Permanent TSB (Formerly Irish Life and Permanent Plc) -v- Carr, [2019] IEHC 14 (2019)

Docket Number:2017 No. 575 SP
Party Name:Permanent TSB (Formerly Irish Life and Permanent Plc), Carr
 
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THE HIGH COURT2017 No. 575 SP

BETWEEN

PERMANENT TSB PLC

(FORMERLY IRISH LIFE & PERMANENT PLC)PLAINTIFFAND

GEOFFREY CARRDEFENDANT

JUDGMENT of Mr. Justice Garrett Simons delivered on 28 January 2019

INTRODUCTION

  1. This matter comes before the High Court by way of an application to discharge an order of the Master of the High Court (“the Master”) purporting to dismiss the within Special Summons. The application to discharge is made pursuant to Order 63, rule 9 of the Rules of the Superior Courts. The impugned order is dated 5 October 2018, and was perfected on 9 October 2018.

  2. For the reasons set out below, I have concluded that the plaintiff bank’s application to discharge the order of the Master should be allowed.

  3. It is well established that the Master has no jurisdiction to strike out a Special Summons. This principle has recently been confirmed in proceedings taken against the Master by way of an application for judicial review, Allied Irish Bank plc v. Honohan [2015] IEHC 247. Given the clear statement in that judgment that the Master has no power to strike out a Special Summons, it beggars belief that the Master continues to make orders purporting to strike out Special Summonses.

  4. This course of conduct on the part of the Master simply serves to increase legal costs unnecessarily and to cause delay. It has no practical benefit whatsoever: the Master’s purported order striking out a Special Summons will invariably be set aside on appeal. Moreover, in some instances the Master’s conduct may give defendants a false sense of hope. A defendant may, mistakenly, think that there has been a lawful adjudication on the merits of their case, and that the matter has been resolved in their favour. In truth, the only forum which can adjudicate upon an application for an order for possession by way of Special Summons is the High Court. The Master has no adjudicative function in this regard. To state the obvious, the Master does not hold judicial office.

  5. The proper forum for the adjudication upon an application for an order for possession is the High Court. The High Court will carefully consider whether the proofs for the application are in order, and will do so even in circumstances where a defendant has chosen not to appear before the court. Of course, if the defendant does appear, then they are entitled to be heard, either through solicitor and/or counsel or as litigants in person. If a defendant appears as a litigant in person, then the High Court will extend them every opportunity to advance whatever grounds of defence they wish to rely upon. The court will adjourn the matter if necessary to allow a defendant reasonable time to prepare for the hearing. Any ground of defence advanced in answer to the application for possession will be carefully considered by the High Court before reaching a decision—one way or the other—on the application. In those cases where an order for possession is granted, the High Court will often place a stay on the order for a short period of time to allow the affected party to arrange their affairs. If either party is dissatisfied with the decision of the High Court, then there is a right of appeal to the Court of Appeal.

  6. The foregoing represents a very concise description of the procedure before the High Court. As appears, the procedure before the High Court is more than ample to ensure fair procedures to both parties, and to protect the rights of a defendant in particular. This procedure does not require—nor permit—the Master to make any substantive adjudication. The rights of both parties are instead protected by the High Court.

  7. The role of the High Court can be illustrated by reference to the facts of this case. As explained in more detail presently, the Master raised a concern as to the absence of a map purporting to identify the property the subject of the mortgage. The deed of mortgage, which has been exhibited in the proceedings, expressly refers to a map. The plaintiff bank, seemingly, maintains the position that the absence of the map does not prevent it from seeking an order for possession. This is a matter which will have to be adjudicated upon by the High Court at the full hearing of the application for an order for possession. Without in any way wishing to prejudge the outcome of such application, it might be the case that, following a full hearing, the High Court concludes that the mortgage is deficient and that an order for possession should not be made. For present purposes, what is relevant is that the function of carrying out this adjudication resides solely with the High Court. It is not a matter within the jurisdiction of the Master. The...

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