The High Court has set aside an order that gave Killian McGrath extra time to appeal a 2012 Circuit Court possession order in favour of ICS Building Society. The court allowed the building society’s appeal against the Master of the High Court’s decision to extend the deadline.
The possession order concerned premises at Coolbagh, Clashmore, County Waterford. The Circuit Court made it on 28 February 2012 after hearing submissions from the building society’s counsel and McGrath, who was representing himself. The usual deadline to appeal was 10 days.
McGrath applied to extend the time in May 2017, more than five years after the possession order. The Master granted the extension on 30 May 2017. The High Court appeal considered whether that extension should stand; it did not rehear the original possession case.
McGrath said he had intended to appeal within time but could not do so because of stress, anxiety and depression. He also argued that the Circuit Court had failed to consider issues that made its order invalid, and that the building society had not afforded him protection under the Central Bank’s Mortgage Arrears Code of Conduct.
The High Court found that the medical material did not credibly show that McGrath’s condition had prevented him from bringing an appeal. The only report produced was dated November 2018 and said his disorder had been ongoing since mid-2011; the doctor had seen him once for the report. The judge also found no credible explanation for waiting more than five years to seek an extension.
The judge considered McGrath’s proposed appeal grounds, including the code, service of the Circuit Court proceedings and the interest rate charged. The building society’s solicitor had stated in an affidavit that the code had been complied with, including a moratorium period before possession proceedings began. McGrath alleged a service defect concerning his partner’s occupation of the premises, but provided no affidavit from the partner. The Circuit Court had been satisfied as to service, and the High Court noted that procedural rules allowed possible service defects to be remedied. On interest, the judge said a dispute could affect the amount of arrears but did not alter the building society’s entitlement to enforce its security for unpaid borrowing.
The High Court concluded that McGrath had not established arguable grounds for an appeal at that stage. It allowed ICS Building Society’s appeal and set aside the Master’s 30 May 2017 order extending time. The judgment did not set aside the 2012 possession order.