A High Court judge has strongly criticised “meaningless” legal advice given to a couple who, with their five children, have recently been evicted from their family home following a repossession order granted in 2015 to KBC Bank.
Mr Justice Paul Gilligan also criticised KBC Bank for sending the couple a letter, which its lawyers described as “standard”, in the previous 24 hours, saying they had 72 hours to remove all their items from their home. If that was not done the items would be disposed of, the letter stated.
On being told the letter was “standard” and that the items would be placed in storage at the couple’s expense, he suggested a “more reasonable” approach should be adopted.
He voiced the criticism when refusing an application by Orla and Stephen Hallihan, a teacher and farmer, for orders against KBC, including an injunction setting aside a repossession order granted to the bank which would have meant they could return to their house pending the outcome of their legal action.
Third party advice
While he sympathised with the family, it was clear they had been receiving advice from a third party from an early stage in their dispute with the bank, the judge said.
Such advice was “meaningless as a matter of law” and “totally unhelpful”, and he had difficulty understanding why people seek advice from those outside the legal profession.
The Hallihans, whose children are aged between 8 and 14 years, were evicted earlier this month from their home at Kill-St-Anne, Castlelyons, Co Cork, on foot of a repossession order granted in March 2015 by Cork Circuit Court to KBC.
The couple have taken High Court proceedings alleging the Circuit Court had no jurisdiction to make the order, and also sought an injunction permitting them to return to their home pending the outcome of their substantive case.
They represented themselves with the assistance of a lay person, known as a McKenzie friend.
KBC Bank Ireland Plc opposed the injunction, arguing no mortgage repayment had been made since December 2014.
Conflict between sides
In his ruling refusing the injunction, Mr Justice Gilligan said the couple had borrowed €450,000 from KBC in 2008. While some repayments had been made, they later got into difficulty and now owe the bank €558,000, including arrears of €185,000. There was a conflict between the sides over the respective efforts to resolve matters, he noted.
Regrettably, the couple did not attend the Circuit Court when KBC sought the repossession order, and did not appeal the Circuit Court’s decision to the High Court. Nor had they applied for an extension of time to bring their appeal when that time had expired.
Had they carried out some or any of these steps, their case would have been aired before at least two courts, he said.
In relation to their injunction application, they had failed to make out a strong issue to be tried and the balance of convenience also did not favour setting aside an apparently valid order of the Circuit Court, he held.
However, it was clear, should they win their substantive action, damages would not be an adequate remedy for the family who had lost their home, he said. While he was not prepared to grant them the injunction sought, they could continue with their challenge to the validity of the repossession order.