The High Court refused Bank of Ireland Mortgage Bank’s application to reopen a concluded possession appeal and send the case for a plenary hearing. The court said the bank had failed to establish its case in the appeal and could not use a later application to start the proceedings again.
In a judgment delivered on 28 February 2020, Mr Justice Garrett Simons said the bank’s application came after the High Court had allowed Heather Cody’s appeal against a Circuit Court possession order. The substantive decision had been delivered on 31 January, with the matter adjourned so the parties could address costs. The court said the formal order had not yet been drawn up only because costs remained outstanding.
The bank sought to have the appeal remitted for a plenary hearing, where oral evidence and cross-examination could be heard. It argued that factual disputes in the affidavit evidence had not been resolved and that the court could still act before its formal order was perfected.
The dispute concerned a dwelling house owned by Heather and Peter Cody, previously occupied by them as their principal private residence and then occupied by Ms Cody and her children after the couple separated. The bank said the registered charge related to a 2007 mortgage covering secured loans, and that the couple had agreed to two loans in October 2005. It said the principal monies were due after demand letters in June 2016.
Ms Cody disputed the loan agreements. She alleged that her estranged husband and the bank had colluded over loans and mortgages in their joint names between 1990 and 2010, and that the family home had been used as security without her knowledge or consent. The judgment records that the bank did not cross-examine her on those allegations.
In the earlier judgment, the High Court found that the bank had not proved Ms Cody executed the two loan agreements and therefore had not established that she was indebted to it. It allowed her appeal and stated that the Circuit Court possession order would be set aside.
Justice Simons held that the bank had not shown grounds for the exceptional step of reopening a reserved judgment. The bank had not sought cross-examination or a plenary hearing before the appeal was decided, and it had opposed Ms Cody’s application to file further affidavit evidence. The court also rejected the argument that it remained at a procedural stage where it could choose between a plenary hearing and dismissing the possession claim.
The application to remit the already determined appeal for a plenary hearing was refused. The court said it would perfect the orders set out in the January judgment: setting aside the Circuit Court possession order and allowing Ms Cody to recover her expenses of the proceedings in both courts from the bank.