The High Court has dismissed an application by Jack and Therese McCarthy to strike out Bank of Ireland possession proceedings, ruling that the application’s central argument was unsupported by the evidence. The decision did not determine the McCarthys’ appeal against the Circuit Court possession order.
The ruling was made by Mr Justice Garrett Simons on 2 July 2019, when the High Court was hearing the McCarthys’ appeal from a Circuit Court order made in favour of the bank on 24 April 2017. The underlying proceedings seek possession of unregistered land. The bank contends that it holds a valid mortgage and that its power of sale and right to possession have arisen.
Before hearing the substantive appeal, the High Court considered the defendants’ motion to strike out the proceedings in their entirety. The motion, filed on 21 June 2019 and supported by an affidavit from Therese McCarthy, argued that court summonses and orders were invalid. It relied on a claim that the Director of Public Prosecutions had failed to deliver a defence in separate proceedings brought by Eugene Cafferkey in 2006 and had been treated as immune from court orders. The McCarthys argued that Article 40.1 of the Constitution, which guarantees equality before the law, meant they too should be immune from compliance with court orders.
Justice Simons said the exhibits did not support that account. The Cafferkey proceedings had been dismissed for disclosing no reasonable cause of action, and that dismissal was upheld by the Supreme Court in 2011. Because the case had been dismissed, the judge said, there could have been no obligation on the Director to deliver a defence. He also said there was no suggestion of a contempt complaint or finding against the Director. A later attempt by Cafferkey to revive his proceedings was dismissed by the Supreme Court in 2018.
The judge dismissed the strike-out motion in full, finding its underlying allegation unsustainable. Ms McCarthy then sought his recusal, alleging that he had denied her right to equality. He refused that request, saying that an adverse ruling on a preliminary application did not create a reasonable apprehension of bias.
Ms McCarthy indicated an intention to appeal the order. The judge said it would be for the appellate courts to determine the available appeal route. He noted that section 39 of the Courts of Justice Act 1936 generally makes a High Court judgment on a Circuit Court appeal final and not appealable, subject to the constitutional route to seek Supreme Court leave. He added that section 39 might not apply if his order did not dispose of the Circuit Court appeal.