The Supreme Court has allowed Bank of Ireland Mortgage Bank’s appeal in possession proceedings concerning registered land in Kilmurray, County Wexford, and directed that the case proceed to a plenary hearing in the High Court’s appellate jurisdiction.
The appeal concerned a High Court order setting aside a Circuit Court possession order over property owned in the joint names of Heather Cody and Peter Cody. The Bank sought possession under a registered charge securing loans said to total €650,000. The loans were called in in June 2016. The Circuit Court made a possession order in February 2019, with execution stayed for 15 months.
Ms Cody, the sole respondent to the appeal, alleged in affidavits that the loan documents and charge had been created without her knowledge or consent. She raised concerns about signatures and witnessing, said she had not received loan statements or the relevant documents, and sought more material to prepare her defence. The Bank did not provide a substantive affidavit responding to several of her later affidavits.
The Court rejected Ms Cody’s argument that the Family Home Protection Act 1976 provided a complete answer to the Bank’s claim. It said the Act did not raise the Bank’s burden of proof; whether she agreed to the security with knowledge of its nature and effect was a question of fact.
The Court concluded that Ms Cody’s evidence did not displace the Bank’s initial evidence of the loans and charge, and did not establish a defence that entitled her to have the claim dismissed. But her account raised more than general or unsupported assertions and created sufficient doubt to make summary disposal unsatisfactory. The Court said the evidence and arguments required a plenary trial, where they could be further examined.
The Supreme Court held that the High Court judge should have adjourned the possession action to a plenary hearing instead of dismissing it. It also ruled that, once the judge had delivered the decision dismissing the claim, he could not then adjourn that same action to plenary hearing. Because the Circuit Court action had already concluded, the plenary hearing must take place in the High Court exercising its statutory appellate jurisdiction, rather than being sent back to the Circuit Court.
The Supreme Court set aside the order restricting the Bank from bringing further possession proceedings against Ms Cody. It directed that the existing action proceed by plenary hearing in the High Court, with no requirement for either party to seek special leave to adduce appropriate evidence. The Court did not decide the underlying dispute about Ms Cody’s knowledge or consent; that remains for determination at the plenary hearing.