Irish Life and Permanent plc v Dunne & Irish Life and Permanent plc v Dunphy

Factual and Procedural Background

Two appeals from the Circuit Court were before the Supreme Court. In both matters Company A, a lending institution, sought possession of mortgaged residential property. The High Court (sitting as an appellate court) referred common and case-specific legal questions to the Supreme Court by way of cases stated.

• Dunnes’ appeal (Record No. 259/2013): Company A had advanced a loan in January 2007 secured on property owned by the Defendants/Appellants (“the Dunnes”). After default and no appearance by the borrowers, the Circuit Court refused possession relying on the repeal of section 62(7) of the Registration of Title Act 1964. Company A appealed; the High Court, conscious of conflicting High Court authority and the effect of the Central Bank’s 2010 Code of Conduct on Mortgage Arrears (“the Code”), stated a case.
• Dunphy appeal (Record No. 293/2013): The Defendant/Appellant (“Mr. Dunphy”) mortgaged his property in January 2008. Arrears arose; Company A issued an ejectment civil bill in December 2008 but deferred action when Mr. Dunphy said a tax rebate would clear arrears. The Circuit Court later granted possession; Mr. Dunphy appealed. The High Court stated a case concerning the lender’s reliance on the repealed section 62(7), and the existence of any contractual right to possession.

Legal Issues Presented

1. Whether the High Court, when hearing a Circuit Court appeal in which no oral evidence was given, has jurisdiction under section 38(3) of the Courts of Justice Act 1936 to state a case to the Supreme Court.
2. In the Dunnes’ appeal:
   1. Does non-compliance with the Central Bank’s Code of Conduct on Mortgage Arrears affect a lender’s legal entitlement to an order for possession?
   2. If it does, is every breach fatal or only breaches relating to specific provisions such as the statutory moratorium?
3. In the Dunphy appeal:
   1. Had Company A a vested right before 1 December 2009 enabling continued reliance on the repealed section 62(7) of the 1964 Act?
   2. (Subsidiary) If not, could possession be obtained on a purely contractual basis independent of statute?

Arguments of the Parties

Company A’s Arguments

• The 1936 Act, read purposively with section 5 of the Interpretation Act 2005, permits the High Court to state a case even where the Circuit Court heard no oral evidence.
• The Code was never intended to create private law rights; only a breach of the moratorium could bar possession, and even then the lender can adduce simple affidavit evidence to prove compliance.
• The mortgage terms made the whole principal automatically due once two monthly repayments were missed; therefore the right to possession vested before 1 December 2009, preserving reliance on section 62(7).
• Even were statutory relief unavailable, the contractual right to possession under the mortgage deed remains.

Appellants’ Arguments

• No jurisdiction existed to state a case because section 38(3) applies only to appeals falling within section 38(1); these appeals fell under section 37 as no oral evidence was heard below.
• Compliance with all aspects of the Code is a pre-condition to possession; its terms should be implied into the lender-borrower relationship.
• In the Dunphy matter the lender’s 2008 demand referenced only arrears, not the principal balance, and later negotiations waived or postponed any entitlement to accelerate the debt; accordingly the principal was not “due” on 1 December 2009.

Table of Precedents Cited

Court's Reasoning and Analysis

Jurisdiction to state a case: A literal reading of sections 37 and 38 would withhold the case-stated facility where the Circuit Court heard no oral evidence, an outcome the Court deemed “absurd.” Applying section 5 of the Interpretation Act 2005 and drawing on Kadri, the Court purposively construed the 1936 Act to allow a case stated in all Circuit Court appeals. Prior contrary authority (Hanley) was not followed.

Effect of the Code (Dunnes): Using the Quinn illegality framework, the Court differentiated between (a) the Code’s moratorium on issuing proceedings and (b) its broader engagement provisions. Entering possession proceedings during the moratorium would require the Court to lend aid to an unlawful act; therefore proof of compliance with the moratorium is a legal pre-condition to possession. Other Code breaches, while regulatory matters, do not affect the lender’s private law entitlement absent fresh legislation. A simple affidavit can establish prima facie compliance; the burden lies on the lender.

Vested rights under s.62(7) (Dunphy): The mortgage deed provided that the “total debt” became immediately payable once two monthly payments were missed. Mr. Dunphy was in arrears well before 1 December 2009, so the principal was unquestionably due and the right to seek possession under section 62(7) had accrued before repeal. Correspondence offering time to pay did not waive that entitlement. Consequently Company A retained its statutory right; consideration of a purely contractual right was unnecessary.

Holding and Implications

Holding: The Court ruled that (1) the High Court had jurisdiction to state both cases; (2) only non-compliance with the Code’s moratorium can defeat a lender’s application for possession, and the lender must prove compliance; (3) in the Dunphy appeal the lender’s right to possession vested before repeal of section 62(7), so the repeal does not bar relief; the remaining question in that case was moot.

Implications: Practically, lenders must demonstrate adherence to the moratorium period but need not litigate every alleged Code breach in possession proceedings. The decision clarifies appellate procedure by confirming a wide case-stated jurisdiction and affirms that standard acceleration clauses can secure vested rights before legislative change. No new precedent is set on broader Code compliance; any wider reform is left to the legislature.