The High Court has set aside an order dismissing mortgage possession proceedings against Matthew Farrelly and remitted the substantive case to the Circuit Court for further proceedings.
In a judgment delivered on 5 May 2023, Ms Justice Hyland held that the County Registrar’s 2019 dismissal was outside her jurisdiction. Alternatively, she found that dismissal was not a proportionate response to the circumstances. The court did not decide the underlying possession claim.
Permanent TSB issued the possession proceedings in 2018 in relation to 16 Nutley Square, Donnybrook, Dublin 4. The judgment records that it had lent Mr Farrelly €431,250 in 2009 and that he was indebted by €510,743 in December 2017. Start Mortgages Designated Activity Company later applied to be substituted as plaintiff.
The County Registrar dismissed the case in October 2019, citing want of prosecution and failure to comply with previous court orders. The judgment records that a supplemental affidavit had been filed before that hearing. It addressed the lender’s position on requested information and its assessment of a standard financial statement under the Code of Conduct on Mortgage Arrears.
Justice Hyland said the County Registrar’s order did not identify the dates or precise terms of the orders allegedly breached. She found the dismissal was based on dissatisfaction with the substance of the lender’s affidavit, including its position on mortgage arrears compliance and information sought by the defendant. Those were substantive matters for the proceedings, rather than procedural failures that could support dismissal for want of prosecution.
The judge also considered the alternative that the County Registrar had jurisdiction to dismiss for want of prosecution. She found the required assessment of the seriousness and persistence of any procedural failure, proportionality and the balance of justice had not been carried out. She said dismissal would have ended the proceedings and that no motion seeking that outcome had been brought by the defendant.
The High Court set aside the County Registrar’s order and directed that the substantive proceedings be remitted to the Circuit Court Office, to be listed before the Circuit Court rather than returned to the County Registrar. It also ordered that future proceedings continue between Start Mortgages as plaintiff and Mr Farrelly as defendant. The judgment did not determine whether possession should be granted.