An Chúirt Uachtarach

The Supreme Court

Between

1. In the special indorsement of claim on the special summons, originally returnable for 1st December 2005, the respondent ACC Bank sought from the High Court declarations that a judgement mortgage registered by the bank over Folio 6027F of the Register of Freeholders, County Westmeath stood well charged over the interest of Gerard Lynn, the 1st named defendant in the said lands. A declaration was also sought that this defendant owed the bank the sum of €27,237.87 as of 7th April 2003 as well as seeking an account, sale of the lands, possession and an enquiry, an order was sought “providing for the partition of the said land and premises.”

2. The matter came on for hearing on the ordinary Monday list before McKechnie J on 5th December 2005. He made an order declaring that the principal monies secured by the judgment mortgage stood “well charged on the first defendant’s interest in the said land and premises” and further ordered that in default of payment by the first defendant “the said land and premises be sold in lieu of partition at such time and place and subject to such conditions of sale as shall be settled by the Court”.

3. Gerald Lynn and Kathleen Lynn are husband and wife. The relevant land incorporates the family home in Mullingar. They are joint tenants of the registered freehold land. Kathleen Lynn is the sole appellant, though clearly the outcome of the appeal also affects her husband.

Issue on appeal
4. Kathleen Lynn seeks to argue a new point on the appeal and this point appears in the notice of appeal thus:

The High Court erred in law in determining that it had jurisdiction to order sale in lieu of partition at the suit of the judgement creditor whose judgement mortgage affect the interest of one only of two joint tenants of registered freehold land.

The question of whether a judgement creditor could obtain an order for sale in lieu of partition over registered lands held by joint tenants (as is the case here) was the subject of some uncertainty for a long period. The recent judgement of the High Court in Irwin v Deasy (unreported, Finlay Geoghegan J 1st March 2004) opened to me by [counsel for the bank] establishes that he can. I rejected the argument that there is an error in the affidavit of Tara Glynn sufficient to withhold the well-charging order. Even if the matter was dealt with on the basis of section 3 of the Partition Act 1868 (as opposed to section 4) an order for sale should be made. I will make orders in terms of paragraphs 1, 2, 3, 4, and 6 of the summons, together with an order for costs to the plaintiff with an order for taxation. I will put a stay on the orders until 31st March 2006

Chronology
5. A chronology in this case is best set out in linear form.

• 7th April 2003, ACC Bank obtain judgment against Gerald Glynn in the sum of €23,638.55 in the Circuit Court.

• 25th August 2003, a judgment mortgage is registered as against his interest in the land.

• 1st March 2004, the first judgment in unrelated case of Irwin v Deasy [2004] 4 IR 1 is given by Finlay Geoghegan J. As a precedent, that decision was followed in this case in the High Court. This decision was to the effect that where there was more than one co-owner of a property that the other co-owner should be joined in the special summons proceedings. Nonetheless, the decision was to the effect that there was a jurisdiction to make an order for sale instead of an order for partition under sections 3 and 4 of the Partition Act 1868.

• 5th December 2005, judgment of McKechnie J in the High Court in this case.

• 31st January 2006, the second judgment in Irwin v Deasy is given by Laffoy J in the High Court. This decided that a judgment creditor who had a judgment mortgage registered against the interest of one co-owner in registered land did not have any sufficient interest to maintain an action for the partition of such lands and, accordingly, in the absence of legislative intervention, the High Court had no jurisdiction to order a sale instead of ordering partition of the entirety of the co-owned registered land to enforce a judgment mortgage registered only against the interests of one co-owner.

• 13th December 2006, after over a year had passed from his judgment, the order of McKechnie J is perfected.

• 21st December 2006, Kathleen Lynn files a notice of appeal to this Court. That notice specifically calls in aid the point of the decision of Laffoy J in Irwin v Deasy.

• 1st December 2009, the Land and Conveyancing Law Reform Act 2009 comes into force.

• 13th May 2011, this Court upholds the judgment of Laffoy J in Irwin v Deasy; both the High Court and the Supreme Court judgment are reported at [2011] 2 IR 752.

• 24th August 2015, as of midnight on this date 12 years have passed since the registration of the judgement mortgage and, without deciding the matter, it would appear that any claim to enforce same is statute barred.

• 16th December 2015, this case comes for hearing before this Court with both sides represented by solicitor and counsel.

7. What is in dispute is that ACC Bank opposes the raising of what is described as a new point by Kathleen Lynn. The effect of not allowing this point to be argued was responsibly accepted by ACC Bank as meaning that an order of the High Court would be upheld by this Court where the original order was made without jurisdiction. In that regard, for the avoidance of doubt, it should be remembered that the decision of Finlay Geoghegan J in Irwin v Deasy [No 1] was correctly opened to the High Court and that as of the date of the judgment of McKechnie J he was required to follow that judgment, save in the exceptional circumstances where a judge does not follow a decision of the court at the same level. The appellant bank further argues that in the event that the new point is allowed to be argued on appeal that it should be subject to condition whereby the matter is remitted to the High Court with an entitlement to ACC Bank to amend the pleadings to enable a claim for an order for sale of the lands and a distribution of the proceeds of sale be made under Part 2, and specifically section 117 of the Land and Conveyancing Law Reform Act 2009. Any such condition is opposed by counsel on behalf of Kathleen Lynn.

New point on appeal
8. Movie News Ltd v Galway County Council (Supreme Court, unreported, 25th July 1977) sets out clearly the reasons why points not argued before the High Court should not, save in the most exceptional circumstances, be argued for the first time on appeal to the Supreme Court. As Henchy J stated, it would be wrong for the Supreme Court, “under the guise of an appeal, [to] enter on the trial of a matter as of first instance and thereby deprive the party aggrieved with its decision of the constitutional right of appeal which he would have if that matter had been decided in the High Court.” Nonetheless, this Court retains discretion to enable a point not argued at trial to be considered on appeal. In Lough Swilly Shellfish Growers v Bradley [2013] IR 227, O’Donnell J, at paragraph 26 stated:

However, with respect to the judgment of Henchy J. in Movie News Ltd. v. Galway County Council, the proposition that the objection to any argument of a new point in an appeal is grounded in the constitutional right of appeal is not beyond argument. Indeed, if it were so, it is hard to see how it could admit of the exceptions, unless the exceptions were themselves mandated by the Constitution.

What the Constitution requires is an appeal which permits the Supreme Court to consider whether the result in the High Court is correct. The precise format and procedure of any such appeal is not dictated by the Constitution. While that object is often and best achieved by a careful analysis of the argument in the High Court and the High Court’s adjudication of said argument, it does not follow that the constitutional appeal must always be limited to that process.

There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as in K.D. (Otherwise C.) v. M.C. [1985] I.R. 697 for example); or where a party seeks to make an argument which was actually abandoned in the High Court (as in Movie News Ltd. v. Galway County Council (Unreported, Supreme Court, 25th July, 1977)); or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such cases, while a court might impose terms as to costs, the court nevertheless retains the power in appropriate cases to permit the argument to be made.

This case
11. The point now sought to be argued is not fact dependant: the interest of Kathleen Lynn, the nature of the land holding and the fact that this is registered land are all beyond dispute. No misconduct or inadvertence in the litigation by either side needs to be taken into consideration since the state of the law at the time of the High Court judgment appeared to be settled. Hence, each side properly relied on such authorities as were then available to them. Nor is this issue one that was not considered at trial. At all times, the situation of a wife holding an interest in a family home that had been made subject to a judgment mortgage would have been a key question on the issue as to whether the appealed order should be made. The fresh point was raised in the notice of appeal at the earliest possible opportunity and incorporated in the written submissions on the appeal so that there has been a fair opportunity to deal with it. Most importantly, however, on the particular facts of this appeal, is the issue of this Court being placed in a position of being required to do an injustice. Should the point as to jurisdiction not be allowed to be argued, this Court would be affirming an order of the High Court where that court did not have the necessary jurisdiction. In all the circumstances, the Court’s discretion should be exercised in favour of Kathleen Lynn as defendant/appellant.

12. Since the law on the issue is clear, the order of the High Court should be overturned on appeal.

13. Finally, counsel for ACC Bank has sought to make the exercise of the Court’s discretion in favour of Kathleen Lynn subject to conditions. Prior decisions have resulted in appropriate orders as to costs where such an adjustment is necessary to maintain the balance of fairness between the parties; see in particular Lough Swilly Shellfish Growers v Bradley per O’Donnell J at paragraph 28, which is quoted above. No compelling reason has been advanced in this case why the Court should extend the reasoning in that case in this instance. What ACC Bank seek is leave to amend pleadings, with a remittal to the High Court, to enable the point Part 2, and specifically section 117 of the Land and Conveyancing Law Reform Act 2009, to be used to cure the defect in issue. While at times the appeal in this case drifted towards an analysis of whether that provision might cure or improve the position of a judgment mortgage holder in similar circumstances, the matter is not now for decision.

14. The point sought to be counter argued by ACC Bank is as novel a point as could be imagined. The legislation sought in aid was not in existence at the time of the High Court order. Whereas ACC Bank might consider that the issue of fresh proceedings in order to pursue that point might be unprofitable in the context of their apparently extant remedy in aid of execution, any such proceedings if issued would first have to be considered in the High Court. In addition, the passage of time is to be noted. Whether the age of the judgment mortgage renders it infirm or whether an exception to the limitation period is enabled by the decision of this court in Krops v Irish Forestry Board [1995] 2 IR 113 are among the issues that would thereby come into focus.

15. Imposing such a condition on Kathleen Lynn would not be right. What should not happen on appeal through the raising of novel points is the complete recasting of the litigation. Were that to be allowed, the measured consideration of points on appeal would be replaced by an appellate court constituting itself a court of first instance and depriving the parties of the remedy of appeal that is inherent in the structure of Article 34 of the Constitution.

Result
16. In consequence, the appeal should be allowed. The order of the High Court should be discharged except (a) the order declaring that the principal moneys secured by the said judgment mortgage created by registration and the interest thereon and the costs of registration stand well charged on the interest of Gerard Lynn in the said lands and premises and (b) the order acknowledging that there is due to ACC Bank on foot of the judgment a sum of €27,239.87 for principal together with interest at the rate of 8 percent from the 7th day of April 2003.