The High Court has refused an application by Brian Cunningham to set aside an order allowing Clifford Honniball to examine him about debts, property and other means of satisfying a judgment. It also declined to restrict the books and documents covered by the order.
The application concerned an examination order made on 8 March 2004 under Order 42, rule 36 of the Rules of the Superior Courts. Cunningham sought leave to address the minutes of that order, which had been made on an ex parte application, and asked the court to discharge it or limit the material he could be required to produce.
The underlying dispute arose from an agreement for the sale of Unit 9, Drogheda Mall, Finglas, for £825,000. Honniball said Cunningham failed to complete the purchase. The parties later compromised the proceedings, and an order made on 1 May 2003 directed Cunningham to pay €850,000 plus costs. Execution and registration of the judgment were stayed subject to scheduled payments, costs and the creation of a mortgage over premises at San Pedro, Gray’s Lane, Howth. Honniball’s affidavit said Cunningham had not met those obligations.
Cunningham argued that there had been no reason to seek the examination order without notice and that the information sought was not set out clearly enough. He said he had attended examination appointments and objected when questioning became broad. He also relied on Honniball’s registration of the judgment as a mortgage against his interest in the Howth property and the return of a fieri facias order to the sheriff.
Honniball submitted that the rule set a relatively low threshold for an examination order and that he was entitled to explore possible means of enforcing the judgment. The court noted that such applications could be made ex parte in exceptional circumstances, while stressing the need for full disclosure of facts relevant to the order. It also observed that Cunningham had attended for examination without initially objecting, and that his challenge came after what was described as widespread cross-examination had begun.
The court said the rule allowed broad questioning about debts, property and means of satisfying a judgment, as well as production of relevant books and documents. It considered that any omission concerning the mortgage registration would not have changed the order, though it might bear on costs. Because the existing order already indicated the scope of relevant documents, the court refused to narrow it and dismissed Cunningham’s application.