The High Court has ruled that a mortgage possession appeal involving Dwayne and Nicola Bedford can no longer be decided on affidavit evidence alone, after a Mars Capital manager’s affidavit incorrectly said he had sworn two earlier affidavits in the case.
In a judgment delivered on 13 January 2025, Ms Justice Mary Rose Gearty said the error called into question the care with which the affidavit had been sworn. The court will hear the parties on the form of the further hearing. At a minimum, either Joe Carter, the Mars Capital manager who swore the affidavit, or Ronan Hopkins, whose earlier affidavits were referred to, or both, must attend to give evidence.
The case is a summary application for possession of the Bedfords’ principal private residence. The High Court is hearing an appeal from the Circuit Court. In an earlier substantive judgment, [2024] IEHC 407, the court set out the background. The latest judgment says it was not seriously disputed that EBS Building Society lent money to the Bedfords in 2004 and that their home secured several loans. Proceedings followed defaults on the primary loan.
The plaintiffs, EBS Mortgage Finance and Mars Capital Finance DAC, had to establish that the relevant loan was validly transferred and that they had the title needed to seek possession. Mars Capital filed an affidavit from Carter, which described transfer documents, account records and notices. It also referred to two affidavits sworn on 10 December 2021 and 10 May 2023.
The court was told that those earlier affidavits were Hopkins’s, not Carter’s, and that the reference had been left in Carter’s affidavit by mistake. Gearty J said Carter had not sworn any earlier affidavit in the case. Because the affidavit was intended to provide sufficient proof without a plenary hearing, the incorrect statement required oral evidence and scrutiny of the account of what Carter had reviewed in the business records.
The judgment does not decide whether the plaintiffs have established their right to possession, nor does it make a possession order. The court directed that the parties be heard on the form of the further hearing; at least one of the two named witnesses must attend to give evidence on the matters in their affidavits.