Start Mortgages DAC v Larkin & Anor (Approved) [2024] IEHC 293 (15 April 2024)

Start Mortgages DAC v Larkin & Anor (Approved) [2024] IEHC 293 (15 April 2024)

The proceedings are to be discontinued as the plaintiff does not wish to proceed, but fairness requires that the defendant have an order for costs up to the date of discontinuance and be permitted to raise issues regarding the affidavit in any subsequent proceedings. The affidavit and prior orders regarding cross-examination are to be treated as if made in any subsequent proceedings.

Citation
[2024] IEHC 293
Parties
Plaintiff/respondent: Start Mortgages DAC; First Named Defendant/appellant: James Larkin; Second Named Defendant: Catherine Larkin
Jurisdiction
Ireland
Judgment Date
15 April 2024
Procedural Posture
Circuit Appeal / High Court Rehearing of Circuit Court Order Striking Out Defendant's Motion
Outcome
Proceedings discontinued with conditions
Legal Topics
Discontinuance of Proceedings, Costs, Affidavit Evidence, Cross Examination, Appeals Process
Civil Procedure Discontinuance of Proceedings Costs Affidavit Evidence Cross Examination Appeals Process

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Parties

Start Mortgages DAC

Plaintiff/respondent

James Larkin

First Named Defendant/appellant

Catherine Larkin

Second Named Defendant

Procedural Posture

Circuit Appeal / High Court Rehearing of Circuit Court Order Striking Out Defendant's Motion

Legal Issues

  1. 1 Whether the proceedings should be considered struck out or discontinued based on the plaintiff's decision not to proceed
  2. 2 Whether the process for discontinuance was properly followed under Circuit Court Rules
  3. 3 Whether the defendant is entitled to costs and/or to raise issues regarding the affidavit in subsequent proceedings

Ratio Decidendi

The proceedings are to be discontinued as the plaintiff does not wish to proceed, but fairness requires that the defendant have an order for costs up to the date of discontinuance and be permitted to raise issues regarding the affidavit in any subsequent proceedings. The affidavit and prior orders regarding cross-examination are to be treated as if made in any subsequent proceedings.

Court Disposition

Proceedings discontinued with conditions

Orders

  • Proceedings discontinued as of 26 October 2023
  • Defendant entitled to costs up to date of discontinuance