The High Court has issued an interim ruling in an appeal over a claim for possession of a family home in Clonsilla, raising questions about how a mortgage charge was transferred between lenders. Mr Justice Noonan did not decide the appeal or make a possession order. He said he would consider further submissions on referring legal questions to the Court of Appeal before delivering final judgment.
Tanager DAC appealed a Circuit Court order dismissing its claim for possession of the home of Rolf Kane, the defendant. The claim was brought under section 62(7) of the Registration of Title Act 1964. The judgment records that the appeal concerns the plaintiff’s entitlement to enforce the mortgage charge; arrears were alleged.
Bank of Scotland (Ireland) Ltd (BOSI) made the mortgage loan in 2006 and was registered as owner of the charge. The judgment says the charge transferred by operation of law to Bank of Scotland plc (BOS) in a cross-border merger at the end of 2010. BOS was not registered as owner. In 2014, it sold a portfolio including the mortgage to Tanager, which then became registered as owner of the charge. A possession claim followed in 2015.
Kane argued that because BOS had not been registered as owner, it could not transfer the charge to Tanager, and that Tanager’s registration was a mistake. Tanager argued that it was the registered owner and that section 31 of the 1964 Act made the register conclusive, subject to the court’s jurisdiction to rectify it for actual fraud or mistake.
The ruling discussed the Supreme Court’s decision in *Kavanagh v McLaughlin*. It records that Tanager’s counsel accepted that BOS could exercise contractual rights under the charge but could not use statutory powers under the 1964 Act without registration. Mr Justice Noonan examined provisions governing transfers of registered charges and noted that BOS had used Land Registry Form 56, although, in his analysis, neither the registered-owner transfer provision nor a separate provision for certain persons entitled to registration appeared to cover BOS’s position.
The judge said the circumstances of Tanager’s registration might raise an issue of mistake, but that the possibility remained to be argued. He also said rectification could not be ordered in this possession case, which was brought summarily under section 62(7), and the Property Registration Authority was not a party. The ruling records that Kane indicated he intended to bring, or had brought, separate proceedings.
Given the potential public importance and possible impact on other cases, the judge said he would consider whether to state a case for the Court of Appeal if either party sought it. He listed possible questions about whether the court could examine the circumstances of Tanager’s registration, whether those circumstances could amount to a mistake, whether the Property Registration Authority could be joined as a notice party, and the consequences of finding it was not entitled to register Tanager. He invited further submissions, leaving the appeal and those questions unresolved.