The High Court has refused Michele Mc Keever’s appeal against a Circuit Court decision not to dismiss possession proceedings brought by Mars Capital Ireland No. 2 Designated Activity Company. The ruling allows the lender to proceed with its claim, while leaving Ms Mc Keever free to make a defence. It does not decide the possession claim itself.
Ms Justice Bolger delivered the judgment on 14 November 2022. The proceedings, issued in August 2018, concern the same property and loans as earlier proceedings brought in 2014 by the lender’s predecessor.
In the earlier case, the Circuit Court marked an adjournment peremptory against the plaintiff in November 2017. When the plaintiff sought another adjournment in February 2018, Judge O’Donoghue refused it and granted Ms Mc Keever’s application to dismiss. The High Court recorded that the brief hearing did not assess the underlying possession claim. The plaintiff did not appeal that dismissal.
Ms Mc Keever later sought dismissal of the 2018 proceedings, arguing that the plaintiff’s grounding affidavit was defective because it had been sworn by an in-house solicitor employed by another organisation. She also argued that res judicata or the rule in Henderson v. Henderson barred the claim, and that bringing her back to court after repeated earlier hearings amounted to an abuse of process. She described stress from the litigation as prejudice and raised other complaints, including about a remote-hearing link and the use of a transcript. Her reliance on a separate loan-particularisation issue was not before the court because she accepted it was not included in her grounding affidavit.
Ms Justice Bolger rejected the appeal on both grounds. She said any issue with the solicitor’s authority did not, by itself, undermine the affidavit, and that the Circuit Court rules allowed an affidavit to be received despite an irregularity in its form.
On the earlier dismissal, the judge distinguished this case from authorities involving a substantive or final determination. Judge O’Donoghue had dismissed the proceedings after refusing an adjournment, without examining the possession claim. The judge said treating that decision as a bar to the later case would apply res judicata or related principles automatically and inappropriately. She also noted that Ms Mc Keever raised no issue with the underlying loan or the absence of repayments since October 2014.
The High Court refused the appeal. Mars Capital may continue the possession proceedings in the usual way, and Ms Mc Keever may present whatever defence she chooses. The judge gave an indicative view that costs should follow the event, but listed the matter for 14 December 2022 to hear any submissions before making a final costs order.