Danske Bank A/S trading as Danske Bank v Macken

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 15 June 2018
• Neutral Citation: [2018] IEHC 356
• Docket Number: [2013 46 S.P],[2013 No. 46 SP]
• Court: High Court
• Date: 15 June 2018

[2018] IEHC 356

THE HIGH COURT

Costello J.

[2013 46 S.P]

BETWEEN

DANSKE BANK A/S TRADING AS DANSKE BANK

PLAINTIFF

AND

MICHAEL MACKEN

AND

PATRICIA WATSON

DEFENDANTS

Possession order – New party in substitution – Extension of time – Plaintiff seeking possession of the family home of the defendants – Whether the High Court order granting the plaintiff possession of the defendants' family home should be set aside

Facts: The plaintiff, Danske Bank, sought possession of the family home of the defendants, Mr Macken and Ms Watson, comprised in Folio 11582F County Roscommon and known as "Sorrento", Creagh, Beal na Mulla, Athlone, on foot of a charge registered on 11th December, 2009. On 2nd November, 2015, Cross J granted the plaintiff possession of the home. Mr Macken applied to the High Court seeking to set aside the order of Cross J pursuant to O. 36 r. 33 of the Rules of the Superior Courts. On 7th December, 2015, Cross J held that he was functus officio and he refused to entertain the application. Mr Macken appealed that decision to the Court of Appeal and on 5th April, 2017 the Court of Appeal concluded that Cross J fell into error in failing to consider whether he should have exercised the discretion conferred by O. 36 r. 33 and in holding that he was entirely debarred by the functus officio doctrine from even considering Mr Macken's application. The Court of Appeal held that it would be a matter for the High Court to consider afresh the application and accordingly the matter was remitted to the High Court. Pepper Finance Corporation (Ireland) Designated Activity Company brought an application pursuant to O. 15 r. 14 and O. 17 r. 4 of the Rules seeking to be substituted as plaintiff in place of Danske Bank.

Held by Costello J that there was no reason to refuse to extend the time for the bringing of the O. 36 r. 33 motion in the circumstances of this case; the justice of the case clearly demanded it. Costello J held that, insofar as there may be considered to be a conflict between the decision of Barrett J in Bank of Scotland v McDermott [2017] IEHC 77 and the decision of the Court of Appeal in this case, she would follow the judgment and order of the Court of Appeal. She approached the matter on the basis that O. 36 r. 33 was applicable to these special summons proceedings. Costello J ordered that the judgment of 2nd November, 2015 be set aside pursuant to O. 36 r. 33 and that the matter should be relisted for hearing.

Costello J held that Pepper had adduced evidence on a prima facia basis that there was a sale and assignment and transfer of the loans and security by Danske Bank to Pepper as legal assignee and transferee; the defendants were notified by Danske Bank of the assignment of their loans to Pepper on the 18th December, 2017. On that basis Costello J concluded that Pepper was entitled to be substituted as plaintiff in these proceedings in place of Danske Bank and was authorised to continue the proceedings as plaintiff.

Applications granted.

JUDGMENT of Ms. Justice Costello delivered on the 15th day of June, 2018

1 In this judgment the court is asked to decide two issues. The first is whether the proceedings should be carried on between the defendants as continuing parties and Pepper Finance Corporation (Ireland) designated activity company ('Pepper') as a new party in substitution for Danske Bank A/S trading as Danske Bank ('Danske Bank') or as an additional plaintiff. The second issue is whether the order of Cross J. of the 2nd November, 2015 granting the plaintiff possession of the defendants' family home should be set aside under O. 36 r. 33 of the Rules of the Superior Courts.

Application to set aside the order of 2nd November, 2015

2 Order 36 r. 33 of the rule provides that:

'Any verdict or judgement 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 this case the plaintiff was seeking possession of the defendants' family home comprised in Folio 11582F County Roscommon and known as 'Sorrento', Creagh, Beal na Mulla, Athlone, County Roscommon on foot of a charge registered on 11th December, 2009. Mr. Macken was representing himself and his wife. He had attended court on sixteen previous occasions. He was aware that the matter was listed for hearing on the 2nd November, 2015 but he became unwell while travelling to Dublin. His family doctor, Dr. John Corboy, swore an affidavit on the 7th November, 2017 confirming that Mr. Macken presented himself at his surgery at approximately 9.30 am in a very agitated state. He said that he conducted a full medical assessment and he diagnosed that Mr. Macken was suffering all of the symptoms of a panic attack. He medicated Mr. Macken (but does not give any details) and placed Mr. Macken in the front parlour of his house to allow him to calm down. He checked upon him regularly. Within an hour he was improved and more coherent. Mr. Macken wished to leave and to drive to Dublin to attend the High Court but Dr. Corboy advised him that he was not in a fit state to do so.

4 At 10.42 Mr. Macken emailed Ms. Laura Bolger, the solicitor acting on behalf of the plaintiff, stating:

'Laura

I cannot make the court today because of a major personal issue. Can you please adjourn to when suits you even later this week?

Thanks

Michael.'

5 Ms. Bolger was on annual leave on the 2nd November, 2015 and had in place an automatic email reply system whereby any person who sent her an email on that day received an immediate and automatic reply confirming that she was out of the office on that day. She says that she has no record of having received Mr. Macken's email of 10.42 am and if it had been received then he ought to have received her automatic reply. He did not receive the reply and he assumed that she would adjourn the hearing of the application for possession listed for hearing that afternoon. He emailed her at 16.46.

'Laura

Can you advise as to when the case is next up.

Thanks

Michael.'

6 Ms. Oonagh Fadden, solicitor, attended in court on the 2nd November, 2015 on behalf of the plaintiff at 2 pm. She confirmed that the defendants were called at the sitting of the court stage and there was no appearance by or on behalf of the defendants. The matter was left to the end of the list and at approximately 3.30 pm Cross J. heard the matter in the absence of the defendants and granted the plaintiff an order for possession. The transcript of the DAR was exhibited and it clear the the hearing was approximately ten minutes' duration.

7 The following morning at 9.24 Ms. Bolger emailed Mr. Macken stating that she had only seen his email of yesterday morning now and: -

'If you cannot attend court it is incumbent on you to have somebody attend on your behalf and seek an adjournment in the absence of agreement in respect of same.

An order for possession was made yesterday by Judge Cross.'

8 Mr. Macken responded later that morning stating that he was stunned to receive the email.

'We have used email to serve and communicate with each other for over a year. On that basis I believe that the plaintiffs were aware of the situation.

Therefore, I am requesting that you seek instructions from your client to agree to have the order of yesterday set aside.

Regards

Michael.'

9 On the 5th November Ms. Bolger emailed Mr. Macken stating that unless there was an agreement to an adjournment parties should attend the court. She said she had requested her client's instruction in relation to consent to setting aside the orders but had not yet received instructions. She pointed out that of course he had a right to appeal any order made by the High Court.

10 Mr. Macken replied on the 6th November stating:

'Laura

Can we go in front of Judge Cross on Monday as I want to seek (1) leave to put in a motion to set aside (2) leave to extend the time for appeal till ten days after a decision on the motion to set aside.

Please respond asap.'

11 Ms. Bolger replied on the afternoon of the 6th November stating that she was not sure what purpose would be served by appearing before Judge Cross and that Mr. Macken did not need to seek leave to issue a motion to set aside.

12 On the 6th November at 15.19 Mr. Macken emailed Ms. Bolger.

'So, for clarity further to our recent series of emails, I will be applying on Monday the 9th day of November, 2015 at 11 am or the first available opportunity to Judge Cross in Court 2 of the Four Courts for leave to issue a motion to set aside his orders made on Monday 2nd November, 2015 and to apply to direct his registrar not to perfect his orders until after my motion for set aside of the orders are determined.

I am putting you on notice in the event that you would like to have a presence there.

Furthermore, as a matter of courtesy to the honourable court and myself could you advise me by return whether you will attend or not on Monday.'

13 Ms. Bolger replied that she would attend in court. The plaintiff did not consent to set aside the order of 2nd November, 2015 obtained in the absence of the defendants.

14 On the 9th November, 2015 Mr. Macken attended in the central office of the High Court and sought to issue a motion seeking to set aside the order of Cross J. of the 2nd November, 2015 pursuant to O. 36 r. 33. He was not permitted to issue the motion at the desk in the central office and he attended before the chief registrar of the High Court. The chief registrar considered his notice of motion and on the 11th November, 2015 the motion seeking leave to set aside the order of the 2nd November, 2015 was issued. It was grounded on Mr. Macken's affidavit sworn on the 10th November, 2015. In addition to exhibiting the email exchanges I have referred to above, it exhibited a letter from Dr. Corboy dated the 10th November, 2015 which...