Judge rules woman cannot appeal order giving bank possession of home

Bernadette Fagan late last year got an extension of time from the Master of the High Court to appeal a Circuit Court order of July 2015 giving ACC Loan Management Ltd possession of Temple House on 14.5 acres at Horseleap, Co Westmeath.

The possession order arose from loan facilities advanced to Temple Spa Ltd in July 2004 by ACC Bank plc, secured by personal guarantees of Ms Fagan and her husband Declan and a full legal charge in favour of ACC over the property.

After the company defaulted on the loan and a demand went unpaid, a receiver was appointed over the property.

ACC got judgment for €5.78m against the couple in May 2011 and they were adjudicated bankrupt in May 2012.

ACC then took High Court proceedings seeking possession but the couple disputed the validity of its charge over the property. The High Court held ACC was not entitled to an order for possession.

ACC then issued a civil bill for possession and the Circuit Court made an order for possession in July 2015.

The couple later lost judicial review proceedings aimed at having the possession order quashed.

After their appeal over the failed judicial review was rejected, Ms Fagan secured an extension of time in December 2017 from Master Edmund Honohan to appeal against the Circuit Court possession order.

Ms Fagan said the time for appealing the Circuit Court order had expired in circumstances where Mr Fagan had pursued an alternative process and the title proceedings of those were drafted to include her name. On learning of that, she had asked to be removed from the other proceedings and allowed pursue her own appeal.

She said she was suffering from acute stress and anxiety, was “not capable of creating further conflict” between herself and Mr Fagan, and was off work on sick leave since August 2015.

ACC then appealed to the High Court to set aside the extension. Ms Fagan, representing herself, opposed the appeal.

In his judgment today Mr Justice Charles Meenan said correspondence between the Fagans and the bank in August and September 2017 established Ms Fagan had a bona fide intention to appeal within the permitted time, was aware that had expired and an extension of time was required.

No extension was sought until Ms Fagan issued her motion issued on July 31st 2017, almost two years later, and on the same day both Fagans applied for leave for judicial review.

Ms Fagan essentially maintained the reason she did not lodge an appeal earlier was owing to incapacity or illness but ACC disputed these constituted grounds for an extension of time.

Having read medical reports concerning Ms Fagan, the judge said he had “no hesitation”, given the "financial disaster" and its consequences engulfing the family at the time, she was under considerable stress.

However, he did not believe her medical condition prevented her prosecuting an appeal to the Circuit Court or seek an extension of time in a timely manner. Although under stress, Ms Fagan actively participated in the judicial review, he said.

He was satisfied, although Ms Fagan did consider an appeal, she deliberately and consciously decided to challenge the possession order instead via judicial review. The required “mistake” justifying an extension of time was not present in this case and he would set aside the Master’s order extending time, he ruled.

The grounds of appeal raised by Ms Fagan had either been determined in the failed judicial review or were not good grounds of appeal, he also held.