Pepper Finance Corporation (Ireland) Designated Activity Company v Macken

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Sanfey
• Judgment Date: 26 July 2022
• Neutral Citation: [2022] IEHC 466
• Year: 2022
• Court: High Court
• Docket Number: [Record No. 2013/46 SP]

Between

Pepper Finance Corporation (Ireland) Designated Activity Company

Plaintiff

and

Michael Macken and Patricia Watson

Defendants

[2022] IEHC 466

[Record No. 2013/46 SP]

THE HIGH COURT

Order for possession – Strike out – Bound to fail – Defendant seeking to strike out the proceedings – Whether the proceedings were bound to fail

Facts: The reliefs sought by the plaintiff, Pepper Finance Corporation (Ireland) DAC, on the general endorsement of claim of the special summons were as follows: “(a) an Order for Possession of the premises described in the schedule hereto (b) a Declaration that the legal Mortgage has priority over Judgment Mortgages on the folio (c) such further or other Order as to this Honourable Court appears just (d) an Order providing for the costs of these proceedings”. The first defendant, Mr Macken, applied to the High Court by a motion dated “February 2021”, originally returnable on 21st June, 2021. The relief sought in the notice of motion was as follows: “An Order to Strike Out With Prejudice the proceedings pursuant to Superior Court rules, Order 19, Rule 28 and/or Rule 27 on the basis that it is bound to fail when examined pursuant to Superior Court Rules, Order 25 as the substantive relief sought is not available under the law as the relevant Statute, Section 62, subsection 7 of the Registration of Title Act, 1964 has been repealed since 2009”. The defendant submitted that the following six points, set out in his “speaking note”, were sufficient to establish that the Land and Conveyancing Law Reform Act 2013 “does not have any effect in this case”: (a) as there does not appear to be an Irish version of the 2013 Act, it “cannot be used to override my constitutional rights under Artigeal [sic] 40.5 trí ghaedhilg...there are clear constitutional provisions that the instruments must be in both official languages and in the event of [there] being a conflict, then the ghaedhilg text takes supremacy”; (b) as the proceedings were initiated prior to the coming into operation of s. 1 of the 2013 Act – 24th July, 2013 – the plaintiff cannot avail of its protection, “even if the purported 2013 Act was properly enacted and law”; (c) the 2013 Act is “flawed and unconstitutional” in providing for a retrospective reversal of the repeal of the appropriate subsection of s. 62 of the 1964 Act; (d) s. 1(2) of the 2013 Act has no effect and s. 62(7) of the 1964 Act “was not in force or existing immediately before the attempt to revive [the sub-section] in 2013”; (e) the 2013 Act has no effect as “section 1 and section 4 have not commenced”; and (f) s. 62(7) of the 1964 Act is and was at all times unconstitutional as being contrary to Article 40.5 of the Constitution.

Held by Sanfey J that: (a) if the plaintiff required to rely on the provisions of the 2013 Act in the proceedings – and he had no view as to whether it did or not – it was not inhibited from doing so by the absence of an Irish translation of that Act; (b) as there was no evidence before him which demonstrated that, in order to succeed in the proceedings, the defendant must be able to prevail of the provisions of the 2013 Act, this point did not avail the defendant; (c) even if the case were one in which the retrospectivity in the 2013 Act infringed on the defendant’s constitutional rights – and the defendant had made no case in that regard – the defendant has not challenged the constitutionality of the 2013 Act in a manner authorised by court procedure and O. 60 of the Rules of the Superior Courts in particular; (d) the Interpretation Act 2005 is concerned with general principles which govern the interpretation of statutes and it is not intended to inhibit the enactment of express provisions of retrospective or retroactive effect, which are in principle clearly permissible; (e) ss. 1 and 4, as with all sections which do not expressly require a commencement procedure, took effect on enactment of the 2013 Act; and (f) a challenge to the constitutionality of s. 62(7) of the 1964 Act on the basis that a charge does not confer an estate in land is misconceived, even if the jurisdiction to challenge the section had been correctly invoked.

Sanfey J dismissed the defendant’s application and held that the plaintiff should be awarded its costs against the defendant.

Application dismissed.

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 26 ^th day of July 2022 .

Introduction

1 . This judgment concerns an application by the first named defendant to strike out the plaintiff's proceedings in terms to which I shall refer in some detail below. The first named defendant prosecuted the application as a lay litigant, and I shall refer to him as ‘Mr. Macken’ or ‘the defendant’, as the second named defendant took no part in the application. The proceedings are of some antiquity; the special summons suggests that they were initiated on 30 ^th January, 2012, although the year ‘2012’ may be a typographical error, given that the proceedings bear a 2013 record number.

2 . By order of 15 ^th June, 2018, Costello J made an order substituting Pepper Finance Corporation (Ireland) DAC (‘Pepper’) as plaintiff for the original plaintiff, Danske Bank A/S, and setting aside a judgment obtained against the defendant on 2 ^nd November, 2015. The order of substitution of the plaintiff was appealed by the defendant to the Court of Appeal, which gave judgment on 25 ^th January, 2020. That court dismissed the appeal, although in a written judgment ( [2021] IECA 15), the court was critical of the manner in which Pepper had conducted the application before the High Court and the initial hearing of the appeal, and as a mark of its disapproval, discharged the order of costs made by the High Court against the defendant and ordered that Pepper discharge the defendant's costs and expenses incurred in connection with the appeal.

The proceedings

3 . The reliefs sought on the general endorsement of claim of the special summons are as follows:-

“(a) an Order for Possession of the premises described in the schedule hereto

(b) a Declaration that the legal Mortgage has priority over Judgment Mortgages on the folio

(c) such further or other Order as to this Honourable Court appears just

(d) an Order providing for the costs of these proceedings”

4 . The summons states that the plaintiff claims by virtue of a deed of mortgage/charge dated 21 ^st March, 2007 which was registered in the Land Registry as a mortgage/charge over the property on 11 ^th day of December, 2009. The scheduled property is “ ALL THAT AND THOSE the property comprised in folio 11582F County Roscommon and known as ‘Sorrento’ Creagh, Beal Na Mulla, Athlone, Co. Roscommon”.

5 . The litigation has been conducted in accordance with special summons procedure; the plaintiff maintains that it has invited the defendant to adopt a procedure appropriate to plenary proceedings, given the extent and breadth of the matters disputed by him, but that the defendant has not taken up this suggestion.

The present application

6 . The proceedings came before this Court on 15 ^th January, 2020. On that occasion, O'Connor J gave directions in relation to submissions and in relation to a motion to amend the special summons. The parties were then to seek a date for hearing of the plaintiff's possession application. Ultimately, the matter came before Allen J on 2 ^nd February, 2021, and further directions were made, including directions as to the filing of affidavits. The matter returned before Allen J on 16 ^th February, 2021; on that occasion the court granted liberty to the plaintiff to issue and file a notice of motion seeking an extension to the timeline set out in the order of 2 ^nd February, 2021, and also granted liberty to the first named defendant “to issue and file a Notice of Motion by close of business on Friday the 26 ^th day of February 2021…to inspect documents (giving a list and brief description of the documents to be inspected) and for the trial of a preliminary issue of law”.

7 . At the hearing before me, the plaintiff applied for an extension of time in relation to an affidavit of Seamus Dowling of 24 ^th February, 2021. According to the order of Allen J, this affidavit was to be filed by close of business on Monday 8 ^th February, 2021; in his order of 16 ^th February, 2021, Allen gave liberty to the plaintiff to apply for an extension of this time limit. The affidavit contained some nine hundred and thirty-three pages of documentation, and Mr. Macken was heavily critical of the content of the affidavit and put in a replying affidavit and extensive submissions in that regard. Mr. Macken strenuously opposed any extension. Counsel for the plaintiff referred to the facts that an appropriate explanation and an apology were proffered in the affidavit; that it was seventeen days late; and that Mr. Macken had not been prejudiced by the delay.

8 . In an ex tempore ruling, I held that it would not be appropriate to enter into an examination of the veracity or otherwise of the averments in the affidavit – as I was invited to do by Mr. Macken – nor should the plaintiff be shut out from proffering the evidence in the affidavit in circumstances where there was no prejudice to the defendant. Accordingly, I granted an extension of time for filing of the affidavit to the plaintiff.

9 . The other application to be decided by the court was the defendant's application by a motion dated “February 2021”, originally returnable on 21 ^st June, 2021. The reliefs sought in the notice of motion were as follows:-

• “(1) An Order to Strike Out With Prejudice the proceedings pursuant to Superior Court rules, Order 19, Rule 28 and/or Rule 27 on the basis that it is bound to fail when examined pursuant to Superior Court Rules, Order 25 as the substantive relief sought is not available under the law as the relevant Statute, Section 62, subsection 7 of the Registration of Title Act, 1964...