The High Court has referred three legal questions to the Supreme Court in Irish Life and Permanent plc’s appeal against an order for possession of a mortgaged property in Buncrana. Mr Justice Hogan adjourned his judgment until the Supreme Court determines those questions.
The case concerns a €235,000 mortgage made in January 2008 over a property at 57 Marian Park, Buncrana. The defendant, Dylan Dunphy, admitted defaulting on repayments. The judgment records that the property had been let, was not his family home, and was his only property. The Circuit Court granted the lender an order for possession on 1 February 2011, and Mr Dunphy appealed to the High Court.
The main dispute was whether the lender had acquired a right to possession before 1 December 2009, when section 62(7) of the Registration of Title Act 1964 was repealed for relevant pre-2009 mortgages. The lender had written in November 2008 that it was entitled to possession, but also said it would begin proceedings unless the arrears were paid or vacant possession given within 21 days. It later agreed to hold off action for 12 weeks. Mr Dunphy said a delayed first-time buyer allowance would restore the account to credit and asked the lender to add the outstanding balance to the mortgage and switch to interest-only repayments.
Justice Hogan considered whether those letters meant the lender had not unequivocally demanded repayment of the whole mortgage before the repeal took effect. He also revisited his earlier decision in a separate case, Irish Life and Permanent plc v Duff, on whether a lender could obtain possession through a contractual right independent of the repealed statutory power. He said the question remained difficult and that the prior conclusion in Duff appeared correct, while recognising the legal issues were not easily resolved.
The court did not decide the appeal or make a final possession ruling. It framed three questions for the Supreme Court: whether the High Court can state a case during an appeal from the Circuit Court where no oral evidence was given; if so, whether the lender had a vested pre-repeal right to possession; and whether possession can be granted to a mortgagee of registered land under a contractual agreement. The defendant had applied for the case stated; the lender opposed it, citing delay. Justice Hogan said the judgment would be pronounced only after the Supreme Court answered the questions.
The judgment also records that the judge disclosed he was an ILP mortgage customer, and both parties waived objection to his hearing the case. The defendant’s attempt to raise the Central Bank’s Code of Conduct for Mortgage Arrears was ruled too late because it had not been raised in the Circuit Court or in the pleadings.