In Cronin v Tanager Ltd [2016] IEHC 803, High Court, Twomey J, 29 February 2016 the plaintiff appealed a Circuit Court order for possession of his family home granted to Bank of Scotland.

The plaintiff's case relied primarily on the fact that, at the time of the Circuit Court proceedings, he was not legally represented, and as a result of his lack of legal training he did not attend the Circuit Court hearing. He argued that if he had been legally represented, at that time, he would have made substantive proposals to meet his debt obligations. He also pointed out that he commenced making repayments after the possession order was obtained and had repaid in excess of €30,000 since then.

The High Court held that if it were to overturn the Circuit Court decision on this basis, it would be granting lay litigants an advantage over parties who choose to employ legal representation. Lay litigants could then approach litigation on the basis that if the result did not go their way, they could rely on the absence of legal representation to have the decision overturned to the cost of the other side, who had legal representation. In addition, a lay litigant would be able to benefit from their position as a lay litigant by introducing loan repayments and loan reschedule proposals years after the time when they should or might have occurred. Accordingly, the High Court affirmed the order of the Circuit Court.

However, the Court was cognisant of the €30,000 which the plaintiff had paid since the order for possession was granted and his proposals for repayment which appeared to be genuine, albeit that they were put forward late in the day. In recognition of this fact, the Court made no order as to costs in the High Court hearing.