The conflicting High Court decisions as to whether certain repossession cases can be heard in the Circuit Court have been considered by the Court of Appeal.

In May 2015, Ms Justice Deirdre Murphy in the case of Bank of Ireland Mortgage Bank v Finnegan and Ward, held that the property, the subject of the proceedings, was not rated nor rateable and therefore the Circuit Court lacked the necessary jurisdiction to hear the bank’s claim.

In the subsequent High Court decision of Bank of Ireland v Hanley and Giblin, Mr Justice Seamus Noonan reached a different conclusion and held that establishing the rateable valuation of a property did not constitute an essential proof in order for a bank to succeed in its claim for possession.

The issues raised in the two Bank of Ireland cases were subsequently put to Ms Justice Marie Baker in Permanent TSB plc v Langan earlier this year and she stated a case to the Court of Appeal in respect of the conflicting decisions for clarification. The Court of Appeal delivered its judgment on 28 July 2016. The unanimous judgment of the Court was delivered by Mr Justice Gerard Hogan.

In his judgment, Mr Justice Gerard Hogan summarised the principal issue stated to the Court of Appeal as follows:

“If a property is not rateable by virtue of the Valuation Act 2001 (“the 2001 Act”) is the jurisdiction of the Circuit Court in respect of proceedings for possession of a dwelling brought by a mortgage lender thereby excluded?”

Mr Justice Gerard Hogan acknowledged in his judgment that the two conflicting Bank of Ireland judgments were powerfully argued but on balance he agreed with the judgment of Ms Justice Deirdre Murphy in Bank of Ireland Mortgage Bank v Finnegan and Ward. He held that if a property is not rateable by virtue of the 2001 Act or otherwise, the Circuit Court has no jurisdiction to hear the proceedings.

The Court of Appeal accepted that the conclusions reached are not satisfactory and that they will lead to unintended and unfortunate consequences. These consequences are limited to a degree by the enactment of the Land and Conveyancing Law Reform Acts of 2009 and 2013 which gave new jurisdiction to the Circuit Court which is not dependent on the rateable valuation of a property. However, the Court of Appeal decision could be be successfully relied upon by a defendant to have possession proceedings struck out for lack of jurisdiction (in certain circumstances) if that defendant has put the jurisdiction of the Circuit Court at issue. In such cases, new possession proceedings are likely to be issued in either the Circuit Court or the High Court at considerable expense to all parties to the litigation.

Click here for the full Court of Appeal Judgement.