The High Court has refused John Fox’s application to move Promontoria (Oyster) DAC’s well-charging proceedings to the Circuit Court, saying the case may raise legal issues that should be considered by the High Court in the first instance.
Mr Justice Garrett Simons ruled on 17 January 2020 that the Circuit Court’s jurisdiction over this type of proceeding depends on the market value of the land, not the amount of the debt. The parties agreed the land was worth less than the statutory €3 million threshold. The debt claimed by Promontoria was €145,918.80.
The proceedings seek an order charging Fox’s interest in registered land with the debt, as well as a declaration of the sum allegedly owed. The judgment dealt only with whether the case should be remitted. It made no finding on the underlying claim or the validity of the security.
Promontoria argued that the Circuit Court could not hear the case because the debt exceeded €75,000. The judge rejected that interpretation, noting that the relevant statutory provision excludes Circuit Court jurisdiction where the land’s market value exceeds €3 million, but contains no debt-value limit for well-charging proceedings. He concluded that the case could properly have been brought in the Circuit Court.
However, the judge said remittal was discretionary and declined to order it. Fox intends to argue that the lien relied on by Promontoria was registered before two loan facilities were entered into and cannot serve as security for those later facilities. Promontoria disputed Fox’s characterisation in a responding affidavit.
The judgment noted that the lien was registered on 19 March 2009 and the facilities were entered into on 23 June 2010. It said the issues could require the court to consider the implications of a recent Supreme Court ruling in *Promontoria (Oyster) DAC v Hannon*. The judge considered that potentially difficult legal questions would benefit from a High Court hearing and a reserved judgment that could be appealed.
The judge directed that he would hear counsel on any further steps needed to prepare the proceedings, then fix a hearing date for Promontoria’s application for a well-charging order. He made no decision on that application. He also said any eventual costs order in Promontoria’s favour would be assessed on the Circuit Court scale, while Fox could apply for a differential costs order.