The High Court has refused an applicant’s judicial review challenge to a Circuit Court order for possession of his family home, and struck out county registrar Rita Considine as a respondent.
In a judgment delivered on 24 January 2017, Mr Justice Richard Humphreys said the applicant had a right to appeal the county registrar’s order to the Circuit Court but had not used it. The court said an appeal was the appropriate route for complaints about the merits of the possession decision.
KBC Bank Ireland plc began possession proceedings on 1 May 2014. After an order for substituted service, the matter came before Considine on 1 May 2015. She advised the applicant to enter an appearance and defence. The applicant later submitted medical certificates saying he was unwell, and the proceedings were adjourned once. A further certificate in February 2016 said he would be medically unfit to attend or give instructions for a further three months.
On 29 April 2016, with no appearance or defence filed, the county registrar ordered that the bank recover possession. The applicant attended and addressed the hearing. He then sought leave to apply for judicial review, which the High Court directed would proceed on a telescoped basis.
The applicant advanced 10 grounds. The judge rejected his general claims of unfair procedures and constitutional non-compliance as insufficiently specific or unsupported. He said the applicant had no indefeasible right to repeated adjournments, particularly after an earlier adjournment and given that he attended the April hearing. The order was not outside the registrar’s jurisdiction because of the medical certificate, which the judge described as sparse and general.
The court also rejected the argument that the applicant’s documents proposing a minor payment created an agreement or estoppel. The judge said there was no basis to find that the bank had accepted the applicant’s position, and that disputes about the evidence or the arrears concerned the merits. He found no discernible unfairness in not allowing a response to a bank affidavit updating the arrears shortly before the hearing.
The judge said the applicant had received the notice, foreseeability and independent determination required in relation to yielding up possession of a dwelling. He also noted that international instruments relied on were not part of Irish law, and that the pleaded European Convention claim did not establish an unfair trial.
The court ordered that Considine be struck out as a respondent and refused substantive relief. The judgment records the applicant’s attendance at the possession hearing and his later judicial review application; it does not set out a separate order staying or reversing the possession order.