The Court of Appeal has dismissed two appeals by Damian and Irene Gibney over technical objections to affidavits relied on in separate High Court proceedings brought by Allied Irish Banks plc and AIB Mortgage Bank.
In a judgment delivered on 9 November 2018, Mr Justice Michael Peart said the appeals raised two common grounds: the affidavits gave the deponents’ work addresses rather than their homes, and their jurats did not state the time of day when they were sworn. The appellants argued that the affidavits should not have been admitted under Rules 6 and 9 of Order 40 of the Rules of the Superior Courts.
One appeal concerned a 2017 High Court judgment awarding €1,011,992.39 against Mr Gibney and Ms Gibney, and €394,829.83 in favour of AIB Mortgage Bank against Mr Gibney and Marie Lyons. The other challenged the refusal of an interlocutory injunction sought to prevent interference with a receiver’s activities. Affidavits alleged that locks had been changed and receiver’s agents confronted and intimidated; the Court of Appeal did not determine those allegations in this judgment.
Peart J said the affidavit objections were technical and no prejudice from the alleged defects had been asserted. He held that Order 40, rule 15 allowed a court to overlook irregularities in an affidavit’s form. He also concluded that the reference to “time” in rule 6 could include the date the affidavit was sworn, and that a work address could satisfy the purpose of stating a deponent’s address.
The court therefore found no breach of Order 40 in the objections raised and dismissed both appeals. It also refused the appellants’ request to state a case to the Supreme Court, saying the Court of Appeal did not have power to do so. The judgment addressed only the affidavit objections identified by the appellants.