The High Court has dismissed an application by Tom (otherwise Thomas) Mannion and Corrine Manninon to remove their family home in Doughiska, Galway, from a possession order made by consent in 2009.
The original proceedings were brought by Bank of Scotland (Ireland) Limited, which sought possession of mortgaged properties, including land at Doughiska registered in Folio 32638F, County Galway. On 29 April 2009, the High Court ordered the defendants to deliver possession of the scheduled properties. The judgment records that the order was made on the plaintiff’s application by consent of the parties.
The defendants later asked the court to set aside the order insofar as it covered their family home. They said they had not consented to possession of that part of the property and that their former solicitors lacked authority to agree to it. They wanted the premises excluded so they could defend the possession claim on the basis that the bank did not hold security over the home. The bank maintained that it did have security; the judge said that question was not before the court on this application.
The judgment describes conflicting evidence about whether the former solicitors had the defendants’ authority. Letters from the solicitors gave differing accounts of whether they had consulted the defendants before sending a full consent. The second defendant said the consent was given against the defendants’ wishes, while a family friend involved in discussions with the bank said he had never proposed consent to possession of the disputed property.
Justice Laffoy said the court could not resolve that evidential conflict by holding an inquiry, taking discovery or hearing the solicitor as a witness. For the bank, the solicitors were on record for the defendants and had sent a clear consent covering all scheduled properties.
The judge also found that the 2009 order accurately reflected the consent provided to the bank’s solicitors, so the court’s power to correct an order that did not record what it had decided did not apply. She concluded that the case did not meet the exceptional circumstances required to vary a final order to protect constitutional rights, and that there had been no fraud in obtaining it.
The court dismissed the defendants’ application. It did not decide whether the bank had security over the family home, and expressed no opinion on the hypothetical possibility of a separate action concerning the agreement underlying the consent order.