Promontoria Scariff DAC v McDonagh (Approved)

Factual and Procedural Background

This appeal concerns a Civil Bill for Possession initiated by Company A seeking possession of a principal private residence ("the property") located in The State. The property is legally mortgaged pursuant to section 3 of the Land and Conveyancing Law Reform Act 2013. An order for possession was previously granted by the Circuit Court, with a stay on possession until a specified date in 2024. The appeal to the High Court is a de novo hearing governed by the jurisdiction and rules of the Circuit Court.

The Defendant is the sole legal owner of the property, and an occupant partner of the Defendant, who has no legal interest in the property, was served with possession proceedings in accordance with relevant Circuit Court rules. The hearing was conducted in a hybrid format with legal representatives and parties attending physically and remotely.

During the proceedings, the occupant partner initiated separate constitutional proceedings challenging the Family Home Protection Act 1976, claiming the Act discriminates based on marital status. She sought an adjournment of the possession proceedings pending resolution of that constitutional challenge. The Defendant supported this adjournment application. Company A opposed the adjournment, asserting the proceedings were straightforward possession claims based on contract and mortgage default.

The High Court refused the adjournment application, holding that the constitutional challenge was a separate matter not determinative of the possession appeal and that the occupant partner was not a party to the mortgage or possession proceedings.

Legal Issues Presented

1. Whether Company A is entitled to possession of the property pursuant to a legal mortgage under section 3 of the Land and Conveyancing Law Reform Act 2013.
2. Whether the occupant partner's constitutional challenge to the Family Home Protection Act 1976 impacts the possession proceedings.
3. The sufficiency and admissibility of the evidential proofs submitted by Company A in support of possession.
4. Whether the Defendant has established a credible defence to the possession claim warranting a plenary hearing.
5. The applicability of procedural rules and requirements under the Circuit Court Rules and Practice Directions in possession proceedings.

Arguments of the Parties

Company A's Arguments

• The possession claim is based on a valid legal mortgage over the property following the Defendant's default in loan repayments.
• The Civil Bill and supporting affidavits comply with the procedural and evidential requirements under the Circuit Court Rules and Practice Directions.
• The occupant partner has no legal interest or title in the property and was properly served as an occupant under the relevant procedural rules.
• The constitutional challenge brought by the occupant partner is a separate matter and does not affect Company A’s contractual entitlement to possession.
• Company A established a clear chain of title and transfer of mortgages from previous lenders to itself, supported by deeds and affidavits.
• The Defendant failed to dispute the substantive proofs of default and mortgage indebtedness credibly and has not raised a bona fide defence to possession.
• Documents relied upon, including those originally from previous lenders, are admissible business records under the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, not hearsay.
• The application for adjournment was an attempt to delay possession proceedings and was made late in the process.

Defendant's Arguments

• The Civil Bill allegedly failed to comply with Circuit Court Rules by not exhibiting up-to-date statements of account within the Bill itself.
• Company A cannot rely on documents produced by previous lenders, asserting hearsay concerns and lack of direct employee testimony.
• The Defendant disputed the existence or extent of the mortgage debt and claimed the property was a family home.
• The Defendant supported the occupant partner’s application for adjournment pending constitutional challenge of the Family Home Protection Act 1976.
• The Defendant alleged that the Compromise Agreement was signed under duress, challenging its validity.
• The Defendant argued that some borrowed sums were used for unrelated purposes and questioned the quantum of debt rather than the fact of default.

Occupant Partner's Arguments

• Initiated constitutional proceedings challenging the Family Home Protection Act 1976 on grounds of marital status discrimination.
• Sought adjournment of possession proceedings pending resolution of the constitutional challenge.
• Relied on the recent Supreme Court decision in a public law case concerning social protection and marital status.
• Asserted that the 1976 Act protects only married couples, disadvantaging cohabiting partners like herself.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed examination of the procedural and substantive evidential proofs submitted by Company A, including affidavits, loan documents, mortgage deeds, and transfer deeds establishing a valid chain of title and contractual entitlement to possession due to the Defendant's default. The court found that the Civil Bill and supporting affidavits complied with the Circuit Court Rules and Practice Directions, and that Company A had satisfied the legal test for summary possession.

The court assessed the Defendant’s submissions and evidence, finding them to be unsubstantiated, contradictory, and insufficient to establish a credible defence or to warrant a plenary hearing. The Defendant’s focus on the quantum of debt rather than the fact of default was deemed misplaced in possession proceedings.

The court rejected the Defendant’s hearsay objections to documents originally produced by previous lenders, holding that the affidavits sworn by directors of Company A and others satisfied the evidential requirements under the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, and that hearsay did not arise.

The court refused the occupant partner’s application for adjournment, holding that her constitutional challenge to the Family Home Protection Act 1976 was a distinct matter not relevant to the possession appeal before the court. It noted that she was not a party to the mortgage or possession proceedings and had been properly served as an occupant.

In considering the relevant case law, the court emphasized the low threshold for allowing possession where default is established and the absence of credible defence. It relied on established principles that a mortgagee’s right to possession is contractual and that possession may be granted even if part of the debt is disputed, provided default is clear.

Holding and Implications

The court DISMISSED the Defendant’s appeal and AFFIRMED the Circuit Court’s order granting possession of the property to Company A.

The decision confirms the contractual entitlement of mortgagees to possession upon default and clarifies that constitutional challenges unrelated to the mortgage or possession claim do not impede such proceedings. The occupant partner’s lack of legal interest and the property’s status as not constituting a "family home" under the Family Home Protection Act 1976 were determinative factors.

The ruling has the direct effect of enabling Company A to recover possession subject to the existing stay, with no new legal precedent established beyond the application of settled principles in the context of unregistered property possession proceedings.