Shoreline Residential Ltd v Sheila Ruth Pelzer and David Pelzar

Judgment Date04 October 2018
Date04 October 2018
Docket Number[2018 No. 161 C.A.]
CourtHigh Court


[2018 No. 161 C.A.]




Contract – Unfair terms – Possession – Defendants seeking leave to commence an out of time appeal against a Circuit Court order for possession – Whether the Circuit Court must itself examine the contractual documentation to check for unfair terms

Facts: This was an application to the High Court for leave to commence an out of time appeal against a Circuit Court order for possession. The defendants, Ms Pelzer and Mr Pelzar, asked the Master of the High Court to form a view on whether the law was such that the Circuit Court must itself examine the contractual documentation to check for unfair terms. They wanted the Master of the High Court to refer this question of law to the European Court of Justice for a definitive ruling, given disquiet at conflicting judgments of the High Court on this point.

Held by the Master that it was not necessary to seek a ruling under the reference procedure. The Master was of the view that at a hearing of a motion for summary judgment such an own-motion unfair contract forms assessment is not necessary, for the reason that the very nature of a summary motion is prima facie and no more. However, the Master noted that the European Court of Justice might think otherwise.

The Master held that the defendants had an arguable ground of appeal. The Master considered that this conclusion may be too speculative to be safe, having had regard to prejudice to the plaintiff, Shoreline Residential Ltd. The Master held that when significant prejudice is unavoidable in a decision by the Master, it is best to quickly refer the point in issue to the High Court judge. That is what the Master proposed to do in this case.

Point referred.


This is an application for leave to commence an out of time appeal against a Circuit Court order for possession. Whether or not to grant leave is at the discretion of the court, but such discretion is exercisable only within parameters stated in case law precedent. Not unsurprisingly, one of these parameters is whether or not the appellants’ case is not without some merit (on the law): the resources of the High Court should not be wasted trying an unstateable defence. If a late appeal has been long delayed it may reasonably fail, as an abuse of process, unless a clear injustice is identified.


There is, I suppose, a certain natural irritation in a court of first instance, (in this instance the Circuit Court), when the appeal court (here, the High Court and its Master) seeks to “lay down law” (to coin a phrase) as to how a court should approach deciding a matter within its rto absolute discretion. It's almost as if the appeal court is trenching on a prerogative. the interests of “justice”. Now, as a result, the first instance court must not only, (as it always had hitherto), conduct that inquiry, but it must also express its reasoning with due citation of the appeal court judgments, and in so doing cloak a straightforward “justice” adjudication as an application of the principles set out in the appeal court judgments.


One can only guess at the stress and confusion this causes a litigant in person who might approach the application, pleading the interests of justice commonly understood, only to be met with case law citations which appear, prima facie, to be a form of in-house legalese designed to intimidate.


If one didn't know any better, one might consider an application to extend the time for an appeal to the High Court against a decision of the Circuit Court to be fairly straightforward. As will be seen in this case, it is anything but.


First of all, it should be pointed out that there is no right - no “human” right - to have your case reheard. All that is guaranteed by the Convention is “a” (singular) fair hearing. If a hearing is unfair, for whatever reason, there may be consequences, but the convention does not specify a re-hearing as an entitlement.


It is the Oireachtas which offers that opportunity to a disappointed litigant, but the Rules of the Superior Courts prescribe that an appeal must be commenced within ten days of the date of the Circuit Court decision. [t is a cut-off date. It is tight presumably on the basis that the winning party should, all things considered, have the benefit of his win promptly, without having to wait overlong to see if the losing party is appealing. It is, if you like, a nod in the direction of deference towards the professionalism of the Circuit Court, and a measure of judicial collegiality. It also figures in the urge to bring finality to litigation.


The window of opportunity is open for ten days without any limitation. You do not need to specify the grounds for an appeal in the notice. If within time, you do not need to file any affidavit. Just pay the stamp duty and carry on. That ease of access to an appeal is viewed, correctly in my opinion, as a charter for time wasters. Everybody wants to appeal. The appeal court's lists are full. Something must be wrong. Something must give.


It is the winning party's entitlement that every application for a late appeal, outside the ten-day period, should be subject to some rigour of assessment. The flipside of time wasting is some real measure of “winnability” for the appellant's side, In the English courts the test now being applied is the yardstick of a “real prospect of success” for the appellant. It's a high threshold. (Most litigants in person come to court with just the basic evidence that they missed the deadline and want to appeal. Often belatedly realising that it's not that easy, they apply for an adjournment of the application to prepare and file a supplemental affidavit containing “evidence” relevant to the “winnability” yardstick. It is difficult to refuse such an adjournment application).


Alas, it has been my experience all too often that lawyers appearing for either party arc unwilling or even perhaps unable to discharge their primary duty to the court in these situations, namely, to ensure that the court is informed of all law pertaining to the matter, whether such is in the interests of the position of their client or not. This solemn duty enjoys a critical role in keeping the bench fully informed as to the law; otherwise individual judges would be expected to inform themselves, a process which may be faulted if, for whatever reason, a judge misinforms himself, fails to inform the parties before him, and proceeds on the basis of a misreading of the law.


There is an indisputable need for certainty in the law, but if individual judges are poorly aided by counsel who fail to offer clear objective pointers, the diversity of outcomes across the bench damages law (and clogs the waiting lists for appeal courts).


As it happens, the instant case is one which ranges beyond domestic law into EU law. It is surprising how few counsel are au fàit with EU law. Equally, few judges appear to realise its import. There is a danger that when a litigant in person pleads EU law, a degree of impatience may colour both the submissions of opposing counsel and the tolerance of the judge (of course the judge may correctly dismiss the point if it is not material).


Where, as in this case, the legal materials include not only EU law but the relevant Articles of the European Convention on Human Rights (adopted into domestic law by the Act of 2003) and the EU's own interpretative code, the “Charter of Fundamental Rights”, which we signed up to as part of the Maastricht Treaty 2001, it will readily be appreciated that the potential for error is significant. There is, for example, the confusion about whether Convention Articles create rights which are enforceable horizontally or are only effective indirectly, via the interpretative Charter, when transposed EU law is being applied in a Member State.


When an Irish Court opts to discount or entirely disregard these new materials, there is more than a hint of that Gallic superiority with which French courts feel comfortable with their proprietorial insight into EU law to the point where everything is Acte Claire without ambiguity. Human Rights? Our own Constitution's Fundamental Rights are just as good, and well documented. We even have liability for breach (see W. v. Ireland (No. 2) [1997] 2 I.R. 141; Meskill v. CIE [1973] I.R. 121), so one better. Consumer Law? An EU Directive? Sure haven't we got our own 1995 Act, together with long standing tortious liability for misrepresentation, both innocent and negligent, and the fact that the EU directive is now “only” a statutory regulation doesn't help: it is almost only optional. The constraint of “proportionality” in interference with an individual's home (ECHR Article 8)? Don't we continually affirm our adherence to Equity, a protective and just balance when mere law produces a harsh outcome? “Proportionality”? The Lord Chancellor invented it years ago! Did you never hear of the Mortgagor's Equity of Redemption? Our European partners are the ones who need the learning curve, not us.


There are three basic types of appeal against a Summary Judgment and Order for Possession. First is the appeal against the Order having been made summarily instead of after a full hearing with (perhaps) exchange of pleadings, oral evidence and (possibly) discovery. The second is the classic model alleging errors of law or fact made by the judge. The third is the late appeal on the basis of new evidence or legal arguments which were not argued before the court at the original hearing.


Next question: does the High Court have jurisdiction to hear a late appeal from a County Registrar? Wrong move? Start over, then appeal the judge?” And while either party can of course appeal the Master's decision to permit or refuse or...

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    • Hibernian Law Journal No. 19-2020, January 2020
    • 1 January 2020
    ...for Children’s Oice and hreshold. 3 [2017] IEHC 288. 4 In the case of Shoreline Residential Ltd v Sheila Ruth Pelzer and David Pelzar [2018] 10 JIC 0405, the matter of relevant information to be included in aidavits was being discussed and the Master saw it to clarify points that need not b......

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