Irwin v Deasy

• Jurisdiction: Ireland
• Judgment Date: 14 May 2010
• Neutral Citation: [2010] IESC 35
• Date: 14 May 2010
• Docket Number: UNAPPROVED 110/06
• Court: Supreme Court

Between

LIAM IRWIN

Applicant / Appellant

-v-

THOMAS DEASY AND BY ORDER: CARMEL DEASY

RESPONDENTS

[2010] IESC 35

Murray C.J.

Kearns P.

Denham J.

Geoghegan J.

Fennelly J.

UNAPPROVED 110/06

THE SUPREME COURT

Abstract:

Practice and procedure - Supreme Court - Appeal - Doctrine of mootness - Whether appeal a moot - Whether appeal should be allowed to proceed - Issue for determination in appeal being whether Court having jurisdiction to give judgement creditor remedy for enforcement of judgement mortgage affecting person who co-owns property against which judgement mortgage is registered.

Facts The plaintiff, being the Collector General of the Revenue Commissioners, sought a well charging order against the first defendant in respect of properties over which they had judgment mortgages registered. The High Court held that, where a judgement mortgage was registered against the interest of one of the owners of co-owned registered land, the only effective remedy for enforcement of the judgement mortgage would be either to order partition of the land between the judgement debtor and the co-owner or a sale in lieu of partition followed by a division of the proceeds of sale. However, the High Court that either option would interfere with the property rights of the co-owner and that in the absence of specific jurisdiction it would not be appropriate to make such an order. It further held that the interest of a judgement creditor of registered land who had judgement mortgages registered against one co-owner of the jointly owned land was insufficient to give him locus standi to maintain a suit for partition of the land. The High Court further held that, as regards registered land, the High Court prior to the enactment of the Registration of Title Act 1964 had no inherent jurisdiction in common law or equity to make an order for sale in lieu of partition of the entirety of co-owned property to enforce a judgement mortgage, or for any other purpose, and that the power to order a sale in lieu of partition was wholly statutory and did not extend to registered land in the absence of any express jurisdiction conferred by the Act of 1964. The plaintiff appealed to the Supreme Court. The appellant contended that the issue to be determined was not a moot despite the subject of the appeal ceasing to be a live issue between the parties due to a settlement having been reached by them in the interim.

Held by the Supreme Court (Murray C.J. delivering the judgment of the Court) in allowing the appeal to proceed that proceedings were moot where there was no longer any legal dispute between the parties. The mootness doctrine was applied by the courts to restrain parties from seeking advisory opinions on abstract, hypothetical or academic questions of the law by requiring the existence of a live controversy between the parties to the case in order for the issue to be justiciable. In exceptional circumstances where one or both parties had a material interest in a decision on a point of law of exceptional public importance, the Court could, in the interests of the due and proper administration of justice, determine such a question. However, that discretion should be exercised with caution, and academic or hypothetical appeals should not be heard.

That despite the fact that the question was no longer a live issue between the parties themselves, it remained a live issue in the context of the continued exercise by the Revenue Commissioners of their statutory powers to seek to recover outstanding taxes, and the appellant therefore had a real, and not merely hypothetical, interest in the determination of this appeal.

G. v. Collins [2005] 1 I.L.R.M. 1 considered.

Reporter: P.C.

1 Reasons for the ruling of the Court delivered by Murray C.J. on the 14th day of May, 2010

2 This is an application by the appellant, the Collector-General of the Revenue Commissioners, to have an appeal heard by this Court notwithstanding that the subject of the appeal has...