High Court: Dublin County Registrar erred in dismissing possession proceedings for failure to comply with ‘previous court orders’

About this case:

• Citation:
  [2023] IEHC 255
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Niamh Hyland

Delivering judgment in the case, Ms Justice Niamh Hyland stated that the County Registrar had failed to identify the specific orders which the plaintiff had supposedly breached. Further, the County Registrar had dismissed the proceedings based on substantive grounds (rather than procedural grounds) and, accordingly, was not exercising the limited jurisdiction to dismiss for want of prosecution.

Background

The plaintiff issued proceedings in 2017 against the defendant for possession of a property in Donnybrook, Dublin 4. The original plaintiff was Permanent TSB plc but the loan was later assigned to Start Mortgages DAC.

The case appeared before the County Registrar on several occasions. Prior to October 2019, the plaintiff had been directed by the County Registrar to provide an affidavit outlining its compliance with the Code of Conduct on Mortgage Arrears and providing other information to the defendant.

When the matter came back before the County Registrar on 25 October 2019, the court was dissatisfied with the content of the information provided on affidavit. The court made an order dismissing the proceedings for want of prosecution for “failure to comply with the previous court orders”.

The plaintiff brought a motion seeking to set aside the order, which was heard by Judge Linnane in November 2020. The court granted the order setting aside the decision of the County Registrar on the basis that it was disproportionate and excessive. Additionally, granted an order substituting Start Mortgages as plaintiff in the case.

The defendant appealed the decision of Judge Linnane to the High Court. The defendant placed emphasis on the manner in which the set aside motion was heard and made a claim of objective bias against the judge.

Further, the defendant relied on Order 18(1)(vi) of the Circuit Court Rules which provided that a County Registrar may make an Order to dismiss an action with costs for want of prosecution. As such, it was said that the County Registrar was entitled to dismiss the proceedings.

High Court

Ms Justice Hyland began by outlining that the defendant had chosen to proceed by way of appeal of Judge Linnane’s decision, which meant that the motion was considered de novo by the court. The court said that it was not appropriate to consider the allegations of objective bias made against the judge since this was properly an issue for judicial review.

Turning to the jurisdiction of the Country Registrar to dismiss proceedings for want of prosecution, the court said it was “trite law” that the Circuit Court was a court of limited and local jurisdiction. It was therefore bound by the Circuit Court Rules and did not enjoy an inherent jurisdiction as the High Court.

In those circumstances, the County Registrar did not have discretion to dismiss for want of prosecution. Moreover, the court outlined that there was a distinction between the want of prosecution jurisdiction and the dismissal of an Order on the basis of a failure to comply with directions. Different considerations applied to each of these scenarios (see Tracey v McDowell & Ors [2016] IESC 44).

Critically, the court held that the dismissal for want of prosecution jurisdiction related to the failure to take procedural steps.

Applying the law to the fact, the court assumed that the County Registrar did in fact make orders requiring material to be provided by the plaintiff on affidavit even though this was not borne out by the transcripts. The affidavit “provided some information, exhibited some documents, and contested the entitlement of the defendant to other information”.

As such, there was no failure by the plaintiff to respond to directions. Instead, the County Registrar appeared to take a view that the affidavit did not comply with the direction regarding the substance of the affidavit, the court said.

The court held that, where a judicial officer decides to dismiss proceedings for a breach of a court order, “there is an absolute obligation to identify with particularity the date of the Order and the nature of the Order, the precise terms, and the failure of the person bound by the Order”. None of this was apparent from the transcript or the court order from October 2019.

There was a failure by the County Registrar to provide adequate reasons for her decision in this case and also a failure to identify the basis of the order. The reference to a failure to comply with “previous court orders” was not satisfactory, Ms Justice Hyland held.

Further, dismissal for want of prosecution involved a consideration of inordinate and inexcusable delay and whether the balance of justice favoured dismissal. The court said that the jurisdiction was not concerned with breaches of substantive obligations, which were to be determined within the proceedings themselves.

Ms Justice Hyland also emphasised the difference between a dismissal and a strike out. A dismissal followed substantive engagement and adjudication on the merits of a case. Dismissed proceedings were at an end and subject to the rule of res judicata. In contrast, a case that is struck out may be brought again (subject to the Statute of Limitations).

In this case, the dismissal would have led to an “extraordinary windfall” for the defendant who owed in excess of €580,000 and had made no repayments since 2013.

The court commented that any such dismissal should have been based on a motion to ensure fair procedures. The defendant would also have identified the specific orders being breached so that the plaintiff could properly respond.

The failure of the court to specify the dates and terms of the orders being breached was “particularly stark” where the plaintiff had filed the affidavit, the court said. Per Tracey, there was no consideration of the proportionate sanction for an alleged failure to comply with a procedural step.

In this case, it was not proportionate to dismiss the proceedings. While the affidavit did not contain a substantive response that the County Registrar expected, “she went well beyond considerations of compliance with procedure and was moving into the substantive realm”.

Conclusion

The court held that the County Registrar’s order should be set aside as being in excess of jurisdiction and, additionally, as being disproportionate and without basis. The substantive proceedings were to be remitted to the Circuit Court list.

Permanent TSB plc v. Farrelly [2023] IEHC 255