Monday 18 November 2019

Court official exceeded power in striking out debt case

Master of the High Court Edmund Honohan
Master of the High Court Edmund Honohan

A SENIOR court official exceeded his power when he struck out a three-quarter of a million Euro debt case despite clear High Court judgments he could not do so, the Court of Appeal said.

Tim Healy

Master of the High Court Edmund Honohan has no jurisdiction to dismiss contested cases over debts owed to banks, the court said.   The Master deals with procedural and other matters relating to cases on their way to a full judge of the High Court.

In two cases in 2013, the High Court reversed the Master's decision striking out two separate actions by Bank of Ireland and ACC seeking  summary orders for repayment of debts, Mr Justice Peter Kelly said in the appeal court Wednesday (April 22).

Within months of those decisions, which expressly stated the Master had no such power in contested cases, Mr Honohan proceeded precisely to do the same in a third case brought by AIB against a woman seeking final judgment over a debt for nearly €786,000,  Mr Justice Kelly said.

The Master had struck out the AIB case for failure by the bank to disclose adequate information in relation to interest charged on that loan.

AIB appealed to the High Court where last November Mr Justice Donald Binchy upheld the Master's decision also on the basis that interest had not been sufficiently particularised.

A three-judge Court of Appeal Wednesday, in two separate judgments, overturned Mr Justice Binchy's decision.

In his judgment, Mr Justice Gerard Hogan said AIB had provided adequate particulars in the paperwork in order to comply with the rules of the superior courts.

Given this was a contested case, the Master had no jurisdiction to strike out the original summary summons on the basis it was defective, Mr Justice Hogan said.  He remitted the matter back to the High Court for a fresh hearing.

In his judgment, Mr Justice Kelly agreed with Mr Justice Hogan but wanted to make some observations because of "the presence of some remarkable features in the way this litigation proceeded to date".

Not only was the order made in the AIB case by the Master incorrect, it was made in excess of jurisdiction, he said.

If that were the first time that such occurred "it might be unremarkable", he said.

However, it was not as there had already been the two 2013 cases involving Bank of Ireland and ACC, apart from other decisions on this issue going back to 1927, he said.

The superior court rules do not give the Master jurisdiction to strike out contested cases and it does not matter whether that contest is about fact or law, he said.

Despite "the clarity" of the two 2013 High Court judgments, within months, the Master did what two judges held he had no power to do, he said.

The assumption by the Master of "this non-existence jurisdiction" delayed the progress of this litigation for well over a year, he said. 

It deprived AIB of its ability to make progress in this case and in circumstances where the debtor had accepted she had a liability for most of the €781,000 of the €€786,00, he said.

"None of that ought to have happened", he added.

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