Bank of Ireland Mortgage Bank v Laura Finnegan and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 20 May 2015
• Neutral Citation: [2015] IEHC 304
• Docket Number: [88CA/2014]
• Court: High Court
• Date: 20 May 2015

Bank of Ireland Mortgage Bank v Finnegan & Ward

No Redaction Needed

Approved Judgment

CIRCUIT APPEAL

BETWEEN

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF

AND

LAURA FINNEGAN & CHRISTOPHER WARD

DEFENDANTS

[2015] IEHC 304

[88CA/2014]

THE HIGH COURT

Premises – Mortgage – Possession – Valuation Act 2001.

Facts: Following the mortgage and the subsequent default in the repayment of the loan, the plaintiff claimed possession of the defendant's mortgaged dwelling house. The plaintiff relied on the rateable valuation of the premises to establish the jurisdiction of the Circuit Court. The defendant now appealed objecting that the Circuit Court lacked jurisdiction as the basic requirement of the property being rateably valued was absent. The plaintiff requested the Court to state a case to the Supreme Court on the issue of jurisdiction.

Ms. Justice Murphy held that the plaintiff's application to state the case to the Supreme Court on the issue of jurisdiction would be declined. The Court observed that the law was as set out and the Court was not in any doubt as to the applicable law. The Court further held that the defendant's objection that the Circuit Court lacked jurisdiction would be granted. The Court observed that as per the operation of the Valuation Act 2001, the basic requirement of the property being rateably valued was found to be absent.

Ms. Justice Murphy

1 1. This judgment concerns the jurisdiction of the Circuit Court to hear the plaintiff's claim for possession of the defendants' domestic dwelling.

The Proceedings

2 2. On the 10^th October, 2012 the plaintiff issued a civil bill for possession of the defendant's residence at 59 Ard Dun, Kells Road, Kingscourt, Co. Cavan. The proceedings were issued on the Northern Circuit in the County of Cavan. The special endorsement of claim on the civil bill is as follows:-

3 (1) The plaintiff, Bank of Ireland Mortgage Bank as mortgagee claims possession of the hereditaments and premises known as all that and those the property comprised of a deed of conveyance dated 22^nd June, 2006 and made between Thomas Cunningham and Patrick Cunningham of the one part and Christopher Ward and Laura Finnegan the other part and therein described as all that and those that plot of ground part of the lands of Lisanisky parish of Enniskeen situate in the barony of Clankee and the County of Cavan now known as site 59, Ard Dun, Kells Road, Kingscourt, in the County of Cavan more particularly described and delineated on the plan and there on marked "59" (hereinafter called "the mortgage property") and the possession of which the defendants wrongfully withholds (sic).

4 (2) The above mortgaged property is located in the County of Cavan and within the jurisdiction of this honourable court.

5 (3) The plaintiff sues as mortgagee Reliefs Sought

Reliefs Sought

6 (4) The plaintiff claim (sic) an order for possession of the mortgaged premises

7 (5) The plaintiff claims any further and other relief as may arise within these proceedings.

8 (6) The plaintiff claims the costs of these proceedings.

Confirmation:

9 (7) The rateable valuation of the premises does not exceed €253.94 (£200). The plaintiff will rely at the hearing of this civil bill on the following affidavits.

10 1. Affidavit of Godfrey Hogan, solicitor acting on behalf of the plaintiff sworn on the 8^th October, 2012.

11 2. Affidavit of Adrienne Browne, manager in the arrears support unit of the plaintiff sworn on 4^th October, 2012.

12 3. The affidavit of Godfrey Hogan referred to in the endorsement of claim was to the effect that there are no other persons in occupation other than those served or intended to be served with the proceedings. The affidavit of Adrienne Browne sets out the history of the mortgage between the plaintiff and the defendants and the default alleged against the defendants in respect of monthly repayments. In brief, the deed of mortgage is dated 23^rd June, 2006. This followed a letter of loan offer dated 5^th April, 2006 whereby the plaintiff agreed to make available to the defendants a loan facility in the sum of €210,000. The defendants, in accordance with the terms of their mortgage, made monthly repayments on foot thereon from June 2006 until the beginning of August 2011. At the time of the swearing of the grounding affidavit the defendants' mortgage was in arrears of the sum of €14,315.96.

13 4. The plaintiff relies on rateable valuation of the premises to establish the jurisdiction of the Circuit Court pursuant to s. 22 of the Courts (Supplemental Provisions) Act 1961 as amended. At paragraph 15 of the grounding affidavit of Adrienne Browne it is averred as follows:-

"The rateable valuation of the premises does not exceed €253.94 (£200) and I beg to refer to certificate of rateable valuation upon which marked with the letter "f", I have signed my name prior to the swearing hereof I say that the premises in the said certificate of rateable valuation are one and the same premises as those set forth and described in the schedule to the mortgage."

14 The"certificate of valuation" referred to in the affidavit is in fact a stamped letter from the Valuation Office, dated 1^st August, 2012. The letter was addressed to the plaintiff's solicitors and received by them on 3^rd August, 2012. The letter is headed "Provisional Assessment re: 59 Ard Dun, Kingscourt, Co. Cavan" and its contents are as follows:

"Dear Sir/Madam;"

15 I refer to your application for a certificate showing the rateable valuation for the above property.

16 I regret that I am unable to issue such certificate as the property is not as yet valued for rating purposes, however, if a building is erected/reconstructed in accordance with the dimensions shown on the deed plans submitted I certify that the rateable valuation of the said buildings will not exceed €252.95 (Two hundred and fifty two euro)

Yours sincerely

Mary Regan

Public Office"

17 5. Having obtained an order for substituted service by reason of their inability to serve the defendants in the normal way, the plaintiffs were given leave to serve the civil bill for possession by ordinary pre paid post with a return date for 27^th May, 2013. There were a number of adjournments to facilitate interaction between the parties. Three affidavits, described as affidavits of truth, were filed by the defendants; the first on the 21^st May, 2013, the second on 21^st January, 2014 and the third on 26^th February, 2014. In the last affidavit, dated 26^th February, 2014, the defendants set out their defence to the plaintiffs claim. As well as raising a number of legal issues the defence raises the issue of jurisdiction. At paragraph 7 of the affidavit of 26^th February, 2014 the defendants state:-

"The defendants in this matter do say that this case should not be held within the Circuit Court system, the monetary jurisdiction of the Circuit Court here today is based on the rateable value of the property. The defendants do state that this case is against the family home of the defendants and that the family home is not a commercial properly and neither is the mortgage a commercial mortgage. The defendants do say that there is no rateable value on this property, as domestic rates on the family home were abolished in Ireland by Fianna Fail in 1977. The defendants would ask this court to strike out this case."

18 The defendants then set out the basis upon which they maintain that the Court did not have jurisdiction in paragraphs listed a-h of paragraph 7 of their affidavit in which they pleadinter alia, that having searched "via the Oifig Luachála's own website: www.valoff.ie/search, no rateable value is attached to their property, deed of conveyance number 26177162"; that the "certificate of valuation" produced by the plaintiff is not a certificate of valuation but merely a letter of "provisional assessment" which states that the property is not yet rated; that they have not been requested to give, nor have they given their consent to the claim being heard in the Circuit Court so as to confer jurisdiction on that Court pursuant to section 22(1)(b) of the Courts (Supplemental Provisions) Act 1961, as amended.

19 6. The plaintiff's claim came on for hearing before the learned Circuit Judge on 18^th March, 2014 at Cavan Circuit Court and an order for possession was made in favour of the plaintiff together with the costs of the proceedings to be taxed in default of agreement.

20 7. The defendants appealed the order of the Circuit Court and the appeal came on for hearing before this Court on 26^th January, 2015. On that date the Court sought clarification from the parties as to the issues arising on the appeal. Six issues were identified, among them the issue of the jurisdiction of the Circuit Court to hear the claim.

21 8. Having identified the issues, the Court requested written submissions from the parties on each issue. The Court further ruled that it would be appropriate to dispose of the issue of jurisdiction first.

The Defendants' Claim on Jurisdiction

22 9. The defendants' position remained, as it has been from the outset, that the Circuit Court jurisdiction depends on the relevant property having a rateable valuation which is less than €253.95. The first requirement is that the property be rateably valued and the second requirement is that that valuation not exceed €253.95. The defendants point to the letter relied on by the plaintiffs which the defendants claim in effect proves the absence of the basic requirement that the property be rateably valued. They point to the fact that Mary Regan, of the Valuation Office, in her letter of provisional assessment stated "I refer to your application for a certificate showing the rateable valuation for the above property. I regret that I am unable to issue such certificate as the...