County Registrar Powers Under Scrutiny

Hilda Mannix considers a recent High Court decision of Ms Justice Hyland in Permanent TSB plc v Matthew Farrelly [2023] IEHC 255 which she says has clarified the limited jurisdiction of the County Registrar to dismiss repossession proceedings for want of prosecution

Background

The decision was delivered in the context of an appeal brought by the Defendant against the decision of Judge Linnane in the Dublin Circuit Court on 20 November 2020 whereby she made Orders as follows:

1. setting aside the decision of the Dublin County Registrar on 25 October 2019 to dismiss the underlying repossession proceedings for failure to comply with previous Orders made by the County Registrar; and

2. reconstituting the proceedings so that Start Mortgages Designated Activity Company (“Start”) (having acquired the underlying security and loan) was substituted as Plaintiff.

That motion to set aside was brought by Start and the Defendant brought the appeal in respect of Judge Linnane’s Order dated 20 November 2020 to the High Court, but incorrectly identified Permanent TSB (“PTSB”) as Plaintiff, when in fact it had no part in the appeal.

The specific terms of the Order made by the County Registrar on 25 October 2019 were crucial in the context of Hyland J’s decision and were as follows:

“That the plaintiff’s civil bill hearing be and the same is hereby dismissed for want of prosecution for failure to comply with the previous court orders. The issue in this case arises with the Plaintiff (sic) compliance with the CCMA and its failure to provide all information to the Defendant.”

In addition to a claim for objective bias as against Judge Linnane in how the motion to set aside was heard before her, the Defendant also relied on Order 18(1)(vi) of the Circuit Court Rules (the “CCR”) which provides that a County Registrar may make an Order to dismiss an action with costs for want of prosecution. In contrast, Start argued that the County Registrar’s powers in the context of repossession proceedings can only be found in Order 5B of the CCR, which order covers actions for possession and well charging reliefs and specifically pointed to Order 5B (7), which grants no additional powers to the County Registrar to strike out proceedings or dismiss proceedings.

Decision

A number of interesting points were addressed by Ms Justice Hyland in her decision to set aside the Order of the County Registrar and to remit the substantive proceedings back to the Circuit Court for hearing. These are summarised below:

• Section 37 of the Courts of Justice Act, 1936 provides that when the High Court is hearing an appeal against a decision of the Circuit Court, it is acting de novo or, in the context of this appeal, that it carries out an entirely fresh review of the decision of the County Registrar and not that of the Circuit Court. This appeal was not a judicial review of the decision of Judge Linnane and therefore Hyland J found that it was not appropriate to consider the allegation of objective bias made by the Defendant. Further, the appeal was a fresh review of the decision of the County Registrar and in the circumstances, it was not affected by either the outcome of, or the nature of, the Circuit Court hearing before Judge Linnane.

• Jurisdiction of the County Registrar – the Circuit Court is a Court of limited jurisdiction and does not enjoy any inherent jurisdiction. This is still less so in the case of the County Registrar. Hyland J found that there is no conflict between Order 18(1)(vi) and Order 5B(7) of the CCR such that the County Registrar has no discretion to dismiss for want of prosecution. On the basis of the decision of Clarke J in Tracey McDowell & Ors [2016] IESC 44 (the “Tracey decision”) (discussed in further detail below), Hyland J found in principle that the County Registrar enjoys a jurisdiction in an appropriate case to dismiss for want of prosecution, including repossession proceedings governed by Order 5B.

• Hyland J placed particular emphasis in her findings on the Tracey decision, in circumstances where it dealt specifically with dismissal for failure to comply with Court Orders. In particular, Clarke J in that case distinguished between the want of prosecution jurisdiction (the dismissal of proceedings based on a general failure of a party to progress proceedings in a timely manner) and the consequences which it may be appropriate to apply on the basis of a specific failure of a party to comply with the direction or Order of the Court. Hyland J in the instant case was of the view that in the context of the latter, Clarke J had in mind the failure on the part of a litigant to take a procedural step that has been expressly directed by the Court.

•

No failure to respond to Court directions

– Hyland J held that there was no failure by the Plaintiff to comply with Court directions and there was no want of prosecution in this case, rather the County Registrar was not satisfied with the substance of the affidavit which was filed by the Plaintiff following her Orders made on 31 January 2019 and 31 July 2019 requiring material to be provided by the Plaintiff on affidavit to the Court in respect of certain information. Importantly, no details of the precise nature of those Orders were before the High Court as they were absent from the transcripts of the DAR of those hearings. Further, the County Registrar failed to identify with particularity in her Order dated 25 October 2019 the date, nature and precise terms of the Order(s) which were purportedly breached, and the specific failure of the party bound by the Order(s). Rather, her Order dated 25 October 2019 simply made reference to “previous court orders” and then moved on to the substantive aspects of noncompliance with the CCMA, which moved beyond the realm of a procedural issue. Hyland J held that this went beyond the jurisdiction of the County Registrar under Order 18(1)(vi) to dismiss for want of prosecution, which involves a court considering whether a party is guilty of inordinate and inexcusable delay and whether the balance of justice favours dismissal. The terms of the Order dated 25 October 2019 demonstrated that the matter was dismissed because the County Registrar was not satisfied that the Plaintiff’s affidavit contained the material that she considered it ought to contain.

• Dismissal vs. strike out – Hyland J found that even if the County Registrar did have jurisdiction to dismiss the proceedings in the instant case, she did not lawfully dismiss them. In particular, Hyland J outlined the difference between a dismissal of proceedings (where the Court follows a substantive engagement and adjudication on the merits of a case, meaning they are at an end and cannot be brought again) and a strike out (where proceedings could potentially be issued again, subject to any statute issue). In the event of a dismissal in the instant case, the Plaintiff would be enormously prejudiced in circumstances where the amount due and owing pursuant to the mortgage the subject of the proceedings was in excess of €580,000, the Defendant would have no obligation to repay the loan and interest accumulated on same and his house would effectively be mortgage-free. Even if there was a procedural failure (which the Court held there wasn’t given that the Plaintiff did file the affidavit), the Tracey decision established that the Court would have to consider whether the dismissal of the proceedings (rather than some lesser measure) was appropriate and whether it was proportionate to the procedural failure.

Comment

The decision provides clarity for practitioners and plaintiffs in repossession suits regarding the interaction between the powers conferred on the County Registrar pursuant to Order 5B and Order 18(1)(vi) of the CCR. Further, it provides reassurance for plaintiffs regarding the very specific criteria which need to be considered by the Court when determining whether an action should be dismissed for failure to comply with Court directions, particularly where that failure to comply may have been through no intended fault of the plaintiff.