The High Court has allowed key parts of Joseph and Katherine Corcoran’s mortgage dispute to proceed, while striking out one challenge to the appointment of receivers and ordering a lis pendens registered by the couple to be vacated.
In a judgment delivered on 7 June 2024, Mr Justice Conor Dignam heard an application by Start Mortgages DAC, receiver Tom O’Brien and receiver Hilary Larkin to strike out claims as bound to fail, remove specified material from the pleadings and vacate the lis pendens. The strike-out application was made under the court’s inherent jurisdiction.
The dispute concerns three loans the Corcorans obtained from Permanent TSB in 2007. They allege that the bank wrongfully changed loan repayments from interest-only to capital and interest, causing arrears and contributing to the later appointment of receivers. The court found there was a stateable basis for their arguments about the loan terms, including whether a review was required before repayments could change. It said those issues were not sufficiently clear to resolve on this application. The judge did not decide whether the bank breached the contracts.
The court also declined to strike out claims that Permanent TSB misrepresented the position when the borrowers agreed to restructure arrears in 2013, that a bank manager had assured them the mortgages would not be sold, or that the receivers breached duties by leaving two apartments vacant. Those claims remain allegations for trial.
However, the court struck out the claim that Start lacked power to appoint the receivers because the mortgage charges were registered after the Conveyancing Act 1881 was repealed. It held that the argument was bound to fail: the relevant mortgage terms had incorporated powers under the 1881 Act when the mortgage was made in 2008, and the later repeal did not remove those contractual powers.
The judge refused the defendants’ request to strike out specified paragraphs under Order 19 Rule 27, finding that provision was not a means to decide whether pleaded claims had merit. He directed the Corcorans to deliver an amended statement of claim within two weeks, subject to any submissions on the timeframe, because their case was unclear in important respects.
The court also ordered the lis pendens vacated. It found that the proceedings did not include a claim to an estate or interest in the land; most of the relief sought concerned damages. The order does not end the underlying proceedings. The court did not consider the defendants’ separate argument that the action was not being prosecuted bona fide.