The Governor and Company of the Bank of Ireland v Morrissey

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael MacGrath
• Judgment Date: 31 May 2019
• Neutral Citation: [2019] IEHC 398
• Court: High Court
• Docket Number: [2018 No. 78 CA]
• Date: 31 May 2019

[2019] IEHC 398

THE HIGH COURT

MacGrath J.

[2018 No. 78 CA]

BETWEEN

THE GOVERNOR

AND

COMPANY OF THE BANK OF IRELAND

PLAINTIFF/APPELLANT

AND

DAVID MORRISSEY

DEFENDANT/RESPONDENT

Property and Conveyancing – Practice and Procedure – Time Limits – Appellant seeking to appeal order of the Master extending the time limit for respondent to appeal – Whether the respondent should have been granted an extension to appeal after time limit had expired

Facts: On 24th October 2017, the Circuit Court made an order granting the appellant possession of the respondent’s family home. First, the respondent attempted to quash the circuit court order by seeking leave to apply for judicial review. When this was unsuccessful, the respondent sought to appeal the order of the Circuit Court, however he was outside the prescribed 10-day time limit to appeal. The respondent applied to the Master to extend the time limit and this was granted. The appellants then appealed the order of the Master extending the time limit within which to appeal.

Held by McGrath J that the circumstances did not justify an extension of time for appeal. The principles outlined in Eire Continental were applied; namely (i) that the appellant must show that he has a bone fide intention to appeal formed within the permitted time; (ii) he must show the existence of something like a mistake, and that mistake as to procedure and in particular the mistake of counsel of solicitor as to the meaning to the relevant rule was not sufficient; (iii) he must establish that an arguable ground of appeal exists.

The deliberate and conscious decision of the respondent to challenge the Circuit Court order by wa of judicial review and not by way of appeal was not a mistake. As such, the principles in Eire Continental could not be satisfied and the Court would have to use its discretion if it wished to extend the time limit. As the material facts the respondent wished to rely on at appeal were all known to him at the time of the Circuit Court’s decision, Mc Grath J did not find it appropriate for the Court to exercise its jurisdiction to extend the time limit. The appellant’s appeal was therefore allowed.

Relief granted.

JUDGMENT of Mr. Justice Michael MacGrath delivered on the 31st day of May, 2019.

1 On 24th October, 2017 by order of the Circuit Court the plaintiff was granted possession of premises comprised in Folio 6565L of the register of leaseholders, County Kildare. This is the plaintiff's family home. A stay of execution of six months was placed on the order. The defendant sought to appeal this order but was out of time. By notice of motion dated 15th February, 2018, he made application to the Master of the High Court who on the 27th April, 2018 extended the time within which to appeal. On 1st May, 2018 Mr. Morrissey served a notice of appeal. This is the plaintiffs appeal from the order of the Master made on 27th April, 2018.

2 Prior to making the application to the Master of the High Court for an extension of time within which to appeal, however, Mr. Morrissey made an application for leave to apply for judicial review in which he sought a number of reliefs including an order of certiorari quashing the decision of the Circuit Court judge. This application was refused by Noonan J. on 22nd January, 2018.

Grounds of Appeal

3 A number of affidavits were sworn for the purposes of the application before the Master. The first affidavit was sworn by Mr. Morrissey on 15th February, 2018. It was replied to by affidavit sworn by Ms Helen Dorris, a legal case manager employed by the plaintiff, on 8th March, 2018. Finally, Mr. Morrissey swore an affidavit in reply to Ms. Dorris” affidavit on 16th April, 2018. As matters evolved an issue arose as to the grounds of appeal being relied upon by Mr. Morrissey and whether he was relying on matters referred to in his first or second affidavit. The notice of appeal served on 1st May, 2018, pursuant to the order of the Master extending the time within which to appeal, is in short form.

4 In the affidavit sworn by Mr. Morrissey on 16th April, 2018 grounding the application to the Master, he specified the reasons for seeking the appeal as being the following:-

(a) None of my arguments were heard

(b) My affidavits were not permitted to be opened to the court

(c) Fair procedures and due process were ignored and denied

(d) A motion for discovery was never ruled on

(e) The barristers and solicitors repeatedly misled the court and were caught doing so, yet were allowed to continue with the case

(f) Judges instructions had been repeatedly ignored.’

5 He also alleges bias on the part of the judge. As stated in that affidavit, Mr. Morrissey's grounds of appeal relate to the manner in which the trial was conducted. In a further affidavit sworn on 1st June, 2018 for the purpose of this appeal, Mr. Morrissey confirms that the reasons for his appeal are clearly stated in his affidavit of 16th April, 2018. This matter will be further addressed below.

Grounds relied upon in the application for leave to apply for judicial review

6 In the statement required to ground his application for judicial review dated 22nd January, 2018, and in an affidavit sworn on the same day in support of the application, Mr. Morrissey alleged that the Circuit Court judge declined to read his affidavit or to permit arguments and that he failed to permit inspection of original documents. He alleged that the judge displayed bias and that he was denied due process and natural justice. He contended that the plaintiff had failed to establish locus standi and proof of ownership of the debt. He raised jurisdictional issues, particularly relating to the rateable valuation of the property. It was also alleged that the various judges who heard applications in the case had failed to examine the contract for proportionality pursuant to the Unfair Terms in Consumer Contracts Regulations 1995.

Grounds of Appeal as outlined in the defendant's affidavit sworn on 15th February, 2018 in support of the application before the Master

7 Following the refusal of his application for leave to apply for judicial review, Mr. Morrissey made the application to the Master by way of notice of motion dated the 15th February, 2018. In his first affidavit sworn, grounding that application he averred that the Circuit Court judge displayed bias against him by his comments and by ignoring an application to inspect original documents. The case had been before the Circuit Court on a number of occasions. Mr. Morrissey's states that on 26th January, 2016 a judge directed that the plaintiff produce the original documents and that the case should not proceed until that was done. Mr. Morrissey contended that this order was ignored. He also alleged that the plaintiff breached his Constitutional and Convention rights to due process and fair procedures and that there was a breach of the Rules of the Circuit Court in the manner in which the motion came before the court. He raised jurisdictional issue concerning the nature of the dwelling and the rateable valuation thereof. He highlighted the obligation of the court pursuant to Unfair Terms in Consumer Contracts Regulations 1995 and to the decision of Barrett J. in Allied Irish Banks Plc v. Counihan [2016] IEHC 752, and the failure of the judges in the circuit court who heard various applications therein to discharge their obligations in this regard.

The Plaintiff's response to the application to extend time

8 The application for the extension of time is opposed by the plaintiff. In an affidavit sworn on 8th March, 2018, Ms. Dorris refers to the various loan agreements which gave rise to the indebtedness and what is contended to be the plaintiff's entitlement to seek possession of the property. She avers that the defendant was present in person when the matter was before the Circuit Court on 24th October, 2017. Counsel retained by the plaintiff in the Circuit Court advised her that the Circuit Court judge informed the defendant that he had a right of appeal and that the defendant then declared his intention to do so. On 29th November, 2017, solicitors acting for the plaintiff wrote to the defendant and called upon him to surrender vacant possession of the property. The order for possession was served on 9th January, 2018. She avers that the defendant does not raise any new factual matters nor does he contest his receipt of the loan, the registration of the mortgage and his failure, despite demand, to repay in time. She avers that the defendant repeats arguments, assertions and submissions of a legal nature which have already been canvassed in several affidavits in the Circuit Court and that there is nothing in the defendant's affidavit to explain why, having formed and announced his intention to appeal, he chose to take no steps to appeal within the ten day time limit as provided for by the Rules of the Circuit Court. She does not accept that there was any mistake made by the defendant.

9 Mr. Morrissey confirms that he informed the Circuit Court of his intention to appeal. Nevertheless, on reflection, he decided to apply for leave to bring judicial review as he felt that his case had not been properly dealt with in an impartial or fair manner. He has informed this court that the judge in refusing him leave to apply for judicial review said that the matter would have been better served by an appeal.

10 Mr. Brendan Moriarty, solicitor for the plaintiff swore an affidavit on 1st May, 2018 in relation to this appeal. He also avers that the affidavit of Mr. Morrissey which grounded the application for an extension of time does not address the conditions which must be satisfied on an application such as this. He states that Mr. Morrissey failed to disclose that he had informed the Circuit Court judge that he would appeal. Mr. Moriarty contends that Mr. Morrissey made a conscious and deliberate...