Grant v The County Registrar from the County of Laois
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 07 March 2019 |
| Neutral Citation | [2019] IEHC 185 |
| Court | High Court |
| Docket Number | [2016/787 J.R.] |
| Date | 07 March 2019 |
[2019] IEHC 185
THE HIGH COURT
JUDICIAL REVIEW
McDermott J.
[2016/787 J.R.]
AND
Judicial review – Order of certiorari – Order for possession – Applicants seeking judicial review – Whether the terms in the contract between the applicants and the notice party were unfair
Facts: The applicants, Mrs and Mr Grant, on 17th October, 2016, were granted leave to apply for judicial review (Heneghan J) in respect of a number of reliefs including an order of certiorari quashing the order of the respondent, the County Registrar from the County of Laois, dated 25th July, 2016, to grant possession of the applicants’ family home to the notice party, Pepper Finance Corporation (Ireland) designated activity company, in proceedings with record no. 425/2014 and remitting the matter for determination to the respondent. A number of related declarations were sought to the effect that the applicants were consumers for the purpose of the Unfair Terms in Consumer Contracts Directive 93/13/EEC (the Directive) as transposed into Irish Law by the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (the Regulations); a declaration that the notice party was acting in the course of business at all times in its dealings with the applicants; a declaration that the respondent in adjudicating on the notice party’s application for possession was required to consider of his own motion whether the terms in the contract between the applicants and the notice party that fall within the scope of the Directive were unfair; and a declaration that when considering whether any of the terms in the contract were unfair he was obliged but failed to take into consideration the applicants’ fundamental rights as set out in the Charter of Fundamental Rights and the European Convention of Human Rights and whether the granting of such an order was ‘proportionate’.
Held by the High Court (McDermott J) that, having considered all terms of the mortgage loan and indenture of mortgage, no issue of unfairness arose or could arise outside the matters canvassed in argument before the court. Accordingly, McDermott J was satisfied that to quash the order and remit the case to the County Registrar could not be of any benefit to the applicants or advance the more general dissuasive purpose of the directive and that in the exercise of his discretion relief should be refused.
McDermott J held that the application should be refused.
Application refused.
On 25th July, 2016 an order was made by the County Registrar at Laois Circuit Court in proceedings entitled ‘The Circuit Court, Midlands Circuit, County Laois record no. 2014/00425 Between/ Pepper Finance Corporation (Ireland) designated activity company Plaintiff and Geraldine Grant and Martin Grant Defendants’, granting possession of ‘all that and those the property comprised in Folio 17843 County Laois’ known as Bondra, Colt, Ballyroan, Portlaoise, Co. Laois with no orders to costs. The court further ordered that execution for possession be stayed for nine months from the date of the order and granted liberty to the defendants to apply to extend the stay for cause shown.
The order was granted following the issuing of a Civil Bill for Possession against the defendants. The special endorsement of claim recited that by loan offer dated 13th February, 2008 the plaintiff offered to advance to the defendants a loan facility in the sum of €130,500 which was accepted and signed by the defendants on 25th February, 2008. The loan agreement provided inter alia for a term of 22 years. Repayment of the loan facility was to be made in the form of monthly instalments of principal and interest at a variable rate of 6.95% as of the date of the letter of approval : in the event of any repayment not being paid on the due dates or any breach of the conditions or covenants of the loan the plaintiff could demand an early repayment of the principal and accrued interest. The loan was drawn down on 26th February, 2008.
The loan facility was subject to and secured by a first legal mortgage dated 25th April, 2008 over Bondra, Colt, Ballyroan, Portlaoise. It was an express term of the mortgage that the defendants would pay to the plaintiff on demand the secured monies and that all monies remaining unpaid by the defendants to the plaintiff and secured by the mortgage would immediately become due and payable on demand by the plaintiff on the occurrence of any event or default as defined and specified in the mortgage: this included default in making payment of any of the monthly instalments in respect of any of the secured money. It was also a term of the mortgage that the plaintiff could without any further consent from or notice to the defendants or any other person enter into possession of the mortgage property or any part thereof.
On 11th October, 2012 GE Woodchester Homes Loans Limited changed its name to Pepper Finance Corporation (Ireland) Limited (and subsequently to Pepper Finance Corporation (Ireland) designated activity company), the plaintiff in the Circuit Court proceedings and the notice party in these proceedings.
As of 5th November, 2014 the monies outstanding to the plaintiff by the defendants pursuant to the loan facility was said to amount to €138,352.53 including arrears of €22,076.39.
The mortgaged property was the principal private residence of the defendants within the meaning of the Land and Conveyancing Law Reform Act, 2013. The Plaintiff claimed that insofar as the Code of Conduct on Mortgage Arrears issued by the Central Bank of Ireland applied to the loan facility, it had complied with the Mortgage Arrears Resolution Process set out therein and was not precluded from seeking possession of the mortgage property. The Civil Bill seeking possession issued on 28th November, 2014.
Thereafter the return date for the possession proceedings was 23rd February, 2015. The case was then adjourned to 25th May, 2015 and the applicants were put on notice of the adjournment date by Evershed Solicitors who acted on behalf of the plaintiff. The proceedings were adjourned again to 14th September, 2015 at the request of Phoenix Project Ireland, a voluntary organisation set up in 2008 to offer support to distressed families and individuals who were at risk of losing their homes, and were assisting the plaintiffs. On 20th May 2015 Phoenix Project wrote to Eversheds stating that the applicants had an appointment to meet with a Personal Insolvency Practitioner on the 28th May and seeking an adjournment of the proceedings to allow time for this option to be explored.
On 8th September, 2015 Phoenix Project Ireland notified Eversheds that the plaintiffs did not object to the granting of an order for possession as they considered it to be an ‘inevitability’. The plaintiffs were notified of an intended bankruptcy application by the defendants. On 14th September the proceedings were adjourned to 23rd November, 2015 of which the defendants were again notified. On 17th November, 2015 Phoenix Project Ireland notified Eversheds of a bankruptcy adjudication in respect of the defendants. The proceedings were then adjourned to 22nd February, 2016 and the plaintiffs were again notified.
On 11th February, 2016 Eversheds wrote to the Official Assignee in Bankruptcy enclosing a certified copy of the Civil Bill for Possession together with the grounding affidavit of Caroline Loftus upon which the application for possession was grounded and copies of the exhibits referred to therein by way of service and informed the Official Assignee that the matter was adjourned to 22nd February, 2016. The letter also stated that the property was the defendants” principal private residence. The letter states:
‘We would be obliged if you let us know your position in relation to these proceedings and in particular whether you are in a position to consent to our application. Alternatively, if you are in a position to Surrender the property we would be grateful if you would notify us.
Finally if you propose to issue a disclaimer in respect of the property or if you have already done so, please provide us with a copy and confirm in writing that you are consenting to the Orders being sought in the Circuit Court by our client.’
On 18th April, 2016 Mr. Mark Doheny of the bankruptcy division of the Insolvency Service of Ireland replied to Evershed Solicitors as follows:
‘I refer to your recent correspondence dated 22/04/2016. As this property is the family home of the bankrupts, the Official Assignee would need a Court Order pursuant to S. 61(4) of the Bankruptcy Act, 1988, to consent to your request for possession of the property and can therefore only confirm that the Official Assignee offers no objection to your application to Court for possession thereof.
Please accept this correspondence as statement of the Official Assignee['s] position on the matter which you can produce to the Court, as the Official Assignee will not be attending any court hearing and therefore seeks your confirmation that you will not be seeking any Court Order against the Official Assignee.
We hereby request that you forward to our office a copy of the Possession Order when you receive same for (sic) the Court.’
In a letter of the same date Phoenix Project Ireland advised Eversheds that their clients consented to an Order for Possession but also requested that the notice party agree to a stay of six months on the order to enable them to seek alternative accommodation. This position was reiterated in a further letter of the 22nd April.
At the adjourned hearing on the 25th April 2016 the applicants attended with an adviser and again...
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