17 August 2016


In Nowak & anor -v- Residential Tenancies Board [2016] IEHC 471 Humphreys J in the Eire High Court has commented on procedure and identity.

The judgment states
1. The applicants seek leave to apply for judicial review in order to quash a determination of the Private Residential Tenancies Board dated 12th February, 2016 in an application between the applicants and their landlords, Andrea Hogan and Sinead Rossiter (necessary parties, not joined by the applicants), which fixed a market rent for their tenancy and deal with other related matters. The determination was communicated to the first named applicant under cover of a letter dated 19th February 2016, which he says was received on 22nd February, 2016. ...
The applicant’s affidavit of 15th July, 2016.
4. The applicant also sought to put in further evidence and swore an affidavit on 15th July, 2016 which begins as follows: “I, Peter Nowak, A DISCIPLE OF THE LORD JESUS CHRIST of [address] aged 18 years and upwards MAKE OATH and say as follows…”.
5. The Central Office declined to accept this affidavit, on the grounds that it did not comply with rules of court.
6. Order 40, r. 9 provides in pertinent part that “Every affidavit shall state the description and true place of abode of the deponent”. This reflects an approach going back to that pursuant to the Rules under the Supreme Court of Judicature (Ireland) Act 1877 (see Wylie Judicature Acts (1881) under O. XXXVI, r. 5 (p. 432)). The term “description” means “occupation”. Spaddacini v. Treacy (1888) 21 L.R. Ir. 553 is an interesting decision, involving the description and abode of two plaintiffs, the first a struck-off solicitor resident in Stillorgan Castle (now St. John of God’s) describing himself as “Esquire” and the other a grocer describing himself as a “gentleman”. Albeit in the context of a statutory requirement to specify trade, profession or occupation, Porter M.R. held that “gentleman” was not a sufficient description of a person (such as a grocer) who actually had an occupation. He observed that “No one has suggested that ‘human being’ would be the proper description” (at p. 559). Of course he had not met someone of Mr. Nowak’s inventiveness.
7. To my mind, fanciful descriptions such as “a disciple of the Lord Jesus Christ” do not constitute a description (in the sense of occupation) envisaged by O. 40, r. 9. If such a mode of description were permitted, one could not stop the next deponent describing themselves in the opening of an affidavit as a “Guardian reader” or the one after that as a “keen golfer”, and so on. No reductio is however required because we are firmly in absurdum from the off. It is hard to know which the applicant’s affidavit trivialises more, religion or court procedure.
8. The Central Office was entirely correct in refusing to accept this affidavit. The solicitor who took it should not have allowed it to be sworn in that form. I trust that the message will get through in order to avoid a repetition.