O'Daly v EBS Mortgage Finance

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Ni Raifeartaigh
Judgment Date24 October 2017
Neutral Citation[2017] IEHC 791
Date24 October 2017
Docket Number[2016 No. 789 J.R.]

[2017] IEHC 791

THE HIGH COURT

Ni Raifeartaigh J.

[2016 No. 789 J.R.]

BETWEEN
KARL O'DALY
PLAINTIFF
AND
EBS MORTGAGE FINANCE

AND

JUDGE GRIFFIN
RESPONDENTS

Land & Conveyancing - S. 3 of the Land and Conveyancing Law Reform Act 2013 - Failure to pay loan - O.5B of the Circuit Court Rules - Order for repossession - Certiorari - EU Directive 85/577/EEC

Facts: The applicant sought an order of certiorari for quashing the order of the Circuit Court for granting repossession of his property on foot of a mortgage loan. The applicant alleged that since he had cancelled his mortgage contract by virtue of EU Directive 85/577/EEC, the Circuit Court did lack jurisdiction to deal with the matter. The applicant also alleged breach of principles of natural justice and constitutional rights in the present case.

Ms. Justice Ni Raifeartaigh refused to grant the desired relief to the applicant. The Court held that the provisions of Directive 85/577/EEC had no applicability to the applicant's mortgage loan because there was no evidence that he entered the mortgage contract in a 'doorstep-selling situation'. The Court observed that there was no breach of the applicant's natural justice and constitutional rights in the present case.

JUDGMENT of Ms. Justice Ni Raifeartaigh delivered on the 24th day of October, 2017.
Nature of the case
1

This is a case in which the applicant seeks relief by way of judicial review in order to quash a decision made by the Circuit Court granting repossession of his property on foot of a mortgage loan. The application is based upon numerous complaints about the manner in which the Circuit Court hearing was conducted.

2

The application for leave came on before Humphrey J., and the matter was put back so that the respondent could be put on notice. When the matter came before me, it was entirely clear whether it was a leave application on notice, or, as the applicant contended, a "telescoped" hearing of the judicial review itself. I am treating it as the latter, as full argument was made in relation to the issues in the case.

Relevant Background
3

In 2008, the applicant entered into a mortgage loan with the first named respondent in the sum of €312,550 in order to purchase a property in Drogheda, Co. Meath. The monies were advanced and drawn down on or about the 1st October, 2008. He became the registered owner of Folio 62366 on the 7th January, 2009, and the first named respondent's charge over the property was registered on the same day. The conditions of the loan included monthly repayment obligations. The applicant has apparently been in breach of those monthly repayments since about July 2013. As a consequence of this, the first named respondent instituted proceedings in the Circuit Court in Co. Meath in December, 2014. The civil bill asserted that the lands constituted the principal private residence of the applicant, and that the Circuit Court in Meath enjoyed a jurisdiction to hear the case by virtue of s.3 of the Land and Conveyancing Law Reform Act 2013. The appropriate procedure in such a case is set out Order 5B of the Circuit Court Rules, as amended by SI 264/2009 and SI 171/2016. The Order is entitled "Procedure in Certain Actions for Possession or Sale of Land and Actions for Well-charging Relief". Rule 5 provides, that in such cases, the civil bill should be accompanied by an affidavit, sworn by or on behalf of the plaintiff, and that a defendant who enters an appearance shall defend the claim by filing a replying affidavit setting out the defence.

4

An exchange of affidavits took place between the parties. Among the points raised by the applicant in opposition to the application, were that he had cancelled his contract with the first respondent pursuant to European Directive 85/577/EEC and S.I. 224/1989; that the officers of the first respondent who swore affidavits in support of the application for possession had perjured themselves; and that the first named respondent had failed to comply with the Code of Conduct for mortgage arrears. These allegations were denied on behalf of the first named respondent.

5

The applicant issued a number of motions in the Circuit Court. A motion for discovery and a motion requesting plenary hearing issued on the 4th February, 2016. A third motion issued on the 18th May, 2016, seeking a 'modular hearing' involving modules relating to: (i) the cancellation of the mortgage contract; (ii) the allegations of perjury; and (iii) all other issues.

6

The motion for discovery came before Judge Reynolds on the 12th April, 2016, in Trim Circuit Court, whereupon the court ordered that the applicant should issue a written request for voluntary discovery, and a timeframe was set down for matter thereafter. By letter dated the 13th May, 2016, the first named respondent refused to discover a number of documents sought. The discovery motion was listed for hearing before the court on the 26th July, 2016, together with the application for a plenary hearing. The motion for a modular trial was also listed before the court for hearing on the 26th July, 2016.

7

The applicant issued witness summonses as against the two deponents for the plaintiff, and sought to require them to produce private employment details and documents to the court for scrutiny. He also issued a notice to cross-examine both deponents. The applicant makes complaint of what happened next.

8

On the 22nd July, 2016, which was a Friday, counsel on behalf of the first named respondent attended before Judge Griffin on an ex parte basis in Trim Circuit Court in order to have the witness summonses set aside as being improperly issued and an abuse of process. The court adjourned the application to Monday the 25th July, at 10am, and directed that the applicant be put on notice of the application. The applicant complains of the fact of the ex parte application itself, and of the fact that there was no documentation to ground the application. The applicant was made aware of the application by letter, sent by way of email, from Ivor Fitzpatrick Solicitors on behalf of the first named respondent. This letter clearly stated that the matter had been listed for 10am on Monday the 25th July, 2016, before Judge Griffin. The applicant acknowledged receipt of this correspondence by way of reply.

The hearing on the 25th July, 2016
9

The applicant complains that the case was listed as a "special sitting" at 10am on Monday 25th July, 2016. The respondent indicates that the judge listed the matter for 10am so as not to delay the main business of the day, which apparently consisted of a long list of family cases. Apparently, the applicant was a few minutes late to the 10am application and Judge Griffin had risen to await his attendance. When the applicant arrived, a hearing took place. The Court has had the benefit of a transcript of this hearing. This indicates that the hearing proceeded as follows.

10

When the case was called, Mr. O'Daly complained that he had not seen any paperwork and that it was obviously an ex parte application. The judge said that this was so, and that an application had been made to him on Friday to set aside the witness summonses in the matter and that he had directed that the matter be heard this morning. He also indicated that he had taken the opportunity over the weekend to read the papers in the matter. He asked counsel for the EBS, what his application was and the latter indicated that it was to set aside or strike out the witness summonses that had been served on Mr. Ken McCutcheon and Ms. Paula Duffy, employees of the plaintiff bank. He said that the application was being moved on the basis of Order 5B of the Rules of the Circuit Court. Counsel explained that it was a case of repossession in respect of arrears of mortgage and that a number of affidavits had been sworn by the two employees. He said that Mr. O'Daly, in response to those affidavits, had made allegations of perjury, and allegations of a conspiracy to defraud, and alleged that they had sworn false instruments under the Banker's Book Evidence Acts. Further, he had issued summonses with a view to cross examining the employees. Counsel said that Mr. O'Daly had not sought leave of the court to seek to cross-examine either of the parties. He said that he himself had also put in further affidavits outlining the precise nature of the employment with the plaintiff, and that this gave the deponents the right to serve the affidavits on the basis of their employment with the company. He also submitted that because they were summary proceedings, under the rules, oral evidence should not be adduced. He said that the notice of cross-examination had been issued without leave of the court, and that the summonses sought to compel production of documents, including documents such as: the employee's P45s and P60s.

11

Mr. O'Daly then made his submissions. He said that he had issued the notice to cross-examine under O. 5B, r. 6 (2) and that there was no discretion for the plaintiff to refuse that and that he was entitled to cross-examine his accuser. The judge intervened to say these were not criminal proceedings, to which Mr. O'Daly replied that he still had a constitutional right to know if they were saying he owed them money which he said he did not, and that he was entitled to cross examine them. At this point, the Judge said: 'Do they not have a constitutional right to their good name?', to which Mr. O'Daly replied that they did, but that he had copies of the Director's report certified by the Company Registration Office, which said that these individuals were not employees of EBS. He said he had issued the witness summonses in accordance with r. 23 and that the evidence was to be given orally under that. He also said that he had papers showing that Ms. Duffy was involved in a criminal trial in which he swore that she was an AIB employee and that...

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1 cases
  • Grant v The County Registrar from the County of Laois
    • Ireland
    • High Court
    • 7 March 2019
    ...is followed. It is very helpfully described by Ní Raifeartaigh J. in O'Daly v EBS Mortgage Finance and His Honour Judge Griffin [2017] IEHC 791 at par. 35:- ’35. Order 5B of the Circuit Court Rules as amended sets out the procedures to be employed in actions for recovery of possession of l......

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