High Court: Master of the High Court’s decision to strike out Special Summons ‘beggars belief’

About this case:

• Citation:
  [2019] IEHC 14
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Stating that it beggared belief that the Master continued to make such orders despite recent decisions clearly stating that he had no jurisdiction to do so, Mr Justice Garrett Simons said the Master’s conduct only served to increase legal costs, cause delay, and give false hope to defendants.

Background

Permanent TSB Plc (Formerly Irish Life & Permanent Plc) sought an order for possession of lands in Nenagh, Tipperary, grounded on a deed entered into between Permanent TSB and Geoffrey Carr. The deed was registered at the Registry of Deeds in August 2005.

The Special Summons was issued in November 2017, and permanent TSB sought to amend the Special Summons to correct the description of the lands.

The original version of the schedule to the Special Summons had referred to the lands being “more particularly shown on a map attached hereto”, i.e. a map attached to the Special Summons. Permanent TSB sought to omit the word “hereto”, and to replace it with a reference to the deed of conveyance under which the defendant is said to have acquired his interest in the lands from the vendor.

An order permitting Permanent TSB to amend the special summons was granted by Mr Justice Paul McDermott in June 2018.

Striking out the Special Summons

When the Special Summons appeared in the Master’s List in October 2018, Master Edmund Honohan, Master of the High Court, raised a concern that there was no map attached to the version of mortgage and charge exhibited in the proceedings.

According to Permanent TSB, the Master suggested that it would be necessary for it to apply for an order for rectification in respect of the mortgage deed.

The Master then purported to strike out the Special Summons.

Application to discharge the Master’s Order

In the High Court, Permanent TSB sought to discharge the Master’s order, arguing that he did not have the jurisdiction to do so.

Permanent TSB relied on Allied Irish Bank plc v Honohan [2015] IEHC 247; ACC Bank PLC v Tobin [2012] IEHC 348; [2013] 2 ILRM 65; Bank of Ireland v Dunne [2013] IEHC 484; and ACC Bank PLC v Heffernan [2013] IEHC 557; [2013] 2 IR 790.

Mr Justice Simons explained that, although some of the cases referred to were in relation to Summary Summons proceedings, rather than Special Summons proceedings, they were informative as to the limited nature of the functions conferred on the Master.

Mr Justice Simons said that the Master had no jurisdiction to adjudicate on the substance or merits of an application for an order for possession brought by way of Special Summons. Mr Justice Simons said that, given the “clear statement” in Allied Irish Bank plc v Honohan “that the Master has no power to strike out a Special Summons, it beggars belief that the Master continues to make orders purporting to strike out Special Summonses”.

Stating that this conduct only served to increase legal costs unnecessarily and to cause delay, Mr Justice Simons said that in some instances, the Master’s conduct may give defendants a false sense of hope in thinking that there has been a lawful adjudication on the merits of their case and that the matter has been resolved in their favour – in truth, however, the Master has no adjudicative function in this regard.

Mr Justice Simons said that on the facts of the present case, where service had been effected in accordance with the order of Mr Justice McDermott in June 2018, and Mr Carr had neither appeared nor sought to file any affidavit, the proceedings were “in order” when the matter appeared in the Master’s List in October 2018.

Mr Justice Simons said that the Special Summons should have been transferred on that date to the Chancery Special Summons List for hearing by a High Court Judge.

Instead, the Master exceeded his jurisdiction in:

1. Purporting to adjudicate on the enforceability of the mortgage (by reference to the absence of an annexed map), and
2. Purporting to strike out the Special Summons. 

Accordingly, Mr Justice Simons made an order discharging the Master’s order, and reinstating the Special Summons – and a further order transferring the proceedings into the Chancery Special Summons List.

• by Seosamh Gráinséir for Irish Legal News