Judgment: 2016-11-14 · Court archive

High Court dismisses challenge to possession order for family home

The court held that the homeowner’s complaints concerned the merits of the Circuit Court decision and should have been pursued by appeal, not judicial review.

High Court · [2016] IEHC 645

Who, what, where, when and why

Who
  • Brendan Cummins (Applicant)
  • The Governor and Company of Bank of Ireland (Respondent)
  • Richard Humphreys (Judge)
  • Jacqueline Linnane
What

The court held that the homeowner’s complaints concerned the merits of the Circuit Court decision and should have been pursued by appeal, not judicial review.

Where

Places mentioned in the report

  • Dublin
When

Judgment:

Why

Reasons reported in the judgment

Mr Justice Richard Humphreys delivered the judgment on 14 November 2016. The possession proceedings began in Dublin Circuit Court in March 2015. After a contested hearing on 5 July 2016, Judge Jacqueline Linnane made the possession order in the Bank’s favour. The High Court noted that the order could have been appealed on its merits, but Mr Cummins said he did not appeal because he considered it unfair.

The High Court has dismissed Brendan Cummins’s substantive application for judicial review of a Circuit Court order granting possession of his family home to the Governor and Company of Bank of Ireland.

Mr Justice Richard Humphreys delivered the judgment on 14 November 2016. The possession proceedings began in Dublin Circuit Court in March 2015. After a contested hearing on 5 July 2016, Judge Jacqueline Linnane made the possession order in the Bank’s favour. The High Court noted that the order could have been appealed on its merits, but Mr Cummins said he did not appeal because he considered it unfair.

Before the possession hearing, Mr Cummins had sought production of original documents on which the Bank might rely. The judgment records that the County Registrar directed the parties to meet so the Bank could provide documents, though the affidavits differed on whether this was an order to produce documents or a direction to arrange inspection. They met on 9 May, but Mr Cummins was unhappy with the material he saw. His motion seeking production was later struck out after he did not appear on its 27 June return date. The High Court found no irregularity or unfairness in that outcome.

Mr Cummins raised eight grounds, including alleged denial of access to original documents, lack of proof of the Bank’s entitlement to the debt, defects in affidavits and the possession order, and allegations that the Bank misled the Circuit Court. The judge rejected the grounds. He said challenges to the evidence and the asserted unfairness of the possession decision went to its merits and were matters for trial or appeal, rather than judicial review. He also found that the Circuit Court judge had jurisdiction to make a possession order, that the Bank had standing, and that the allegations of misleading the court had not been established.

The High Court dismissed the application for substantive judicial review relief. It did not set aside the Circuit Court possession order. The judgment said that, even if any of Mr Cummins’s complaints were errors, an appeal would have been the appropriate remedy.

Read the original court judgment

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