Start Mortgages Designed Activity Company v Kavanagh and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 27 July 2023 |
| Neutral Citation | [2023] IEHC 452 |
| Court | High Court |
| Docket Number | 2013 No. 353 SP |
[2023] IEHC 452
2013 No. 353 SP
THE HIGH COURT
Rudi Neuman for the plaintiff instructed by Lavelle Partners LLP
The first named defendant appeared in person
JUDGMENT of Mr. Justice Garrett Simons delivered on 27 July 2023
This judgment is delivered in respect of an application to set aside an earlier unappealed order of the High Court. The order is dated 18 July 2016 and took the form of an order for possession. This is, in fact, the second application which has been brought to set aside that order. The first application was refused by me for the reasons explained in a written judgment delivered on 30 January 2023, Start Mortgages DAC v. Kavanagh [2023] IEHC 37 (“ the principal judgment”). The moving party, Mr. Kavanagh, has since filed an appeal against that judgment to the Court of Appeal. The appeal is listed for hearing on 9 October 2023.
In parallel to his appeal, Mr. Kavanagh has also issued a motion before the High Court seeking to set aside the judgment of 30 January 2023. Mr. Kavanagh, having failed in his attempt to have the order of 18 July 2016 set aside, is now seeking to have the High Court set aside the judgment of 30 January 2023 which had refused his first set aside application. This is done with the ultimate objective of setting aside the order of 18 July 2016. On this logic, a party can bring a never ending series of applications to the High Court to set aside its own judgments. Each time an application is refused, the party can bring another application seeking to set aside the refusal to set aside. This is, of course, not what the law provides. Rather, the remedy for a party who is aggrieved with a decision of the High Court is to bring an appeal to the Court of Appeal (or, in certain circumstances, to the Supreme Court). An application to have the High Court set aside its own judgment will only ever be appropriate in exceptional circumstances.
The principles governing an application to set aside a judgment have been summarised in the judgment of 30 January 2023 (at paragraphs 29 to 32) and need not be repeated here. It is sufficient to reiterate that the jurisdiction to set aside a judgment is an exceptional one and cannot be used by a party simply to reagitate arguments which have previously been determined against them in the earlier judgment. As will be apparent from the discussion which follows, this is precisely what the moving party is seeking to do in the present case.
The procedural history has been recited in detail in the judgment of 30 January 2023 and the within judgment should be read in conjunction with that earlier judgment. It is sufficient for present purposes to take up the narrative in March 2023. Mr. Kavanagh issued a motion on 6 March 2023 seeking to set aside the judgment of 30 January 2023. The motion also seeks a series of declaratory reliefs, most of which go to the merits of the order of 18 July 2016.
The application is grounded on an affidavit sworn by Mr. Kavanagh on 6 March 2023. This affidavit was replied to by Barbara Tanzler, solicitor, on 10 March 2023. Thereafter, Mr. Kavanagh swore a second affidavit on 8 April 2023. This affidavit was ultimately filed in the Central Office of the High Court on 11 May 2023. Mr. Kavanagh filed a third affidavit on 30 June 2023.
The hearing of the motion took place remotely on an online platform (Pexip). The hearing was staggered over a number of days. In some instances, it had been necessary to adjourn the hearing for various logistical reasons, i.e. a full set of papers had not been filed on one date, and Mr. Kavanagh had technical difficulties connecting to the online platform on another date. In other instances, the hearing had been adjourned to allow the exchange of written legal submissions. By order dated 11 July 2023, I directed that Start Mortgages file submissions. This was done in ease of Mr. Kavanagh and at his request.
The final stage of the hearing took place on 24 July 2023 and judgment was reserved until today's date. At his request, Mr. Kavanagh was given liberty to file a further set of written submissions post-hearing. These submissions and appendices were sent to the High Court registrar on 25 July 2023. I have carefully considered same in preparing this judgment. I have also carefully considered each set of written submissions or speaking notes furnished previously by Mr. Kavanagh.
The grounds, upon which the application to set aside the judgment of 30 January 2023 is made, fall within two categories. The first category consists of grounds which rehash arguments already made in the context of the application culminating in that judgment; the second category consists of allegations to the effect that the judgment of 30 January 2023 is fundamentally flawed as it (supposedly) fails to address the matters raised by Mr. Kavanagh in his first application. It is also said that the hearing on 16 January 2023 was unfair.
I do not intend to repeat here the discussion which appears in the principal judgment. The discussion below is confined to the additional arguments which have been raised by the moving party.
Mr. Kavanagh seeks to elaborate upon an argument which was made as part of his first set aside application, and which was rejected in the judgment of 30 January 2023. The expanded argument runs as follows. It is submitted that Start Mortgages falls within the definition of a “ credit servicing firm” within the meaning of Section 28 of the Central Bank Act 1997 (as amended in 2015). Mr. Kavanagh next seeks to rely on the definition of “ credit servicing” introduced under the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015. Having identified a number of activities which are included within the concept, the statutory definition then reads relevantly as follows:
“(2) For the purposes of this Part ‘credit servicing’ does not include—
[…]
(c) taking such steps as may be necessary for the purposes of—
[…]
(ii) enforcing a credit agreement,
whether any action referred to in paragraphs (a) to (c) is taken by a person who holds the legal title to credit in respect of a portfolio of credit agreements (in this section referred to as the ‘holder’) or a person acting on behalf of the holder, provided that such action, whether taken by the holder or such person, is not taken in a manner that if it were so taken by a regulated financial service provider it would be a prescribed contravention.”
Mr. Kavanagh submits that the effect of these provisions is that Start Mortgages were “ legally precluded” from enforcing any credit agreement. It is further submitted that Start Mortgages “ intentionally deceived” the High Court to “ generate” an order for possession on 18 July 2016.
In support of his argument, Mr. Kavanagh has cited extensively from the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015. Mr. Kavanagh also relies on correspondence between the Central Bank and a third party in November 2018. The third party's name has been redacted in the version of the correspondence which has been produced. This correspondence confirms that Start Mortgages DAC, trading as Start Mortgages, are authorised as a “ retail credit firm” since 2008. The correspondence also recites the definition of “ credit servicing” introduced by the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015.
Mr. Kavanagh submits that a “ credit servicing firm” does not hold any equitable or possessory right in a consumer credit agreement when acting as a servicer. It is further submitted that a “ credit servicing firm” cannot issue enforcement action in its own name.
With respect, Mr. Kavanagh's submissions are misconceived for the following two reasons. First and foremost, at the time the application for an order for possession was heard and determined on 18 July 2016, Start Mortgages had been authorised as a “ credit retail firm” and not merely as a “ credit servicing firm”. On the principle that the greater includes the lesser, a “ credit retail firm”, which is authorised to provide credit in the State, is taken to be also authorised to carry on the business of a “ credit servicing firm”. See sub-section 28(3) of the Central Bank Act 1997 (as inserted by the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015). It follows that Start Mortgages would have been entitled to carry out all of the management and administrative functions which a “ credit servicing firm” is authorised to carry out; but would not have been limited to those functions. Put shortly, Start Mortgages were entitled to do everything that a “ credit servicing firm” could do and more. A “ credit retail firm” is entitled to take such steps as may be necessary for the purposes of enforcing a credit agreement. In circumstances where the “ credit...
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