The High Court has refused John and Lorna O’Connor’s application to remit Bank of Ireland Mortgage Bank’s summary judgment proceedings to the Circuit Court.
Mr Justice Max Barrett delivered the judgment on 3 May 2019. The bank is seeking summary judgment on a loan facility for more than €1.5 million taken out in or about 2008 and secured, among other things, on a family home in Clontarf. The judgment says the bank had separately issued Circuit Court possession proceedings concerning the home.
The O’Connors sought remittal under Order 49, rule 7 of the Rules of the Superior Courts and/or the High Court’s inherent jurisdiction. The court considered statutory provisions governing when a case may be remitted and when the Circuit Court has jurisdiction.
Under section 11(2) of the Courts of Justice Act 1936, an action to recover a liquidated sum could not be remitted without the plaintiff’s consent unless the defendant showed a good defence, or disclosed facts sufficient to entitle them to defend the action. The judgment also considered section 22(1) of the Courts (Supplemental Provisions) Act 1961, which the judge said appeared to eliminate the option of proceeding without the necessary parties’ consent in the relevant category of cases. The judgment notes that the interaction between these provisions was unclear.
The bank did not consent to the transfer. The O’Connors conceded that, on the evidence before the court, it could not properly find either that they had a good defence or that the facts disclosed were sufficient to entitle them to defend the claim. The judge said he could not see how the alternative statutory test could apply in light of the 1961 Act.
The court therefore refused the application for remittal. The judgment did not determine the bank’s summary judgment claim or the separate possession proceedings; it addressed only whether these High Court proceedings should be transferred.