Bank of Scotland (Ireland) Ltd v Mannion

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 18 November 2010
• Neutral Citation: [2010] IEHC 419
• Court: High Court
• Date: 18 November 2010

[2010] IEHC 419

THE HIGH COURT

[No. 571SP/2008]

Bank of Scotland (Ireland) Ltd v Mannion

BETWEEN

BANK OF SCOTLAND (IRELAND) LIMITED

PLAINTIFF

AND

TOM (OTHERWISE THOMAS) MANNION AND CORRINE MANNINON

DEFENDANTS

DELANEY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED PARA 22.17 - 22.38

RSC O.2 r11

BELVILLE HOLDINGS LTD v REVENUE COMMISSIONERS 1994 1 ILRM 29

AINSWORTH v WILDING 1896 1 CH 673

SWIRE, IN RE 1885 30 CH 239

INCOME TAX ACT 1967

GREENDALE DEVELOPMENTS LTD, IN RE (NO.3) 2000 2 IR 514

P (L) v P (M) 2002 1 IR 219

TASSAN DIN v BANCO AMBROSIANO 1991 IR 569

CONSTITUTION ART 34.4.6

AMPTHILL PEERAGE 1977 AC 547

PRACTICE & PROCEDURE

Jurisdiction

Amend or vary order - Order for possession - Application to set aside portion of order - Family home - Consent - Clear letter of consent to order for possession - Conflict of evidence - Whether former solicitors had authority to consent to order for possession - Whether jurisdiction to amend order - Whether order reflected what court decided and intended - Whether exceptional circumstances in order to protect constitutional rights and justice - Whether jurisdiction to call solicitor for cross-examination - Belville Holdings Ltd v Revenue Commissioners [1994] 1 ILRM 29; Ainsworth v Wilding [1986] 1 Ch 673; In re Greendale Developments Ltd (No 3) [2000] 2 IR 514; P(L) v P(M) (Appeal) [2002] 1 IR 219; Tassan Din v Banco Ambrosiano SPA [1991] IR 569 and The Ampthill Peerage [1977] AC 547 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 28, r 11 - Constitution of Ireland 1937, art 34.4.6 - Application dismissed (2008/571SP - Laffoy J - 18/11/2010) [2010] IEHC 419

Bank of Scotland (Ireland) Ltd v Mannion

1 Judgment of Miss Justice Laffoy delivered on the 18th day of November, 2010.

1. The proceedings

2 2 1.1 In these proceedings, which were initiated by special summons which issued on 9 ^th July, 2008, the plaintiff, as mortgagee, sought an order for possession of certain properties set out in the schedule thereto, which included premises at Doughiska, Merlin Park, Galway, being all the property comprised in Folio 32638F of the Register of Freeholders County Galway. On 19 ^th August, 2008 an appearance was entered on behalf of the defendants by Bruen Glynn & Co. (the defendants' former solicitors), who remained on record for the defendants until January 2010 when notice of change of solicitor was filed and the defendants' current solicitors came on record. No affidavit responding to the plaintiff's claim was filed on behalf of the defendants. However, there was correspondence between the defendants' former solicitors and the plaintiff's solicitors, as a result of which a supplemental affidavit sworn by Patrick Walzer on 16 ^th April, 2009 clarified the properties in respect of which the plaintiff was seeking an order for possession with a view to eliminating duplication in the schedule to the special summons, which arose from the fact that some of the properties, including the lands registered on Folio 32638F, County Galway, were comprised in separate mortgages executed by the defendants in 2002 and 2005 in favour of the plaintiff.

3 3 1.2 By order of this Court made on 29 ^th April, 2009 by MacMenamin J. it was ordered that the defendants forthwith upon service of the order upon them deliver up to the plaintiff possession of the properties described in the schedule to the special summons, including the lands registered on Folio 32638F, County Galway. The order recited that it was made on the application of counsel for the plaintiff by consent of the parties.

2. The application

4 2 2.1 On this application the defendants seek an order setting aside the portion of the order of 29 ^th April, 2009 insofar as it relates to the defendants' family home at Doughiska, being a portion of the property comprised in Folio 32638F, County Galway (the disputed premises). The basis on which the defendants seek to have the disputed premises excluded from the order is that they contend that they did not consent to an order for possession in relation to those premises. The chain of events on which the defendants rely as in support of that proposition is as follows:

5 (a) The defendants appointed Mr. Finbarr Jones who has described himself as "mediator" in the affidavit sworn by him on this application, a family friend, as a mediator in discussions with the plaintiff "arising out of their defaulted mortgages … and the sale of the properties which were mortgaged". In that capacity, Mr. Jones attended a meeting with the defendants at the plaintiff's offices in Dublin on 2 ^nd April, 2009. There is a factual dispute between Mr. Jones and Jean Desmond, a manager with the plaintiff, as to whether there was a discussion at that meeting about excluding the family home from the disposal of the assets comprised in the mortgages held by the plaintiff from the defendants. Ms. Desmond has averred that she has no recollection of such a request by the defendants.

6 (b) In any event, by letter dated 22 ^nd April 2009 directly to the plaintiff's office in Galway, the defendants' former solicitors referred to a letter dated 17 ^th April, 2007 from the plaintiff's solicitors "wherein it is stated that the property at Doughiska be split to exclude the family home". The defendants' former solicitors suggested that an amendment of the summons could be applied for when the matter would be before the Court on the following Monday "whereby the family home at Doughiska could be excluded from the list of properties on the Summons".

7 a (c)On 23 ^rd April, 2009 the defendants' former solicitors wrote to the plaintiff's solicitors stating that they still awaited hearing from the plaintiff "in relation to the family home at Doughiska as to whether same is to be excluded from the Order for Possession being sought next Monday". They referred to the letter of 17 ^th April, 2007. They also enclosed their proposed "Consent to the Order". The consent was in letter form and was addressed to the plaintiff's solicitors. In it, the defendants' former solicitors consented to an order for possession of all the property set out in the schedule to the special summons as amended by Mr. Walzer's affidavit sworn on 16 ^th April, 2009 "EXCEPTING AND EXCLUDING therefrom the family home situate at Doughiska … being part of Folio 32638F, County Galway as outlined on the map attached hereto".

8 (d) The response of the plaintiff's solicitors in their letter of 24 ^th April, 2009 was that under no circumstances would the plaintiff agree to the exclusion of any part of Folio 32638F, County Galway for the orders for possession being sought on the following Monday. It was stated that the consent furnished was not acceptable on the basis of the exclusion. The defendants' former solicitors were invited to furnish a consent to the making of all of the orders. It was stated that the plaintiff would be proceeding to seek orders for possession on all of the properties on the following Monday.

9 (e) By letter dated 24 ^th April, 2009 to the plaintiff's solicitors the defendants' former solicitors, in that capacity, consented to an order for possession of all of the properties set out in the schedule to the special summons as amended by Mr. Walzer's affidavit of 16 ^th April, 2009. It was on foot of that letter that counsel for the plaintiff sought the consent order which was made on 29 ^th April, 2009.

10 3 2.2 The position of the defendants is that the defendants' former solicitors did not have authority from them to consent to an order for possession over the disputed premises. All the Court knows of the defendants' former solicitors' version of events is what is stated in two letters from the defendants' former solicitors to the defendants, which have been exhibited in the affidavit of the second defendant sworn on 18 ^th April, 2010 grounding this application. The earlier letter was dated 4 ^th November, 2009. In that letter, the member of the firm dealing with the matter stated that when she received the letter of 24 ^th April, 2009 from the plaintiff's solicitors stating that the plaintiff would not agree to the exclusion of the disputed premises, she got in touch with Mr. Jones and it was agreed that she should send the plaintiff's solicitors the full consent and she did so. She also stated that she understood from talking to Mr. Jones that he had an agreement with the plaintiff that it would not enforce the order immediately and that there would be a certain amount of time given to the defendants to try and sell the properties. As counsel for the defendants pointed out, the later letter, which was dated 7 ^th January, 2010, is inconsistent with the letter of 4 ^th November, 2009. In the later letter, having referred to the response of the...