Bank of Ireland Mortgage Bank v Fahy

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 15 May 2019
• Neutral Citation: [2019] IEHC 341
• Court: High Court
• Docket Number: [2018 No. 44 C.A.]
• Date: 15 May 2019

[2019] IEHC 341

THE HIGH COURT

Noonan J.

[2018 No. 44 C.A.]

BETWEEN

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF

AND

MARGARET FAHY

DEFENDANT

Banking and finance – Order for possession – Property – Defendant seeking to appeal against an order for possession – Whether affidavit was in compliance with the Rules of the Superior Courts

Facts: The defendant, Ms Fahy, appealed to the High Court from an order of the Circuit Court made by Judge Fergus on 28th November 2017, being an order for possession in respect of the property known as 4 Prospect Hill, Galway, in Co. Galway. That property was the subject matter of a mortgage entered into by the plaintiff’s predecessor, the Governor and Company of the Bank of Ireland, of which the plaintiff, the Bank of Ireland Mortgage Bank, was a subsidiary. The mortgage covered four loans entered into between 1996 and 2006, and in respect of each of those loans there has been a substantial default. The loans ultimately were transferred from the Governor and Company of the Bank of Ireland to the plaintiff.

Held by Noonan J that because the defendant was unable to satisfy him that she had any meaningful knowledge of anything that was contained in the affidavit upon which she purported to rely, he struck out her affidavit as it constituted a clear abuse of process and further was not in compliance with the Rules of the Superior Courts. This left the court in the position of having no admissible evidence before it from the defendant and no arguable grounds advanced by the defendant in her own submissions before the court. Ms Fahy attempted to introduce more affidavits and Noonan J ruled those out on the basis that as this was a Circuit appeal no leave was granted to introduce new evidence. It seemed to Noonan J that the only purpose that they were sought to be introduced was to cause the matter to be adjourned.

Noonan J held that the Circuit Court judge was entirely correct and he affirmed her order.

Order affirmed.

EX TEMPORE JUDGMENT of Mr. Justice Noonan delivered on the 15th day of May, 2019.

1 This is an appeal from an order of the Circuit Court brought by Ms. Fahy the defendant in these proceedings, the order having been made by her Honour Judge Fergus on 28th November 2017, being an order for possession in respect of the property known as 4 Prospect Hill, Galway, in Co. Galway.

2 That property was the subject matter of a mortgage entered into by the plaintiff's predecessor, the Governor and Company of the Bank of Ireland of which the current plaintiff, the Bank of Ireland Mortgage Bank is a subsidiary. The mortgage covered four loans entered into between 1996 and 2006, and in respect of each of those loans there has been a substantial default as is clear from the affidavits sworn on behalf of the plaintiff in these proceedings.

3 As I have said the loans ultimately were transferred from the Governor and Company of the Bank of Ireland to Bank of Ireland Mortgage Bank which is the plaintiff in these proceeding, and I am satisfied that the proofs are in order that are contained in the affidavits sworn on behalf of the plaintiff in these proceedings. I should also refer to the fact that I have reviewed the terms of the mortgage deed itself and I am satisfied that it contains no terms which could be regarded as unfair, certainly no relevant terms in these proceedings which could be regarded as unfair in the context of the unfair contract terms legislation.

4 The court is of course required of its own motion to assess those terms whether invited to do so or not and that's as a result of a decision in the European Court of Justice in the Aziz case which was referred to by this court, Mr. Justice Barrett, in the case of AIB v Counihan.

5 So I am satisfied therefore that the proofs that are before the court in respect of the matter are in order. It seems that default occurred and a demand for payment of the arrears was made on 23rd January 2015, which was not responded to and ultimately a demand for possession was made on 1st December 2016.

6 Now in response to these proceedings, the defendant Ms. Fahy swore a lengthy affidavit which as I pointed out in discussions with her and counsel this morning consists entirely of legal submissions, and is replete with references to case law, statutes, European Conventions and Charters and as I indicated earlier, not least Magna Carta of 1215.

7 It also suggests in the course of the affidavit that the property, the subject matter of these proceedings is now held in what is described as a private irrevocable trust by unnamed and unknown third parties. This form of affidavit is one with which this court is...