Bank of Ireland Mortgage Bank v Hanley & Giblin

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 26 November 2015
• Neutral Citation: [2015] IEHC 738
• Court: High Court
• Date: 26 November 2015

[2015] IEHC 738

THE HIGH COURT

[No. 6 CA/2015]

Bank of Ireland Mortgage Bank v Hanley & Giblin

CIRCUIT APPEAL

BETWEEN

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF/RESPONDENT

AND

SHANE HANLEY AND ALAN GIBLIN

DEFENDANTS/APPELLANTS

Property & Conveyancing – Appeal against the order of Circuit Court – Possession of dwelling house – Civil Bill Courts (Ireland) Act 1851 – S. 33 of the County Officers and Courts (Ireland) Act 1877 – Jurisdiction of Circuit Court – S. 51 of the Courts of Justice Act 1924 as repealed by the Courts (Supplemental Provisions) Act 1961 – O. 67, r.8 of the Rules of the Circuit Court – The Valuation Act 2001

Facts: The first named defendant had filed an appeal against the order of the Circuit Court directing the possession of the dwelling house of the defendants, being occupied by the tenants, in favour of the plaintiff. The defendant contended that the learned Circuit Court did not have jurisdiction to make such an order as there was an error on the part of the plaintiff to properly establish the rateable valuation of the property in the Court.

Mr. Justice Noonan affirmed the order of the Circuit Court. The Court observed that the failure to prove the rateable valuation of the property did not deprive the Circuit Court of jurisdiction; however, the jurisdiction would be taken away if it was established by evidence that the rateable valuation exceeded the limit. The Court held that s. 22 (1) of the Courts (Supplemental Provisions) Act 1961 did not require that the property in issue should have a rateable valuation in order to confer jurisdiction on the Circuit Court; however, absent such proof, there was a risk of deprivation of jurisdiction on appeal. The Court held that lack of jurisdiction did not affect the validity of an order made by the Circuit Court. The Court found that in the present case, since the property in question was not rateable by virtue of the Valuation Act 2001, being domestic premises, it could not have a rateable valuation exceeding €253.95 and accordingly the Circuit Court possessed the jurisdiction.

1 JUDGMENT of Mr. Justice Noonan delivered the 26th day of November 2015.

Introduction

2 1. This matter comes before the court by way of appeal by the first named defendant ("Mr. Hanley") against an order of the Circuit Court sitting in County Galway (His Honour Judge McCabe) made on the 18 ^th of December, 2014. That order granted possession to the plaintiff ("the bank") of certain lands and premises in Galway comprising a dwelling house owned by the defendants and the subject of a mortgage in favour of the plaintiff, together with ancillary relief. The dwelling house in question is not the family home of either of the defendants and was rented by them to tenants from time to time. The matter was heard on affidavit and hence the appeal was to the High Court in Dublin.

Relevant background

3 2. The bank's Civil Bill for Possession contains the usual averment that the rateable valuation of the property does not exceed €253.95. The application before the Circuit Court was grounded upon two affidavits of Fiona Cassidy, a bank official, who set out the relevant history of the matter and exhibited the formal proofs. There were further two verifying affidavits of another bank official, John Hughes, essentially dealing with necessary proofs under the Bankers Book Evidence Acts. The grounding affidavits did not exhibit a certificate of rateable valuation. However, in a further affidavit sworn for the purposes of the appeal, Stephanie Coughlan, a solicitor in Ronan Daly Jermyn, solicitors, who represent the bank, avers:

"I say that the practice at the time of the hearing on the 18 ^th of December, 2014, was to produce, if requested, a letter from the local authority stating that the property was not separately rateable, but if it were, the valuation would not exceed €253.95."

4 3. She exhibits a letter of the 4 ^th of November, 2013, from the local authority in the following terms:

"RE: PROPERTY AT 84 COUNTRY MEADOWS, CLOONTHUA, TUAM, COUNTY GALWAY"

5 A Chara,

6 I wish to acknowledge receipt of your letter together with cheque in the amount of €30 in respect of a PLV Certificate for the above property.

7 I hereby wish to confirm that the above property, is not separately rated, but if it were, the valuation would not exceed €253.95…"

8 4. Ms. Coughlan goes on to aver in paras. 4 and 5 of her affidavit:

9 2 "[4] I say that the decision in Bank of Ireland Mortgage Bank v. Laura Finnegan and Christopher Ward [2015] IEHC 304, was delivered on the 20 ^th of May, 2015, subsequent to the order for possession being made by the Circuit Court on the 18 ^th of December, 2014. This decision discounted the use of these letters from local authorities to prove jurisdiction.

10 3 [5] I say that on foot of the High Court appeal lodged by the appellant, I did, on behalf of the respondent, apply to the Valuations Office pursuant to s. 67 of the Valuations Act 2001 for a determination of rateable valuation. I say that this determination which issued proves that the rateable valuation of the property the subject matter of these proceedings, is not in excess of the Circuit Court jurisdiction."

11 5. She then exhibits the relevant document from the valuation office dated the 15 ^th of September, 2015, in the following terms:

"Re: application to the Commissioner of Valuation for determination of value, pursuant to s. 67 of the Valuation Act 2001."

12 Subject property address: 84 Country Meadows, Cloonthua, Tuam, County Galway.

13 I refer to your application to the Commissioner of Valuation for determination of rateable value pursuant to Section 67 of the Valuation Act 2001. The rateable value of the property has been determined as €15.75.

14 Cathal Farrell

15 A duly authorised officer of the Commissioner of Valuation."

The Principal Issue Raised on this Appeal

16 6. Mr. Hanley, in the course of taking objections to the order of the Circuit Court herein, submitted that the proceedings were initiated in the Circuit Court grounded on the jurisdiction of rateable valuation and therefore were invalid. I take him by this submission to mean that as the bank did not properly establish the rateable valuation of the property in the Circuit Court, no order should have been made by that court. Mr. Hanley also objected to the s. 67 certificate and submitted that it did not constitute sufficient evidence of rateable valuation.

17 7. Mr. O'Neill S.C. for the bank submitted that the order of the Circuit Court was made within jurisdiction but even if it were not, the appeal to the High Court was a de novo hearing and the proofs were clearly now in order, a certificate of rateable valuation having been obtained in the interim establishing the jurisdiction.

Evolution of Jurisdiction of the Circuit Court in Property Disputes

18 8. Section 79 of the Civil Bill Courts (Ireland) Act 1851 conferred jurisdiction on Civil Bill Courts in relation to ejectments. It provided that all disputes and differences respecting the possession of any lands tenements or hereditements might be determined by a Civil Bill Court subject to certain limitations with regard to the duration of the instrument under which the lands were held and the yearly rent reserved payable on foot of such instrument.

19 9. That jurisdiction was extended by s. 1 of the Civil Bill Courts (Ireland) Act 1874 to Civil Bill actions in which the title to any corporeal or incorporeal hereditament shall come into question when the value of the land in dispute did not exceed a certain figure by the year as valued under the Acts relating to valuation of rateable property in Ireland.

20 10. The jurisdiction was further extended by s. 33 of the County Officers and Courts (Ireland) Act 1877 which provided:

"The several Civil Bill Courts in Ireland shall, in addition to the jurisdiction now possessed by them, have and exercise all the power and authority of the High Court of Chancery in the suits and matters herein-after mentioned; that is to say,…"

(c) In all suits for foreclosure sale or redemption of, or for enforcing any mortgage charge or lien upon, lands where the mortgage charge or lien shall not exceed in amount five hundred pounds, and the annual value of the lands to which the suit relates shall not exceed thirty pounds:"

21 11. Section 7 of the 1877 Act defined a Civil Bill Court in the following manner: "The term 'Civil Bill Court' shall include any court for the transaction of civil business held before any chairman or recorder, and any land court, and any court of quarter sessions for the transaction of licensing business:"

22 12. Section 3 of the Act provided for the title of the chairmen as follows:

"The chairmen, not being Recorders, shall be styled "County Court Judges and Chairmen of Quarter Sessions."

23 13. The jurisdiction of the Civil Bill Courts was transferred to the former Circuit Court by s. 51 of the Courts of Justice Act 1924:

"There shall be transferred to the Circuit Court all jurisdiction not hereinbefore expressly excepted which, at the commencement of this Act, was vested in or capable of being exercised by Recorders, County Court Judges, and Chairmen and Courts of Quarter Sessions, or any of the same in Saorstát Eireann (save such jurisdiction of Justices at or of Courts of Quarter Sessions as is hereinafter conferred on or transferred to the District Court) and the provisions of Sections 21 and 22 of this Act shall apply mutatis mutandis to the jurisdiction vested in and transferred to the Circuit Court by this Act."

24 14. Section 51 of the 1924 Act was repealed by the Courts (Supplemental Provisions) Act 1961 which transferred the jurisdiction of the former Circuit Court to the present Circuit Court. Section 22 (5) (a)...