The High Court has conditionally restrained Link ASI Limited and a receiver from offering a property at Upper Ryninch, Ballina, for sale while Virginia Ross’s case proceeds. The injunction is conditional on Ross giving the usual undertaking as to damages. The court made no interlocutory order against Bank of Ireland Mortgage Bank, which no longer controls the security.
In a judgment delivered on 4 May 2022, Ms Justice Emily Egan said Ross had raised a fair question to be tried over whether her signature on a 2015 mortgage was obtained through undue influence or whether the doctrine of non est factum applied. The court’s assessment was for the interlocutory application only; it did not decide whether the mortgage was invalid.
Ross says she believed the one-page document she signed at a meeting with her solicitor in September 2015 concerned ownership and registration of the property. She alleges she was not told it was a mortgage, was not given time to study it or obtain independent advice, and was pressured into signing. The document names Ross and her husband as mortgagors and the property as security for the liabilities. Her allegations were uncontradicted by affidavit for this application. The court noted it had no account from the solicitor, who was not a party to these proceedings.
The mortgage followed a loan made to Ross’s husband in 2006 for three buy-to-let cottages. The bank had expected security over the Ryninch property, but its charge initially affected only the husband’s interest. The judgment records correspondence showing that the bank pressed the solicitor to resolve the security issue and requested that Ross receive independent legal advice before signing mortgage and guarantee documents. Ross declined to sign the guarantee. The court said there was no evidence before it that the bank had made inquiries to ensure she entered the mortgage freely.
The judge found a fair question to be tried as to whether the bank and its successor, Link, had constructive knowledge of circumstances that could affect enforcement of the mortgage. The judgment also cautioned that the proceedings were not a procedurally appropriate route to obtain rectification of the land register, particularly because the Property Registration Authority was not a defendant.
The court accepted that Ross and her husband may not have lived at the property in 2019, and said there was doubt about whether it was then her family home. But it found no evidence establishing that it was not, and said damages would not adequately remedy its permanent loss if it were sold. Ross had declined to offer an undertaking as to damages; the court was not prepared to dispense with one.
Ross’s wider proceedings seek, among other reliefs, damages and declarations concerning the mortgage. The court left costs and other matters for argument on 24 May 2022. The injunction granted in this judgment is interlocutory and does not determine the final claims.