Re­pos­ses­sion case to be re­heard over er­rors by bank

Irish Examiner - - News - 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, are hear­ing 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 an 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.

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