The High Court has rejected an argument advanced in Judicial Review proceedings that a County Registrar failed to take into consideration a couples’ rights under the Charter of Fundamental Rights and the European Convention of Human Rights in granting an order for the repossession of their home. The applicants argued that the County Registrar had failed to conduct an analysis of whether their mortgage contained any unfair terms, including analysis of whether the granting of a possession order would be disproportionate or repugnant to their Treaty rights, in contravention of the Unfair Terms in Consumer Contracts Directive 93/13/EEC as transposed into Irish Law by the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995.
The applicants sought a number of reliefs including an order quashing the order of the County Registrar to grant possession of their family home to Pepper Finance Corporation (Ireland), a designated activity company. They also sought a number of related declarations, including: a declaration that the County Registrar, in adjudicating on Pepper Finance Corporation’s application for possession, was required to consider of his own motion whether the terms in the contract between the applicants and Pepper Finance were unfair pursuant to the Unfair Terms in Consumer Contracts Directive; and a declaration that when he considering whether any of the terms in the contract were unfair the County Registrar was obliged to take into consideration the applicants’ fundamental rights as set out in the Charter and whether the granting of such an order was proportionate.
In his decision, Mr. Justice McDermott held that a Court could, of its own motion, consider whether a mortgage agreement contained any unfair terms, when dealing with repossession proceedings. However, having considered the terms of the applicants’ mortgage, he held that no issue of unfairness arose in their case. He therefore refused to grant the relief sought as to remit the matter back to the County Register under such circumstances would be of no benefit to the applicants.
In relation to the applicants’ Treaty Rights, he held that the process followed in repossession proceedings allowed for sufficient consideration of those rights: “I am satisfied that the judicial process applicable to claims for possession of family homes subject to mortgage agreements complies with the duty to provide an effective remedy and a fair hearing before an impartial judicial tribunal under Article 47 of the Charter and Article 6 of the European Convention on Human Rights. The process as outlined earlier enables the parties to address and the court to consider the issue in ways which are proportionate to the nature and amount of the loan, the alleged default by the borrowers, the respective rights of the parties under the contract, the circumstances of the borrowers and the fact that the application is in respect of their home thereby engaging their Article 7 Charter right and Article 8 Convention right”.
Click here to read the full decision in Grant v The County Registrar from the County of Laois [2019] IEHC 185