Bank of Ireland Mortgage Bank v Cody

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 28 February 2020
• Neutral Citation: [2020] IEHC 99
• Date: 28 February 2020
• Docket Number: 2019 No. 60 CA
• Court: High Court

BETWEEN

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF

AND

PETER CODY

HEATHER CODY

DEFENDANTS

[2020] IEHC 99

Garrett Simons J.

2019 No. 60 CA

THE HIGH COURT

CIRCUIT APPEAL

Order for possession – Plenary hearing – Administration of justice – Plaintiff seeking to have the defendant’s appeal remitted to plenary hearing – Whether remitting the appeal would be an affront to the proper administration of justice

Facts: The second defendant, Ms Cody, appealed to the High Court against an order for possession granted by the Circuit Court pursuant to s. 62(7) of the Registration of Title Act 1964. Ms Cody’s appeal was allowed for the reasons set out in a written judgment delivered on 31 January 2020, [2020] IEHC 34 (the principal judgment). The proceedings were then adjourned for three weeks to allow the parties to consider the terms of the principal judgment prior to the issue of costs being determined. When the matter next appeared before the High Court on 21 February 2020, an application was made on behalf of the plaintiff, Bank of Ireland Mortgage Bank (the bank), to have the appeal remitted to plenary hearing. This application was made notwithstanding that the appeal had already been conclusively determined against the bank by the principal judgment. The principal judgment had expressly recited the form of the (substantive) order to be made. The only reason that the formal order of the High Court had not yet been drawn up was that the issue of costs remained outstanding. That issue had been left over to the adjourned date to allow the parties time to consider the written judgment. The application to remit the (already decided) appeal to plenary hearing was advanced by leading counsel for the bank. Simons J delivered an ex tempore ruling on 21 February 2020 dismissing the application. Simons J provided a brief summary of his reasons at the time, but indicated that he would deliver a written judgment on 28 February 2020.

Held by Simons J that the bank, having failed in its proceedings for an order for possession because it came up short in the requisite proofs, wished to rewind the clock to the very start of the proceedings; it wished to rerun its application before the Circuit Court, on the basis of new evidence, with a right of appeal thereafter to the High Court. Simons J observed that, in effect, the proceedings before the Circuit Court and the High Court to date would be set at naught, and Ms Cody would be dragged through the courts a second time. Simons J held that such a result would be an affront to the proper administration of justice. Simons J noted that the bank’s application for an order for possession had already been heard and determined by the High Court by way of a rehearing as provided for under s. 37 of the Courts of Justice Act 1936. Simons J held that had the bank wished to cross-examine Ms Cody or to adduce fresh evidence, then it should have applied for the “special leave” of the High Court as required under s. 37(2) of the 1936 Act. Simons J held that this application should have been grounded on an affidavit as prescribed under Order 61, rule 8 of the Rules of the Superior Courts; the bank did none of these things. Simons J noted that it was only when a final and conclusive judgment was given against it on 31 January 2020 that the bank sought to rewind the clock to the very start of the proceedings. Simons J held that the bank’s application to remit the (already determined) appeal proceedings to plenary hearing before the Circuit Court would be refused.

Simons J held that the orders stipulated in the principal judgment would be drawn up and perfected. In particular, Simons J held that an order would be made setting aside the order for possession granted by the Circuit Court on 12 February 2019. Simons J held that a further order would be made allowing Ms Cody, as a litigant in person, to recover her expenses of the proceedings before the Circuit Court and the High Court as against the bank.

Application refused.

JUDGMENT of Mr. Justice Garrett Simons delivered on 28 February 2020

INTRODUCTION

1 The within proceedings have come before the High Court by way of an appeal against an order for possession granted by the Circuit Court pursuant to section 62(7) of the Registration of Title Act 1964. The second named defendant's appeal against this order was allowed for the reasons set out in a written judgment delivered on 31 January 2020, Bank of Ireland Mortgage Bank v. Cody [2020] IEHC 34 ( “the principal judgment”). The proceedings were then adjourned for three weeks to allow the parties to consider the terms of the principal judgment prior to the issue of costs being determined.

2 When the matter next appeared before the High Court on 21 February 2020, an application was made on behalf of Bank of Ireland Mortgage Bank (“the bank”) to have the appeal remitted to plenary hearing. This application was made notwithstanding that the appeal had already been conclusively determined against the bank by the principal judgment. The principal judgment had expressly recited the form of the (substantive) order to be made. The only reason that the formal order of the High Court had not yet been drawn up was that the issue of costs remained outstanding. That issue had been left over to the adjourned date to allow the parties time to consider the written judgment.

3 The application to remit the (already decided) appeal to plenary hearing was advanced with some skill by leading counsel for the bank. Ultimately, however, the application was hopeless. Accordingly, I delivered an ex tempore ruling on 21 February 2020 dismissing same. I provided a brief summary of my reasons at the time, but indicated that I would deliver a written judgment today (28 February 2020).

PROCEDURAL HISTORY

4 To assist the reader in understanding the application made on behalf of the bank to remit the appeal to plenary hearing, it is necessary to rehearse briefly the procedural history. The within proceedings were instituted before the Circuit Court pursuant to the Land and Conveyancing Law Reform Act 2013. The primary relief sought had been an order for possession pursuant to section 62(7) of the Registration of Title Act 1964. The bank is the owner of a charge registered as a burden against the title of a dwelling house owned by the first and second defendants, and previously occupied by them as their principal private residence. The defendants have since separated, and the dwelling house is now occupied by the second named defendant, Ms Cody, and her children.

5 The bank's case can be summarised as follows: (i) the charge registered on the folio is referable to a deed of mortgage and charge said to have been entered into between the defendants and the bank on 12 January 2007 ( “the mortgage”); (ii) the mortgage is applicable to all “secured loans” as defined at Clause B.(20) of the mortgage; (iii) the bank had issued two loan offer letters to the defendants in September and October 2005, respectively; (iv) it was an express term of each of the two loan offer letters that the dwelling house was to be mortgaged; (v) the two defendants entered into the loan agreements in accordance with the terms and conditions of those offer letters on 24 October 2005; and (vi) the principal monies under the mortgage are now due in circumstances where the defendants failed to comply with letters of demand dated 10 June 2016.

6 The difficulty for the bank, however, is that Ms Cody disputes the validity of the loan agreements. More specifically, and as discussed in detail in the principal judgment, Ms Cody alleges that her estranged husband, Mr Peter Cody, had been in collusion with the bank during the years 1990 until 2010 to attain money by way of loans and mortgages in the joint names of Heather Cody and Peter Cody without Ms Cody's knowledge and consent. Ms Cody further alleges that the family home was being used as collateral without her knowledge and consent. Notwithstanding these very serious allegations, the bank chose not to cross-examine Ms Cody.

7 The practical consequence of this choice on the part of the bank was that it was not in a position to discharge the onus of proof which lay upon it as the moving party in the proceedings. Given the state of the affidavit evidence, the bank was not able to establish that Ms Cody had, in fact, knowingly entered into the two loan agreements on 24 October 2005. The bank's case thus broke down at point (v) above.

8 None of this should have come as a surprise to the bank. The legal principles in this regard are well established, and have recently been summarised with enviable clarity by Clarke C.J. in RAS Medical Ltd v. The Royal College of Surgeons in Ireland [2019] IESC 4; [2019] 1 I.R. 63; [2019] 2 I.L.R.M. 273, [92] and [93].

[92] But it is frankly not appropriate for parties to enter into controversy as to the facts contained either in affidavit evidence or in documents which are admitted before the court without successful challenge, without exploring the necessity for at least some oral evidence. If it is suggested that there are facts which are material to the final determination of the proceeding and in respect of which there is potentially conflicting evidence to be found in such affidavits or documentation, then it is incumbent on the party who bears the onus of proof in establishing the contested facts in its favour to use appropriate procedural measures to ensure that the potentially conflicting evidence is challenged. Where, for example, two individuals have given conflicting affidavit evidence and where it is considered that a resolution of the dispute between those witnesses is necessary to the proper disposition of the case, then there has to be cross-examination and the onus in that regard rests on the party on whom the onus of proof lay to establish the contested fact.

[93] A similar principle applies where it is...