Permanent TSB (Formerly Irish Life and Permanent Plc) v Carr

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Garrett Simons
Judgment Date28 Jan 2019
Neutral Citation[2019] IEHC 14
Docket Number2017 No. 575 SP

[2019] IEHC 14

THE HIGH COURT

Simons J.

2017 No. 575 SP

BETWEEN
PERMANENT TSB PLC (FORMERLY IRISH LIFE & PERMANENT PLC)
PLAINTIFF
AND
GEOFFREY CARR
DEFENDANT

Special summons – Master of the High Court – Order for possession – Plaintiff seeking to discharge an order of the Master of the High Court purporting to dismiss Special Summons – Whether the Master has jurisdiction to adjudicate on the substance or merits of an application for an order for possession brought by way of Special Summons

Facts: The plaintiff, Permanent TSB Plc, sought an order for possession of lands and premises in Nenagh, County Tipperary. The title to the lands was unregistered. The application for the order for possession was grounded on a deed entitled “Mortgage and Charge” said to have been entered into between the plaintiff bank and the defendant, Mr Carr. The deed was dated 20 April 2005 and appeared to have been registered at the Registry of Deeds (Dublin) on 4 August 2005. A Special Summons was first issued on 27 November 2017. The plaintiff bank subsequently sought to amend the schedule to the Special Summons in order to correct an error in relation to the description of the lands. The High Court (McDermott J), on 25 June 2018, ordered that: “1) pursuant to Order 28 of the Rules of the Superior Courts the Plaintiff be at liberty to amend the Original Special Summons by substituting the words ‘to the Indenture of Conveyance made on the 20th day April 2005 between Margaret Marie Schlag of the one part and Geoffrey Carr of the other part and referred to in the Second Schedule therein’ for ‘hereto’; 2) pursuant to Order 10 Rule 1 of the Rules of the Superior Courts the Plaintiff is granted liberty to serve on the Defendant the Special Summons any further pleadings and documents by posting a copy of the door at Carney Commons Carney Nenagh County Tipperary.” When the Special Summons next appeared in the Master’s List (5 October 2018), the Master of the High Court raised a concern that there was no map attached to the version of mortgage and charge which had been exhibited in the proceedings. According to the affidavit filed on behalf of the plaintiff bank in support of its application to discharge the order of the Master purporting to dismiss the Special Summons, the Master suggested that it would be necessary for the plaintiff bank to apply for an order for rectification in respect of the mortgage deed. At all events, the Master purported to strike out the Special Summons. The application to discharge was made pursuant to Order 63, rule 9 of the Rules of the Superior Courts. The impugned order was dated 5 October 2018, and was perfected on 9 October 2018.

Held by the High Court (Simons J) that the Master has no jurisdiction to adjudicate on the substance or merits of an application for an order for possession brought by way of Special Summons. Simons J held that, on the facts of this case, where service had been effected in accordance with the order of the High Court of June 2018, and the defendant had neither appeared nor sought to file any affidavit, the proceedings were “in order” when the matter appeared in the Master’s List on 5 October 2018. Simons J held that the Special Summons should have been transferred on that date to the Chancery Special Summons List for hearing by a High Court Judge; instead, the Master exceeded his jurisdiction in (i) purporting to adjudicate on the enforceability of the mortgage (by reference to the absence of an annexed map), and (ii) purporting to strike out the Special Summons.

Simons J held that he would make an order discharging the order of 5 October 2018, and reinstating the Special Summons. He held that he would make a further order transferring the proceedings into the Chancery Special Summons List; a date for the hearing of the application for possession could then be fixed. He held that he would also direct that the plaintiff bank file written legal submissions in advance of such hearing, setting forth its argument for saying that it could rely on the mortgage notwithstanding the absence of a map. Simons J held that the defendant would be put on notice of the hearing date, and may make such submission, written or oral, as he wished.

Application granted.

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 defendant's rights will be fully protected by the High Court.

8

Finally, for the avoidance of any possible doubt, I reiterate that I have formed no view as to the merits of the application for an order for possession in this case. This judgment is confined solely to the issues arising from the purported order of the Master.

PROCEDURAL HISTORY
9

These proceedings seek an order for possession of lands and premises in Nenagh, County Tipperary. The title to the lands is unregistered. The application for the order for possession is grounded on a deed entitled ‘Mortgage and Charge’ said to have been entered into between the plaintiff bank and the defendant. The deed is dated 20 April 2005. The deed appears to have been registered at the Registry of Deeds (Dublin) on 4 August 2005.

10

Given the events which occurred before the Master in October 2018, it is necessary to refer to the description of the lands as per the deed, as follows.

‘ALL THAT AND THOSE THE DWELLINGHOUSE AND PREMISES SITUATE AT CARNEY COMMONS, CARNEY, NENAGH, IN THE COUNTY OF TIPPERARY FORMING PART OF THE LANDS OF COMMONS OF CARNEY WITH ALL...

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