The High Court has sent Permanent TSB’s possession proceedings against Dave and Marianne O’Connor back to the Circuit Court, after finding that the complete facility letter had not been properly before that court.
Mr Justice Max Barrett delivered the judgment on 11 June 2018. The Circuit Court had made a possession order against the defendants on 13 December 2017. They appealed eight days later. Before hearing the substance of the appeal, the High Court considered their objection that the appeal could not properly proceed as a de novo hearing because key evidence had not been before the Circuit Court.
The judgment records problems with two facility letters. An affidavit sworn in 2015 said it exhibited a facility letter dated 22 May 2006, but the exhibit appeared to be missing page two. A 2017 affidavit said it exhibited a facility letter dated 4 May 2008; the judgment records that this was the wrong letter. In a February 2018 affidavit, the bank’s officer said the intended document was the 22 May 2006 letter and exhibited what was described as the full three-page letter. The attachment contained seven pages, three of which appeared to comprise the letter that had been intended for the Circuit Court.
The defendants argued that a High Court appeal ordinarily gives parties a second opportunity to present their cases through a de novo hearing. They said that, because the complete facility letter was not properly in evidence at the Circuit Court, hearing the appeal on the later material would leave them with only one proper hearing. Permanent TSB did not dispute what had happened, but argued that the complaint had been raised late and the appeal should proceed.
The High Court accepted the defendants’ contention. It said the complete facility letter had never been properly in evidence before the Circuit Court, although it appeared in the evidence before the High Court. The court considered that proceeding with the appeal would deprive the defendants of the two opportunities to have their case properly heard that the process provided.
The court did not decide the substance of the possession claim or whether a possession order should ultimately be made. It ordered that the proceedings be remitted to the Circuit Court for a hearing on such evidence as was properly before that court.