The High Court has refused Seán Coyne’s request to cross-examine witnesses for Ulster Bank Ireland Limited and receiver Kieran Wallace, ruling that cross-examination was not required to deal with the defendants’ application to dismiss his proceedings.
Mr Justice Kennedy delivered the ruling on 15 May 2024. He stressed that he was deciding only the cross-examination request. He made no determination about the sufficiency of evidence in either the dismissal application or the proceedings as a whole.
The underlying claim seeks damages for trespass and nuisance. The defendants’ application asks the court to strike out the proceedings as frivolous, vexatious, bound to fail or an abuse of process. That application remained unresolved in this judgment.
Coyne sought to question people who had sworn affidavits for the defendants. The judge said the request was governed by Order 40, rule 1 of the Rules of the Superior Courts, which gives the court discretion to order a witness’s attendance for cross-examination on an application. There is no automatic right to cross-examine in this setting. The court must be shown a material conflict of evidence that needs to be resolved to decide the application.
The judge found that Coyne had not identified specific conflicts in his affidavits or explained clearly what the proposed questioning would address. His submissions referred to substantial differences in the affidavits, but did not set out the disputed evidence. The judge said the request appeared to envisage a “mini-trial of the merits”, which would be unnecessary and costly at this stage.
The judgment sets out competing positions on the mortgage underlying the dispute. Coyne appeared to deny entering into the mortgage relied on by the defendants. In one version of his statement of claim, he acknowledged signing what he called a draft mortgage and receiving money for a property purchase, while alleging that no final mortgage deed was completed and signed. He also alleged that loans, including the property-purchase money, were taken over by Danske Bank trading as National Irish Bank in 2006 or 2007. The defendants rely on the mortgage deed as giving them a lawful right to occupy the premises and supporting the receiver’s appointment. These are parties’ positions recounted in the judgment, not findings in this ruling.
The judge said the dismissal application could succeed only if there was no meaningful dispute about relevant facts; a genuine conflict in credible evidence on a material issue would mean that application failed. As that application did not require the court to resolve such conflicts, cross-examination was unnecessary. The court therefore refused Coyne’s motion, without ruling on whether his claim should proceed or be struck out.