The High Court has dismissed an application by Simon Kavanagh to set aside a final, unappealed order for possession made in 2016 in favour of Start Mortgages, now Start Mortgages DAC. The application was heard by Mr Justice Garrett Simons on 16 January 2023, and judgment was delivered on 30 January.
The possession proceedings began in June 2013. At the hearing on 18 July 2016, Mr Justice Hedigan refused Mr Kavanagh’s request for leave to cross-examine witnesses and rejected his argument that the mortgage’s securitisation prevented Start Mortgages from enforcing it. The court made a possession order, with a nine-month stay on execution. The defendants did not appeal that order.
Mr Kavanagh brought the current motion in November 2022. He relied on Order 124 of the Rules of the Superior Courts and sought declarations broadly asserting that Start Mortgages DAC was acting as a credit servicer and had no lawful right to sue in its own name. Justice Simons said Order 124 addresses irregularities in ongoing proceedings, not an attempt to set aside a final judgment and order. He added that the six-year delay was inordinate and had not been properly explained.
The judge also considered, despite it not being raised in the motion, whether the court’s exceptional jurisdiction to reopen a final judgment might apply. He said that jurisdiction requires a fundamental denial of justice and cannot be used to reargue an issue already decided. He did not decide whether one High Court judge could reopen an order made after an inter partes hearing by another judge, finding that the application failed in any event.
Mr Kavanagh repeated his securitisation argument, which had been rejected in 2016. He also alleged that the special summons was deficient and that the 2016 hearing had been an “ambush”. Justice Simons said Mr Kavanagh had been provided with the relevant particulars, mortgage and loan documents, and statements of account before the hearing. Any shortcomings in the claim’s endorsement had not caused prejudice or established a constitutional breach. The substantive possession proceedings, he said, had been listed for hearing, so there was no ambush.
The court dismissed the application and refused the relief sought in the November 2022 motion. Justice Simons gave a provisional view that Start Mortgages DAC was entitled to the costs of the motion. Mr Kavanagh was given two weeks to file submissions on a different costs order, with the plaintiff having two weeks thereafter to reply.