The High Court has refused a married couple’s judicial review challenge to a possession order over their family home in County Laois, despite finding that the County Registrar had not carried out a required review of the mortgage terms for unfairness.
Mr Justice McDermott said the Circuit Court had jurisdiction to examine mortgage terms of its own motion under EU consumer protection rules. He was not satisfied that the County Registrar had done so before making the possession order in July 2016. The judge held that this review was a necessary step towards a lawful order in the circumstances.
However, the judge declined to quash the order or send the case back for reconsideration. After examining the terms raised in the judicial review, he found that they did not provide a basis for relief under the unfair-terms rules. He concluded that remitting the case could not benefit the applicants and refused the application.
The applicants had agreed to the possession order in the Circuit Court, where they sought a stay. The County Registrar granted a nine-month stay. The High Court also found that the applicants had failed to disclose their consent and bankruptcy status when seeking leave for judicial review. It nevertheless declined to refuse relief on non-disclosure grounds, given the court’s independent obligation to examine potentially unfair consumer terms.
The mortgage was taken out in 2008 for €130,500 over 22 years and secured on the applicants’ home. They defaulted on repayments in 2009. The lender said it had considered alternative repayment arrangements under the Mortgage Arrears Resolution Process but found none sustainable. The applicants did not dispute that account in the judicial review.
The applicants argued that provisions covering variable interest, early repayment following default, possession and transfer of the mortgage could be unfair. The judge found the interest and possession terms fell within the main subject matter of the mortgage and were outside the fairness review under the rules he applied. He also found that the relevant terms did not warrant relief even if they were reviewable. He said the possession clause could not permit the lender to take the home without a court order.
The applicants also argued that the order was disproportionate given their right to respect for their home. The judge rejected that argument, finding that the possession process allowed relevant defences to be raised and that a stay could address the consequences of an order. He refused the judicial review application.