The High Court has refused a woman’s applications to set aside a 2019 possession order over her family home and, alternatively, to extend time to appeal that order. The judgment addressed allegations that she had not known about the proceedings and had not authorised a solicitor to act for her. The judge refused both applications; she did not determine whether those allegations were true.
The case concerned a loan of €1.985 million taken out by the woman and her husband in 2007, secured against their jointly owned family home in County Dublin. Start Mortgages DAC later became the registered owner of the mortgage charge. The lender said the account had fallen into substantial arrears. It obtained a possession order in June 2019 after a solicitor appeared for both defendants and told the Circuit Court they consented to an order with a 12-month stay while they took steps to sell the home.
The woman said she had not instructed the solicitor, had never met or spoken with him, and first learned of the proceedings when the Sheriff attended in January 2023. The solicitor’s affidavit confirmed that he had never met her. He said he had entered an appearance for both defendants after receiving emails purporting to authorise him to act. The woman disputed that the email attributed to her came from her account and alleged that her husband had created it without her knowledge. Those allegations were not findings of fraud by the High Court.
The court found that the proceedings had been properly served initially, based on the solicitors’ written acceptance of service and undertaking to enter an appearance for both defendants. It said there was a serious question about service of later documents before the solicitor entered an appearance for both defendants in June 2019. But the judge concluded that the appearance and the solicitor’s attendance to consent to the order resolved the service issue for the court, which was entitled to rely on the solicitor’s apparent authority.
The judge described the circumstances as unusual and concerning, and recognised that if the woman had remained unaware of the case, her right to constitutional justice had not been respected. She nevertheless found no real prospect that the woman could successfully defend the possession proceedings. The proposed arguments about the demand, transfer of the mortgage and evidence of compliance with mortgage-arrears rules did not establish an arguable defence. The court also considered the long delay and the lender’s reliance on the order, which had been executed and left it in possession of the home.
The High Court therefore refused to exercise its exceptional jurisdiction to set aside the possession order and refused an extension of time to appeal it. The ruling did not decide any separate issue that might arise from the alleged conduct of the husband or solicitor.