The High Court has struck out most claims brought by a man over the repossession of his family home, while allowing his assault claim against a garda and a trespass claim against Start Mortgages DAC to continue.
In a judgment delivered on 27 October 2022, Ms Justice Stack found that the 2016 renewal of an execution order had three deficiencies. The order still named Bank of Scotland, which had assigned its interest to Start Mortgages in 2015; the affidavit supporting renewal had a defective jurat and no recorded decision to admit it despite the defect; and the application should have proceeded under rules requiring notice to the affected party and an amendment to the possession order.
The judge nevertheless dismissed the claim against the County Registrar, finding that she was immune from negligence and misrepresentation claims. The man had not appealed or sought judicial review of the renewal order, and his later proceedings challenging its validity were out of time and an abuse of process, the court held. The possession order itself had not been appealed or set aside.
The court refused to strike out the assault claim against Sergeant Andrew Brady. The man alleged that Brady used excessive force during his arrest in November 2016, and referred to a hospital report said to show a rib fracture. Justice Stack found that whether the force used was unreasonable was a factual issue for trial. The Garda Commissioner’s position on that claim depends on the outcome against the sergeant.
Claims against two other gardaí over the prosecution were dismissed. Although the criminal damage charge was struck out by the District Court in March 2019 because of prosecution delay, the High Court found no evidence supporting the required allegation of malice. The court also dismissed misrepresentation and conspiracy claims against the solicitors and companies, finding, among other things, that the relevant statements were not made to the plaintiff and that the solicitors acted as agents for a client.
The court did not strike out the trespass claim against Start Mortgages. It said the claim could proceed to trial on whether Start Mortgages could rely on a possession order made in favour of Bank of Scotland. That claim remained unresolved; the judge said it might ultimately fail.
The applications by Bank of Scotland, solicitor Clodagh Buckley, and Start Mortgages were adjourned in part so the solicitors’ firm could clarify on affidavit whom it represented when seeking renewal. The judge said that once the client was identified, only that party would remain to defend the trespass claim. Further directions were to be heard on the assault claim.