The High Court refused Gerry Ward’s application for permission to cross-examine two affidavit deponents in proceedings brought by the Governor and Company of Bank of Ireland. Mr Justice MacGrath ruled on 9 April 2019 that Ward had not shown a conflict of fact that needed to be resolved to determine the issues before the court.
The application followed a February ruling that affidavits from Mr Buckley and Ms Enright could be admitted in evidence, subject to any entitlement Ward had to cross-examine them. The court had said leave was required because the time to serve notice to cross-examine as of right had expired. It extended the time for Ward to make the appropriate application, while maintaining an earlier direction that he explain by affidavit why he sought to question the deponents.
Ward filed two further affidavits. He argued that the court was required under the rules governing affidavits to direct the deponents’ attendance, and that their affidavits should be excluded if they did not attend. In a later affidavit, he also alleged that the bank’s decision not to file a replying affidavit amounted to contempt of court.
The judge said the bank had been given liberty to file a reply and its decision not to do so was not contempt. He added that where evidence is left uncontested, the court must consider it as presented.
The bank relied on legal submissions from counsel, including authorities stating that permission to cross-examine is discretionary and should be granted where a material conflict in affidavit evidence must be resolved to decide the application. The court concluded that Ward had repeated his interpretation of the rules but had not identified a particular fact or piece of evidence in Buckley’s or Enright’s affidavits that he contested. Other conflicts he said he intended to address in cross-examination had not been raised in his affidavits.
The court therefore held that the requirements for exercising its discretion had not been met and refused the application. The ruling concerned permission to cross-examine the affidavit deponents; the judgment does not determine the underlying substantive issues in the proceedings.