Promontoria (Oyster) Designated Activity Company v Michael Kean

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IEHC 796
• Docket Number: 2019 No. 247 SP
• Year: 2021
• Court: High Court

Between

Promontoria (Oyster) Designated Activity Company

Plaintiff

and

Michael Kean

Defendant

[2021] IEHC 796

2019 No. 247 SP

THE HIGH COURT

Appearances

Eoghan Casey for the Plaintiff instructed by O'Brien Lynam Solicitors

Diarmuid Padraig Murphy for the Defendant instructed by Michael Keane & Co. Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 21 December 2021

INTRODUCTION

1 This judgment is delivered in respect of an application to have the within proceedings remitted to the Circuit Court.

PROCEDURAL HISTORY

2 These proceedings have been instituted by way of Special Summons in accordance with Order 38 of the Rules of the Superior Courts. The proceedings seek to enforce a lien in respect of a debt for which, it is said, the Defendant is liable to the Plaintiff. The Plaintiff is said to have succeeded to the interest of Ulster Bank Ireland DAC.

3 The principal reliefs sought in the proceedings are, first, a well charging order, i.e. a declaration that the Defendant's interest in certain registered lands is well charged with the payment of all monies due and owing by the Defendant to the Plaintiff (and/or its predecessors in title) under specified loan agreements; and secondly, a declaration that there is due and owing to the Plaintiff a total sum of €310,512.83 together with continuing interest pursuant to contract and/or statute.

4 The application for the well charging order is made in reliance upon a lien which has been registered as a burden on freehold lands held in the name of the Defendant.

5 The Defendant contends that the lien was not validly registered. This contention is predicated on an argument that the transitional provisions under section 73 of the Registration of Deeds and Title Act 2006 required that the registration of a lien have been completed by 31 December 2009. The Defendant has exhibited documentation which might suggest that whereas an application had been made to register the lien on 31 December 2009, the land certificate may not have been actually lodged until 11 March 2010. The Defendant has also exhibited a letter dated 21 April 2010 which informs Ulster Bank that the application has been completed.

6 The response made an affidavit on behalf of the Plaintiff is that it is sufficient that an application for registration have been made prior to 31 December 2009.

APPLICATION TO REMIT TO CIRCUIT COURT

7 The Defendant has brought a motion seeking to have the proceedings remitted to the Circuit Court. The motion came on for hearing before me on 29 November 2021. Both sides had prepared helpful written legal submissions which were supplemented by oral argument.

8 Counsel on behalf of the Defendant submits, by reference to the judgment of the Court of Appeal in Allied Irish Banks plc v. Gannon [2017] IECA 291, that the legislative policy underlying section 25 of the Courts of Justice Act 1924 is to promote a form of legal decentralisation. Litigants are to be encouraged and facilitated in commencing their proceedings at the lowest level of the legal system appropriate to those proceedings. It is submitted that in order to best give effect to this legislative policy, well charging proceedings concerning lands falling below the market value threshold of €3,000,000 ought to be commenced in the Circuit Court. It is said that the within proceedings do not give rise to any unusually important point of law. The case falls to be determined primarily on whether or not the Plaintiff has...