The High Court has refused Paul Neill’s application to have two legal questions heard before the substantive trial of a case over possession of a property in Baltimore, County Cork.
The ex tempore judgment was delivered by Mr Justice Twomey on 6 December 2017. The proceedings were brought by Brian Murphy and Michael Jennings, joint receivers of the property, which is owned by Mr Neill. The receivers are seeking possession.
Mr Neill borrowed €2 million from Bank of Ireland against security over the property and did not repay the loan. He sought preliminary trials under Order 34 of the Rules of the Superior Courts on whether the High Court had jurisdiction and whether the receivers had standing to bring the possession proceedings under the mortgage.
On jurisdiction, Mr Neill argued that the loan was a housing loan, which he said would place the matter within the Circuit Court’s jurisdiction. The judgment records that the property was not being used as his principal residence when the loan facility letter was issued in June 2008. No evidence was produced that he then intended it to become his principal residence. The receivers said he had represented that he was resident in Gibraltar for tax purposes. The facility letter was addressed to him in Lisburn, Northern Ireland, and described the property as a residential investment property.
Justice Twomey said the parties’ dispute involved facts relevant to whether the loan met the housing-loan definition. The court therefore found it was not convenient to decide jurisdiction as a preliminary issue.
On standing, Mr Neill argued that the mortgage wording allowed ejectment proceedings only in the mortgagor’s name and that receivers, as the mortgagor’s agents, faced a conflict in seeking possession from him. The judge expressed a preliminary view that this interpretation of the mortgage clause was inconsistent with business common sense. He also referred to earlier decisions on receivers’ powers and noted that Bank of Ireland had agreed to be joined as a plaintiff, with the receivers saying the bank had delegated its possession power to them.
The court concluded that a separate preliminary trial on standing risked saving neither time nor cost. It rejected the applications and held that the action should proceed as a unitary trial. The judgment does not determine the ultimate possession claim or finally resolve either legal issue. It also records that costs of the unsuccessful proceedings were awarded against Mr Neill and that his application to stay that costs order until the substantive hearing was rejected.