepted that interpretation. He said the Official Assignee’s role and duties differed from those of an ordinary witness, and that the permission requirement acted as a filter. It applied to cross-examination on affidavits as well as requests to produce records held by the Official Assignee.

A bankrupt seeking to cross-examine the Official Assignee about a dispute over a Straffan property must first apply to the High Court and explain why the questioning is necessary, Mr Justice Brian J. McGovern ruled.

The application arose from conflicting claims to 19, Churchfield, Straffan, County Kildare, and its contents. The bankrupt sought to question the Official Assignee about affidavits, initially one sworn on 26 November 2013 and then, as clarified at the hearing, any affidavits sworn by the Assignee in the matter since that date. The bankrupt’s wife, Gayle Dunne, his son John Dunne, and Traviata Ltd, an Isle of Man company claiming an interest in the property, supported the application.

The bankrupt relied on a court rule allowing a party to require a witness who swore an affidavit to attend for cross-examination. The Official Assignee argued that a separate rule applied to him and required anyone seeking his attendance in his official capacity to obtain the judge’s permission first. He said he was willing to attend if ordered to do so.

The judge accepted that interpretation. He said the Official Assignee’s role and duties differed from those of an ordinary witness, and that the permission requirement acted as a filter. It applied to cross-examination on affidavits as well as requests to produce records held by the Official Assignee.

The court did not decide whether the Official Assignee should be cross-examined. Mr Justice McGovern said the bankrupt must set out by affidavit the matters he wished to raise and why questioning was necessary. He also said it would generally be undesirable to resolve the factual dispute about ownership of the property and its contents by questioning the Official Assignee alone. The Assignee had not yet indicated whether he wished to cross-examine the bankrupt, his wife or other affidavit-makers.

The judge directed the bankrupt, if he wished to pursue the request, to serve a notice of motion on the Official Assignee identifying the affidavits at issue, together with an affidavit specifying the proposed questions and the need for cross-examination. Other reliefs sought in the motion were not argued at this hearing and were listed for a further hearing on 19 March 2014.

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