The High Court has set aside a possession order over a family home in County Roscommon after accepting that one of the defendants missed the hearing because of a panic attack. The case must be relisted for hearing, with Pepper Finance Corporation (Ireland) DAC replacing Danske Bank as plaintiff.
The possession order had been made on 2 November 2015, when neither defendant appeared. The court heard that Michael Macken, who was representing himself and his wife, became unwell while travelling to Dublin. His family doctor said Mr Macken arrived at his surgery in an agitated state, showed symptoms of a panic attack and was advised not to drive to court.
Mr Macken emailed the bank’s solicitor that morning asking for an adjournment, but the solicitor said she had no record of receiving the email. He assumed the hearing would be adjourned. The court heard the application in the defendants’ absence and granted possession after a hearing lasting about ten minutes.
Justice Costello accepted Mr Macken’s explanation and found his absence was not deliberate. She said the defendants acted promptly to challenge the order and the bank had identified no prejudice that would have resulted from setting it aside. The judge extended the time for the application because Mr Macken had tried to issue it within the deadline but was prevented from doing so at the High Court Central Office.
The judge set aside the 2015 order under Order 36, rule 33 of the Rules of the Superior Courts and directed that the possession claim be relisted. The ruling does not determine whether the defendants owe the loans or whether the bank is entitled to possession.
The court also allowed Pepper to replace Danske Bank as plaintiff. Evidence presented on Pepper’s application included loan sale and assignment documents, a transfer of the registered charge and notices sent to the defendants. Justice Costello found there was prima facie evidence of a sale and assignment sufficient for the procedural substitution.
The judge expressly made no finding on whether those documents were valid or effective, or on the defendants’ challenges to them. Those issues remain for the trial of the possession claim.