The High Court set aside a notice by a borrower seeking to cross-examine a bank solicitor in proceedings over two mortgaged investment properties, and directed that the possession case proceed on affidavit evidence.
Mr Justice McDermott ruled on the procedural application in Permanent TSB plc’s special summons against Brian Donohoe. The bank seeks possession of properties in Galway and Dublin under section 62(7) of the Registration of Title Act 1964. The ruling did not determine that claim or make a possession order.
Permanent TSB’s evidence was that it advanced €543,450 under a loan accepted in 2007 and secured by mortgages over the two properties. The bank said repayments had not been made since 2010, that it demanded repayment in January 2014, and that €636,662.60 was due by April 2015. These were the bank’s claims in support of the possession proceedings, not findings made in this ruling.
Donohoe disputed the bank’s entitlement to sue and raised objections concerning the loan documents, signatures, alleged forgery and the bank’s evidence. The judgment records that he sought to have the original documents examined by a forensic expert. It also says the bank had offered inspection of the originals of documents exhibited in support of its case. The judge noted that Donohoe had not denied receiving the advance or signing the mortgage deed, but said he had no recollection of signing the later loan acceptance.
The judge found that the notice to cross-examine was defective: it was served outside the time allowed by the court rules, named a person who had not sworn an affidavit in the case, and did not follow the prescribed form. The court also concluded that the affidavits disclosed no relevant factual conflict requiring the bank’s solicitor to be cross-examined, and that cross-examination in the circumstances would amount to an abuse of process.
The order sets aside the notice and allows Permanent TSB to rely on the solicitor’s affidavits at the hearing. The judgment leaves open the possibility that the judge hearing the possession case could later direct cross-examination or receive oral evidence if a relevant factual conflict is established and that step is necessary in the interests of justice. It also leaves Donohoe free to make relevant legal arguments about the admissibility of affidavit evidence. The court did not order a plenary hearing or require further replies to his request for particulars.