The High Court has rejected Stephen Kearney’s appeal in possession proceedings brought by Permanent TSB, leaving the bank’s claim for possession of the family home successful at this stage. The appeal was a full rehearing of the possession proceedings, rather than a review limited to the Circuit Court’s decision.
Mr Justice Max Barrett delivered judgment on 7 March 2018. The appeal concerned a Circuit Court decision of 19 July 2017, which the judgment says had the effect of continuing a possession order. The High Court noted that no copy of the Circuit Court order had been put before it, and said an order appeared to have refused Mr Kearney’s application to review a County Registrar’s decision.
Permanent TSB had advanced a home loan of more than €152,000 to Mr and Mrs Kearney in September 2001, secured against their home. The judgment says the house was occupied as the family’s principal residence and that the couple were consumer borrowers. The bank began possession proceedings against Mr Kearney in March 2014. A County Registrar issued a possession order in February 2017.
Mr Kearney argued that the bank had breached section 126 of the Consumer Credit Act 1995 because a mortgage protection life policy never provided cover for him and his wife. The judgment recounts correspondence stating that New Ireland had said the policy had lapsed in 2001 because it had not received premiums, and that the bank had not been notified of the lapse. The court rejected Mr Kearney’s legal argument, finding that the bank’s statutory duty was to arrange a policy, not to ensure that cover attached. It said the policy had been executed between the Kearneys and New Ireland, and that cover had not attached because premiums were not paid from the outset.
Mr Kearney also relied on a purported will by his late wife, which he said left the house to their three children while allowing him to live there for life. The court held that the will, whether valid or invalid, could not sever the joint tenancy. It said the deceased’s interest ceased on her death when she was survived by another joint tenant.
The court also rejected the bank’s contention that the dispute concerned terms describing the main subject matter of the loan for the purposes of unfair-terms rules. It found nothing in the relevant contract documents that offended those regulations. The judgment concludes that Mr Kearney’s appeal must fail; it does not set out a separate new possession order.