A HIGH COURT judge has strongly criticised the “meaningless” legal “advice” given to a couple who, along with their five children, have been evicted from their family home.
In a ruling today, Justice Paul Gilligan dismissed an application by Orla and Stephen Hallihan for orders against KBC Bank including an injunction setting aside a repossession order granted in favour of the bank, which would have had the effect of allowing them back into their house.
Giving his decision, the Judge said while he sympathised with the family it was clear that they had been receiving advice from a third-party from an early stage in their dispute with the bank.
Such advice the judge said was “meaningless as a matter of law” and “totally unhelpful.”
The judge added that he had a “difficulty understanding” why people seek advice from those outside the legal profession.
Earlier this month the Hallihans, and their five children aged between eight and 14 years were evicted from their home at Kill-St-Anne, Castlelyons in Cork on foot of a repossession order granted by Cork Circuit Court in favour of KBC Bank in March 2015.
The Hallihan’s have brought proceedings seeking to set aside that order the Circuit Court lacked the jurisdiction to make the order, which they argue is void.
The Hallihans, who represented themselves with the assistance of a non-lawyer, known as a McKenzie friend, also sought an injunction to allow them back into their home pending the outcome of their substantive challenge to the validity of the repossession order.
KBC Bank Ireland Plc opposed the application for the injunction and said no repayment has been made by the Hallihan’s on their mortgage since December 2014.
Dismissing the couple’s application for an injunction the judge said the couple had borrowed €450,000 from in 2008.
While repayments had been made, the couple got into difficulty with their repayments and now owe the bank €558,000 including arrears of €185,000.
There was a conflict between the parties over the respective efforts made to resolve matters the judge said.
The judge said that regrettably, the Hallihans did not attend at the Circuit Court when KBC sought the repossession order.
The Hallihans, a farmer and a teacher, did not appeal the Circuit Court’s decision to the High Court.
Neither did they apply for an extension of time to bring their appeal after time to bring an appeal expired, the Judge added.
Had they carried out some or any of these steps their case would have been aired before at least two courts.
He said that in regards the injunction application the couple, who had raised several points, had not made out a strong issue to be tried.
The balance of convenience did not favour the setting aside of what appeared to be a valid order of the Circuit Court, the judge added.
The judge said it was clear, however, that damages would not be an adequate remedy for the family who had lost their home.
While the court was not prepared to grant them an injunction they could continue with their challenge against the validity of the repossession order obtained by KBC.
The Judge also criticised KBC for sending the couple a letter in the last 24 hours saying they have 72 hours to remove all their items from their home. If it was not done the items would be disposed of, the letter said.
This was “excessive” and “wholly unreasonable in the circumstances” the judge said.
The judge, who was told the letter was standard and that the items would be taken away and placed in storage at the couple’s expense, suggested that a more reasonable approach be adopted.
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