High Court of Ireland Decisions

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 THE HIGH COURT

[2025] IEHC 239

[Record No. 2024/308 CA]

BETWEEN

START MORTGAGES DAC

PLAINTIFF

AND

 

NIAMH EUSTACE

DEFENDANT

JUDGMENT of Ms Justice Bolger delivered on the 22^nd day of April 2025.

1.            This is the defendant's application to extend the time to appeal a Possession Order made by the County Registrar on 15 November 2021. For the reasons set out below, I am refusing this application.

The parties' submissions

2.            The defendant's notice of motion of 25 August 2023 identifies the grounds for her application: her status as her disabled husband's fulltime carer and as a litigant in person, and her lack of understanding of the requirements of an appeal. She asserts that her defence is arguable and that her husband was not served or put on notice of the proceedings. The defendant represented herself throughout the proceedings and her husband took no part and has not sworn any affidavit. The defendant did not pursue the issue in relation to her husband's non-involvement in her oral submissions. Any application by or on behalf of her husband is a matter for him and therefore not a point on which I base my decision.

3.            The plaintiff says the defendant fails to come within the requirements for an extension of time to appeal, as set down by this Court in Eire Continental Trading Company Ltd v. Clonmel Foods Ltd [1955] I.R. 170 . In particular, the plaintiff highlights and relies on the absence of the defendant having asserted that she formed an intention to appeal within the requisite ten days permitted to lodge such an appeal. The plaintiff disputes that the defendant has established an arguable case and submits that she needs to satisfy the Court that she has a strong case given the significant lapse of time. The plaintiff emphasises its entitlement to rely on the finality of litigation.

Discussion

4.            Nearly two years passed after the making of the Possession Order to when the defendant filed the within motion to extend the time for appeal. In the intervening period, the defendant brought a motion to nullify the Possession Order on 3 May 2022, which was dismissed by the Circuit Court in October 2022.  I note that that motion was brought well outside the ten days allowed for an appeal of the possession order.

5.            Significantly, in her written submissions, the defendant refers to having taken advice from a solicitor in early 2023 (some fourteen months after the Possession Order was made) who advised her that the plaintiff should have provided the court with the mortgage deed and a Deed of Assignment showing how the alleged debt was transferred to them. That advice seems to form the basis of the defence that the defendant now seeks to raise in an appeal, if time were to be extended.  Despite having been given that advice in early 2023, the defendant did not bring the within motion until August 2023. On her own submission, the defendant does not seem to have formed an intention to appeal until she received that advice in early 2023 albeit that she did, in the intervening period, seek to challenge the validity of the Possession Order through other, ultimately unsuccessful, means.

6.            The defendant says she has a defence arising from the fact that the Deed of Assignment exhibited by the plaintiff is heavily redacted and does not show whether the defendant had taken a valid transfer of the debt in relation to the loan originally presented to her by Bank of Scotland. She relies on the decision of Simons J. in Start Mortgages v. Ramseyer [2024] IEHC 329. She also claims that the County Registrar was never shown the original mortgage deed. Her submissions are against the backdrop of the folio which shows the plaintiff as registered owner of the charge and the plaintiff having adduced evidence of default in circumstances where no payment has been made on the defendant's mortgage since 2014 and substantial arrears had built up. The plaintiff argues that they have, therefore, satisfied the test for possession set out by Baker J. in Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26, i.e., that it is the owner of the charge and the right to seek possession has arisen and is exercisable on the facts.

7.            The substantial lapse of time between the making of the order and the motion means that the test to be applied here is more onerous than merely arguable, as found by the Supreme Court in Seniors Money v. Gately [2020] IESC 3. I do not consider the defendant has established a strong defence, particularly given the folio. Even if I am wrong on that, there is no evidence of the defendant having formed an intention to appeal within the requisite ten-day time period and no evidence of a mistake having been made. I accept that the defendant has a difficult and challenging domestic situation as carer for her disabled husband, but that in itself does not form part of the Eire Continental test. Neither does her status as a litigant in person. Indeed, it could not be suggested that a litigant who chooses to represent themselves (as they are entitled to) is thereby put in a more favourable position than a litigant who has availed of legal representation.

8.            I therefore refuse the defendant's application to extend time to bring an appeal against the Possession Order made by the County Registrar in November 2021.

9.            I will put the matter in at 10am on 29 April 2025 for the making of final orders. If either party wishes to lodge written submissions, they should be filed with the Court at least 48 hours in advance of the matter coming back before me.