The High Court has allowed Danske Bank, trading as National Irish Bank, to amend a special summons in proceedings concerning a judgment mortgage over land in County Donegal. The amendment replaces a mistaken reference to a 2009 affidavit with the affidavit used to register the mortgage in 2010. The court did not decide whether it could grant the requested relief if the summons remained unamended.
The bank sought to have a judgment mortgage declared well charged over land described in the proceedings as part of the townland of Ballymunterhiggin, in the parish of Innismacsaint, County Donegal. The defendants were Seamus McLaughlin and Anne McLaughlin.
The special summons said the judgment mortgage had been registered on 3 November 2009, in compliance with the Land and Conveyancing Law Reform Act 2009. The Act came into force on 1 December 2009. In a later affidavit, the bank’s deponent said the reference to 3 November 2009 was an error. He stated that the affidavit actually used to register the judgment mortgage was sworn on 22 January 2010, and exhibited a Property Registration Authority letter confirming that registration was completed on 5 May 2010.
Seamus McLaughlin argued that the summons had not been amended and that, as drafted, it relied on legislation that was not yet in force on the stated registration date. He contended that the court therefore lacked jurisdiction to grant the relief sought.
At a hearing on 5 November 2012, the bank asked to amend the summons to refer to the January 2010 affidavit. Its counsel submitted that a separate affidavit prepared under the earlier procedure had no effect and that the defendants had suffered no prejudice from the error. The defendants maintained their jurisdiction argument.
Justice Dunne said the court had broad power under Order 28, rule 1 of the Rules of the Superior Courts to permit amendments needed to determine the real issues between parties. She found no evidence that allowing the correction would prejudice the defendants. Refusing it, she said, would mean the bank would have to issue new proceedings, with further expense, to pursue money due under a judgment obtained in 2005.
The court directed that the special summons be amended to identify the affidavit sworn on 22 January 2010. Because the amendment was allowed, Justice Dunne said it was unnecessary to decide the separate question of the court’s jurisdiction if no amendment were made. The judgment records the amendment order; it does not determine the bank’s underlying request to have the judgment mortgage declared well charged.