The High Court would not allow a possession order against Trevor Kenehan and Bernadette Ryan to stand because EBS had not provided the offer letter and rules needed for the court to assess the mortgage under consumer-protection principles.
Mr Justice Max Barrett delivered the judgment on 24 October 2017 in EBS Limited v Kenehan and Ryan. The borrowers appealed a Circuit Court order made on 3 November 2015 for possession of premises in County Tipperary. The High Court heard the appeal as a de novo appeal.
The borrowers raised 10 grounds, including challenges to the Circuit Court’s jurisdiction, the fairness of the hearing and their treatment as consumers. The judge rejected the jurisdiction challenge: the property had a certificate of rateable valuation, so the cited Court of Appeal ruling in Permanent TSB plc v Langan did not apply. He also found that the borrowers had received a fair hearing, and rejected their other arguments concerning the description of the property, consent to jurisdiction, alleged solicitor intimidation and the absence of original “wet ink” documents. Allegations of overcharging and a missing tax relief payment had not been established in the appeal.
The court considered whether it had to examine the mortgage for potentially unfair terms under the principles in Aziz v Catalunyacaixa and AIB plc v Counihan. The judge said that obligation applied to a court hearing a de novo appeal. But EBS had produced the mortgage, which incorporated an offer letter and EBS rules, while neither the offer letter nor the rules was before the court. Without them, the judge said, he could not carry out the required assessment.
The court therefore held that the possession order could not stand on the evidence presented. It did not find that any mortgage term was unfair, nor did it finally resolve whether EBS was entitled to possession. The judgment noted that the borrowers had borrowed €400,000 and were in persistent default, but those circumstances did not cure the missing material needed for the court’s review.