The Court of Appeal has refused an application by Patricia Raftery to introduce additional evidence in an appeal concerning a mortgage over the appellants’ family home in County Roscommon. It directed that the appeal proceed on the evidence heard by the High Court.
The application concerned letters and documents which Ms Raftery’s solicitor said suggested that a deed transferring the family home into the joint names of Patrick and Patricia Raftery was signed in 1995, although dated 12 November 1992. The solicitor said the deed was lodged in the Land Registry in Roscommon in November 1995 and registered the following month. He argued the documents supported the application for possession of the home.
Those assertions were set out in the solicitor’s affidavit. The Court of Appeal was deciding whether to admit the material as new evidence, not whether the deed was backdated or what effect its timing might have on the mortgage.
The court said appellate courts are slow to admit evidence that could have been presented at trial. It found the documents were available then and could have been obtained through reasonable diligence. The respondent had served a notice to admit documents in 2004, including material showing that the transfer dated 12 November 1992 was filed in the Land Registry in November 1995. The solicitor had taken over Ms Raftery’s defence in 2005, and an amended defence filed in 2008 questioned the effect of the mortgage.
The court also found no satisfactory explanation for why the documents had not been obtained earlier. The solicitor’s account described receiving them over a period of almost six and a half years, and did not include correspondence showing efforts to obtain relevant records from the appellants’ former solicitor. Ms Raftery had not sworn an affidavit supporting the application.
The court said admitting the evidence would require a significantly different case and an inquiry into when the mortgage and transfer were executed. That inquiry would require witnesses to be cross-examined and the matter to return to the High Court, more than six years after its judgment.
The court refused the application, finding no special circumstances to justify admitting the evidence. It did not determine the underlying appeal or make a new finding on the mortgage’s validity. The appeal is to proceed on the evidence before the High Court judge.