The Court of Appeal has sent back to the High Court an application by Michael Macken and Patricia Watson to set aside a possession order over their family home in Co. Roscommon. It ruled that the High Court judge should have considered the application on its merits, but did not decide whether the order should be set aside.
The appeal concerned a procedural decision by Cross J. on 7 December 2015. He had refused to entertain the defendants’ application, taking the view that he was functus officio — that he no longer had jurisdiction to revisit his earlier decision. The Court of Appeal allowed the appeal and remitted the application to the High Court for a fresh determination under Order 36, rule 33 of the Rules of the Superior Courts.
Danske Bank A.S., trading as Danske Bank, had brought special summons proceedings seeking possession of the couple’s family home. On 2 November 2015, after the case was called in the afternoon, the hearing went ahead without the defendants. After a ten-minute hearing, Cross J. made a possession order and stayed it for three months.
In an affidavit, Mr Macken said he could not attend because of a “major personal difficulty” and had emailed the Bank’s solicitor seeking an adjournment. The solicitor was on vacation and received the email the next day. A GP letter confirmed that Mr Macken attended the surgery on 2 November, but did not state that he received treatment or describe his condition. Mr Macken told the appeal court that his doctor had concluded he was unfit to attend; the court noted the evidential material on his absence was sparse.
Mr Macken applied on 9 November to set aside the possession order, within the six-day period under Order 36, rule 33, calculated under the rules to exclude the first day. The Bank opposed setting aside the order. It also argued that the defendants had elected to appeal the possession order and could not also pursue the set-aside application.
The Court of Appeal rejected that election argument in the circumstances. It considered the appeal and the set-aside application complementary: if the order could not be set aside, an appeal remained an alternative remedy. It held that the High Court had erred by treating itself as barred from even considering the application.
The court stressed that this did not mean the possession order must be set aside. The High Court must now decide the application afresh on its merits. The Court of Appeal expressed no view on how that decision should be made.