The High Court has refused an application by Catherine Cullen, sued personally and as James O’Brien’s personal representative, to use John Doyle’s affidavit at trial in a dispute over a house in Kilkea, Co Kildare. The court held that the affidavit concerned a central issue that had to be resolved through oral evidence, and that the plaintiff had a bona fide desire to cross-examine its maker.
The judgment, delivered by Mr Justice Tony O’Connor on 13 December 2019, concerns proceedings brought by William H Gaggos, who is Edward O’Brien Jnr’s attorney and legal personal representative. Gaggos claims possession of the property, which is registered in the name of Edward O’Brien. The parties dispute whether that name refers to Edward O’Brien Jnr or his father, Edward O’Brien Snr. The judgment says neither man signed the 1955 transfer, so the signature cannot resolve the question.
Cullen sought permission under Order 39, rule 1 of the Rules of the Superior Courts to rely at trial on an affidavit Doyle swore in April 2016 in related Circuit Court proceedings. Doyle said he had lived in a neighbouring cottage since 1952 and recalled Edward O’Brien Snr signing for the house, while Edward O’Brien Jnr was absent and did not live there as a householder. Those statements contradict the plaintiff’s position that the property was registered to Edward O’Brien Jnr. They remain statements in an affidavit; the High Court did not determine who was registered as owner.
Doyle died in March 2019. Cullen’s application was issued without her knowing of his death; her grounding affidavit later disclosed that he had been 94 and had advanced dementia. Her counsel argued that cross-examination was no longer possible and that the trial judge could assess the affidavit’s weight. The plaintiff opposed the application, describing the identity of the 1955 transferee as a “core issue” and seeking cross-examination. The plaintiff also questioned the reliability of obtaining the affidavit given Doyle’s age and condition.
Justice O’Connor said oral examination and cross-examination are fundamental to the adversarial process. He noted that the defendant had not explained when Doyle could have been cross-examined, and that no application had been made to take his evidence on commission, a procedure available under Order 39, rule 4. Applying the Supreme Court’s decision in *Phonographic Performance (Ireland) Ltd v Cody & Princes’ Investments Limited*, he concluded that the court could not permit affidavit evidence on a fact directly in issue where the other party bona fide sought cross-examination.
The court refused the order sought in paragraph one of the motion. It did not decide the ownership dispute or the claim for possession. Two other orders in the motion, concerning depositions taken from two people in Michigan in 2018, were identified as capable of being made by consent; the judgment’s stated determination concerns only the contested request to admit Doyle’s affidavit.