Factual and Procedural Background
This opinion concerns an application by the second defendant, Ms. W., for an extension of time to appeal a High Court decision delivered on 27th April 2015. The appeal papers were not filed within the time permitted by the Rules of the Superior Courts, necessitating this application for leave to appeal out of time.
The underlying litigation arose from a dispute involving Mr. M. and Ms. W., former partners with two children, relating to a portfolio of properties in Dublin purchased with loans from a building society. Following their separation, a Circuit Court consent order granted Ms. W. and her children the right to reside in one of the properties, which was not a family home under the Family Home Protection Act 1976 as the parties were never married.
Mr. M. had secured loans from the building society (EBS) for eight properties, with mortgages registered in 2008 prior to the registration of an affidavit of judgment by Ms. W. in 2009. The building society sought possession of these properties due to default, and a receiver was appointed over them. The plaintiff in this action is the appointed receiver.
The dispute escalated when Ms. W. objected to the proposed sale of two properties and allegedly obstructed the receiver's actions. The plaintiff then commenced proceedings seeking possession and orders restraining the defendants from interfering with the management of the properties. The High Court rejected Ms. W.'s challenges to the validity of the mortgages and the receiver's appointment.
Legal Issues Presented
- Whether the applicant, Ms. W., is entitled to leave to appeal out of time by demonstrating (i) intention to appeal within time, (ii) a mistake, and (iii) existence of arguable grounds.
- Whether Ms. W. has standing to challenge the validity of the receiver's appointment.
- Whether the status of the building society and its successors affects the validity of the receiver's appointment.
- Whether the appointment of the receiver was invalid due to defects in execution of the deeds of appointment.
- Whether there was a breach of constitutional privacy and data protection rights by publication of an un-redacted judgment.
- Whether the plaintiff breached constitutional rights by alleged trespass on Ms. W.'s dwelling.
Arguments of the Parties
Appellant's Arguments
- Ms. W. contends she formed the intention to appeal within the permitted time but was delayed by unavailability of the perfected judgment and confusion over deadlines.
- She argues she has standing as a judgment mortgagee to challenge the receiver's appointment despite not being party to the original mortgage contracts.
- Ms. W. challenges the status and entitlement of the building society and its successors to appoint the receiver, noting transfers of the mortgage book and lack of clarity over current rights.
- She alleges invalidity of the receiver's appointment deeds due to absence of proper sealing by the building society and the receiver.
- Ms. W. claims breach of constitutional privacy and data protection rights arising from publication of an un-redacted judgment containing sensitive family law details.
- She further alleges the plaintiff violated her constitutional rights by unauthorized entry onto her dwelling.
Respondent's Arguments
- The plaintiff maintains the mortgages and receiver's appointment are valid and that Ms. W. lacks standing to challenge the appointment as she is not party to the mortgage contracts.
- The plaintiff denies responsibility for any alleged breach of privacy or trespass and contends such claims, if valid, are separate and do not affect the merits of the appeal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ire Continental Trading Co. v. Clonmel Foods Ltd. [1955] I.R. 170 |
Criteria for granting leave to appeal out of time: intention to appeal, mistake, and arguable grounds. |
The court applied these criteria to determine whether Ms. W. could be granted leave to appeal out of time. |
| Re Strong [1940] I.R. 382 |
Judgment mortgagee takes subject to prior mortgages as a volunteer; judgment mortgage is a process of execution, not purchase for valuable consideration. |
Used to explain Ms. W.'s position as a judgment mortgagee subject to earlier mortgages. |
| The State (Lynch) v. Cooney [1982] I.R. 337 |
Standing in public law cases. |
Referenced but distinguished as not directly applicable to private law contractual standing issues in this case. |
| McGuinness v. Ulster Bank of Ireland Ltd. [2014] IEHC 281 |
Section 64(3) of the Land Law and Conveyancing Law Reform Act 2009: deeds executed in specified manner have effect as if executed under seal. |
Applied to conclude that absence of seal by the receiver did not invalidate the deed of appointment. |
| Schrems v. Data Protection Commissioner [2014] IEHC 310, [2014] 2 I.L.R.M. 401 |
Recognition that breach of personal data privacy can amount to breach of constitutional right to privacy. |
Referenced in relation to Ms. W.'s claim of privacy breach from publication of un-redacted judgment. |
| Kennedy v. Ireland [1987] I.R. 587 |
Possible cause of action for damages for breach of constitutional rights to privacy. |
Noted as a potential remedy if privacy breach established, but not determinative here. |
| Collins v. FBD Insurance plc [2013] IEHC 137 |
Data Protection Act 1988, s.7: breach of data privacy may give rise to damages in tort. |
Referenced regarding potential tortious claims for data privacy breach. |
Court's Reasoning and Analysis
The court first confirmed that Ms. W. satisfied the first two criteria for leave to appeal out of time: she formed the intention to appeal within the permitted period, and there was a mistake related to the availability of the perfected judgment and confusion over deadlines.
The critical issue was whether Ms. W. had arguable grounds for appeal. The court examined her standing to challenge the receiver's appointment, concluding she had at least an arguable interest as a judgment mortgagee, notwithstanding the doctrine of privity of contract.
Regarding the building society's status, the court acknowledged the complexity arising from transfers of the mortgage book and accepted that Ms. W. raised an arguable ground that the appointment of the receiver may have been invalid if the appointing entity lacked proper entitlement.
On the validity of the receiver's appointment deeds, the court analyzed statutory requirements under the Land Law and Conveyancing Law Reform Act 2009. It found that the receiver's execution of the deed, witnessed and signed, satisfied the statutory definition of a deed, rendering the absence of a seal irrelevant. However, due to insufficient information on the building society's execution formalities, the court accepted an arguable ground on this issue.
Concerning the alleged breach of privacy by publication of an un-redacted judgment, the court noted that even if the breach occurred and constituted a constitutional violation, it did not affect the validity or merits of the appeal and did not implicate the plaintiff.
Similarly, the claim of trespass and constitutional breach by the plaintiff was deemed unrelated to the merits of the appeal, with any remedy lying in separate proceedings.
Accordingly, the court limited the scope of arguable grounds to those related to the building society's status, the receiver's appointment, and Ms. W.'s standing, excluding grounds related to privacy and trespass.
Holding and Implications
The court allowed the application for an extension of time for Ms. W. to file her notice of appeal, setting aside the previous refusal.
The notice of appeal is to be confined to Grounds 1 (building society status), 2 (receiver's appointment deed execution, limited to the building society's execution), and 3 (standing to challenge the receiver's appointment). Grounds 4 (privacy breach) and 5 (alleged trespass) were not accepted as arguable and are excluded.
This decision permits Ms. W. to proceed with her appeal on specified grounds but does not establish new precedent beyond granting leave to appeal out of time. The ruling clarifies procedural requirements and the limited scope of arguable grounds in such applications.