The High Court has allowed Vincent Kavanagh to issue a limited set of questions to Start Mortgages DAC in proceedings arising from a dispute over a Carlow property, while refusing his applications to add the purchaser and the Property Registration Authority (PRA) as defendants.
Ms Justice Roberts ruled on three motions in a judgment delivered on 14 March 2023. She said Mr Kavanagh should have obtained court permission before serving 138 interrogatories, because his pleaded claim was not grounded in fraud or breach of trust. The judge treated the hearing as an application for permission and allowed questions 108–110, 115–116, 120–124, 126–127 and 130–136. She refused permission for the remaining questions.
The judge said many questions sought information about matters already determined in earlier possession proceedings, were irrelevant to the pleaded case, or sought opinions on legal questions. Other questions were not properly framed as interrogatories. Mr Kavanagh will be able to offer evidence at trial about events surrounding possession of the property, she said.
The underlying case began after the mortgage lender obtained possession orders in the Circuit Court in 2016 and the High Court dismissed the defendants’ appeal in 2017. The judgment recounts that the property was sold to Damien Cleary in July 2022 and that the defendants were no longer in possession by February 2023. The plaintiff’s claim was then described as seeking damages for an alleged period of about 18 months of trespass.
Mr Kavanagh also sought to join Cleary and the PRA to the case. The judge refused both applications, finding no sufficiently established basis for a claim against either proposed defendant. She said a purchaser from a mortgagee had no duty to investigate the mortgagee’s exercise of its power of sale; if the sale was ultimately found improper, the matter would be for the plaintiff to answer to the defendants.
The judge also refused Mr Kavanagh’s motion to stop the PRA registering a pending dealing concerning the property, or to reverse a registration already made. She said the PRA should be allowed to perform its statutory functions and would abide by any order made after trial. The judgment noted that the defendants could seek remedies under the registration legislation if successful in their proceedings.
The court listed the case for mention on 28 March 2023 to address the form of the order on interrogatories, costs and any further directions. The judgment did not determine the underlying damages claim.