The High Court refused Patrick Connolly’s application for leave to cross-examine Evan O’Dwyer on an affidavit in proceedings against O’Dwyer Solicitors LLP. The application concerned an earlier motion seeking interim orders for the preservation and transfer of files relating to land transactions. The court did not decide that earlier motion or express a view on its merits.
Connolly said he needed the files for separate proceedings concerning lands owned wholly or partly by him and the appointment of a receiver over those lands. He sought files relating to purchases and mortgages of specified folios and a house at Cornaroya Manor, Ballinrobe, Co Mayo. The judgment gives no further detail about the separate proceedings.
The motion before Mr Justice Dignam was based on Connolly’s contention that disputes between the affidavits needed to be resolved to establish whether the firm had documents covered by the earlier request. Those disputes included how long conveyancing files were retained, how often Connolly attended the firm’s office seeking files, and when the firm said it had located or no longer held particular files. Connolly also pointed to corrections in O’Dwyer’s affidavits about the dates of transactions. These were contentions described in the judgment, not findings by the court.
The parties agreed that leave to cross-examine on an interlocutory motion was discretionary and generally depended on whether resolving an affidavit conflict was necessary to decide that motion. The judge said an interlocutory application should not become a mini-trial, while recognising that cross-examination may be allowed where needed to determine an interlocutory application.
The judge was not satisfied that resolving the identified disputes was necessary to decide the earlier motion for an injunction and an order preserving documents. He said the question at that stage included whether Connolly had shown a prima facie case or fair question that the firm had relevant documents to which he was entitled, rather than conclusively determining what documents the firm possessed.
The judgment records that O’Dwyer had stated on affidavit that the firm had two relevant documents. The judge concluded that an order, if made, would therefore not be in vain solely because the disputes had not been resolved. He left open whether cross-examination might prove necessary later if compliance with any order became an issue.
The court refused leave to cross-examine. It made no decision on the earlier motion for preservation or transfer of files.