Permanent TSB Plc Formerly Irish Life and Permanent Plc v Farrelly
| Jurisdiction | Ireland |
| Judge | Ms. Justice Hyland |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] IEHC 255 |
| Docket Number | Record No. 2020/215CA |
| Court | High Court |
[2023] IEHC 255
Record No. 2020/215CA
THE HIGH COURT
EX TEMPORE JUDGMENT of Ms. Justice Hyland delivered on 5 May 2023
This is an appeal by the defendant against the decision of Judge Linnane of 20 November 2020 whereby she set aside the decision of the County Registrar to dismiss the within proceedings for an apparent failure to observe previous Orders of the Registrar and reconstituted the proceedings, substituting Start Mortgages Designated Activity Company for Permanent TSB. It is brought by way of Notice of Appeal dated 18 January 2021.
The motion to set aside and reconstitute was brought by Start Mortgages Designated Activity Company. However, the defendant did not reflect the reconstitution of proceedings ordered by Linnane J. on 20 November 2020 in his Notice of Appeal so this appeal incorrectly identifies the previous plaintiff, Permanent TSB. In fact, Permanent TSB took no part in these proceedings.
Turning to the history of the proceedings, Permanent TSB issued a Civil Bill on 24 January 2018 seeking possession of 16 Nutley Square, Donnybrook, Dublin 4. Permanent TSB lent the defendant the sum of €431,250 on 8 January 2009 by a facility letter of that date. The mortgage was created on 29 January 2009. On 15 December 2017 the defendant was indebted in the amount of €510,743.
The Civil Bill was assigned a date before the County Registrar in the ordinary way. It appeared before the County Registrar on a number of dates. Ultimately, the County Registrar made an Order on 25 October 2019. The terms of that Order are important, and so I should identify those terms at this point in time. That Order identified that:
“Whereupon and on reading the pleadings and documents filed herein and on hearing the evidence adduced and what was offered by Counsel for the Plaintiff and Solicitor for the Defendant.
THE COURT DOTH ORDER:
(1) That the plaintiff's civil bill hearing be and the same is hereby dismissed for want of prosecution for failure to comply with the previous court orders. The issue in this case arises with the Plaintiff (sic) compliance with the CCMA and its failure to provide all information to the Defendant.
(2) That the Defendant do recover from the Plaintiff the cost of the Proceedings to be taxed in default of agreement”.
Permanent TSB brought a motion on 1 November 2019 seeking to set aside that Order. The application, at paragraph 1, identified that it was an Order seeking to set aside the whole of the Order of the County Registrar of 25 October 2019. Paragraph 2 sought an Order pursuant to Order 22, rule 4 of the Circuit Court Rules substituting the applicant “Start Mortgages Designated Activity Company” as plaintiff in the within proceedings in lieu of Permanent TSB plc. formerly Irish Life and Permanent plc.
There were a number of outings before Judge Linnane. Ultimately, she gave her decision on 20 November 2020. She recites in the Order that:
“On hearing counsel for the applicant and solicitor for the defendant and having refused the application by the defendant for an adjournment, the Court doth make an Order pursuant to O.22, r.4 substituting Start Mortgages Designated Company as plaintiff in lieu of Permanent TSB in the proceedings and the Court doth order that all future proceedings be carried on between Start Mortgages as plaintiff and Matthew Farrelly as defendant and the Court doth adjourn the substantive proceedings to the end of April 2022 at a date and time to be fixed by the Circuit Court office”.
It is clear from the transcript of the proceedings which have been placed on affidavit before me that she was setting aside the Order of the County Registrar on the basis that it was disproportionate and excessive, and that the proceedings were now in a position to proceed in the normal fashion. As I have said, she also made an Order reconstituting the title of the proceedings.
Under s.37 of the Courts of Justice Act 1936, the High Court when hearing an appeal against a decision of the Circuit Court is acting de novo. This means that the High Court carries out an entirely fresh review of the decision of the County Registrar and is not reviewing the decision of the Circuit Court. The defendant has placed a great deal of emphasis on the way in which the hearings took place before Linnane J. and has made a claim of objective bias on the part of the Judge. To support that claim, the defendant has obtained the digital audio recording of the hearings and has exhibited the transcripts of the hearings. I have read all of those transcripts carefully. There was also a detailed affidavit filed by the defendant identifying the different heads of prejudice.
However, this is not a judicial review where the defendant is seeking to quash the decision of Linnane J. on the basis of objective bias. If that were the case, then it would be appropriate for me to review the transcripts to adjudicate upon the claim of objective bias for the purpose of considering the legality of the decision of Linnane J. But that is not the nature of the jurisdiction conferred upon me by s.37. Rather I must consider the motion to set aside the decision of the County Registrar afresh. That this is the task before me is confirmed by the fact that the moving party in the motion is Start Mortgages who are obliged to persuade me that they are entitled to the reliefs that they seek.
In response to this point being raised at the hearing today, the solicitor for the defendant indicated that, because of the importance of the administration of justice, I should exercise my inherent jurisdiction and I should consider the manner in which the case was dealt with in the Circuit Court. He said that this was an end in and of itself, while conceding that it might not have any bearing on the outcome of the motion due to the limitations of s.37. I do not enjoy inherent jurisdiction in the context of this appeal, following the decision of Simons J. in Promontoria v Mahon [2019] IEHC 218.
I do of course fully accept the submission that the notion of impartial administration of justice is enormously important. I recognise that if the Circuit Court decision was relevant to my decision, then it would be necessary to adjudicate on the defendant's claim of being unfairly treated. However, I am deciding the case afresh and I am not in any way bound or circumscribed by what was done in the Circuit Court. The defendant has had an opportunity to respond to the motion again and has had the benefit of introducing new evidence from the County Registrar in that respect, which evidence I have considered carefully. It was opened to the Court today and paragraphs were identified by the solicitor for the defendant. This is a new hearing and is not affected by either the outcome of the Circuit Court hearing or the nature of the hearing itself.
The defendant could have sought to judicially review the decision of Linnane J. and sought declaratory relief in that context. Sensibly, in my view, he decided to opt for an appeal whereby there would be a fresh adjudication on the decision of the County Registrar.
In those circumstances, I decline to adjudicate upon the claim of objective bias because any decision I would make in that regard would be outside my jurisdiction and irrelevant to my consideration of the legality of the decision of the County Registrar. It is the legality of that decision that I am concerned with and not the legality of the decision of Linnane J.
Turning now to the legality of the County Registrar's decision, Start Mortgages asserts that the Registrar was not entitled to strike out or dismiss the proceedings as she did not enjoy the jurisdiction to do so. It is trite law that the Circuit Court is a court of limited and local jurisdiction and does not enjoy an inherent jurisdiction. Still less does the County Registrar enjoy any inherent jurisdiction. The jurisdiction of the County Registrar is delineated by the rules of the Circuit Court, which in turn are made by way of delegated legislation. The relevant rule covering actions for possession and well charging reliefs is Order 5B of the Rules of the Circuit Court. This was inserted by Statutory Instrument No. 264 of 2009. The Order applies to proceedings where the plaintiff claims inter alia recovery of possession of any land on foot of a legal mortgage or charge. This is such a case.
Order 5B(4) provides that every Civil Bill to which this Order applies shall be assigned a return date before the County Registrar. Under Order 5B(5)(3), a defendant intending to defend proceedings shall enter an appearance. Both of those steps were taken in the within matter. Under Order 5B(7), the powers of the County Registrar on the return date of the Civil Bill or any adjournment from such date are set out. They are expressed as powers enjoyed by the County Registrar in addition to any other Order which the County Registrar has power to make. The plaintiff argues that the County Registrar has no additional powers to strike out proceedings or dismiss proceedings in the circumstances as there is no such power identified in Order 5B.
However, the defendant relies upon the power of the County Registrar under a completely different Order, being Order 18(1)(vi) of the Circuit Court Rules, which provides that the County Registrar may make an Order to dismiss an action with costs for want of prosecution or for failure to make an affidavit of discovery or to answer interrogatories. The Order of the County Registrar recites that she is dismissing the proceedings for want of prosecution, as previously identified, although the defendant in fact characterises the dismissal as being not for delay but for failure to comply with...
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