About this case:

• Citation:
  [2022] IEHC 595
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Mark Heslin

The litigant claimed that the plaintiff’s solicitors had sent her late correspondence and that she refused to attend “another trial by ambush”.

Delivering an ex tempore ruling in the case, Mr Justice Mark Heslin considered a letter written to him by the litigant and the service of documents in the proceedings.

He noted that the woman was “squarely on notice” of the proceedings and that there was no risk of injustice in proceeding with the hearing. As such, the matter was heard in the absence of the litigant.

Background

The plaintiff, Start Mortgages DAC, had previously issued possession proceedings against the defendant, Ms Rosarie O’Mahony. In October 2018, the Circuit Court made an order for possession in favour of the plaintiff with a stay on execution for nine months. The defendant subsequently appealed this order to the High Court.

The matter had originally been listed for hearing in 2019 but was adjourned due to insufficient evidence as to service. The matter was adjourned generally before being relisted for hearing on 18 October 2022. At the procedural callover of listed cases on 13 October, the matter was called on for hearing with no application for an adjournment made by the defendant.

The defendant did not attend the hearing and instead sent a letter which was presented to the judge, Mr Justice Heslin. The letter outlined that she was a litigant-in-person and suggested that counsel had gotten their facts wrong at various stages of the litigation. She also asserted that no order for possession had been made in October 2018.

The defendant claimed that she only received notification of the case from the plaintiff’s solicitors the day before the callover. She therefore claimed that she would “not be a willing participant in another trial by ambush” and that “wild horses wouldn’t drag me to Dublin tomorrow” for the hearing.

The defendant claimed that she had been ambushed by the plaintiff on prior occasions in court. She also noted that several proceedings and motions had arisen from the original possession proceedings.

High Court

The court began by noting that the order of the Circuit Court was an order for possession against the defendant and that the defendant had appeared at the hearing. As such, the defendant’s claim that no order for possession was granted did not appear to be correct.

Considering the letter, the court was satisfied that the defendant knew about the callover on 13 October due to previous correspondence from the plaintiff’s solicitor. There was a complete lack of evidence that the defendant had ever been “tricked” into attending court or “ambushed” as she claimed. It also appeared that nothing prevented her from attending court for the hearing and that she had made a conscious choice to absent herself.

On the issue of service, the court considered an affidavit of service sworn by an employee of the plaintiff’s solicitors. The affidavit outlined all the instances of correspondence between the plaintiff’s solicitor and the defendant regarding the listing of the case and related motions. The court also noted that there was a letter to the defendant sent after the callover advising her of the hearing date.

The court was satisfied that the defendant had, at all times, been fully aware of the status of the cases. Based on the correspondence between the parties throughout the proceedings, it did not appear that the defendant had ever been ambushed by the plaintiff.

The court noted that parties to litigation “have a responsibility to advise themselves of the status of litigation which they are a party to”. Further, the defendant had the opportunity to participate in the callover and make submissions at that point, but she did not do so.

The court held that an adjournment at this point would be “long after the 11th hour”, and would result in a wasted costs order. It was contrary to the public interest for a two-day case to be adjourned in such a manner, having regard to scarce court resources and costs to the public. The court also observed that there was no question of the defendant not having access to all the relevant papers.

Since the matters came to court by way of appeal, this meant that the defendant had already heard the plaintiff’s case against her. This was another factor weighing against the grant of the adjournment.

Finally, and most importantly, the court held that there was no evidence that there would be any injustice by proceeding with the hearing. The court concluded that the defendant had chosen not to attend a hearing of which she was fully aware.

Conclusion

The court refused the adjournment and proceeded to hear the matter. The court reserved judgment in the substantive proceedings.

O’Mahony v. Start Mortgages Designated Activity Company [2022] IEHC 595