Wednesday, 25 February 2015
I raise the important issue of repossessions that are happening around the country. There is a huge number of repossession cases, thanks mainly to the enactment of the 2013 conveyancing Bill. It was very unfortunate legislation which I was happy to vote against. As it in place, I want to make sure it will work in some way and give some relief to those who face repossession, particularly of the family home.
Last Monday in County Meath 84 cases were listed to be heard by a very good county registrar but not a judge of the Circuit Court. I have a problem with this, but not out of disrespect for individual country registrars who are very good people. However, in a case in which a property is at risk or a family home is about to be repossesed by the bank, it strikes me as completely wrong that it will be presided over by a country registrar, not a judge. In general, the county registrar's role relates to procedural and other limited issues which are dealt with as a matter of course. The repossession of a family home is, however, a crisis, catastrophe and disaster for the family concerned.
Article 37 of the Constitution states some judicial powers can be delegated to non-judges, but it talks about the delegation of limited functions and powers, not repossession of the family home. In addition, the conveyancing Act, of which I am so critical, at the very least, requires and specifies that cases should be decided by a judge of the Circuit Court. It is completely wrong, therefore, that judges are not presiding over such cases. If a judge was present, there would be greater formality and the process might be slowed, which would be good because it would give people a chance to keep the family home, which is what we are trying to do. If a judge was to hear a case, it might slow it down and there might be more discretion. From what I can see, county registrars have very little discretion and the lists are regarded as completely routine.
What is frightening is that the people concerned, some of whom are before courts today in Dublin, were before the courts in Trim, County Meath and Dundalk, County Louth last Monday and will be in Cork next Monday, are mainly unrepresented. They are not represented by lawyers because they cannot afford them. Perhaps they are ignoring the matter because they are so scared and the issue is so traumatic for them, but they are about to lose the family home, yet this is being seen by the State as an administrative function of the courts and not treated as the catastrophe that it is. County registrars do a good job and I am in no way critical of them individually. Outside Dublin and Cork the county registrar also acts as the sheriff. That means they make an order for repossession and then, if the bank wants to do so, execute it. This is in breach of the concept of a separation of powers. We must call a halt to this practice. The Circuit Court needs to get its act together. Let us look at the legislation in place, specifically the 2009 Act which was found to be flawed and the 2013 Act which specifically mentioned a judge of the Circuit Court, as it is about time judges heard these cases and had way more discretion. There was this nonsense in the conveyancing Act of referring cases to a personal insolvency practitioner, but that is not enough because judges need to look at all circumstances of a case. There was some discretion used in one case in the High Court last week, but that was a ridiculous case which had continued for 15 years or so. The Government needs to give people a chance and state, "enough is enough; let us try to keep people in the family home; let us try to give them a solution, and let us try to stop the avalanche that is about to hit us."
On behalf of the Minister for Justice and Equality, I thank the Senator for raising this important matter. The Minister regrets that she is unable to be present for the discussion.
As the Senator may be aware, the county registrar is a legal professional officer of the Circuit Court. A person appointed to the role of county registrar is highly qualified and, for example, must have practised for at least eight years as a solicitor or a barrister. The powers of the county registrar are set out in primary legislation as approved by the Oireachtas, including in the Courts and Court Officers Act 1995, as amended. Under primary legislation and court rules, county registrars are empowered to deal with many types of motion. This is intended to maximise the potential of the office, while at the same time facilitating improved efficiencies by freeing the judges of the Circuit Court to deal with the substantive aspects of proceedings. The role of the county registrar in this regard is defined and not a substitute for the constitutional role of a judge.
In regard to possession cases, in very specific circumstances, where an appearance has not been entered or an affidavit setting out a defence has not been filed and delivered, the country registrar may make an order for possession.This power to make an order for possession on foot of a registered charge or a mortgage of unregistered land in these circumstances has been given to the county registrar by primary legislation under section 34 and Schedule 2 of the Courts and Court Officers Act 1995, as amended. The procedures applicable to repossession cases in the Circuit Court are governed by rules of the court. Senator Byrne pointed that out. The county registrar, in addition to the power to make possession orders as outlined above may also make an ancillary order, such as an order of service of the Civil Bill on any other party; adjourn an action to another date; make an order enlarging the time for entry of appearance; give directions and fix time limits for the filing and delivery of any further affidavits by any party or parties; and give any other directions for the preparation of the proceedings for trials.
These proceedings must be commenced by civil bill. The Senator may wish to note that in 2014 a total of 8,164 civil bills for an order of possession were lodged in the Circuit Court. As the Senator will appreciate, if all of these cases were to heard by a member of the Judiciary it would have significant resource implications for the courts. The specific role of the county registrar in regard to possession cases provides for a speedier and more efficient administration in respect of particular aspects of court business and frees up judicial time for the hearing of the substantive matters. It can also contribute to reduced cost of proceedings.
Where an affidavit setting out a defence has been filed, the county registrar transfers the civil bill, when it is in order for hearing, to the judge's list at the first opportunity. The county registrar is not empowered to dispose of the matter in these circumstances and it must go before a judge in court. Furthermore, under section 34 of the Court and Court Officers Act 1995, all orders of a county registrar are subject to appeal to the Circuit Court. The courts are, subject only to the Constitution and the law, independent in the exercise of their judicial functions and the conduct of any court case is a matter entirely for the presiding judge. The Senator will be aware that this Government has put in place a number of legislative provisions regarding protection of the family home in cases where repossession of the property is being sought, most recently in section 2 of the Land and Conveyancing Law Reform Act 2013. The Government has provided an enhanced range of information and guidance services for mortgage holders, including a dedicated information website, a mortgage arrears information and advice helpline and the provision of independent financial advice for mortgage holders who are being presented with long-term mortgage resolution proposals by their lenders. This advice is provided by qualified accountants drawn from members of the main accountancy institutes in Ireland who have agreed to participate and support this independent service. I would encourage people to avail of this service, where appropriate.
I presume the Senator has encountered many people who are distressed and pressed by the bank but in many cases - I would be interested to know the Senator's view on this and the number of cases he is dealing with - people have failed to engage. Sometimes the first person they engage with is either a Senator or a Deputy. I urge people to engage with their lenders as much as possible in the first instance. I again thank the Senator for raising the issue and apologise that the Minister, Deputy Frances Fitzgerald, could not be here this morning.
I am angry, not with the Minister of State, Deputy Humphreys, but the Minister for Justice and Equality. The idea that the excuse for county registrars handing out repossession orders and kicking people out of their homes is that there are too many cases and if we got judges involved, the system would not be able to cope. That is effectively what the Minister of State has said - the system could not cope if we got judges to hear all these repossession cases. It is an extraordinary admission by the Government. It is making me angry and I am sure it is making people angry across the country. Some 8,164 civil bills for an order of possession were lodged in court. If all these cases were to be heard by a judge it would have significant resource implications. The Government itself is saying that. It cannot handle the number of repossession cases, the number of families being kicked out of their homes, so it is asking civil servants - registrars, who are not judges - to do this instead. It is wrong.
The vast majority of people on the repossession list are unrepresented. They do not know about entering an appearance. They do not know what it means. They do not know what delivering a defence means. I know of one person who entered an appearance and thought he had to appear in court the day after he got the summons. It is a document, but how are people meant to know that? To them it is gobbledygook. We need judges hearing these cases and showing sensitivity, and we need the Government to admit there is a huge crisis. Above all, we need to keep people in their family homes.
The response by the Minister of State to the matter I have raised is extraordinary. I he goes back to the Minister, Deputy Fitzgerald, and points this out to her. I cannot believe that any politician could stand over what was set out in the script he read.
I did not interrupt the Senator. It is not nice to be reminded of how Fianna Fáil left this country. I know the Senator gets angry when reminded, but we have had to tidy up this mess. Any order made by a county registrar is subject to appeal to the Circuit Court. There are no plans to amend the current legislation. The Senator showed a little fake anger. It is a pity his fake anger-----