Neutral Citation  IEHC 304
THE HIGH COURT
BANK OF IRELAND MORTGAGE BANK
LAURA FINNEGAN & CHRISTOPHER WARD
JUDGMENT of Ms. Justice Murphy delivered the 20th day of May, 2015
1. This judgment concerns the jurisdiction of the Circuit Court to hear the plaintiff’s claim for possession of the defendants’ domestic dwelling.
(2) The above mortgaged property is located in the County of Cavan and within the jurisdiction of this honourable court.
(3) The plaintiff sues as mortgagee
(5) The plaintiff claims any further and other relief as may arise within these proceedings.
(6) The plaintiff claims the costs of these proceedings.
1. Affidavit of Godfrey Hogan, solicitor acting on behalf of the plaintiff sworn on the 8th October, 2012.
2. Affidavit of Adrienne Browne, manager in the arrears support unit of the plaintiff sworn on 4th October, 2012.
4. The plaintiff relies on rateable valuation of the premises to establish the jurisdiction of the Circuit Court pursuant to s. 22 of the Courts (Supplemental Provisions) Act 1961 as amended. At paragraph 15 of the grounding affidavit of Adrienne Browne it is averred as follows:-
I refer to your application for a certificate showing the rateable valuation for the above property.
I regret that I am unable to issue such certificate as the property is not as yet valued for rating purposes, however, if a building is erected/reconstructed in accordance with the dimensions shown on the deed plans submitted I certify that the rateable valuation of the said buildings will not exceed €252.95 (Two hundred and fifty two euro)
6. The plaintiff’s claim came on for hearing before the learned Circuit Judge on 18th March, 2014 at Cavan Circuit Court and an order for possession was made in favour of the plaintiff together with the costs of the proceedings to be taxed in default of agreement.
7. The defendants appealed the order of the Circuit Court and the appeal came on for hearing before this Court on 26th January, 2015. On that date the Court sought clarification from the parties as to the issues arising on the appeal. Six issues were identified, among them the issue of the jurisdiction of the Circuit Court to hear the claim.
8. Having identified the issues, the Court requested written submissions from the parties on each issue. The Court further ruled that it would be appropriate to dispose of the issue of jurisdiction first.
The Defendants’ Claim on Jurisdiction
Response of the Plaintiff
14. The plaintiff further submits that over and above s. 67, the 2001 Act further provides, at s. 60, for documents that can be proffered as evidence of such a valuation. Section 60(2) states:-
16. In their reply the defendants countered that s. 67 of the Valuation Act did not apply in this case because it was clear that no application had been made by the plaintiff to the Commissioner of Valuation for a rateable valuation of the relevant property. Furthermore, the defendants maintained that since the value of the property had not been determined by a Commissioner of Valuation, s. 67(3) which provides: “that the value of the property so determined shall be deemed to be the rateable valuation of the property within the meaning and for the purpose of the provision referred to in subsection (9)”, had no application to the case and that there was no rateable valuation of the property.
17. In response to the plaintiff’s reliance on the provisions of s. 60(2) of the 2001 Act, the defendants state that the letter of provisional assessment is not “a copy of a valuation list or part of such a list” as provided for by the section, but is rather a letter which clearly states that the property is not yet valued. Furthermore, the defendants argue that s. 60 clearly states that the valuation, to be admissible, is “to be certified as such a copy by an officer of the Commissioner”. The signatory Mary Regan does not purport to be a Commissioner of Valuation.
18. At this juncture in the proceedings both parties had been in contact with the Valuation Office and there was some disagreement between them as to the nature of information emanating from that office on the status of the letter issued under the name of Mary Regan. In order to clarify matters, the Court requested that Mr. Declan Lavelle of that office attend Court for the purpose of assisting the Court and the parties.
Evidence of Declan Lavelle
Purpose and Operation of s. 67
21. The relevant provisions of section 67 of the Act are as follows:
(2) Notwithstanding the preceding sections of this Act, the Commissioner may, in relation to property concerned that falls within Schedule 4 and for the purpose of the provision referred to in subsection (9), on application being made to him or her in that behalf by a person who appears to the Commissioner to have a sufficient interest in the matter, cause the value of the property to be determined as if the property were relevant property rateable under this Act.
(3) The value of the property so determined shall be deemed to be the rateable valuation of the property within the meaning, and for the purpose, of the provision referred to in subsection (9).
(4) The Commissioner shall issue to the person referred to in subsection (2) a certificate stating the value of the property referred to in that subsection as determined thereunder.
(5) The Commissioner shall, before deciding whether to accede to an application under subsection (1) in relation to property that appears on an existing valuation list which is for the time being in force, require the applicant to show cause why the valuation of the property appearing on that list will not suffice for the purpose of the provision referred to in subsection (9)
(9) The provision mentioned in the preceding subsections of this section is any provision of a statute passed before the commencement of this Act, or of an instrument made under such a statute, which imposes as a condition or as one of the conditions for the enjoyment of, or the entitlement to, any right under the statute or instrument a condition expressed to relate to the rateable valuation of a property.
(10) In subsection (9) “statute” has the same meaning as it has in the Interpretation Act, 1937.”
(b) If the property is not yet rated a letter confirming, that if the property was rated its rateable valuation would not exceed €254
23. When asked by the Court how the practice of sending out provisional assessments arose, Mr. Lavelle responded that it is not unusual that there are requirements for what one might call estimates of rateable valuation in advance of the actual valuation being determined. An example he gave was the case of a new licensed premises or off licence where the assessment of rateable valuation might take some time since the valuation process involves an application which comes in from a local authority after a development is completed. The valuer appointed by the Commissioner then has to go through a process before the certificate of valuation is issued which includes taking representation from the occupier. In those circumstances the Valuation Office might issue a provisional assessment.
24. In examination by counsel for the plaintiff Mr. Lavelle confirmed that the Valuation Office has been asked to give assessments, such as the one at issue in this case, where financial institutions are applying for Circuit Court Orders for possession and seeking to satisfy the court that it has jurisdiction in the matter. He confirmed that the approach taken in the current case was the normal way in which such applications are dealt with, that usually someone writes in a letter similar to that of the letter of the plaintiff and that in most cases the property in question would not appear on a valuation list or have a certificate of valuation issued. He further confirmed that the employee issuing the letter, who is an E.O in the Public Office, was, in the Valuation Office’s view, the appropriate person to issue the response and that the response was in respect of a hypothetical valuation of the property in accordance with the dimensions and details provided to the Valuation Office. He confirmed once again however, that there is no rateable valuation in respect of the property at issue in this case. The Court notes that there is no statutory basis in the Valuation Act 2001, or otherwise, for the issuance of provisional assessments such as was issued in this case.
Valuation Act 2001
28. Section 15 of the Act provides :
(2) Subject to sections 16 and 59, relevant property referred to in Schedule 4 shall not be rateable (Emphasis added).
30. A consequence of the legislation is that it divested the Circuit Court of jurisdiction to hear claims for possession of “domestic premises” constructed after the commencement of the Valuation Act 2001, because as we have seen, the foundation of Circuit Court jurisdiction in actions on title is rateable valuation. The full original jurisdiction of the High Court was of course unaffected by these changes.
31. It appears to the Court that the State adverted to the lacuna in Circuit Court jurisdiction created by the enactment of the Valuation Act 2001, because in the Civil Liability and Courts Act 2004, the Oireachtas enacted the following at s. 45:
‘market value’ means in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the bringing of the proceedings concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land”.
(2) The Third Schedule to the Courts (Supplemental Provisions ) Act 1961 is amended in Column (3), by the substitution of-
(a) “market value” for “rateable valuation” in each place that it occurs, and
(b) “€3,000,000” for “£200” (inserted by section 2(1)(d) of the Act of 1981) in each place that it occurs.
33. On the foregoing analysis of the applicable law, the Court is satisfied that at the time of the initiation and hearing of this claim, by reason of the operation of the Valuation Act 2001, the defendants’ dwelling was neither rated nor rateable and accordingly the Circuit Court did not have jurisdiction to hear the plaintiff’s claim.
Purported Reliance on s. 67 and s. 60 of the Valuation Act 2001
35. It appears to the Court on the evidence, that the plaintiff and others have devised and used an ad hoc non-statutory process which is devoid of legal effect, for the purpose of persuading the Circuit Court that it has a jurisdiction which it does not in fact enjoy. This is a matter of serious concern to the Court. The standard letter issued by the Valuation Office in this and other cases may be derived from the type of letter issued by them in respect of rateable properties such as off licences which are in the process of being valued, but the fact is that the content of these letters, however unintentional, is misleading when applied to domestic premises. The letter states “I refer to your application for a certificate showing the rateable valuation for the above property. I regret that I am unable to issue such a certificate as the property is not as yet valued for rating purposes”. The clear import of the terminology used is that the property is rateable but not yet rated, when as the Valuation Office well knows, the property is by virtue of the Act not rateable at all. In so far as this practice may be ongoing it should cease forthwith.
37. For the foregoing reasons the Court will allow the defendants’ appeal on jurisdiction. In doing so, the Court observes that the defendants’ success on this aspect of the case is a pyrrhic victory. In circumstances where there is no dispute that the defendants borrowed the money and no dispute that they ceased making the agreed repayments in August 2011, this judgment merely postpones the day of reckoning while their debt keeps mounting. So be it.