The High Court has refused Raymond and Irene Clarke’s appeal against an order for possession of their home at 8 Mary’s Road, Kingscourt, County Cavan, and affirmed the Circuit Court order in favour of Start Mortgages Designated Activity Company (DAC). The High Court granted no further stay of the order, but said further steps would be needed to execute it. Final orders, including costs, remained to be settled.
Mr Justice Mark Heslin delivered judgment on 21 May 2024 after a rehearing of the possession claim. The appeal concerned a Circuit Court order made by Judge Aylmer on 21 November 2023. The High Court had refused an application by the Clarkes to adjourn the appeal hearing after it began on 12 April 2024.
The lender sought possession under section 62(7) of the Registration of Title Act 1964. The judgment records that the Clarkes were registered as joint owners in 1996, borrowed €188,500 under a 2007 loan offer and charged the property as security. The charge was registered in May 2007. Start Mortgages DAC was registered as owner of the charge; the court treated that registration as conclusive evidence of ownership.
The lender’s account statement showed the last payment on 12 May 2016. In June 2017, the lender told the Clarkes it could not offer an alternative repayment arrangement and said legal proceedings could begin from September that year. It later sent demands for payment. The court found that the loan was secured on the property, the repayments were in default and the secured money had become due.
The Clarkes argued, among other things, that the lender’s proofs were deficient, the loan terms were unfair and interest had been overcharged. The overcharging claim relied on a 2019 report whose author did not give evidence. The lender disputed the report’s calculations in sworn evidence. Justice Heslin found that the report’s findings had not been supported by evidence from its author and that the Clarkes had not established a credible defence or a basis for a plenary hearing. He also found the relevant loan terms clear and transparent.
The court refused the appeal and affirmed the Circuit Court order. It declined to grant an additional stay, citing the time since the last payment, the alternatives previously offered and the need for further steps to execute the order. The judge indicated a preliminary view that costs should follow the event and directed the parties to submit an agreed draft order, listing the matter for final orders no later than 21 days from the start of Trinity term.