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Debt Problems | Bankruptcy

The Right to Cross Examine in Debt Cases is Not Absolute

In debt collection cases in the High Court evidence of the debt is adduced by affidavit-that is, a sworn statement by the creditor who claims the money is due. This affidavit will set out the facts of the debt, how it arose and will state that in the belief of the deponent there is no defence to the action.

The debtor then replies, also by affidavit.

The relevant High Court rules are set out in Orders 37 (summary summons procedure) and 38 (special summons procedure) in the Rules of the Superior Courts.

These rules also provide, however, that the debtor can serve a notice to cross examine the deponent of the creditor’s affidavit. To do this he must serve a notice to cross-examine.

If the deponent is not produced for cross-examination his evidence may not be relied on in Court, unless by special leave of the Master of the High Court or the High Court.

Debtors have been known to use this device to try to delay creditors in obtaining judgment against them and to increase creditor’s costs.

But this right to cross-examine is not absolute and Judges of the High Court are experienced enough to recognise when such a request to cross examine is for tactical reasons and to stymie and delay.

The right to cross-examine

The principles surrounding this right to cross-examine were reviewed in an April 2019 decision The Governor and Company of Bank of Ireland v Ward, [2019] IEHC 235. The Judge in this case ruled against the debtor’s application to cross-examine and held

12.          It is clear that in the exercise of its discretion in an application to permit cross examination on the contents of an affidavit, the court must be satisfied that there is a conflict of fact or evidence and that the resolution of that conflict is necessary to dispose of the issues which the court has to determine. Apart from repeating the wording of the rules of court and his interpretation thereof, no particular fact or piece of evidence sworn to by the deponents Mr. Buckley and Ms. Enright is contested.

Reliance was placed upon Irish Bank Resolution Corporation Limited (in special liquidation) and ors v. Sean Quinn and ors [2015] IEHC 134 in looking at the right to cross-examine and paragraph 10 of that judgment stated:

“The test for cross-examination of a witness on an affidavit is set out in the Director of Corporate Enforcement v. Seymour [2006] IEHC 369. In that case O’Donovan J. stated at page 5:

“In my view, it is axiomatic that, when, in the course of applications to the court which are required to be heard and determined on affidavit, as is the situation in this case, it becomes apparent from the affidavit sworn in those proceedings that there are material conflicts of fact between the deponents of those affidavits, the court must, if requested to do so, consider whether or not to direct a plenary hearing of the proceedings or that one or more of the deponents should be cross-examined on his or her affidavit. This is so because it is impossible for a judge to resolve a material conflict of fact disclosed in affidavit. However, while it seems to me, that where it is debatable as to whether or not the cross-examination of a deponent on his or her affidavit is either necessary or desirable, the court should tend towards permitting the cross-examination, at the end of the day it is within the discretion of the court as to whether such a cross-examination should be directed and that discretion should only be exercised in favour of such cross-examination if the court considers that it is necessary for the purpose of disposing of the issues which the court has to determine. That appears to me to be the import of a statement of Keane C.J. in the course of an unreported judgment of the Supreme Court delivered on the 15th December, 2003, in a case of Holland v. the Information Commissioner and represents the current jurisprudence in that behalf in this country.”

In essence, the right to cross-examine will only arise where there is a conflict of facts or evidence between the parties and that conflict must be resolved and Mr. Ward, the debtor in Governor and Company of Bank of Ireland v Ward, [2019] IEHC 235, had failed in his own affidavit to contest any fact or evidence in the creditor’s affidavit.

For this reason, his application to cross-examine the deponent of the creditor’s affidavit was refused.