The High Court has allowed Start Mortgages DAC to discontinue possession proceedings against James Larkin and Catherine Larkin, subject to conditions that protect the defendants’ ability to raise issues about an affidavit in any subsequent case.
In an ex tempore judgment delivered on 15 April 2024, Ms Justice Nuala Jackson reheard Mr Larkin’s motion concerning the striking out of the proceedings. The case was a circuit appeal from a Wexford Circuit Court order made on 26 October 2023, which had struck out his motion and awarded costs to Start Mortgages, to be taxed if the parties could not agree.
The possession action began in 2014. A verifying affidavit sworn by Deven Keshwala was central to the dispute. The judgment says Start Mortgages acknowledged shortcomings and inaccuracies in the affidavit, while the parties disagreed about their extent and nature. Mr Larkin had obtained permission to cross-examine Mr Keshwala, and that order was affirmed by the High Court in November 2022. Start Mortgages said Mr Keshwala’s whereabouts were unknown and he could not be produced for cross-examination.
The parties disagreed about what happened when Start Mortgages applied to strike out the proceedings before a County Registrar on 6 March 2023. Mr Larkin said he had no notice and did not consent; Start Mortgages said the registrar elicited his view and he did not object. Justice Jackson considered it most likely that he was taken by surprise and had not made an informed response. She explained that the High Court appeal concerned the Circuit Court judge’s decision, and that she was rehearing Mr Larkin’s motion.
The judge found that the ordinary written-notice route to discontinuance had not been used. She therefore treated the request as requiring the court’s leave. She said it would not be fair to compel a party to continue proceedings it did not wish to pursue, but that discontinuance should be subject to terms.
The defendants are entitled to costs of the proceedings up to 26 October 2023. The 2014 affidavit, together with the Circuit Court and High Court orders allowing cross-examination, is to be treated as if filed or made in any subsequent proceedings. The judge noted that an affidavit on which cross-examination has been allowed may be excluded if its deponent is unavailable, subject to arguments under the Circuit Court Rules. Both sides may make those arguments and rely on other evidence in any later case. The judgment did not determine those evidential questions or comment on what other evidence may be relied upon.
The judge did not consider the other reliefs sought in Mr Larkin’s motion because the proceedings were discontinued. She made no costs order for the appeal, noting partial success and failure on both sides.