The High Court has refused Start Mortgages DAC’s appeal over the renewal of a possession claim against a second defendant, finding the lender had not demonstrated special circumstances to justify the delay.
Mr Justice David Holland delivered judgment on 7 March 2022. The appeal concerned a Circuit Court judge’s refusal on 26 July 2021 to renew a Civil Bill for service on the second defendant. The first defendant had been served. The High Court refused renewal for the second defendant; it did not decide the underlying possession claim.
Permanent TSB issued the mortgage loan in February 2002 to the defendants to buy a principal private residence in County Meath. The lender alleged that repayments fell into default from February 2010 and that the last payment before the possession proceedings was made on 22 May 2013. The Civil Bill, issued in July 2017, claimed possession, €103,659 in arrears and total indebtedness of €263,429.58.
Attempts to serve the second defendant at the property were unsuccessful. An affidavit recorded that the first defendant said she had left about nine years earlier and they had no contact. The second defendant told the process server by phone that she lived at the property but was away for a few days. A registered letter was returned marked “gone away.” The judge noted that the evidence about her residence and whereabouts was not consistent.
The Civil Bill expired for service on 5 July 2018. Start Mortgages later became plaintiff after Permanent TSB assigned the loan and mortgage in February 2020. Although a new return date for the second defendant was set for 22 March 2021, the application to renew the Civil Bill was not issued until 15 April 2021, almost two years and nine months after expiry.
Start Mortgages argued that it was justified in deferring renewal while the first defendant pursued a Mortgage to Rent application, and pointed to court adjournments and the loan assignment. The judge said the affidavits did not explain the lender’s actual reasons for the delay. The papers did not show that the Mortgage to Rent application remained live or was likely to resolve the proceedings, or that a decision had been made to defer service on the second defendant during that engagement.
The judge considered the adjournments, mortgage negotiations, assignment and change of solicitors ordinary features of mortgage proceedings, not special circumstances. He also said any prejudice to the lender from being unable to proceed against the first defendant alone arose from its own failure to regularise service on the second defendant.
The High Court refused to renew the Civil Bill for service on the second defendant. The judge said he was minded to make no order as to costs, with an order to issue after 14 days unless a different order was sought.