About this case:

• Citation:
  [2022] NICA 39
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

Ultimately, the court found that the appeal came across “as a desperate shot in the dark and was bound to fail on the basis of the evidence and arguments”.

Background

This appeal concerned long-running legal proceedings regarding repossession of a property at Dorchester Park, Belfast, owned by the first and second defendants, Anthony and Grainne Brennan.

The appeal encompassed three separate court orders made by three different judges. However, only one appeal, of an order denying a stay of enforcement, was brought in time.

In July 2007, when at the height of the property boom in Northern Ireland, the first and second named defendants purchased a property for £800,000. The loan was from Bank of Scotland, and the defendants fell into arrears with the bank.

The bank served a notice to quit in 2010. The defendants, who had attained planning permission to demolish the house and build two semi-detached houses in its place, unilaterally demolished the original property sometime in mid-2010.

One house had an offer for sale in the sum of £400,000 and, as a result of that, a proposal was put to the bank to discharge their debt from the sale of that property and the other property.

Ultimately, they reached an agreement that £250,000 would be paid to the bank. They refinanced with private lenders for the sum of £410,000.

£350,000 of that sum was repaid from the sale of one of the semi-detached houses built on the site, however, the remaining £60,000 remained outstanding and, as a result, an order for possession was sought and granted.

With the accumulation of interest and charges, this debt had risen to an amount over £700,000.

The appeal argued that there were procedural irregularities in the proceedings in the lower courts that rendered the impugned decisions ultra vires, perverse, unsafe and biased. Grounds of appeal also relied on the Human Rights Act 1998 and the Consumer Credit Act 1974.

Discussion

In assessing the appeal, the court noted that the defendant was a litigant in person, however, he was also qualified as a barrister. The court found that some of the grounds of appeal were “so wide and unfocussed as to have no purchase at all in this appeal”.

Two of the appeals were also substantially out of time. It would be necessary, therefore, to establish a good reason why an appeal should be allowed to proceed. This would involve looking at the substance of the case and also the reasons given for the delay.

In addition, there was no evidence that any reasonable financial proposal was put before the lower court, which would have allowed them to grant an order to stay.

The notice of appeal, further, did not contain any such evidence, and without this the court could not see any reason why a stay would be permitted, or why the judge was wrong to refuse a stay.

No alternative proposals were put before Justice Colton, and none had been put before the court. The court determined: “In truth this is a hopeless appeal without any discernible merit.”

As a result, the court declined to grant leave and dismissed the appeal for the simple reason that there was no reasonable basis put forward for a stay of repossession.

They further noted that they could discern “no good reason in law why an appeal has been lodged so long after a hearing before the Master when an appeal was also taken to the High Court”.

Next, the court found “no traction” in the argument that time should be extended in the appeal because of a breach of duty on the part of the lender’s lawyers.

Here it was claimed that “the legal advisors on behalf of the respondents (plaintiffs) failed in their duty to the court and duty of candour by not disclosing to the court that the originating proceedings were unlawful”.

This argument was found to be totally misguided, particularly as the appellant was represented by experienced lawyers during the High Court proceedings, as was his wife.

The court found it disingenuous to suggest that the opposing lawyers acted improperly, and did not discern any misconduct or lack of candour on the part of the plaintiff’s representatives.

The court noted that the first named defendant was also perfectly entitled to have an appeal hearing before the judge, to cross-examine the lenders and make his legal arguments in that forum.

He did not avail of these options. Rather, he, along with his wife, chose to settle the case with the benefit of legal advice. There is no basis for him to then complain about the choice that was freely made.

He also cited numerous authorities which had no actual bearing on the facts of the case. It was also “beyond comprehension” for the first named defendant to suggest that the judge would interfere in an agreement reached between represented parties.

Conclusion

Ultimately, the court’s conclusion was that the appeal must be dismissed.

They noted that Mr and Mrs Brennan were clearly desperate to cling on to their property, but that their current approach to the matter may “simply cost them more money to no end”.