Danske Bank A.S. (t/a Danske Bank) v Macken & anor

Factual and Procedural Background

The Plaintiff, a banking institution, initiated special summons proceedings against the Defendants, a married couple, on 3rd January 2013 seeking possession of their family home located in Co. Roscommon. The Defendants represented themselves, with the husband primarily managing the defence. After numerous affidavits and multiple court appearances, the possession hearing was scheduled for 2nd November 2015. On that date, the Defendants did not appear at the hearing. The matter proceeded in their absence, and the High Court judge made an order for possession with a three-month stay.

The Defendants explained the absence was due to a "major personal difficulty," supported by limited medical evidence and an email sent to the Plaintiff's solicitor requesting an adjournment, which was not received until the following day due to the solicitor's vacation. The Defendants promptly applied on 9th November 2015 to set aside the possession order pursuant to Order 36, rule 33 of the Rules of the Superior Courts, which permits setting aside judgments obtained in the absence of a party within six days of the trial.

At a hearing on 7th December 2015, the High Court judge refused to entertain the application to set aside the judgment, holding that he was functus officio and that the Defendants' only remedy was to appeal the possession order. The Defendants appealed this refusal to the Court of Appeal.

Legal Issues Presented

1. Under what circumstances should the High Court exercise its set aside jurisdiction pursuant to Order 36, rule 33?
2. Whether the High Court judge was functus officio and thus precluded from considering the Defendants' application to set aside the possession order?
3. Whether the Defendants' lodging of an appeal constituted an election of remedies that estopped them from pursuing the set aside application?

Arguments of the Parties

Appellant's Arguments

• The High Court judge erred in refusing to consider the set aside application on the basis of being functus officio.
• The Defendants acted promptly in seeking to set aside the judgment within the prescribed six-day period under Order 36, rule 33.
• The explanation for absence—illness and attempted communication with the Plaintiff's solicitor—fell within the scope of Order 36, rule 33, warranting at least a merits hearing.
• The Defendants should not be estopped from pursuing both the set aside application and an appeal, as these remedies are complementary in the circumstances.

Respondent's Arguments

• The High Court judge was functus officio after delivering the possession order and thus lacked jurisdiction to entertain the set aside application.
• The Defendants' lodging of an appeal constituted an election of remedy, estopping them from seeking to set aside the judgment.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal analysed the doctrine of functus officio, which generally precludes a judge from revisiting a final judgment. However, Order 36, rule 33 constitutes a limited exception allowing the court to set aside judgments entered in the absence of a party, where such absence was due to accident or mistake rather than deliberate choice.

The Court noted that the Defendants acted promptly to seek to set aside the possession order and provided an explanation of illness supported by some medical evidence and attempted communication with the Plaintiff's solicitor. The Court contrasted this case with precedents where deliberate absence without justification was held not to warrant setting aside.

The Court rejected the Plaintiff's argument that the Defendants' lodging of an appeal constituted an election of remedies estopping them from pursuing the set aside application. Instead, the Court found the remedies complementary given the circumstances, particularly the importance of the family home at stake.

Ultimately, the Court held that the High Court judge erred in refusing to consider the set aside application on the basis of being functus officio. The matter was remitted to the High Court for fresh consideration on the merits of the application under Order 36, rule 33, without expressing any view on the eventual outcome.

Holding and Implications

The Court of Appeal ALLOWED THE APPEAL and remitted the matter to the High Court for determination of the Defendants' application to set aside the possession order pursuant to Order 36, rule 33 on its merits.

The direct effect is that the High Court must now reconsider the application to set aside the judgment rather than dismissing it on the basis of functus officio. No new precedent was established beyond clarifying the application of the functus officio doctrine in conjunction with Order 36, rule 33 and the non-exclusivity of remedies in these circumstances.