A Wexford woman succeeded in the High Court with an application to set aside a Circuit Court order for possession of the family home.
In February 2019 the Circuit Court in Wexford was satisfied that the papers and proofs were in order and granted the order for possession to the lender. Ms Cody claimed that the original mortgage had been entered in her name without her knowledge or consent.
She also claimed her husband had witnessed her signature in her absence and colluded with the lender bank. As a consequence of these allegations she claimed that the mortgage was invalid and any order flowing from that mortgage, for example for possession, was also invalid.
The High Court agreed with her and quashed the Circuit Court order.
The lender bank made a number of mistakes which led to this High Court decision. The first was the bank’s failure, by way of its affidavits, to deal with the issues raised by Ms Cody. Secondly, it failed to explain the issues raised and failed to reply to Ms Cody’s allegations. Finally, it did not cross examine Ms Cody in the Circuit Court with the purpose of establishing her indebtedness. It followed from this that this matter could not be rectified in the High Court at the appeal stage and the finding of indebtedness of Ms Cody could not be established to the High Court’s satisfaction.
High Court decision
The High Court held that the bank had failed to establish her indebtedness and had failed to prove she had executed the mortgage. For this reason it quashed the Circuit Court order.
What the bank needed to do to succeed was to
- Prove due execution of the mortgage by Ms Cody
- Cross examine Ms Cody in the Circuit Court to establish indebtedness
It did neither of these things.
The bank sought to have the High Court remit the case back to the Circuit Court to be reheard by plenary hearing. The High Court saw this as an audacious application to have a case which was already decided reheard. It said such an action would be “an affront to the proper administration of justice”,
With respect, this refined position simply serves to expose the audacity of the bank’s application. The bank, having failed in its proceedings for an order for possession because it came up short in the requisite proofs, now wishes to rewind the clock to theHigh Court, February 2020
very start of the proceedings. It wishes to rerun its application before the Circuit Court, on the basis of new evidence, with a right of appeal thereafter to the High Court. In effect, the proceedings before the Circuit Court and the High Court to date would be set at naught, and Ms Cody would be dragged through the courts a second time. Such a
result would be an affront to the proper administration of justice
To rub salt into the wounds of the bank Ms Cody the High Court made an order allowing Ms Cody, a litigant in person, to recover her expenses of the proceedings in the Cirucit Cout and the High Court as against the bank.
Read the full decision in Bank of Ireland Mortgage Bank v Peter Cody and Heather Cody  IEHC 99