SOLICITORS FOR Galway builder Brian Cunningham, who is suing First Active over the appointment of a receiver to his building group in 2003, have been given until Tuesday to swear an affidavit saying whether missing solicitor Michael Lynn will give evidence in the trial of the action.

Mr Lynn provided solicitor Ray Murphy of London firm Merriman White, who is acting for Mr Cunningham, with a statement outlining his involvement in the group but the statement was not signed or dated.

Mr Lynn acted for the Cunningham group in the run-up to the receivership.

Mr Justice Frank Clarke has said Mr Murphy must either have any unsigned witness statements signed, including that provided by Mr Lynn, or swear an affidavit saying why it has not been possible to have them signed, and whether Mr Lynn and the other witnesses will give evidence.

The judge was speaking during a case management hearing on Wednesday in advance of the trial of the action, which starts on April 28th in Dundalk. The case is due to run for more than two months.

Mr Murphy told The Irish Times last month he believed Mr Lynn, who is believed to be abroad, would be willing to give evidence in the case.

Mr Cunningham is suing First Active over its appointment of the receiver in 2003 as a result of loans of some €30 million.

In unrelated proceedings, Mr Lynn is being sued by various financial institutions, including First Active, over loans totalling some €80 million.

He has had no legal representation in those cases since January and has not filed any court records since last year.

Mr Lynn's decision to provide a statement in the Cunningham case is unusual given that Mr Lynn faces arrest if he returns to Ireland under a court order issued in the Law Society's case against him. He is also being sued by Mr Cunningham in separate proceedings.