Judge upbraids PTSB in repossession case

High Court orders rehearing after lender’s repeated errors in presenting evidence

If the High Court heard the appeal now, the couple would get only one ‘outing’ in terms of having matters fully and properly heard, rather than two, Mr Justice Max Barrett said.

The “very least” a financial institution can do when seeking a possession order is to ensure it has its evidence in order, a High Court judge has said.

Mr Justice Max Barrett made the comments when directing, due to errors by Permanent TSB in presentation of evidence, a rehearing in the Circuit Court of its successful application in late 2017 for a possession order against a couple.

He ordered the rehearing because, due to a number of errors by PTSB, the relevant loan facility letter, alleged breach of which grounded the possession order application, was never properly put in evidence before the Circuit Court but was put before the High Court on appeal.

The couple had appealed the possession order to the High Court but raised a preliminary objection to that appeal proceeding now without their first getting another Circuit Court hearing on all the relevant evidence.


Upholding their objection, Mr Justice Barrett said a PTSB official had in February 2017 affidavit purported to exhibit the facility letter but a page of that was missing.

Wrong letter

In a second affidavit for the December 2017 Circuit Court hearing, a PTSB officer exhibited the wrong facility letter.

In a third affidavit of February 2018 for the High Court appeal, PTSB said it had always been intended to exhibit the 2006 facility letter and referred to a three-page facility letter. Even in “this belated effort to get things right”,the affidavit exhibited seven pages of documentation, three of which comprised the correct facility letter which was never properly in evidence before the Circuit Court, the judge said.

The couple’s simple objection was, in such cases before the Circuit Court, parties get two chances to make their cases: an initial trial in the Circuit Court, after which there is an opportunity to appeal to the High Court, where they get a fresh hearing. After that, matters typically end apart from a possible further appeal on an issue of law.

Because the facility letter was never properly before the Circuit Court, they were effectively getting just one chance to put their case across in the High Court.

PTSB argued the High Court appeal should proceed now despite its errors.

Mr Justice Barrett said the courts before and since independence “have always been particular” about granting possession orders, not because of “some lawyerly desire to be pernickety” but because of the courts’ proper appreciation, historical and continuing, of the significance of a possession order.

Those coming to court for possession orders are asking a court to bring the “coercive power” of the State to bear in removing property from the possession of one person and giving it to another.

“The very least a financial institution must do if it seeks a possession order is to ensure that it has its evidence in order,” he said.

If the High Court heard the appeal now, the couple would get only one ‘outing’ in terms of having matters fully and properly heard, rather than two, he said.

That is “less than they are entitled to” and he would remit the matter for rehearing in the Circuit Court on the basis of such evidence as is then properly put before that court.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times