The High Court has refused Start Mortgages DAC’s application to renew an expired civil bill so it could be served on the first defendant in a mortgage possession case.
Mr Justice David Holland delivered the decision on 7 March 2022, on appeal from a Circuit Court order made by Judge Quinn at Trim on 26 July 2021. The Circuit Court had refused the plaintiff’s ex parte application. The High Court also refused renewal, finding no special circumstances to justify it and no basis to renew on a holistic assessment of the interests of justice.
The civil bill was issued by Permanent TSB on 28 May 2018, seeking possession of a house at 6 Park Dale, Grangegarth, Drogheda, County Meath, under a registered charge. The second defendant was served before the bill expired and the claim against her remained in force. The first defendant was not served. The bill expired for service on that defendant on 27 May 2019.
The plaintiff had made efforts to serve the first defendant, including attempts at the house and a search that suggested he might be living in Saskatchewan, Canada. In May 2019, the Meath County Registrar permitted substituted service by advertisement in a local Saskatchewan newspaper and prepaid post to the house. The court said the two weeks between that order and expiry was a short period, but the plaintiff had not explained why service was not completed. It was also not clear from the evidence whether any attempt was made during that period.
The application to renew was filed on 15 November 2019, about five and a half months after expiry. Justice Holland said the supporting affidavit did not explain the delay in serving after the substituted-service order or the later delay in seeking renewal. Nor did it describe the solicitors’ decision-making or establish that an obstacle prevented service. A change of solicitor and the later transfer of the mortgage loan to Start Mortgages did not, in the circumstances, amount to special circumstances.
The judge said the court could not fill gaps in the evidence by drawing inferences in the plaintiff’s favour. He also rejected the submission that the possibility of starting fresh proceedings or a defendant’s ability to challenge renewal supported the application. The court made no order as to costs, subject to any application for a different order within 14 days.