Crowley v Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 27 October 2022
• Neutral Citation: [2022] IEHC 596
• Court: High Court
• Docket Number: Record No. 2019 /7384 P

Between

Brian Crowley

Plaintiff

and

Ireland, The Attorney General and The County Registrar of Wicklow and The Garda Commissioner and Andrew Brady and Alan Caulfield and James Phibbs and Bank of Scotland Plc and Clodagh Buckley and Ivor Fitzpatrick Solicitors and Start Mortgages Dac and Elaine De Courcey and The Lord Advocate of Scotland

Defendants

[2022] IEHC 596

Record No. 2019 /7384 P

THE HIGH COURT

JUDGMENT of Ms. Justice Stack delivered on the 27 ^th day of October, 2022 .

Introduction

1 . These proceedings arise out of the execution of a possession order issued in respect of the plaintiff's family home. There were a number of irregularities in the renewal by the fourth defendant (“the County Registrar”) of an execution order which had previously lapsed, and to which I will refer in more detail below, and on the basis of those irregularities, the plaintiff makes a large number of claims against a variety of defendants.

2 . It should be noted that the plaintiff is no longer proceeding against the Lord Advocate of Scotland and no relief is sought against him. Had the plaintiff attempted to sue the Lord Advocate, I would have struck it out with costs against the plaintiff as any such action would be doomed to fail for lack of jurisdiction.

3 . As regards the remaining defendants, while the first seven defendants (“the State parties”) have joint representation through the Office of the Chief State Solicitor, different issues arise in relation to: first, Ireland and the Attorney General; secondly, the County Registrar; thirdly, Sergeant Andrew Brady, who is accused by the plaintiff of assaulting him; and fourthly, Garda Alan Caulfield and Inspector James Phibbs, who were the Gardaí involved in prosecuting the plaintiff for the offence of criminal damage.

4 . The eighth defendant (“Bank of Scotland”) was the former owner of the plaintiff's mortgages and loan facilities but had, by the date of the relevant events, transferred that interest to the eleventh named defendant (“Start Mortgages”). The twelfth named defendant, Ms. De Courcey, though a qualified solicitor, did not act as such in relation to the matters complained of but was, at the material time, Company Secretary of Start Mortgages.

5 . The tenth defendant (“Ivor Fitzpatrick”) is the firm of solicitors who apparently acted originally for Bank of Scotland and subsequently for Start Mortgages. The ninth defendant was apparently, at the material time, a solicitor employed by Ivor Fitzpatrick and not a partner. There has been no satisfactory explanation of why she has been sued for steps taken by her in the course of her employment.

Factual background

6 . The background to the relevant facts is that by way of loan facility letter dated 29 April 2004, and accepted by the plaintiff and his wife, Ms. Karen Crowley, on 30 April 2004, Bank of Scotland granted a loan facility to the plaintiff and his wife pursuant to the terms and conditions set out in a leaflet dated 27 August 1999, which were incorporated into that loan facility. Part of the security offered by the plaintiff and his wife in support of that loan facility was a mortgage over their family home at 9 Woodbrook Downs, Bray, County Wicklow (“the Premises”), in relation to which they executed an all sums due mortgage dated 5 November 2004 in favour of Bank of Scotland.

7 . A further loan facility letter dated 18 May 2005, was accepted by the plaintiff and his wife on 23 May 2005. A third facility letter dated 19 January 2006 was accepted by the plaintiff and his wife on 24 January 2006. Both of these additional advances were arranged by Bank of Scotland Ireland but secured by the all sums due mortgage already granted to Bank of Scotland.

8 . As a result, only Bank of Scotland ever held a mortgage over the Premises. While various reliefs were originally sought in relation to the alleged failure of the European Communities (Cross Border Mergers) Regulations, S.I. 157 of 2008, to give effect to Council Directive 2005/56/EC in Irish law, these were at all times irrelevant. The Plaintiff has recognised this, and all reliefs relating to the merger of Bank of Scotland Ireland with Bank of Scotland were abandoned either prior to or at the outset of the hearing of these applications. That disposes of paras. 8, 9, 10, 17, 18, 19 and 20 of the plenary summons, and paras. 6, 7, 8, 9a, 10, 10a, 10b, 10c, 11 (a), 17, 18, 19, 20 (together with all of its sub paras) and 26a of the statement of claim.

9 . Ultimately, by reasons of the arrears due on foot of the various loan facilities advanced to the plaintiff and his wife, Bank of Scotland instituted possession proceedings against them. On 9 July 2012, an order for possession of the Premises, with a stay for six months, was granted by the County Registrar in favour of Bank of Scotland against the plaintiff and his wife.

10 . That order records that it was granted by consent, a fact disputed by the plaintiff and his wife, but they do not dispute that their solicitors informed the County Registrar that it was on consent. As a result, the plaintiff's wife is suing the plaintiff's former solicitors (in proceedings bearing record number 2018/6133P) for negligence, but the alleged lack of consent does not affect these proceedings as the order has never been appealed or set aside. Accordingly, the order stands as a valid order for possession of the Premises.

11 . On 23 January 2013, Bank of Scotland applied for an execution order for possession which was granted. Repossession was due to occur on 21 May 2013, but execution was cancelled due to the agreement for a schedule of repayments made between the plaintiff and Bank of Scotland. The plaintiff failed to meet his obligations under that agreement, and a fresh application for an execution order was made in September 2013. Payments by the plaintiff and his wife then recommenced and continued from September 2013 to December 2015.

12 . The events giving rise to these proceedings concern the order to renew the execution order which was made by the County Registrar on 16 May 2016. It is common case that there were two irregularities attaching to the issue of that execution order, while the plaintiff alleges a third irregularity which is disputed by the defendants.

13 . As regards the first of the two irregularities, Bank of Scotland was still named on the execution order even though it had, with effect from 20 February 2015, assigned its rights against the plaintiff and his wife to Start Mortgages.

14 . Secondly, the application was grounded on an affidavit of Ms. Clodagh Buckley, a solicitor employed with Ivor Fitzpatrick, sworn 13 April 2016. However, the jurat of that affidavit was materially defective because the Commissioner for Oaths signed the jurat even though it referred to a third party, and not Ms. Buckley. The result was that the Commissioner did not “certify in the jurat that either he himself knows the deponent or knows some person named in the jurat who certifies his knowledge of the deponent”, as required by O. 25, r. 5 (b) of the Rules of the Circuit Court. In fact, the Commissioner certified in the jurat that he knew another person, not the deponent.

15 . However, O. 25, r. 8 of the Rules of the Circuit Court provides:

“The Judge may receive any affidavit sworn for the purpose of being used in any action or matter, notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and in that event direct a memorandum to be made on the document that it has been so received.”

The County Registrar could therefore have recorded her decision to receive the affidavit notwithstanding the defect in the jurat but on the copy I have seen, there is no such memorandum. I therefore assume for the purposes solely of this application, either that she did not notice the defect in the affidavit or that she failed to record her decision to admit it, notwithstanding the irregularity in the jurat and that the affidavit was therefore not admissible.

16 . In addition, the plaintiff submits that he should have been notified of the application to renew the execution order, and sought to rely on the law relating to O. 42, r. 20 of the Rules of the Superior Courts and on Carlisle Mortgages v. Canty [2013] IEHC 552, for the proposition that such an application should be on notice. It is not necessary to consider the applicability of the law relating to the equivalent provisions of the Rules of the Superior Courts as I have found the issues capable of resolution by reference to the provisions of O. 36 of the Rules of the Circuit Court. I will refer to this in more detail below when I consider the application of the County Registrar to dismiss the proceedings against her.

17 . In any event, the Premises were repossessed on foot of the renewed execution order on 1 November 2016. The plaintiff takes serious issue with this, given that both the possession order and the execution order were in the name of Bank of Scotland, even though title to the mortgage had passed to Start Mortgages nearly two years previously.

18 . On 10 November 2016, the plaintiff says that he went to the local garda station where he spoke to the duty sergeant, Andrew Brady, at approximately 2 ^pm and informed him that he was going to re-enter the Premises. He makes it clear on affidavit that he did this because he had identified deficiencies in the orders on foot of which possession had been taken by Start Mortgages.

19 . He then sought to re-enter the Premises using an angle grinder to break through both a gate and a steel door, which he says had been placed there by an agent of Start Mortgages. Sergeant Brady arrested him for the offence of criminal damage contrary to s. 2 (1) of the Criminal Damage Act, 1991, and remanded the plaintiff in custody overnight. He was brought to Bray District Court...