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16 August 2016
A recent High Court decision(1) has confirmed that cross-examination of deponents of affidavits will not generally be permitted on an interlocutory application. The decision helpfully reiterates an earlier authority which confirms this position, and is a useful reminder that interlocutory applications typically proceed by way of affidavit evidence only.
The defendant had borrowed money from a bank to refinance debt with another organisation and to enable the complete refurbishment of specified property. Funds were drawn down in this respect and, notwithstanding the 20-year term, the loan was stated to be repayable on demand and the borrower gave security by way of a mortgage over the relevant property. However, he failed to meet his repayment obligations under the terms of the loan agreement and went into arrears. The bank sent a letter of demand and, when it was not met, sought to appoint a receiver over the property.
The receiver (the plaintiff in these proceedings) maintains that he was validly appointed, but the defendant denied that he had received the bank's letter and challenged the appointment of the receiver on various grounds. Proceedings were issued by the receiver seeking, among other things, an order for possession of the lands and permanent injunctions restraining any interference with the functions of the receiver. In light of the defendant's resistance to the receivership, the plaintiff issued a motion seeking interlocutory orders, among other things, to restrain the defendant from impeding or obstructing the receiver in taking possession of the property and to restrain him from interfering with the plaintiff as receiver of the property. In support of the plaintiff's application, affidavits were sworn by the receiver and an employee of the bank. However, in order to cross-examine those deponents, the defendant invoked Order 40, Rule 1 of the Rules the Superior Courts which provides: "Upon any petition, motion or other application, evidence may be given by affidavit, but the Court may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit."
Judge Keane observed that the defendant's affidavit in support of his cross-examination application appeared to indicate that he wished to cross-examine the plaintiff about another receivership involving the property of a third party and the bank witness about the existence of the securitisation scheme involving the disputed property.
He referred to a relatively recent Court of Appeal decision(2) which dealt with a refusal to grant leave for the cross-examination of deponents in the context of an application for interlocutory relief broadly similar to the existing facts. In that decision, the Court of Appeal observed that an order to cross-examine could only be served with leave of the court and cited approvingly from an earlier authority(3) that "a trial judge has a discretion in relation to such application. In general, leave will be granted only if there is a conflict of fact on the affidavits that it is necessary to resolve in order to determine the proceedings". In the case at hand, Keane also cited other authorities to the effect that "in dealing with an interlocutory application the Court is not finally deciding any factual legal aspect of the controversy before it"(4) and that "it is not part of the court's function at an interlocutory stage to try to resolve conflicts of evidence on the affidavits before the Court".(5) Here, he concluded as follows:
"Since it is unnecessary, indeed inappropriate, to seek to resolve any conflict of fact that there might be between the parties in relation to the particular issues the defendant has sought to raise in the context of the present interlocutory injunction application, in the exercise of my discretion I must refuse the defendant's application for leave to cross-examine."
Although the decision is not novel, it usefully reiterates the principle that leave to cross-examine is unlikely to be granted in proceedings which are generally heard on affidavit (eg, interlocutory applications) and that this is especially so where there is no conflict on the affidavits or, even if there is conflict, resolution of same is not required to determine the issue before the court. Accordingly, a party involved in an interlocutory application should think twice before seeking to cross-examine a deponent.
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