The High Court has proposed an order allowing Carlisle Mortgages Limited and a nominated expert to inspect and survey lands in County Galway at the centre of its possession proceedings against Cornelius Heagney. The court has not yet settled the precise terms of the order or the costs of the application.
Mr Justice Garrett Simons delivered the judgment on 1 March 2019. The proceedings, begun by special summons in 2009, seek possession of several parcels, some registered and some unregistered. The application before the court concerned inspection under Order 50, rule 4 of the Rules of the Superior Courts; it did not decide the underlying possession claim.
The dispute includes whether the mortgage deed dated 4 November 2002 adequately identified land at Tully. The deed refers to part of the townland but leaves the acreage blank. The summons schedule gives 107.682 acres, while the plaintiff’s 2012 statement of claim says the mortgage reference was intended to cover a 67-acre parcel. The defendant admits becoming entitled to 67 acres through deeds dated 30 October 2002 and 20 February 2004, but denies that the mortgage description and attached map sufficiently identify the land or create security over it.
The plaintiff argued that an expert needed to inspect the land to assess whether the mortgage map corresponded with the land in the defendant’s possession. The defendant opposed inspection, submitting that it could not repair the mortgage’s description and that the plaintiff had delayed bringing the application. The plaintiff’s position was that any delay objection should be pursued through a separate application to strike out the proceedings; it did not concede unreasonable delay.
Mr Justice Simons found that inspection was directly relevant and necessary for the trial judge to resolve the dispute. He said the proposed work was limited to surveying, measurements and photographs, without physical sampling or invasive work, and was proportionate. He also held that delay was not relevant to this inspection application and that the plaintiff’s argument was at least stateable, not frivolous or vexatious.
The judge proposed directing the defendant to permit the plaintiff or its nominated expert to enter the lands identified in the motion and carry out an inspection and survey. He reserved the precise form of the order, including any conditions on the inspection date and time, and the question of costs.