Danske Bank A.S. (t/a Danske Bank) v Macken

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 05 April 2017
• Neutral Citation: [2017] IECA 117
• Date: 05 April 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 117 Record No. 597/2015

BETWEEN/

DANSKE BANK A.S. (TRADING AS DANSKE BANK)

PLAINTIFF / RESPONDENT

- AND -

MICHAEL MACKEN

AND

PATRICIA WATSON

DEFENDANTS/ APPELLANTS

[2017] IECA 117

Neutral Citation Number: [2017] IECA 117

Record No. 597/2015

THE COURT OF APPEAL

Set aside motion – Functus officio – Jurisdiction – Appellants seeking to set aside a judgment of the High Court on the ground that the judge was functus officio – Whether judge fell into error in failing to consider whether he should have exercised the discretion conferred by Ord. 36, r. 33

Facts: The defendants/appellants, Mr Macken and Ms Watson, applied to the High Court to set aside an earlier judgment of 2nd November 2015 on the ground that Cross J was functus officio. On 7th December 2015, Cross J refused to entertain the defendants’ application. The defendants’ appealed to the Court of Appeal from the decision of Cross J. The defendants maintained that Cross J ought to have entertained the set aside motion on the merits and at least considered whether, pursuant to Ord. 36, r. 33, the judge ought to have set aside the order in view of the defendants’ explanation for Mr Macken’s absence on the previous Monday.

Held by Hogan J that Cross J fell into error in failing to consider whether he should have exercised the discretion conferred by Ord. 36, r. 33 and in holding that he was entirely debarred by the functus officio doctrine from even considering Mr Macken’s application to have the 2nd November 2015 order set aside. Hogan J held that since the High Court never came to adjudicate on the merits of that application, it would be inappropriate for the Court of Appeal to do so by way of appeal or, indeed, to express any view as to how the High Court should approach the matter. Hogan J held that it was sufficient to state that it would be a matter for the High Court to consider afresh the application pursuant to Ord. 36, r. 33 to have the judgment of 2nd November 2015 set aside.

Hogan J held that he would accordingly allow the appeal and remit the matter to the High Court to consider and determine Mr Macken’s application under Ord. 36, r.33 on its own merits.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 5th day of April 2017

1 In what circumstances should the High Court be prepared to countenance exercising its own set aside jurisdiction under Ord. 36, r. 33? This is the issue which is presented on this appeal from the decision of Cross J. on 7th December 2015 whereby he refused to entertain the defendants' application to set aside an earlier judgment of 2nd November 2015 on the ground that he was functus officio. At the hearing of the appeal on 23rd March 2017 the Court announced that it would allow the defendants' appeal and would remit the matter to the High Court for a determination of this issue. The Court also indicated that it would set out its reasons in written form at a later date. I now set out these reasons in this judgment.

The Background to the Application

2 Ord. 36, r.33 provides that:

‘Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the court, upon such terms as may seem fit, upon an application made within six days after trial.’

3 In the present case the plaintiff Bank had commenced special summons proceedings against the defendants (who are husband and wife) on 3rd January 2013 seeking possession of the plaintiff's family home in Co. Roscommon. The couple represent themselves in person, but it is probably fair to say that Mr. Macken has undertaken responsibility for the defence of the proceedings on behalf of both defendants.

4 Following a lengthy exchange of affidavits and some sixteen appearances by Mr. Macken in person before the High Court on a variety of occasions, the hearing of the Bank's application for possession was scheduled to come before the High Court for hearing on 2nd November 2015. On that occasion, however, there was no appearance by or on behalf of the defendants at the first calling of the list and the matter was put back until the afternoon. When the matter was ultimately called, the hearing proceeded in the absence of the defendants. After a ten minute hearing and having heard from counsel for the Bank, Cross J. made an order for possession of the defendants' family home, together with a stay on that order for a three month period.

5 How, then, did it come to pass that the defendants were not present at that hearing? As it happens, the evidential material concerning this issue which is before the Court is rather sparse. In a subsequent affidavit sworn on 9th November 2015 Mr. Macken deposed to the fact that he was unable to attend the High Court on the 2nd November due to what he described as a ‘major personal difficulty’ and he stated that he sent an email to the solicitor for the Bank requesting an adjournment. As it happens, the solicitor in question was on vacation on that day, 2nd November 2015, and she only received the email on the following day.

6 The only independent evidence offered by Mr. Macken in support of this claim of a ‘major personal difficulty’ is a letter from his general practitioner dated 10th November 2015 which states, somewhat laconically, that this was ‘to confirm that this patient attended here at the surgery’ at a particular location in Co. Offaly on 2nd November 2015. This letter does not even state in terms that Mr. Macken received treatment on the day in question, still less state the nature of his medical condition on the day in question. Before this Court Mr. Macken maintained that his medical practitioner had concluded that he was in no fit state to attend court on 2nd November 2015. The transcript of the digital audio recording of the hearing of the 7th December 2015 also shows that Mr. Macken informed Cross J. that he had been ill on November 2nd, 2015.

7 Immediately after the hearing on 2nd November 2015, Mr. Macken made contact by email on the following morning with the Bank's solicitor who had now returned to work. He was taken aback and dismayed to learn that a possession order had been made in respect of his family home and he sought the Bank's agreement – which was not forthcoming – to have the possession order set aside. Mr. Macken moved with commendable speed, however, and he applied by motion dated the 9th of November 2015 to have the order made on the previous Monday 2nd November 2015 set aside. As it happens, that motion was issued in time in view of the provisions of Ord. 122, r. 10 which provides:

‘In any case in which any particular number of days, not expressed to be clear days, is prescribed by these Rules, the same shall be reckoned exclusively of the first day and inclusively of the last day.’

8 As the time period envisaged in Order 36, r.33 is measured in days, this means that the first day – November 2nd – is to be excluded, so that the six days expired on November 9th, the day the motion was issued.

9 The defendant's principal complaint, however, relates to what happened when the motion came back before the High Court on 7th December 2015. It is accepted by both sides – and borne out by the transcript – that on that occasion Cross J. took the view that he was functus officio and that the defendant's only remedy was to appeal the re-possession order to this Court. The following exchange may be taken as representative as what occurred at that hearing:

‘Judge: …I think that you should go to the Court of Appeal if you're unhappy with what I have done.

Mr. Macken: Okay, so I can take it then you're refusing me the right to bring forward the motion?

Judge: Yes, correct.

Mr. Macken: So you're dismissing the motion?

Judge: I am.’

10 This exchange, therefore, is at the heart of the defendant's appeal to this Court. He maintains that Cross J. ought to have entertained this set aside motion on the merits and at least considered whether, pursuant to Ord. 36, r.33, the judge ought to have set aside the order in view of the defendant's explanation for his absence on the previous Monday.

The finality of litigation and the doctrine of functus officio

11 There is a clear public interest in the finality of a judicial determination, subject only to an appeal. It is, moreover, generally understood and accepted that where a...