The High Court has refused Karl O’Daly’s application to quash a Circuit Court decision in repossession proceedings brought by EBS Mortgage Finance, finding that his grounds for judicial review had no merit.
In a judgment delivered on 24 October 2017, Ms Justice Ní Raifeartaigh treated the case as a hearing of the judicial review itself. She said the hearing had proceeded on full argument. Judicial review examines the legality of a decision, rather than hearing an appeal on its merits.
The dispute concerned a 2008 mortgage loan of €312,550 to buy a property in Drogheda, County Meath. EBS began possession proceedings in the Circuit Court in December 2014 after repayments fell into arrears. O’Daly argued that he had cancelled the mortgage contract under rules implementing an EU consumer directive, and that the Circuit Court lacked jurisdiction because of the property’s rateable valuation. He also challenged the way the Circuit Court hearings were conducted, alleging unfair procedures and bias.
The High Court found no evidence that the mortgage had been agreed in a “doorstep-selling” situation, a condition for the directive to apply. It also said that even if cancellation rights applied, that would be a defence to the possession claim, not a reason the Circuit Court lacked jurisdiction. On the valuation argument, the judge said a Court of Appeal decision made clear that the Circuit Court could hear possession proceedings involving a qualifying principal private residence and a mortgage created before 1 December 2009.
The court also rejected complaints about the Circuit Court’s handling of witness summonses, cross-examination, discovery and a request to move the case to a plenary hearing. The High Court said the possession procedure was generally conducted on affidavit, and that oral evidence and cross-examination were subject to the judge’s discretion. It found that the Circuit Court judge had given O’Daly an opportunity to respond to the application to set aside the summonses and had been entitled to refuse discovery and a plenary hearing.
The High Court accepted that the Circuit Court judge had not explained in explicit terms why the two jurisdictional arguments failed. But it concluded that quashing the decision and sending the case back for reasons would be futile, because the arguments could not succeed. It refused all relief sought. The judgment does not state that the High Court made a new possession order; it reviewed and declined to quash the Circuit Court decision.