Irish Life & Permament Plc v Duff and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 31 January 2013
• Neutral Citation: [2013] IEHC 43
• Court: High Court
• Docket Number: [2012 No. 61 CA]
• Date: 31 January 2013

Irish Life & Permanent PLC v Duff

CIRCUIT APPEAL

BETWEEN/

IRISH LIFE AND PERMANENT PLC

PLAINTIFF

AND

MALCOM DUFF AND SUSAN DUFF

DEFENDANTS

[2013] IEHC 43

[No. 61CA/2012]

THE HIGH COURT

MORTGAGES

Possession

Appeal against order for possession - Mortgage - Arrears - Demand - Whether proceedings properly commenced by ejectment civil bill - Whether jurisdiction to grant possession in respect of registered land - Whether jurisdiction to grant possession in respect of unregistered land - Whether jurisdiction to be exercised where Central Bank code of conduct not complied with - Northern Bank Ltd v Devlin [1924] 1 IR 90; EBS Ltd v Gillespie [2012] IEHC 243, (Unrep, Laffoy J, 26/6/2012); Start Mortgages Ltd v Gunn [2011] IEHC 275, (Unrep, Dunne J, 25/7/2011); Bank of Ireland v Smyth [1993] 2 IR 102; Bank of Ireland v Waldron [1944] IR 303; Heaney v Ireland [1994] 3 IR 593; First National Building Society v Gale [1985] IR 609; Damache v Director of Public Prosecutions [2012] IESC 11, [2012] 2 ILRM 153; People (Director of Public Prosecutions) v Cunningham [2012] IECCA 64, [2012] 2 ILRM 406; The People (Director of Public Prosecutions) v O'Brien [2012] IECCA 68, (Unrep, CCA, 2//7/2012); Sullivan v Boylan [2012] IEHC 385, (Unrep, Hogan J, 4/10/2012); Wicklow County Council v Fortune [2012] IEHC 406, (Unrep, Hogan J, 4/10/2012); Fleming v Ireland [2013] IEHC 2, (Unrep, Kearns P, 10/1/2013); Crawford v Centime Ltd [2005] IEHC 325, [2006] 1 ILRM 543; Curley v Governor of Arbour Hill Prison [2005] IESC 49, [2005] 3 IR 308; Zurich Bank v McConnon [2011] IEHC 75, (Unrep, Birmingham J, 4/3/2011); Stepstone Mortgage Funding Ltd v Fitzell [2012] IEHC 142, (Unrep, Laffoy J, 30/3/2012); AG v Residential Institutions Redress Board [2012] IEHC 492, (Unrep, Hogan J, 6/11/2012) and Kadri v Governor of Cloverhill Prison [2012] IESC 27, (Unrep, SC, 10/5/2012) considered - Courts of Justice Act 1936 (No 48), s 38 - Circuit Court Rules (Actions for Possession and Well Charging Relief (SI 264/2009) - Registration of Title Act 1942 (No 26) - Registration of Title Act 1964 (No 16), s 62 - Land and Conveyancing Law Reform Act 2009 (No 27), ss 8 and 97 and sch 2 - Interpretation Act 2005 (No 23), s 27 - Constitution of Ireland 1937, Arts 15.2.1 , 34.3.2 and 40.5 - Central Bank Act 1989 (No 16), s 117 - Central Bank Act 1942 (No 22), s 33AQ and part IIIC - Central Bank and Financial Services Authority of Ireland Act 2004 (No 21), s 10 - Family Home Protection Act 1976 (No 27), s 3 - Appeal allowed; order for possession refused (2012/61CA - Hogan J - 31/1/2013) [2013] IEHC 43

Irish Life and Permanent Plc v Duff

Facts: The plaintiff sought to recover possession of a family home. An order for possession had been made in the Circuit Court. The defendants had obtained a mortgage for lands which included registered and unregistered lands in 2003. The proceedings were commenced by ejectment civil bill in 2009 and predated the coming into force of the Circuit Court Rules (Actions for Possession and Well-Charging Relief) Rules 2009. The defendants claimed that the plaintiff bank had used the wrong form of procedure. The Court also considered whether the plaintiff was entitled to possession in respect of the registered and unregistered portion of the lands.

Held by Hogan J. that the Court no longer had jurisdiction to make an order for possession of the registered land. The Court had jurisdiction to grant possession in respect of the unregistered land. The Bank did not comply with the requirements of the Code and the defendants had not been uncooperative borrowers. The appeal would be allowed.

COURTS OF JUSTICE ACT 1936 S38

CIRCUIT COURT RULES (ACTIONS FOR POSSESSION & WELL CHARGING RELIEF) SI 264/2009

NORTHERN BANK CO LTD v DEVLIN 1924 1 IR 90

REGISTRATION OF TITLE ACT 1942 S13

REGISTRATION OF TITLE ACT 1964 S62(6)

REGISTRATION OF TITLE ACT 1964 S62(7)

LAND & CONVEYANCING LAW REFORM ACT 2009 S8(3)

LAND & CONVEYANCING LAW REFORM ACT 20092009 SCHED 2 PART 5

EBS LTD v GILLESPIE UNREP LAFFOY 21.6.2012 2012/13/3829 2012 IEHC 243

START MORTGAGES LTD v GUNN UNREP DUNNE 25.7.2011 2011/46/13101 2011 IEHC 275

INTERPRETATION ACT 2005 S27(1)

INTERPRETATION ACT 2005 S27(2)

BANK OF IRELAND v WALDRON 1944 IR 303

WYLIE IRISH LAND LAW 4ED 2010 801

LAND & CONVEYANCING LAW REFORM ACT 2009 S97(2)

CONSTITUTION ART 34.3.2

HEANEY v IRELAND 1994 3 IR 593 1994 2 ILRM 420 1994 10 3029B

LAND & CONVEYANCING LAW REFORM ACT 2009 S89

GALE v FIRST NATIONAL BUILDING SOCIETY 1985 IR 609 1987 ILRM 30 1985 8 2161

DAMACHE v DPP 2012 2 ILRM 153

DPP v CUNNINGHAM 2012 2 ILRM 406 2012 IECCA 64

DPP v O'BRIEN UNREP CCA 2.7.2012 2012 IECCA 68

WYNNS CLONS DEVELOPMENT LTD v COOKE LAFFOY 1.10.2012 2012/46/138582012 IEHC 385

SULLIVAN v BOYLAN UNREP HOGAN 4.10.2012 2012 IEHC 389

LAND & CONVEYANCING LAW REFORM ACT 2009 S97(1)

CONSTITUTION ART 40.5

WICKLOW CO COUNCIL v FORTUNE UNREP HOGAN 4.10.2012 2012/46/13830 2012 IEHC 406

CENTRAL BANK ACT 1989 S117(1)

CENTRAL BANK ACT 1942 PAR F3C

CENTRAL BANK & FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004 S10(1)

CENTRAL BANK ACT 1989 S117(4)

CENTRAL BANK & FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004 SCHED 3

CONSTITUTION ART 15.2.1

FLEMING v IRELAND UNREP KEARNS 10.1.2013 2013 IEHC 2

CRAWFORD v CENTIME LTD 2006 1 ILRM 543

CURLEY v GOVERNOR OF ARBOUR HILL PRISON 2005 3 IR 308 2005 IESC 49

ZURICH BANK v MCCONNON UNREP BIRMINGHAM 4.3.2011 2011/50/14278 2011 IEHC 75

FAMILY HOME PROTECTION ACT 1976 S3(1)

STEPSTONE MORTGAGE FUNDING LTD v FITZELL UNREP LAFFOY 30.3. 2012 2012 IEHC 142

G (A) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP HOGAN 6.11.2012 2012/16/ 4476 2012 IEHC 492

KADRI v GOVERNOR OF WHEATFIELD PRISON UNREP SUPREME 10.5.2012 2012/20/5671

1 1. In these proceedings the plaintiff, Irish Life and Permanent plc ("ILP"), sue to recover possession of the defendants' family home at a premises based in Co. Louth. In the Circuit Court Her Honour Judge McDonnell made an order for possession in favour of ILP, but placed a stay on the order for possession for twelve months, which period expires on the 28 ^th February, 2013. The defendants now appeal against this decision to this Court.

2 2. There is very little doubt but that Mr. Duff and Ms. Duff have fallen into significant arrears with regard to their mortgage repayments. But while these type of proceedings may seem all too routine in the modern economic climate, we shall quickly see that this otherwise routine application for possession raises important questions relating to the right of a mortgagor to recover possession of both unregistered and registered land; compliance by a lender with various codes promulgated by the Financial Regulator and, if not, whether, this affords the defendants any effective defence to this action for repossession.

3 3. Since the judgment I am about to deliver may have implications for the mortgagor/mortgagee relationships generally and specifically by reference to those who are customers of ILP, it is perhaps apposite that I should disclose that I am a mortgage account holder with ILP. I mentioned this to the parties at the commencement of the hearing and both waived any possible objection to my hearing of this appeal on that account.

4 4. I should also say that in my view this case raises several important points of law which, on reflection, might usefully have been finally determined by the Supreme Court on a case stated from this Court. But since neither party requested a case stated, I consider that I have no such jurisdiction to state a case for the purposes of s. 38 of the Courts of Justice Act 1936, as the power so to state a case is expressly made contingent on a request in that behalf by one of the parties to the appeal.

The background facts

5 5. The defendants, Mr. and Ms. Duff, obtained a 25 year mortgage from the plaintiff in October, 2003 for the sum of €258,000. Rather unusually, the encumbered lands comprise both registered and unregistered lands. It would seem, however, that the actual dwelling is wholly situate on unregistered land, while the curtilage and garden constitute registered land.

6 6. The monthly payments were approximately €1,300. The premises in question is the family home of Mr. and Ms. Duff and they reside there with their teenage children. Mr. Duff is by occupation a self-employed building contractor. Quite naturally his business has been severely hit since about 2007 by the deepest downturn in the building trade in living memory.

7 7. Under the terms of the mortgage deed, ILP agreed not to exercise their right of possession until the Duffs had defaulted for two months or more in respect of these mortgage repayments. ILP first wrote to the Duffs reminding them of their repayment obligations in December, 2008, but proceedings were first commenced in April, 2009. At that stage the arrears were in the order of €9,800.It appears that the proceedings were withdrawn at that point to enable discussions to take place concerning those arrears.

8 8. At the request of the bank, Mr. and Ms. Duff gave details concerning their financial affairs. Ms. Duff returned to part-time work in order to assist to alleviate the financial burden. Mr. Duff had made a cash lodgement of €5,000 in March, 2009 and had explained to a representative of the bank in correspondence that his income had fallen by about one fifth since 2007. During this period, ILP frequently corresponded with Mr. and Ms. Duff. Thus, on 5 ^th February, 2010, the Bank wrote to say:-

"We wish to advise you that due to the continuing serious level of arrears on your account, we are about to instruct our solicitors to seek a Court order for possession of your property. Even at this late stage, in order to avoid action we recommend you contact the undersigned as soon as possible. Unless we...