Banks seeking possession must get their evidence in order, High Court judge warns

By Ann O'Loughlin

The "very least" that a financial institution can do when seeking a possession order is to ensure it has its evidence in order, a High Court judge has said.

Mr Justice Max Barrett made the comments when directing, due to errors by Permanent TSB in presentation of evidence, a rehearing in the Circuit Court of its successful application in late 2017 for a possession order against a couple.

He ordered the rehearing because, due to a number of errors by PTSB, the relevant loan facility letter, alleged breach of which grounded the possession order application, was never properly put in evidence before the Circuit Court but was put before the High Court on appeal.

The couple had appealed the possession order to the High Court but raised a preliminary objection to that appeal proceeding now without their first getting another Circuit Court hearing on all the relevant evidence.

Upholding their objection, Mr Justice Barrett said a PTSB official had in February 2017 affidavit purported to exhibit the facility letter but a page of that was missing.

In a second affidavit for the December 2017 Circuit Court hearing, a PTSB officer exhibited the wrong facility letter.

In a third affidavit of February 2018 for the High Court appeal, PTSB said it had always been intended to exhibit the 2006 facility letter and referred to a three-page facility letter.

Even in “this belated effort to get things right”, the affidavit exhibited seven pages of documentation, three of which comprised the correct facility letter which was never properly in evidence before the Circuit Court, the judge said.

The couple’s simple objection was, in such cases before the Circuit Court, parties get two chances to make their cases, an initial trial in the Circuit Court after which there is an opportunity to appeal to the High Court where they get a fresh hearing.

After that, matters typically end apart from a possible further appeal on an issue of law.

Because the facility letter was never properly before the Circuit Court, they were effectively getting just one chance to put their case across in the High Court.

PTSB argued the High Court appeal should proceed now despite its errors.

Mr Justice Barrett said the courts before and since independence “have always been particular” about granting possession orders, not because of “some lawyerly desire to be persnickety” but because of the courts’ proper appreciation, historical and continuing, of the significance of a possession order.

Those coming to court for possession orders are asking a court to bring the “coercive power” of the State to bear in removing property from the possession of one person and giving it to another.

In our system, with its due respect for property rights, that “is a greatly serious task”.

“The very least a financial institution must do if it seeks a possession order is to ensure that it has its evidence in order,” he said.

The very least a trial court must do is provide judgments solely on the basis of evidence properly before it, he added.

The very least the High Court must do in appeals against Circuit Court orders is to ensure a fresh hearing of a case and not to act as a court of “entirely first instance” adjudging on evidence of critical significance to the Circuit Court application.

If the High Court heard the appeal now, the couple will only get one ‘outing’ in terms of having matters fully and properly heard, rather than two, he said.

That is “less than they are entitled to” and he would remit the matter for rehearing in the Circuit Court on the basis of such evidence as is then properly put before that court.

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