High Court dismisses summary possession order due to deponent's sworn error regarding prior affidavits requiring plenary hearing.

THE HIGH COURT

CIRCUIT APPEAL

Record number 2019/248/CA

[2025] IEHC 380

BETWEEN

EBS MORTGAGE FINANCE

AND MARS CAPITAL FINANCE DAC

PLAINTIFFS / RESPONDENTS

AND

DWAYNE BEDFORD AND NICOLA BEDFORD (No. 2)

DEFENDANTS / APPELLANTS

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 13th day of January, 2025

1. Introduction

1.1 This is a summary application for an order for possession of a principal private residence. The first substantive judgment ([2024] IEHC 407) sets out the facts in detail. Following that judgment, the Plaintiffs sought to prove their right to possession of the property by producing an affidavit in which the deponent set out various exhibits, swearing that the exhibits proved not only that the loans taken out by the Defendants were now due, but that the lawful transfer of the loans to the current Plaintiff could be traced through the exhibited documents which included specific account numbers.

1.2 The Defendants challenged the Plaintiff’s right to possession on several grounds, including that they did not have sufficient information in relation to the transfer or sale of the loans to various entities. In the most recent hearing, on 13th December 2024, the Defendants made various points in opposing the application for summary orders of possession. One of these is so significant that I am satisfied that the matter can no longer be dealt with on affidavit. The main deponent referred to two earlier affidavits he had sworn in the same case. He had not sworn those affidavits. This is such a significant mistake that it is difficult to rely on averments made by the same deponent to the effect that he had examined the relevant books and records of the second named Plaintiff. This aspect of the case requires a plenary hearing during which this witness or another relevant witness can be cross-examined by the Defendants.

2. The transfer of the loans and the affidavit evidence

2.1 As set out in the previous judgment, it is not seriously disputed that EBS Building Society lent money to the Defendants in 2004 and that the Defendants’ principal private residence was the security for several such loans. The proceedings issued when there had been defaults in payment on the primary loan, which the main Plaintiff argued triggered its right to possession of the property under the mortgage deed and subsequent transfers. The burden was on this Plaintiff to show that it obtained valid title to that loan and the consequent right to seek possession.

2.2 As noted in the substantive judgment, the High Court hears appeals from the Circuit Court and is given a discretion in terms of directing a full plenary hearing, requiring additional evidence or granting the order sought. If, therefore, there is a matter which has not been established on the evidence or if a defence has been raised, further affidavits or hearings can be directed in order to consider the matter in more detail and to hear witness evidence, if that is required. Insofar as the proofs required at the date of the last hearing were apparently capable of being provided on affidavit, this was furnished before a further hearing date last December.

2.3 The main Plaintiff, Mars Capital DAC, was required to establish the chain of title in respect of its co-Plaintiff, EBS Mortgage Finance, an entity to which the loans appear to have been transferred before the right to possession was triggered by non-payment events. The Plaintiffs filed an affidavit from Joe Carter, manager of Mars Capital DAC.

2.4 In that affidavit, the deponent swore that he made his affidavit from facts within his own knowledge and from a diligent perusal of the books and records of the second named Plaintiff in relation to the account of the Defendants. He also swore that in any other case, i.e. “where otherwise appears”, he believed the information to be true. The deponent swore the affidavit to address deficiencies in the evidence of assignment of loan facilities and related security.

2.5 Having set out his means of knowledge, the deponent refers to a transfer scheme and exhibits a list of transferred accounts, a standard letter advising borrowers of the transfer of loans to EBS Mortgage Finance, the certificate of incorporation and banking license of EBS Building Society and the certificate of incorporation on conversion of EBS DAC. The transfer of loans and security to EBS Mortgage Finance is described by reference to statutorily required notices and a schedule to a statutory instrument. Further evidence of notification is offered by way of a sample letter from 2008.

2.6 The deponent then refers to the final payments made on various accounts by these Defendants. In paragraph 23, he avers: “I'm advised by Counsel that this Honourable Court has already been satisfied regarding the assignment of the subject loan facilities and related security from EBS DAC to Mars Capital Finance Ireland DAC on 30 April 2021 and that no further evidence or proof is required in that regard. However, I beg to refer to copy of my affidavits sworn on 10 December 2021 and 10 May 2023 and the exhibits referred to therein when produced.”

2.7 He goes on to pray the court for the reliefs set out in the civil bill for possession. The affidavit was sworn on the 12th of August 2024 by Joe Carter because Ronan Hopkins was not available in August of 2020. I was told that the references to previous affidavits were not to affidavits of the deponent but of Mr. Hopkins, which paragraph was left in the affidavit in error.

2.8 As is clear from this final paragraph Mr. Carter appears to confirm that he has sworn previous affidavits, but he did not swear any affidavits in this case. Given that the purpose of this affidavit was to avoid a plenary hearing by making a sufficient case by way of affidavit, it is insufficient to lodge an affidavit in which a demonstrably incorrect statement is made – relying on two affidavits which were sworn by someone else. This is so obvious an error that it requires an oral hearing, in my view. It may be that the deponent has carefully reviewed the relevant books and records but having sworn that he had already sworn two affidavits in this case, when it was his first and only affidavit, the Court must be vigilant to assess his averments in other respects to ensure that he is reporting faithfully what he has read in the business records to which he refers.

2.9 The point of the summary process is that it is a convenient but fair way to resolve cases on the basis of a paper review, albeit on sworn evidence, only. This method is only fair when subject to scrutiny. Where an averment like this is made, calling into question the care with which it was sworn, the efficacy of the paper-based process must give way to the fairness of the process.

2.10 I will hear the parties as to the form of the further hearing required in this case but, at the very least, either Mr. Carter or Mr. Hopkins, or both, will have to attend to give evidence of the matters contained in their affidavits.