Start Mortgages Designated Activity Company v Alan Brennan

• Jurisdiction: Ireland
• Judge: Mr. Justice Holland
• Judgment Date: 07 March 2022
• Neutral Citation: [2022] IEHC 123
• Docket Number: [Circuit Court Record No. 299/2018]
• Court: High Court

Between

Start Mortgages Designated Activity Company

Plaintiff

and

Alan Brennan

and

Carolyn Sinnott

Defendants

[2022] IEHC 123

[Circuit Court Record No. 299/2018]

[High Court Record No. 2021/127 CA]

THE HIGH COURT

Contents

JUDGMENT of Mr. Justice Holland delivered on the 7 th of March, 2022	2
The Facts	2
The Law on Renewal of Civil Bills	5
Order 12 Rule 1	5
Lawless v Beacon Hospital	6
Murphy v HSE	6
Brady v Byrne — Brereton v National Maternity Hospital	8
Altan Management, Moloney v Lacy & Downes v TLC Nursing Home	9
Bank of Ireland v Sugrue	11
Chambers	13
DRM v Proton	14
Application of Law to Facts	15
DECISION	21

JUDGMENT of Mr. Justice Holland delivered on the 7 ^th of March, 2022

1 . This is an appeal by the plaintiff of the order made by His Honour Judge Quinn at Trim Circuit Court on 26 ^th July, 2021 refusing the plaintiff's ex parte application to renew the Civil Bill in this case following its expiry and to do so for purposes of service on the first defendant.

The Facts

2 . The Civil Bill was issued by Permanent TSB on 28 ^th May, 2018 claiming possession of a house, 6 Park Dale, Grangegarth, Drogheda, County Meath, comprised in folio 59509F County Meath (“the House”). Possession is claimed on foot of a charge registered on that folio. Possession had been demanded by letters dated 26 March 2018 and 6 April 2018 – the latter recording mortgage loan arrears of €66,737.22 and total debt of €328,723.78.

3 . While the mortgage identified both defendants as residing at the House, the Civil Bill identified only the first defendant as residing there and the second as residing at an address in Glasnevin, Dublin. The second defendant was served before expiry of the Civil Bill. An affidavit of William Hughes, sworn 25 ^th July, 2018, proves personal service of that Civil Bill on the second defendant.

4 . Service on the first defendant was not achieved and the Civil Bill expired a year after it issued. The Ex Parte Docket grounding the application to Judge Quinn is dated 15 November 2019 – about 5 ¹/₂ months after expiry of the Civil Bill.

5 . An affidavit of Frank McTiernan sworn 25 ^th July, 2018 records his attempts to personally serve the first defendant at the House on 29 ^th June, 2018. He spoke there with an occupant who declined to give his name, said he was a tenant and said that the first defendant did not live there. A neighbour told Mr. McTiernan that the house was tenanted and that she had never seen the first defendant there. Mr. McTiernan served the Civil Bill upon that occupant. An affidavit of Anton Trofinchenko, sworn 14 ^th November, 2018, proves attempted service of the Civil Bill on the first defendant at the House by registered letter dated 23 July 2018 but that letter was returned marked “unknown at this address”.

6 . Those affidavits of Messrs Hughes, McTiernan and Trofinchenko appear to have grounded an intended motion for substituted service on the first defendant on foot of an ex parte docket dated 19 ^th November, 2018 which was returnable for 11 ^th February, 2019. It is unclear exactly what happened on that return date, save that the motion for substituted service must have been adjourned by reason, it seems reasonable to infer from what followed, of the perceived necessity to further investigate the Defendant's whereabouts and file a supplemental affidavit to inform options for the precise form of substituted service which might be required.

7 . A supplemental affidavit of Shauna Flanagan, sworn 16 ^th April, 2019 in the motion of substituted service, records that she is a researcher employed by “Aserve”, a firm of document servers. She deposes that the first defendant was still on the electoral register at the address of the House. She deposes that, from the first defendant's Facebook profile, he appears to reside in Warman, Saskatchewan, Canada. His Facebook profile has a number of check-ins in the United States and Canada and one at Dublin Airport in 2015 when, it appears, he was on holiday in Ireland. She deposes that she attempted to contact the first defendant via telephone numbers “provided” – but she does not say when, by whom, or in what circumstances, those numbers were provided or how reliable they might have been expected to be as contact points for the first defendant. She says that one of the phone numbers was no longer assigned to any customer. She says the second number was “ringing” and the third was “not available”. It is not clear what exactly Ms. Flanagan means by these observations but she clearly failed to contact the first defendant by those means. She summarises that her enquiries established that the defendant no longer resides in the State and possibly resides in Saskatchewan.

8 . The Meath County Registrar, by order of 13 ^th May, 2019, permitted substituted service on the first defendant. The stipulated mode of service was by advertisement in “the local newspaper in the province of Saskatchewan” and by prepaid post to the House.

9 . It must or ought to have been apparent to the Plaintiff at 13 ^th May, 2019 that substituted service of the Civil Bill prior to its imminent expiry was a matter of urgency.

10 . The Civil Bill expired a fortnight later — by which time it had not been served on the first defendant. The Plaintiff has adduced no evidence as to what happened or did not happen or what decisions were taken as to or consideration given to the question of service in that fortnight.

11 . By notice of change of solicitor dated 23 ^rd July, 2019, the present solicitors on record for the Plaintiff came on record for Permanent TSB. This roughly coincides with Permanent TSB's agreeing to sell the mortgage and loan to Start Mortgages the present Plaintiff. A “goodbye” letter of 7 February 2020 from Permanent TSB to the defendants, exhibited to an affidavit of Eva McCarthy sworn 5 June 2020 grounding an application to substitute Start Mortgages for Permanent TSB as plaintiff, records that Permanent TSB had written to the defendants on 12 September 2019 to inform them of the agreement to sell the loan – a sale completed on 7 February 2020.

12 . An ex parte docket seeking to renew the Civil Bill was filed on 15 ^th November, 2019, returnable on 13 ^th January 2020. It was filed on behalf of Permanent TSB, represented by the present solicitors on record, approximately five and a half months after expiry of the Civil Bill.

13 . The ex parte docket seeking to renew the Civil Bill was grounded on the affidavit of Sarah Comerford sworn 15 ^th November, 2019. She is a legal executive of the new solicitors on record and records that she has been authorised by Permanent TSB to make the affidavit on its behalf and on its behalf she prays renewal of the Civil Bill.

14 . Ms Comerford gives, if anything, an even briefer account of the sequence of events than I have set out above – referring only and baldly to the failure to serve the Civil Bill, the order for substituted service and the change of solicitor. She refers to the affidavit of David Smith, Assistant Manager of Permanent TSB sworn 14 May 2018 grounding the Civil Bill for possession and the exhibits thereto. She gives no account of the affidavits of Messrs Hughes, McTiernan and Trofinchenko and Ms Flanagan — which are not mentioned either in the ex parte docket as grounding the application. However, they have been opened to me and I have considered them for present purposes.

15 . On foot of her limited account of the sequence of events, Ms. Comerford simply asserts as follows:-

“I say that it appears (the previous) solicitors was unable to perfect service of the proceedings upon the first defendant as the civil bill expired on 27 May 2019 prior to (the present) solicitors filing a notice of change of solicitor.”

Ms. Comerford:

• • gives no description of the events relating to or explanation for the failure to effect substituted service between the order for substituted service and the expiry of the Civil Bill. Perhaps there is an explanation, but it is not before me.

• • gives no description of the events relating to or explanation for the lapse of 5 ¹/₂ months from the expiry of the Civil Bill to the issuing of the ex parte docket for its renewal.

• • in renewing the Civil Bill and does not articulate any basis on which any of the (very sparse) facts disclosed on her affidavit constitute “special circumstances” justifying renewal of the Civil Bill.

16 . As stated, the ex parte docket dated 15 ^th November, 2019 seeking to renew the Civil Bill was returnable on 13 January 2020. I am not told what happened on that return date. The sale to Start Mortgages had not yet completed. Indeed, I'm not told anything of what happened to the ex parte docket seeking to renew the Civil Bill between its issue on 15 ^th November, 2019 and the order on foot thereof – the order under appeal – made over 1 ¹/₂ years later on 26 July 2021.

17 . The Affidavit of Eva McCarthy sworn 5 June 2020 grounding an application to substitute Start Mortgages for Permanent TSB as plaintiff, is technically not part of the present application to renew the Civil Bill. It has been included in the documents placed before me. In ease of the Plaintiff I consider its content. It records that Permanent TSB's sale of the mortgage and loan to Start Mortgages was, as recorded above, completed on 7 February 2020 and on 12 March 2020 Start Mortgages was registered on the folio as owner of the Charge. On 3 July 2020 an ex parte docket issued, grounded on the Affidavit of Eva McCarthy sworn 5 June 2020 and returnable on 16 November 2020, to substitute Start Mortgages for Permanent TSB as plaintiff – which order was made on 16 November 2020. That order of 16 November 2020, incorrectly as to the first defendant, records service of the Civil Bill on “the Defendant” and dispenses with re-service of the...