Permanent TSB Plc v Langan

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 28 July 2016
• Neutral Citation: [2016] IECA 229
• Court: Court of Appeal (Ireland)
• Docket Number: 2016, 131
• Date: 28 July 2016

[2016] IECA 229

THE COURT OF APPEAL

Hogan J.

2016, 131

Ryan P.

Irvine J.

Hogan J.

BETWEEN

PERMANENT TSB PLC

PLAINTIFF / RESPONDENT

- AND -

DAVID LANGAN

DEFENDANT / APPELLANT

Possession – Unrateable properties – Case stated – Appellant seeking a case stated – Whether the jurisdiction of the Circuit Court in respect of proceedings for possession of a dwelling brought by a mortgage lender is excluded if a property is not rateable

Facts: The defendant/appellant, Mr Langan, in February 2008, entered into a mortgage with the plaintiff bank, Permanent TSB plc (PTSB), whereby five registered properties and one unregistered property were mortgaged to PTSB. Mr Langan subsequently defaulted on repayments and proceedings for possession of the six properties were instituted in the Circuit Court by PTSB. After the enactment and coming into force of the Land and Conveyancing Law Reform Act 2013, further proceedings for possession in respect of the same properties were instituted in the form of two Civil Bills in the Circuit Court and the earlier proceedings were discontinued. In February 2015 the Circuit Court granted orders for possession in respect of all six properties. Mr Langan duly appealed to the High Court. In light of the 20th May 2015 decision of Murphy J in Bank of Ireland Mortgage Bank v Finnegan [2015] IEHC 304 where it was held that the Circuit Court did not have jurisdiction to hear possession suits in respect of unrateable properties, Mr Langan then put in issue the jurisdiction of the Circuit Court to grant the orders for possession which he was appealing. Mr Langan swore a subsequent affidavit in December 2015 in which he stated that all the properties in question were dwellings which had been constructed after 2002 and were, accordingly, by virtue of provisions contained in the Valuation Act 2001, unrateable. On 26th November 2015, in Bank of Ireland Mortgage Bank v Hanley [2015] IEHC 738, Noonan J took a different view to that which had been taken a few months earlier by Murphy J in Finnegan and he concluded that the Circuit Court did have such jurisdiction in such circumstances. On 1st February 2016, before the High Court (Baker J), Mr Langan sought a case stated to the Court of Appeal in view of the two conflicting decisions given by different High Court judges in respect of this jurisdictional issue. Baker J subsequently stated five separate questions for consideration of the Court of Appeal, namely: (1) If a property is not rateable by virtue of the 2001 Act, or otherwise, is the Circuit Court?s jurisdiction under s. 22(1) of the Courts (Supplemental Provisions) Act 1961 excluded?; (2) In the alternative does the Circuit Court have jurisdiction by virtue of the property not having a rateable valuation that exceeds ?253.95?; (3) Is the Circuit Court entitled to proceed to judgment, unless it is shown by evidence that there is a rateable valuation which exceeds ?253.95?; (4) If there is no certificate of rateable valuation, how does the court exercise its power to estimate rateable valuation under s. 31 of the County Officers and Courts (Ireland) Act 1877?; (5) Is the plea in a Civil Bill taken together with evidence on affidavit of a provisional estimate of rateable valuation, sufficient ?legal evidence? on which the court can make an estimate rateable valuation for the purposes of s. 31 of the 1877 Act?

Held by Hogan J that the Circuit Court had no jurisdiction to hear the present proceedings because the properties in question were domestic dwellings which were not rateable. Although since the enactment of Part 10 of the Land and Conveyancing Law Reform Act 2009 the Circuit Court enjoys a general jurisdiction in respect of such dwellings which is not dependent on rateable valuation, Hogan J held that this only applies where the mortgage in question was created after 1st December 2009. Hogan J noted that the Circuit Court also enjoys a similar general jurisdiction by virtue of the Land and Conveyancing Law Reform Act 2013 in respect of principal private dwellings. Hogan J held that neither of these exceptions apply, however, to the present case as the mortgages over the properties were all created prior to 1st December 2009 and the properties in question were not the principal private residence of the defendant.

Hogan J held that, to the questions posed by Baker J in her case-stated, he proposed that they be answered as follows: (1) Yes, subject to the answer given in respect of (3); (2) No; (3) Where the defendant has put the jurisdiction of the Circuit Court at issue, that Court in not entitled to proceed to judgment in respect of a domestic dwelling which has been rendered unrateable by the 2001 Act, unless the case in question comes within either Part 10 of the 2009 Act or s. 3 of the 2013 Act; (4) Does not arise; (5) Does not arise.

Case stated (questions answered).

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 28th day of July 2016

1 If a property is not rateable by virtue of the Valuation Act 2001 (?the 2001 Act?) is the jurisdiction of the Circuit Court in respect of proceedings for possession of a dwelling brought by a mortgage lender thereby excluded? This is in essence the principal issue stated for the consideration of this Court by the High Court (Baker J.) pursuant to a case stated which she made under s. 38(3) of the Courts of Justice Act 1936 (as amended). The issue is one of very considerable practicable significance and difficulty and, as will be seen from this judgment, it has already given rise to two separate judgments in the High Court which arrived at different conclusions on this point.

2 At the outset it is only appropriate to pay tribute to the very high quality of the written and oral submissions which were presented to this court on behalf of the parties. The Court is indebted to counsel for the elegant and incisive way in which this difficult point of interpretation has been prepared and presented.

3 Before considering the legal issues, it is necessary first to set out the relevant facts. In February 2008, the defendant, Mr. David Langan, entered into a mortgage with the plaintiff bank, Permanent TSB plc (?PTSB?), whereby five registered properties and one unregistered property were mortgaged to PTSB. Five of the properties are situate in north Co. Dublin and the other property is located Smithfield, Dublin 7. It is not in dispute that Mr. Langan subsequently defaulted on repayments and proceedings for possession of the six properties were instituted in the Circuit Court by PTSB.

4 After the enactment and coming into force of the Land and Conveyancing Law Reform Act 2013, further proceedings for possession in respect of the same properties were instituted in the form of two Civil Bills in the Circuit Court and the earlier proceedings were discontinued.

5 The two Civil Bills in question both contain recitations in the pleadings to the effect that ?the annual rateable valuations of each of the said properties does not exceed ?253.95?. In both sets of proceedings PTSB have exhibited two separate letters from the Valuation Office in respect of all six properties, which correspondence stated that while the properties were not yet valued for rating purposes, it was nonetheless certified that the rateable valuation of said buildings ?will not exceed ?253.95?. One of the letters from a Ms. Mary Regan of the Valuation Office may be regarded as representative:

?I refer to your application for a certificate showing the rateable valuation for the above property.

I regret that I am unable to issue such certificate as the property is not as yet valued for rating purposes, however, if a building is erected/re-constructed in accordance with the dimensions shown on the deed plan submitted, I certify that the rateable valuation of the said buildings will not exceed ?252.95.?

6 In February 2015 the Circuit Court (Her Honour Judge Linnane) granted orders for possession in respect of all six of these properties and dismissed all the defences raised by Mr. Langan. Her Honour Judge Linnane, noted that none of these properties was the principal private residence of Mr. Langan. No point was taken in the Circuit Court in relation to the jurisdiction of that court to hear the proceedings.

7 Although no stay was sought or granted against these orders, Mr. Langan duly appealed to the High Court. In the meantime, however, on 20th May 2015 Murphy J. delivered her judgment in Bank of Ireland Mortgage Bank v. Finnegan [2015] IEHC 304. The effect of the decision in Finnegan was that Murphy J. held that the Circuit Court did not have jurisdiction to hear possession suits in respect of un-rateable properties. In the light of that decision Mr. Langan then put in issue the jurisdiction of the Circuit Court to grant the orders for possession which he was now appealing. Mr. Langan swore a subsequent affidavit in December 2015 in which he stated that all the properties in question were dwellings which had been constructed after 2002 and were, accordingly, by virtue of provisions contained in the 2001 Act which I will later set out, unrateable.

8 Before the present appeal could be heard by the High Court, there was then another development. On 26th November 2015 Noonan J. delivered his judgment in Bank of Ireland Mortgage Bank v. Hanley [2015] IEHC 738. In Hanley, Noonan J. took a different view to that which had been taken a few months earlier by Murphy J. in Finnegan and he concluded that the Circuit Court did have such jurisdiction in such circumstances.

9 When this matter came on for hearing before Baker J. on 1st February 2016 Mr. Langan sought a case stated to this Court in view of the two conflicting decisions given by different High Court judges in respect of this jurisdictional issue. Having reserved her decision briefly, Baker J. subsequently informed the parties on 4th February...