The High Court has refused Mars Capital Finance Ireland DAC’s application to dismiss a woman’s appeal against a Circuit Court possession order, despite finding that the appeal had been left unprogressed for almost seven years and that the delay was inexcusable.
In a judgment delivered on 26 July 2023, Ms Justice Siobhan Phelan said the appeal should continue because dismissing it would deny the first named defendant an opportunity to defend proceedings concerning her home. The court did not decide the merits of her appeal or the defence she wishes to raise.
The Circuit Court made the possession order on 3 November 2015, in the defendant’s absence. The High Court noted evidence that she believed the hearing was scheduled for the following day and that there was a serious concern about whether she had received proper notice. She obtained an extension of time to appeal, filed her notice of appeal on 28 April 2016, and took no further step to progress it before the plaintiff issued its dismissal motion on 31 January 2023.
The defendant told the High Court that she believed a hearing date would be sent to her and did not understand that she needed to take further steps. She described other legal proceedings, work and parenting responsibilities. The judge accepted that she had been misinformed about what was required, but said an appellant could not simply make no enquiry for more than six years and treat that as an excusable delay.
The judge also considered the plaintiff’s conduct. Neither Mars Capital nor its predecessor had asked the defendant about the delay or sought a hearing date or court directions during the intervening years. The court noted that the defendant was representing herself, while the plaintiff and its predecessor were commercial entities with legal representation.
Mars Capital said the defendants had defaulted on mortgage repayments and that the debt had increased from €392,173 when proceedings began to €581,354.94. The court recorded that the last repayment had been made on 22 April 2013. It did not determine the defendant’s challenges concerning the plaintiff’s entitlement, the constitution of the proceedings or consumer protections; those issues remain for the appeal.
The High Court refused the dismissal application and retained the matter for case management. It adjourned the matter to the beginning of the next term, directing the parties to prepare and lodge the appeal books and have the appeal certified as ready. Once satisfied it is ready to proceed, the court said it would transfer the case for allocation of a hearing date. The final form of the order and any further directions remained to be heard.