McGuiness v The Property Registration Authority of Ireland & Ors (Unapproved) [2021] IECA 65 (10 March 2021)

THE COURT OF APPEAL

CIVIL

NO REDACTION NEEDED

Court of Appeal Record No.: 2020/67

High Court Record No.: 2019/16

Costello J.

Donnelly J.

Murray J.

BETWEEN

CHARLES MCGUINNESS

APPELLANT

- AND -

THE PROPERTY REGISTRATION AUTHORITY OF IRELAND AND ULSTER

BANK IRELAND DESIGNATED ACTIVITY COMPANY

RESPONDENTS

JUDGMENT of Mr. Justice Murray delivered on the 10

day of March 2021

In my judgment delivered on 5 February ([2021] IECA 25), I rejected each of the arguments

advanced by Mr. McGuinness in support of his appeal against the refusal by the High Court of

his application for orders directing the first named respondent (the `PRAI') to cancel entries of

judgment mortgages registered on the application of the second named respondent on properties

owned by him. I concluded the judgment (with which Costello J. and Donnelly J. agreed) by

observing that the PRAI had been entirely successful in its defence of the appeal and that it was

my provisional view that it was entitled to the costs of the appeal.

- 2 -

Mr. McGuinness has delivered a submission making four requests. First, he submits that no

order for costs should be made. In this regard, he stresses:

(i)

That costs were awarded against him in the High Court including the cost of the

procurement of an affidavit from John O'Shea in which hearsay averments were

contained;

(ii)

That the PRAI could have referred the matter to the High Court but chose not to do so;

(iii)

That there was a delay of over 3 and a half years from his correspondence dated 21 July

2015 to the respondent until the 30 January 2019, the latter being the date of the letter

he received recording an intention to refuse his application;

(iv)

That the second named respondent did not participate in the proceedings.

Mr. McGuinness does not dispute that the PRAI was `entirely successful' in the appeal. It

follows from s. 169(1) of the Legal Services Regulation Act 2015 accordingly that the PRAI is

presumptively entitled to its costs. The court has a discretion to order otherwise, that discretion

being guided (but not exhausted) by the matters identified in that provision. I do not believe

that the matters relied upon by Mr. McGuinness displace the prima facie entitlement of the

PRAI to its costs. In particular, the PRAI was not under any legal obligation to refer the matter

to the High Court, and that being so cannot be properly penalised by way of bearing its own

costs for not adopting that course of action. It follows that the costs of the appeal will be ordered

against Mr. McGuinness. Following the decision of the Court in Allied Irish Banks v. Higgins

[2020] IECA 339 at para. 9 these will include the costs of this application.

Second, Mr. McGuiness asks that a stay be put on this order until the final determination of his

application, including any final determination by the Court of Justice of the European Union in

- 3 -

relation to the matter. I believe that this application should be refused. This Court has made no

Reference to the CJEU (see para. 47 of the first judgment) and subject to the next point, the

issue of staying the proceedings until their final determination does not arise.

Third, a request is made that the order for costs be stayed until the final determination of his

appeal to the Supreme Court subject to the appeal being made within 28 days from the date of

perfection of any order in this Court. It is appropriate to grant such a stay and I would order

accordingly.

Fourth, Mr. McGuiness seeks liberty to take up a copy of the DAR of the hearing of the appeal.

I do not see that there is any reason that the DAR is required: the judgment of the Court was

delivered electronically and a signed and approved version of it will shortly be available. Order

123(9)(4) makes it clear that in granting access to the DAR (or any part of a record of the

proceedings held by the Court) the Court is concerned with whether it is `in the interests of

justice' that an order be made. It follows that a party seeking such access must give some

reason for seeking same (Bank of Ireland v. Gormley [2020] IECA 102 at para. 19). The record

of what occurred in the course of the hearing is neither necessary, nor in this case of any evident

relevance, to any application for leave to appeal that Mr. McGuinness might care to bring to

the Supreme Court nor to any appeal that he might thereafter be permitted to proceed with.

Costello and Donnelly JJ. are in agreement with this ruling and the order I propose.

Result: Stay on the costs ruling subject to an appeal being made to the Supreme Court

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