Bank of Ireland Mortgage Bank v Anne Keating

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 25 February 2021
• Neutral Citation: [2021] IEHC 132
• Docket Number: 2019 No. 427 CA
• Court: High Court
• Date: 25 February 2021

Between

Bank of Ireland Mortgage Bank

Plaintiff

and

Anne Keating

Paul Connors

Defendants

[2021] IEHC 132

2019 No. 427 CA

THE HIGH COURT

CIRCUIT APPEAL

Extension of time – Delay – Defence – Plaintiff seeking to discharge an order of the Master granting the second defendant an extension of time within which to appeal orders made by the Circuit Court on consent – Whether the second defendant had satisfied the legal test for an extension of time within which to appeal

Facts: The plaintiff, Bank of Ireland Mortgage Bank, applied to the High Court to discharge an order of the Master. The impugned order had granted the second defendant, Mr Connors, an extension of time within which to appeal orders made by the Circuit Court on consent. There was a significant lapse of time between the making of the consent orders by the Circuit Court (14 November 2013) and the bringing of an application for an extension of time to appeal (25 October 2019). This represented a delay of some six years. The principal ground advanced in support of the application for an extension of time was that, as a result of subsequent developments in the case law, a defence to the proceedings was available. This defence did not, or so it was said, exist at the time judgment had been entered by the Circuit Court.

Held by Simons J that, having applying the principles identified by the Supreme Court in Seniors Money Mortgages (Ireland) DAC v Gately [2020] IESC 3, it would not be in the interests of justice between the parties to allow the borrower to pursue an appeal some six years after the making of the orders on consent on 14 November 2013. Simons J found that the ground of appeal sought to be advanced, even if well founded, was entirely technical in nature. Simons J held that the second defendant had not satisfied the legal test for an extension of time within which to appeal, as affirmed by the Supreme Court in Seniors Money Mortgages; the Master’s order of 25 February 2020 was, therefore, erroneous and should be discharged.

Simons J held that the plaintiff was prima facie entitled to the costs associated with the application for an extension of time in that it had been entirely successful in resisting that application. Simons J’s provisional view was that an order of costs should be made in favour of the plaintiff as against the second defendant. Simons J held that the proposed costs order would include the costs before both the High Court and the Master; it would also include all reserved costs and the costs of the written legal submissions.

Application granted.

Appearances

Brian McGuckian for the plaintiff instructed by Whitney Moore, Law Firm

William Reidy for the second named defendant instructed by James O'Brien & Co. Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 February 2021

INTRODUCTION

1 This matter comes before the High Court by way of an application to discharge an order of the Master. The impugned order had granted the second named defendant an extension of time within which to appeal orders made by the Circuit Court on consent. One of the striking features of this case is the significant lapse of time between the making of the consent orders by the Circuit Court (14 November 2013) and the bringing of an application for an extension of time to appeal (25 October 2019). This represents a delay of some six years.

2 The principal ground advanced in support of the application for an extension of time is that, as a result of subsequent developments in the case law, a defence to the proceedings is now available. This defence did not, or so it is said, exist at the time judgment had been entered by the Circuit Court.

PROCEDURAL HISTORY

3 The within proceedings were commenced by way of Civil Bill for Possession issued before the Circuit Court on 17 August 2012. The plaintiff (“ the bank”) had sought an order for possession to enforce a mortgage entered into between the bank and the two defendants on 2 September 2005. The fact that the mortgage had been entered into prior to 1 December 2009 had the consequence that the proceedings were not governed by the Land and Conveyancing Law Reform Act 2009.

4 The proceedings had been listed for hearing before the Circuit Court for the South Eastern Circuit on 14 November 2013. In the event, the proceedings were not contested, and an order for possession and an order for the sale of the lands were made on consent. In each instance, a stay of six months was placed on the execution of the respective order. The Circuit Court directed that the bank was to have carriage of sale of the mortgaged property.

5 The shorthand “ the borrower” will be used where convenient to refer to the second named defendant, Mr. Connors, in circumstances where he alone is pursuing an application for an extension of time to appeal. The first named defendant has not participated in the proceedings before the High Court.

6 Given the nature of the grounds of appeal which the borrower now seeks to advance, it is necessary to explain how the question of the rateable valuation of the mortgaged property had been addressed in the pleadings before the Circuit Court. (As discussed in more detail presently, the Circuit Court's jurisdiction was, at the relevant time, subject to an exclusion (save by consent of the necessary parties) where the rateable valuation of the land exceeded €253.95. See paragraphs an exclusion (save by consent of the necessary parties) where the rateable valuation of the land exceeded €253.95. See paragraphs an exclusion (save by consent of the necessary parties) where the rateable valuation of the land exceeded €253.95. See paragraphs an exclusion (save by consent of the necessary parties) where the rateable valuation of the land exceeded €253.95. See paragraphs an exclusion (save by consent of the necessary parties) where the rateable valuation of the land exceeded €253.95. See paragraphs 17 to 23 below).

7 The special indorsement of claim in the Civil Bill for Possession recites that the rateable valuation of the (mortgaged) property does not exceed €253.95. The grounding affidavit states that the “Poor Law Valuation” of the property is less than €253.95, and exhibits what is described as a “certificate” of the Poor Law Valuation. The relevant exhibit consists of a letter of 4 December 2012 from an official in the Valuation Office in the following terms.

“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 property is not as yet valued for rating purposes, however if a building is erected/re-constructed in accordance with the dimensions shown on the deed plan submitted, I certify that the rateable valuation of the said buildings will not exceed €253.95 (two hundred & fifty two Euro and ninety five cent).”

8 It seems that letters in this format were regularly issued by the Valuation Office at the time. This practice had subsequently been criticised by the High Court in a judgment delivered some two years after the orders had been made against the defendants by consent in the present case ( Bank of Ireland Mortgage Bank v. Finnegan [2015] IEHC 304). The borrower seeks to rely on this High Court judgment in support of an argument that the bank had failed to establish that the Circuit Court had jurisdiction. As discussed presently, however, the judgment in Finnegan now has to be read in the light of the Supreme Court judgment in Permanent TSB plc v. Langan [2017] IESC 71; [2018] 1 I.R. 375.

9 On the same date as it made the orders for possession and for sale (14 November 2013), the Circuit Court also dealt with a partition application as between the two defendants inter se. It seems that it had previously been agreed between the parties that Ms. Keating's interest in the property is to be bought out. The bank suggests that the partition order would remain extant even if Mr. Connors succeeded in his putative appeal.

10 It is common case that Mr. Connors has remained in residence in the mortgaged property notwithstanding the order for possession. More recently, on 27 June 2019, the bank obtained the leave of the Circuit Court to seek an execution order. The bank's solicitors subsequently wrote to the solicitors who had acted for Mr. Connors in September 2019 and notified them that the execution order had been lodged with the Sheriff for execution. Shortly thereafter, on 25 October 2019, Mr. Connors issued a motion to extend time to appeal the order of 14 November 2013.

11 The Master made an order extending time on 25 February 2020, and the bank applied by way of motion to discharge the said order on 28 February 2020. The hearing of that application had been delayed as a result of the restrictions on court sittings imposed as part of the public health measures in response to the coronavirus pandemic. The application to discharge the Master's order ultimately came on for hearing before me on 18 February 2021.

PRINCIPLES GOVERNING AN EXTENSION OF TIME

12 In most instances, an application for an extension of time to appeal will be determined by reference to the criteria identified in the well-known case of Eire Continental Trading Company Ltd v. Clonmel Foods Ltd [1955] I.R. 170 (“ Eire Continental”). There, counsel for the respondent had submitted that the following three conditions must be satisfied before a court would allow an extension of time.

• “1, The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

• 2, He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient.

• 3, He must establish that an arguable ground of appeal exists.”

13 The Supreme Court, per Lavery J., accepted that these three conditions were...