The Supreme Court has dismissed an appeal by Brian and Christina Cannon over the refusal to extend time for challenging a possession order concerning their family home. The Court held that the proposed appeal did not have sufficiently strong grounds to outweigh the significant delay.
The possession order was made by a County Registrar on 19 January 2017, with a stay until 1 August that year. The required appeal period was ten days. The Cannons began corresponding about an appeal in late July, and applied to extend time in October 2017. The Circuit Court refused the application in February 2018, and the High Court dismissed their appeal in July 2018. The Supreme Court appeal was heard on the question of whether the extension should be granted; the underlying possession order was not before it for reconsideration.
The Cannons argued that the County Registrar had not assessed whether terms of their mortgage were unfair under European consumer law. They challenged provisions concerning variable interest, early repayment of the full debt after default, possession and transfer of the lender’s rights. They also said the order lacked a proportionality assessment. The lender said the Registrar had been referred to relevant case law and had considered the loan documents. The Supreme Court said the available evidence did not establish whether an assessment had taken place: one appellant’s lack of recollection was insufficient, and there was no account from the lawyers who represented the couple at the hearing. The Court also said the Registrar’s decision did not refer to the relevant regulations or directive, and that the gist of reasons should be given.
Justice O’Malley said the High Court had treated the three factors in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. too rigidly. Those factors guide the court’s discretion on extending time; they are not mandatory requirements that must all be met. But the Supreme Court concluded that the delay required correspondingly strong grounds, and the proposed case did not provide them.
The Court found no basis to conclude that the interest-rate provision could support a defence, noting that the lender reduced the rate after the initial fixed period. It also considered that the acceleration clause was not invoked until the borrowers had been in default for about five years. The Court found no indication of lender bad faith and said the lender had engaged under the mortgage arrears process before bringing possession proceedings. It considered the transfer clause challenge insufficiently developed. The Court did not decide whether any mortgage term was unfair; it dismissed the appeal against refusal to extend time.