Flynn v Dundalk Credit Union
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 30 July 2018 |
| Neutral Citation | [2018] IEHC 464 |
| Court | High Court |
| Docket Number | [RECORD NO. 2016 638 JR] |
| Date | 30 July 2018 |
AND
[2018] IEHC 464
[RECORD NO. 2016 638 JR]
THE HIGH COURT
Order for certiorari – Judgment mortgage – Stay – Applicants seeking an order for certiorari – Whether the applicants had discharged the burden of establishing an entitlement to an order of certiorari
Facts: The first applicant, Mr Flynn, by order of Humphreys J on the 29th July 2016, was granted leave to seek an order for certiorari of a judgment of Judge Reynolds made in Louth Circuit Court on the 5th May 2016. He was also afforded leave to seek relief by way of an order removing a judgment mortgage on his family home by reason of the order of the 5th May 2016 together with the relief of a stay on the enforcement of the order of the 5th May 2016 until the judicial review proceedings had been decided. An order for judgment in favour of the respondent, Dundalk Credit Union, was secured at Louth Circuit Court whereby the respondent was afforded judgment as against the applicants in the sum of €38,092.14 on foot of a credit agreement dated the 12th May 2010. The respondent was also afforded its costs to be taxed in default of agreement and a stay on the order was refused by the court. Both parties made submissions to the High Court and both parties tendered written submissions dealing with not only whether or not the applicants had discharged the burden of securing an order of certiorari in respect of the order of the 5th May 2016 but also with the possibility of notwithstanding that the court might find that the applicants have successfully established that they are entitled to an order for certiorari nevertheless that the court might exercise its discretion, based upon the conduct of the applicants, to refuse the relief sought.
Held by O’Regan J that the applicants had not discharged the burden of establishing an entitlement to an order of certiorari of the order of Judge Reynolds of the 5th May 2016; the application for an order of certiorari was therefore refused.
O’Regan J held that, as a consequence of the refusal to grant certiorari of the order of the 5th May 2016, the application of the applicants to remove the judgment mortgage placed on their family home following the order of the 5th May 2016 would also be refused as well as the applicants’ application for a stay on the enforcement of that order.
Application refused.
By order of Humphreys J. on the 29th July 2016 the applicant Adrian Flynn was granted leave to seek an order for certiorari of a judgment of Judge Reynolds, as she then was, made in Louth Circuit Court on the 5th May 2016. He was also afforded leave to seek relief by way of an order removing a judgment mortgage on the applicant's family home by reason of the order of the 5th May 2016 together with the relief of a stay on the enforcement of the order of the 5th May 2016 until the judicial review proceedings have been decided.
Significantly, the applicant had also sought leave to apply for an order of certiorari in respect of prior orders respectively dated the 3rd July 2014 and the 29th January 2015, however leave in this regard was refused. The order of Humphreys J. of the 29th July 2016 was not appealed.
The impugned order is an order for judgment in favour of the respondent secured at Louth Circuit Court whereby the respondent was afforded judgment as against the applicants in the sum of €38,092.14 on foot of a credit agreement dated the 12th May 2010. The respondents were also afforded their costs to be taxed in default of agreement and a stay on the order was refused by the court.
The within matter was heard over two days on the 3rd and 4th July 2018. Both parties made submissions to the court and both parties tendered written submissions. These written and oral submissions deal with not only whether or not the applicants have discharged the burden of securing an order of certiorari in respect of the order of the 5th May 2016 but also deal with the possibility of notwithstanding that the court might find that the applicants have successfully established that they are entitled to an order for certiorari nevertheless that the court might exercise its discretion, based upon the conduct of the applicants, to refuse the relief sought.
In the events, I am satisfied on the basis of the matters hereinafter set forth, that the applicants have not discharged the burden of establishing an entitlement to an order of certiorari of the order of Judge Reynolds of the 5th May 2016 and accordingly this judgment does not deal with the possibility or appropriateness of exercising discretion as against the applicants based upon their conduct.
The respondents issued a civil bill on the 18th April 2012 seeking judgment in the sum of €38,092.14 together with interest as against the applicants on foot of a credit agreement identified as C4/5614. An appearance was entered on the 16th May 2012 and subsequently the respondents sought judgment in default of defence by motion of the 29th November 2012. On the 5th December 2012, the applicants sought data access. On the 8th April 2013 the applicants were afforded an extension of time within which to file their defence by a period of twelve weeks and subsequently the first named applicant filed a defence and counterclaim on the 1st July 2013 and the second named applicant filed a defence on the 2nd August 2013, in excess of 4 weeks outside the time given. By order of the 3rd July 2014, an order for discovery was made against the respondents which discovery was to be made within a two week period and a further order was made that any application to amend the defence and counterclaim was to be made within a six-week period of the discovery. There is no appeal of this order. By further order of the 29th January 2015, an order was made in respect of the applicants' application for further discovery and/or dismissing the respondent's claim. No appeal was made in respect of this order of the 29th January 2015. As aforesaid, leave to apply for judicial review was refused in respect of the order of the 3rd July 2014 and the 29th January 2015.
The application of the respondent came before Judge Reynolds in Louth Circuit Court on the 5th May 2016 and was a plenary hearing. The applicants have since filed an appeal in respect of this order bearing date the 18th July 2016.
Following the order of Humphries J. of the 29th July 2016 aforesaid, the applicants have filed and served a statement of grounds bearing date 10th August 2016 together with an affirming affidavit of the first named applicant also dated the 10th August 2016 which said affidavit runs to 85 pages.
The respondent resists the application of the applicants and in this regard has filed a statement of opposition and replying affidavit of Cora Clarke, both dated the 26th September 2016 and which appear to have been served on the applicants under cover letter of the 26th of September 2016 and again on the 20th October 2016.
The first named applicant filed a further affidavit bearing date the 28th February 2017 which runs to 20 pages.
The within matter came before White J. on the 16th March 2017 pursuant to an application of the applicants by motion of the 19th February 2017, grounded on an affidavit of the 20th February 2017 when the court rejected the allegations made by the first named applicant in respect of the DAR relative to the proceedings held on the 5th May 2016. Following a further direction, not currently relevant, the court ordered that the first named applicant be at liberty to file and serve a further affidavit within six weeks of the date of the order with the respondent being afforded liberty to file and serve a reply within two weeks of the receipt thereof together with an order affording the first named applicant liberty to withdraw existing legal submissions and to deliver alternate legal submissions within six weeks, with the respondent being at liberty to deliver supplemental written submissions limited to 3,000 words within two weeks of receipt thereof.
In the events the order of the 16th March 2017 was not appealed and the first named applicant did not avail of the liberty to file a further affidavit or make alternate written submissions. It appears as a consequence thereof the respondent did not file any further replying affidavit or deliver supplemental submissions.
In the first named applicants' grounding affidavit of the 10th August 2016, the applicant deals extensively with the hearing of the discovery application of the 3rd July 2014 (see p. 6 of the affidavit wherein the said applicant acknowledges this ground relates to the hearing for the discovery of the 3rd July 2014). This ground is advanced by the applicants notwithstanding that the order of the 3rd July 2014 was not appealed and indeed leave to seek an order of judicial review in respect of such order was refused and that refusal of leave was not appealed, on the basis that the applicants assert that having been afforded leave to challenge the order of the 5th May 2016, they were then entitled to make a collateral attack on the order of the 3rd July 2014. Upon inquiry of the applicants as to what basis such a collateral attack could be made in the circumstances as aforesaid the applicants referred to the judgment of Clarke J. in the case of Sweeney v. District Judge Fahy [2014] IESC 50. Reference was also made to extraterritorial judgments however given that I was of the view that such a collateral attack on a prior order in all of the circumstances was impermissible I requested the applicants to identify Irish jurisprudence permitting such a collateral attack. The applicants also referred to para. 3.3 of the judgment of Clarke J. in ...
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