Thousands of orders granted in the Circuit Court to repossess homes may be open to challenge because these courts are not applying EU law, the Master of the High Court has said.
Edmund Honohan criticised the Government for failing to properly protect people facing repossession and said it was instead allowing the courts to "pump people into homelessness".
"There is a lack of joined up thinking and a huge amount of ignorance," he told The Irish Times.
Circuit courts “up and down the country” were failing in their role as “agents” of the EU as current procedures did not ensure application of EU consumer legislation, he said, adding that this was the “fault of the Irish State”.
He said county registrars – who grant the majority of repossession orders in the circuit courts – “should not be dealing with these cases at all”, as they had neither the legal training nor the legal discretion to apply EU law.
“The rules and procedures of the Circuit Court need to be updated to allow for a hearing with regard EU legislation on unfair contract terms . . . in every possession case . . .EU law is not an optional extra.”
In particular the 1993 EU directive on unfair contract terms in consumer contracts was not being properly applied. This failure, according to the European Court of Justice, breached consumers’ rights.
Legal discretion
In its 2013 ruling on the Aziz case – which had been referred to it by the Spanish courts – the ECJ, said: “...the national court is required to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, compensating in its own way for the imbalance which exists between the consumer or the seller or supplier.”
The Circuit Court should be taking the initiative to assess whether mortgage contracts were fair before making possession orders, he said, noting that only a judge had the legal discretion to do this.
“So we have a county registrar sitting in wherever... and she is now an agent of the EU. She is obliged, of her own motion i.e. without the defendant present, to look at the mortgage contract and see if it’s fair. Does she have the skills to do that? No. Is there any case law to help her? No. Does she have any idea what she is doing? No. So what is happening is she sees there is no defendant in court and makes the order.”
The legality of a possession order was “often touch and go..It is not as clear-cut as county registrars think they are”.
“Something the Government could do is change the procedures in the courts to put a brake on the number of families they are pumping into homelessness.”
