The Supreme Court recently delivered its judgment in Bank of Ireland Mortgage Bank v Peter Cody and Helen Cody (S:AP:IE:2020:00038).
Proceedings issued in the Circuit Court by Bank of Ireland Mortgage Bank (“the Bank”) for recovery of security on a loan that was in default.
On 12 February 2019, the Circuit Court Judge made an Order for possession with stay of execution for 15 months. Ms. Cody appealed the Order to the High Court. In her affidavits, Ms Cody made “very serious” allegations against her husband, from whom she is separated, that the documentation on foot of which the loans were made and the charge created was executed without her knowledge and consent. The Bank argued in the appeal hearing that “she [Ms. Cody] did no more than make generalised assertions insufficient to establish a ground to refuse possession at a summary hearing”.
Mr. Justice Simons set aside the Circuit Court possession Order and refused to remit the matter for a full hearing as he considered that the Bank had not proved the case on the facts and that Ms. Cody had deposed to sufficient facts to repudiate the execution of the loan documentation or instrument of charge, and the drawdown of the loan documentation.
The Supreme Court:
The Bank appealed the Order of the High Court to the Supreme Court.
Ms. Justice Baker delivered the judgment on 14 April 2021. The judgment examines a number of legal issues surrounding an application for an Order for Possession, including the procedure before the County Registrar in the Circuit Court; the historical context for making Orders for possession under the Registration of Title Acts and the application of the Family Home Protection Act to the disposal of jointly owned security.
In its judgment, the Supreme Court considered whether Mr. Justice Simons had erred in his approach to the evidence and whether he misdirected himself in treating the averments made by Ms. Cody in her affidavits as enough to displace the prima facie evidence of the loan agreements.
The Supreme Court noted the allegations made by Ms. Cody in her affidavits. The Supreme Court also noted that Ms. Cody did not deny that the monies advanced were received by her or her husband and that she was not alleging that she was coerced into signing the loan documents.
In its judgment, the Supreme Court held that the Bank had not adequately dealt with the assertions made by Ms Cody in her affidavits, where she had thrown “…. not an unreasonable level of doubt on the sufficiency of the evidence adduced by the Bank”.
The Supreme Court concluded that “…. the arguments and evidence of Ms Cody were not sufficient to displace the prima facie evidence of the Bank that the right to seek possession by reason of default in payment of the money secured by the registered charge had arisen and become exercisable. She did however make more than generalised and bald assertions and her affidavits were sufficient to entitle her to a trial of the action for possession on a plenary basis.”
The judgment is noteworthy as it considers inter alia the basis for obtaining summary judgment in possession matters. The case also looks at the threshold for establishing a defence which a defendant must meet in summary proceedings for the case to be remitted to plenary hearing.
Assertions which may have some merit and which are considered to be more than generalised or bald assertions should be addressed by the other party. Failure to do so may result in the matter being remitted for plenary hearing to ascertain whether or not there is merit to the defence.
Sarah Coughlan Sion Williams