Smith v Considine
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 24 January 2017 |
| Neutral Citation | [2017] IEHC 22 |
| Docket Number | [2016 No. 508 J.R.] |
| Court | High Court |
| Date | 24 January 2017 |
[2017] IEHC 22
THE HIGH COURT
JUDICIAL REVIEW
Humphreys J.
[2016 No. 508 J.R.]
Land and Conveyancing – Order for possession – Default in appearance – Judicial review – Legality of decision – Art. 6 of ECHR
Facts: The applicant had challenged the order of the county registrar/first respondent to the effect of directing the second respondent/bank for recovering the possession of the applicant's family home. The applicant alleged that the respondent had made an order for discovery in his absence and without taking the applicant's medical certificate on record.
Mr. Justice Richard Humphreys denied any relief to the applicant. The Court held that the judicial review was concerned with the legality of the decision. The Court found that the first respondent's order was just, apt and cogent as the applicant had been afforded one adjournment on account of illness and the same concession could not be granted again. The Court noted that the appropriate remedy for the applicant was to file an appeal against the impugned order. The Court held that the Court could not look into the merits of the case in judicial review.
On 1st May, 2014, KBC bank commenced Circuit Court proceedings for possession of the applicant's home. An order for substituted service was made on 5th December, 2014.
On 1st May, 2015, the matter came before the county registrar, Ms. Rita Considine, who advised the applicant to enter an appearance and a defence.
On 16th November, 2015, the applicant submitted a medical certificate from his GP stating that he was unwell. On foot of that, the matter was adjourned in ease of the applicant.
On 29th February, 2016, the applicant's GP issued yet a further medical certificate stating that ‘it is my opinion that Mr. Smith will be medically unfit to attend this hearing, or to give instructions, for a period of a further 3 months’.
On 29th April, 2016, in the absence of an appearance or defence having been filed, the county registrar made an order that the bank recover possession of the applicant's family home. The applicant was in attendance and addressed the hearing.
The applicant had the remedy of appeal to the Circuit Court but did not invoke that option.
Instead he sought leave to apply for judicial review, an application which I directed should proceed on a telescoped basis. While the bank has helpfully assisted the applicant by furnishing the county registrar with papers, and while I deem that she has been duly served, I consider that as a quasi-judicial officer within the court system a county registrar should be dealt with analogously to a judge and is not a proper party to the proceedings. She should be given notice of the proceedings but the appropriate respondent is the other party to the underlying matter, in this case, the bank.
The rough dividing line between points suitable for judicial review and those suitable for appeal is that between legality and merits, as set out in the Supreme Court decision in Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31st July, 2014) per Clarke J. at paras. 3.8 to 3.15. By way of example, as I pointed out in Crowley v. A.I.B. [2016] IEHC 154 at para. 16, any argument that the impugned decision is incorrect on the evidence is one as to merits.
Ten grounds are advanced in the statement of grounds.
Ground 1 is a generalised lack of fair procedures which lacks appropriate specificity and has not been made out. The applicant claimed in oral submissions that the order could not have been made without his consent but, unfortunately for him, that is not correct.
Ground 2 is a failure to take into account the applicant's medical certificate. However a party does not have an indefeasible legal right to an indefinite or repeated adjournment of proceedings because those proceedings are causing him stress, anxiety or depression. The applicant already had the benefit of one adjournment and in the interim he generated documentation and engaged with the proceedings. He also attended at the hearing in April, 2016. The county registrar's order was not outside jurisdiction, particularly where the medical certificate is sparse and general as this one was. The bank also enjoys a right to a hearing without undue delay by virtue of art. 6 of the ECHR. Weighting those rights against those of the applicant was a matter for the county registrar and no basis to disturb...
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Hussain v Taxing Master Rowena Mulcahy
...& anor [2012] 2 IR 704; see also Walsh v. Property Registration Authority [2016] IECA 34 in this regard) and Smith v. Considine & anor [2017] IEHC 22. In Smith, a county registrar was held to be a quasi-judicial officer within the court officer and thus to be treated analogously to a jud......
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Fitzpatrick v Behan (in His Capacity of Taxing Master of The High Court)
...process - only providing a service of a very limited nature. The applicant argues that the subsequent decision Smith v. Considine [2017] IEHC 22 did not consider the established jurisprudence or set out why an analogy was drawn between a judge and that of a county registrar. Smith aforesaid......