The Court of Appeal has dismissed Janet Matthews’s appeal in a mortgage dispute with the Governor and Company of the Bank of Ireland, agreeing with the High Court that the mortgage required the bank to demand payment before the secured money became payable.
In a judgment delivered on 31 July 2020, Mr Justice Maurice Collins said he agreed with the judgment of Mr Justice Noonan and added observations on whether the bank’s claim was statute-barred. The source provided contains Collins J’s judgment, but not Noonan J’s separate reasons or the court’s formal order.
The bank’s loan offer and mortgage dated from 2005 and concerned a property in Laytown belonging to Mr Melsop. Collins J focused on the mortgage’s payment clauses. Clause 1 said the mortgagor covenanted to pay the secured money “on demand”. In Collins J’s analysis, the other clauses relied on by Matthews did not remove that requirement: they addressed the bank’s statutory mortgage powers and the events that allowed those powers to be exercised.
Matthews argued that clauses 6 and 7, read together, meant the money became payable when a default occurred, without a prior demand. Collins J rejected that interpretation. He said the clauses could be read together: a default could make the bank’s powers exercisable, while a demand remained necessary to trigger the mortgagor’s obligation to repay the secured money. He also rejected the suggestion that the mortgage’s demand clause should effectively be set aside because of a conflict with the other clauses.
The distinction mattered to the limitation issue. Collins J said the bank’s cause of action arose when it first demanded payment in August 2016. Mr Melsop had died in February 2013. On that analysis, the claim was not one that had survived against his estate, so section 9(2) of the Civil Liability Act 1961 did not apply.
The judgment says that if the bank had sought possession of the Laytown property without first making a demand, Matthews could have opposed the application on that basis. It does not record a possession order. Collins J concluded that a demand was an essential element of the bank’s claim and that Matthews’s limitation argument failed. The appeal was dismissed for the reasons in Noonan J’s judgment and Collins J’s additional reasons.