Repossession case to be reheard over errors by bank
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.