A High Court judge has expressed hope the continuing confusion concerning the Circuit Court’s jurisdiction to make repossession orders in certain cases will be resolved “as soon as possible” by the Court of Appeal or Supreme Court.
Mr Justice Seamus Noonan said, because he gave judgment last November on an appeal by two men against a Circuit Court order granting possession of a property of theirs to a bank, he could not now refer important legal issues which arose in that case for determination by the Court of Appeal or Supreme Court.
The relevant law made “crystal clear” that applications for referral of legal issues for determination via a consultative case stated procedure should be made before judgment is given in the particular case, he said. He must therefore refuse the application to refer.
He was doing so “with regret”, because he agreed the issues raised should be clarified “as soon as possible”.
His decision did not prevent the men applying to the Court of Appeal of Supreme Court to see whether the legal issues could be addressed, the judge indicated. Any such application would be “with my blessing”.
If a higher court could address the matter, that was “all the better” for the many people affected, the judge added.
Last November, Mr Justice Noonan ruled Shane Hanley and Alan Giblin had not established any defence to the claim by Bank of Ireland Mortgage Bank for possession of a house at Country Meadows, Cloonthua, Tuam. The house was not the family home of either man and was rented out by them to tenants, he noted.
Dismissed appeal
He dismissed the men’s appeal against an order for possession granted by the Circuit Court in December 2014. The men represented themselves in the High Court proceedings and when the matter returned before the judge yesterday to address outstanding issues, they were represented by counsel who asked for the legal issues to be referred for determination and opposed the bank’s application for costs, saying the men were impoverished.
Hugh O’Neill SC, for the bank, said the High Court had no jurisdiction, having given judgment, to refer legal issues for determination and also sought the bank’s costs.
The judge agreed he could not refer issues for determination and held there were no exceptional circumstances entitling him not to award costs to the bank, having succeeded in its case.
Mr Justice Noonan’s November judgment conflicts with a decision by another High Court judge, Ms Justice Deirdre Murphy, last May. In a third case, Mr Justice Michael White has reserved judgment pending consideration of both those decisions.
Legal sources say the confusion is leading to cases being adjourned and civil bills being redrafted.
Affected cases are where the dwelling was built after May 2002, the mortgage was entered into before December 1st, 2009, and repossession proceedings were initiated before July 31st, 2013.
Legislative changes
Such cases fall between a series of legislative changes and reforms since 1978, when domestic rates were abolished. Since the Valuation Act 2001 became law in 2002, domestic dwellings are neither rated nor rateable.
While the Land and Conveyancing Reform Act 2009 gave power to the Circuit Court in disputes over housing loans entered into after December 1st, 2009, that Act was not applicable to court cases initiated before 31st July 2013.
In May, Ms Justice Murphy ruled the Circuit Court did not have jurisdiction to hear a case where Bank of Ireland Mortgage Bank sought to repossess the home of a Cavan couple. She held the dwelling was not “rateable” and so the Circuit Court had no jurisdiction in the dispute.
In November, Mr Justice Noonan upheld a repossession order granted to Bank of Ireland Mortgage Bank to repossess the property of Mr Hanley and Mr Giblin. He ruled the dwelling was not rateable, therefore the rateable valuation could not exceed €253.95 and the Circuit Court had jurisdiction to make the possession order, he ruled.
As both cases were appeals from the Circuit Court, the decisions cannot be appealed to a higher court.
