The High Court has ruled that Mars Capital Finance DAC is entitled to possession of the Bedford family home after resolving a dispute over the ownership history of their mortgage loans.
Dwayne and Nicola Bedford had appealed a Circuit Court possession order made on 7 May 2019. Their appeal required a full rehearing, but the case proceeded largely on affidavit evidence.
The Bedfords bought the property in 2004 and had borrowed from EBS Building Society. They accepted that substantial sums had been advanced but challenged whether the plaintiffs had proved the later transfers of the loans and the resulting right to possession.
Ms Justice Mary Rose Gearty had previously ruled that defaults occurred and that the mortgage terms entitled the lender to call in the loans. The remaining issue was the chain of title.
The court found that the loans moved from EBS Building Society to EBS Mortgage Finance in 2008, later to EBS DAC in 2020 and then to Mars Capital in 2021.
A difficulty arose because Mars senior manager Joseph Carter swore an affidavit incorrectly referring to earlier affidavits as his own. The court considered the error serious enough to justify oral cross-examination because the case depended on documentary evidence being presented accurately.
Mr Carter explained that the paragraph had originally been drafted for another proposed deponent and had not been changed when he swore the affidavit. After cross-examination, the judge was satisfied that he had reviewed the relevant electronic records and was able to verify the documents proving the transfers.
The court also rejected the Bedfords’ argument that the records were inadmissible hearsay. It held that, even if the Civil and Criminal Law (Miscellaneous Provisions) Act 2020 did not apply retrospectively, the business records were admissible as prima facie evidence because their provenance and reliability had been sufficiently established.
The court found no real or bona fide defence requiring a plenary trial and held that Mars Capital was entitled to possession. Costs were left for agreement or short written submissions.