Judgment: 2017-03-29 · Court archive

Court of Appeal allows appeal over service in mortgage possession case

The court set aside the High Court refusal to reopen a possession order, citing concern that one defendant may not have been properly served. The original order remains in effect against his wife.

Court of Appeal; High Court proceedings and decisions also discussed · [2017] IECA 103

Who, what, where, when and why

Who
  • Start Mortgages Limited (Respondent)
  • Paul Tierney (Appellant)
  • Aileen Tierney (Defendant)
What

The court set aside the High Court refusal to reopen a possession order, citing concern that one defendant may not have been properly served. The original order remains in effect against his wife.

Where

Places mentioned in the report

  • Kileek, St. Margarets, Swords, Co. Dublin
  • Kileek
  • St. Margarets
  • Swords
  • Co. Dublin
When

Judgment:

Other dates in the report
  • 8 December 2006; 13 October 2008

    Start Mortgages Limited had issued proceedings seeking possession of the property under a mortgage contract dated 8 December 2006. The judgment says the loan was €245,000 and that, by the end of November 2014, arrears were €161,958.61, with €349,587.75 outstanding. The High Court made a possession order on 13 October 2008, recorded as being by consent and following service on both defendants.

Why

Reasons reported in the judgment

The appeal was against a High Court decision refusing Mr. Tierney’s 2016 application to set aside the possession order. The Court of Appeal held that the appeal should be allowed, with some reservation. Its judgment does not state that the mortgage claim was determined anew or that the possession order was set aside; it records that the 2008 order remains in effect against Aileen Tierney, who was not a party to the appeal.

The Court of Appeal allowed Paul Tierney’s appeal over a High Court possession order concerning the family home in Kileek, St. Margarets, Swords, Co. Dublin. The court said it had sufficient concern that he may not have been properly served with the possession proceedings or have consented to the order made in 2008.

The appeal was against a High Court decision refusing Mr. Tierney’s 2016 application to set aside the possession order. The Court of Appeal held that the appeal should be allowed, with some reservation. Its judgment does not state that the mortgage claim was determined anew or that the possession order was set aside; it records that the 2008 order remains in effect against Aileen Tierney, who was not a party to the appeal.

Start Mortgages Limited had issued proceedings seeking possession of the property under a mortgage contract dated 8 December 2006. The judgment says the loan was €245,000 and that, by the end of November 2014, arrears were €161,958.61, with €349,587.75 outstanding. The High Court made a possession order on 13 October 2008, recorded as being by consent and following service on both defendants.

Mr. Tierney said he had not been served with the proceedings, was unaware of them and had not been present or consented when the order was made. He said he learned of it in February 2016, when his wife told him a sheriff had arrived to execute it. Mrs. Tierney disputed the order’s account of her presence and consent as well. The Court of Appeal noted that the summons and grounding affidavit had been served on Mrs. Tierney alone, although she agreed to accept them for her husband. The relevant court rule required both spouses, when both were defendants, to be served unless the court ordered otherwise. No alternative service order or order deeming service on Mr. Tierney effective had been sought.

The appeal court said the service defect could have been corrected, including by an application for substituted service or by deeming service through Mrs. Tierney good service. It also considered whether Mr. Tierney might have learned of the case later, and whether the earlier order’s record of attendance and consent was accurate. While the judge expressed scepticism about the claimed errors, he had sufficient concern that they may have occurred. In the special circumstances, the court considered it appropriate to insist on proper service.

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