Court of Appeal allows substitution of assignee as plaintiff after possession order but before appeal hearing.

THE COURT OF APPEAL

CIVIL

[approved]

[No Redaction Needed]

[2025 No. 22]

[2019 No. 22 CA]

The President Neutral Citation Number [2025] IECA 140

Whelan J

Binchy J

BETWEEN

PEPPER FINANCE CORPORATION (IRELAND) DAC

PLAINTIFF

AND

TRACEY (OTHERWISE TRACY) O’REILLY

DEFENDANT

JUDGMENT of Ms Justice Costello delivered on the 8th day of July 2025

1. This is a judgment in a case stated from the High Court (Simons J) which asks the determination of the Court of Appeal on the following question: “In circumstances where there has been an assignment of interest in a registered charge and the underlying debt subsequent to the making of an order for possession by the Circuit Court, but prior to the hearing of an appeal to the High Court, is it appropriate to substitute the transferee/assignee as plaintiff in lieu of the original plaintiff. Alternatively, should the transferee/assignee be joined to the appeal proceedings as an additional party.”

The Facts

2. The facts may be briefly stated. By a letter of loan offer dated 13th November 2001, IIB Homeloans Ltd offered the defendant a loan to be secured by way of a first legal mortgage over the property the subject of the underlying proceedings. The defendant duly accepted the loan and executed a first legal mortgage and charge dated 23rd November 2001. The charge was duly registered on the folio. The property is not the primary residence of the defendant. Subsequent sums were advanced by IIB Homeloans Ltd to the defendant which were secured by the existing mortgage.

3. IIB Homeloans Ltd converted to an unlimited company, IIB Homeloans, on 30th September 2008. It re-registered as an unlimited company on 16th October 2008. By special resolution dated 2nd October 2008, it changed its name to KBC Mortgage Bank. On 26th June 2009, KBC Mortgage Bank transferred its banking business to KBC Bank Ireland plc further to a scheme of transfer signed on 26th February 2009, approved under s. 33 of the Central Bank Act 1971 by SI 125/2009.

4. The defendant defaulted on her loans and KBC Bank Ireland plc commenced proceedings in the Dublin Circuit Court seeking an order for possession of the property, pursuant to s. 62 of the Registration of Title Act 1964 (as applied by the Land and Conveyancing Law Reform Act 2013). On 16th January 2019, an order for possession was made by the Circuit Court. The order was initially stayed until 31st March 2019. The defendant appealed to the High Court. The matter eventually came on for hearing on 6th December 2024.

5. In the intervening period, KBC Bank Ireland plc transferred its interests to KBC Bank NV, pursuant to SI 447/2023, and KBC Bank NV, in turn, allegedly assigned the interest in the loan and security underlying the loan to Pepper Finance Corporation Finance (Ireland)

DAC (“Pepper”). On 6th March 2023, an ex parte application was made to the High Court, pursuant to O. 17, r. 4 of the Rules of the Superior Courts to substitute the assignee as plaintiff in the proceedings. Ferriter J ordered that the proceedings be amended by substituting Pepper for KBC Bank Ireland plc as the plaintiff in the title of the within proceedings. The order contained a proviso that the defendant be informed by a notice in writing:

(a) That a copy of the affidavit and exhibits grounding the application are available on request;

(b) That an application may be made to court on notice to set aside the order; and

(c) Of the defendant’s entitlement to contest the transfer of the loan and/or security involved to Pepper at the hearing of the action. The court ordered that a copy of the order substituting the plaintiff be served upon the defendant.

6. The Circuit appeal has been partially heard and when the matter came before Simons J on 6th December 2024, the High Court, of its own motion, raised the issue as to whether Pepper should have been joined as a co-plaintiff rather than substituted in place of KBC Bank Ireland plc. Simons J delivered an ex tempore judgment on that date, noting that the form of the order is that Pepper “has effectively stepped into the shoes of, or has been substituted for, the original plaintiff, KBC Bank Ireland plc”. Simons J was concerned that this was inappropriate in light of the decision of the Court of Appeal in Irish Bank Resolution Corporation Ltd v Halpin [2014] IECA 3, and his own judgment applying the rationale in Halpin to an appeal from the Circuit Court to the High Court in Permanent TSB v Morrissey [2021] IEHC 18. In Morrissey, Simons J held, applying Halpin to an appeal from the Circuit Court to the High Court, that it was not appropriate to substitute an alleged transferee in proceedings, but rather, they should be added as a co-plaintiff.

7. In light of the arguments advanced by counsel for Pepper in these proceedings, to the effect that there is a distinction to be drawn between appeals from the High Court to the Court of Appeal, on the one hand, and those from the Circuit Court to the High Court, on the other hand, and that accordingly, the rationale in Halpin did not apply to the latter, Simons J was of the view that it was at least arguable that the logic in Halpin applied to the Circuit Court appeal, as it does to the High Court appeal, while accepting that the legal position was not clearcut. While noting that he was bound by the decision in Halpin, he felt it was appropriate to exercise his discretion under s. 38 of the Courts of Justice Act 1936 to state a case to the Court of Appeal.

8. This is my judgment on the case stated.

Discussion

9. Order 17, rules 3 and 4 of the Rules of the Superior Courts provides as follows: “3. In case of an assignment, creation, or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved.

4. Where, by reason of death, or any other event occurring after the commencement of a cause or matter and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence.”

10. The order substituting Pepper as plaintiff in these proceedings was made pursuant to

O. 17, r. 4. Does Halpin apply to appeals from the Circuit Court?

11. The first issue to consider is whether the judgment of this Court in Halpin applies to Circuit appeals.

12. In Irish Bank Resolution Corporation Ltd v Halpin, the plaintiff (“IBRC”) obtained two judgments against the defendant. The defendant appealed. After the defendant appealed, the special liquidators of IBRC executed a Deed of Transfer in favour of Kenmare Property Finance Ltd (“Kenmare”) whereby it was contended that IBRC, as assignor, absolutely transferred to, transmitted to and assigned unto Kenmare, as assignee, the entirety of its interest in certain facilities, including the facilities the subject matter of the proceedings. Kenmare applied, pursuant to O. 17, r. 4 and O. 15, r. 14 of the Rules of the Superior Courts, to substitute Kenmare for IBRC. The application was opposed by the defendant.

13. Finlay Geoghegan J, with whom Birmingham and Irvine JJ agreed, held that it was not appropriate to substitute Kenmare in the appeal, and that instead, it should be added as a second plaintiff in the proceedings and as a respondent to the appeal, with the restriction that it may only advance any argument on the appeal capable of being advanced by IBRC. At para. 18 of her judgment, she noted that pursuant to O. 86A, r. 2(1)(a), the Court of Appeal has jurisdiction to make the orders sought, but that it must do so “in a manner consistent with its appellate function”. The judge referred to the judgments of O’Keefe v An Bord Pleanála [1993] 1 IR 39, and O’Cearbhaill v Bord Telecom Éireann [1993] ELR 253, and at para. 20, she held: “Even if the Court of Appeal has jurisdiction to substitute as distinct from add a party at the appeal stage, on the facts of this application, the Court considers it should exercise its discretion so as to refuse this application for substitution...”

It is thus clear that the court was not holding that the Court of Appeal had no jurisdiction to substitute a party, as distinct from adding an additional party at the appeal stage. On the contrary, the court was exercising its discretion to refuse the application for substitution, and instead, was adding Kenmare as an additional party. It was exercising its discretion expressly “on the facts of this application”.

14. Finlay Geoghegan J explained that the determination which must be made by this Court on appeal “is whether or not IBRC was entitled to judgment against Mr. Halpin on each of the respective dates on the basis of the evidence then before the High Court”. At para. 23, she stated: “[W]hat is sought to be upheld on the appeals are the High Court judgments of October 2012 and November 2013 in favour of IBRC as plaintiff in the proceedings. If it is sought to uphold those judgments then IBRC must remain a plaintiff in the proceedings. It is true that the judgments given by the High Court were expressly awarded in favour of the plaintiff. However, they were granted to IBRC as plaintiff by reason of it having established by factual evidence to the satisfaction of the High Court its entitlement to such judgment. If this Court were now to make the order of substitution as sought by Kenmare, its effect would be to replace Kenmare for IBRC as plaintiff in the proceedings and accordingly, permit Kenmare as plaintiff to be considered (subject to the outcome of the appeals) as entitled to have been granted judgment in its favour against Mr. Halpin in the High Court on the 4th October, 2012 and 7th November, 2013. Kenmare had no entitlement to be granted judgment in its favour on those dates and does not contend otherwise.” [Emphasis added]

15. At para. 24 of her judgment, Finlay Geoghegan J distinguished the situation from that in the cases of IBRC v Comer and IBRC v Morrissey as follows:

“. . . It was made clear in each judgment that the effect of the application and order for substitution was to take IBRC out of the proceedings and permit the applicant as plaintiff to pursue the proceedings for judgment against the defendant, leaving over to the trial judge the determination of the questions as to whether the new plaintiff by reason inter alia of the alleged assignment of rights to the facilities could at the relevant future date establish its entitlement to judgment against the defendants. The procedural substitution application did not determine the issue of the validity of the assignment from IBRC to the assignee/applicant (or the entitlement to rely upon the Deed of Assignment as redacted before the Court). These matters were left over for the trial judge.” [Emphasis added]

16. The Court made clear that it was perfectly permissible to substitute a claimed assignee of facilities and loans as plaintiff in existing proceedings, where the entitlement of the new plaintiff by reason, inter alia, of the alleged assignment of rights to the facilities would be established at a future date. The matters were left over for the trial judge.

17. At para. 26, she therefore concluded: “Contrary to that position in these appeals it is sought to uphold judgments already granted in favour of IBRC at a time when Kenmare had no right to obtain judgment. IBRC cannot be let out of the proceedings if as appears, it is sought to uphold the High Court judgments in its favour. Hence substitution must be refused.” [Emphasis added]

18. It was on the basis of these difficulties that the Court of Appeal refused the application to substitute Kenmare in place of IBRC.

19. The court also held that the same difficulties did not arise if Kenmare were joined as a second plaintiff and respondent to the appeals as “IBRC would remain a plaintiff and the only one in whose favour the High Court judgments were granted”. The judge emphasised that in making the order, the court was not determining the claimed entitlement of Kenmare to the judgments obtained by IBRC. At para. 28, she said: “. . . It is simply determining that [Kenmare] has put forward evidence on a prima facie basis that would entitle it to be joined as a co-plaintiff in the proceedings for the purpose of pursuing its claim either to the facilities which it contends have been transferred or to the judgments which it contends have been transferred or assigned.”

20. The key difficulty identified by the Court of Appeal was that the issue for determination on the appeal was whether, based on the evidence before the High Court at the relevant dates, the then plaintiff was entitled to judgment and that the assignee could not make this case, as the original plaintiff was the party in whose favour the judgments were entered and the assignee was not at that time entitled to judgment against the defendant.

21. Sections 37(2) and 38(2) of the Courts of Justice Act 1936 govern appeals from the Circuit Court to the High Court. In respect of each such appeal, they “shall be so heard by way of rehearing of the action or matter in which the judgment or order the subject of such appeal was given…”. This form of rehearing is usually referred to as a de novo hearing. In Fitzgibbon v Law Society [2014] IESC 48, Clarke J (as he then was) summarised the distinction between appeals heard de novo and appeals against error, such as appeals to the Court of Appeal and the Supreme Court. He stated: “6.1 The critical distinction between an appeal against error and either a de novo appeal or an appeal on the record is that the appellate body does have regard to the determination of the first instance body and must, in order for the appeal to be allowed, be satisfied that the first instance body was in some way in error. Clarke J addressed the nature of de novo appeals, using the example of Circuit appeals to the High Court, at paras. 4.3 and 4.4 of his judgment. In such appeals:

“. . . The High Court judge considers the case afresh on the basis of the evidence presented on the appeal and without attaching any weight to the decision made by the Circuit judge. However, what happened in the Circuit Court is not, in those circumstances, necessarily entirely irrelevant. The pleadings which were exchanged pre-trial in the Circuit Court may well have narrowed the issues between the parties so that, at least in the absence of leave to amend, the issues remain thus narrowed on any appeal. An appeal may not, by its terms, extend to the entirety of the decision made at first instance so that, in the example of an appeal from the Circuit Court to the High Court, the appeal may be brought only against the quantum of an award of damages made by a Circuit judge and not against that judge's finding on liability.

4.4 Second, and apart from such matters of form and process, evidence given in the first instance proceedings will not, necessarily, be entirely irrelevant to the process on appeal. It seems to me that the default position, in the absence of any specific rule to the contrary, must be that, in the case of a de novo appeal, it remains for the parties to again present to the appellate body whatever evidence or materials may be considered necessary for their case. Likewise, if, and to the extent that, the process may be inquisitorial, then, again in the absence of rules to the contrary, the inquisitorial process must start afresh before the appellate body”

22. An appeal from the Circuit Court to the High Court is different to an appeal from the High Court to the Court of Appeal or the Supreme Court. The hearing is de novo. The High Court considers the matters afresh and makes its decision based on the evidence adduced before the High Court. Evidence before the Circuit Court is not evidence before the High Court and cannot form the basis of the judgment of the High Court. It is not concerned with whether the Circuit Court erred in its decision. When the Circuit appeal is heard, the High Court must determine whether, at the time of the application before it, the party who seeks to be substituted as the plaintiff is entitled to judgment against the defendant: it is not concerned with whether the party who was plaintiff in the Circuit Court was entitled to judgment against the defendant. To that extent, it is an analogous stage in the proceedings as pertained in IBRC v Comer and IBRC v Morrissey i.e. pre-trial.

23. Counsel on behalf of Pepper submitted to this Court that: “The primary concern of the Court in Halpin was to avoid any suggestion that the Court of Appeal was determining that Kenmare was entitled to the judgments obtained by IBRC at the time before Kenmare took the assignment. Such a concern cannot arise in a Circuit Appeal since the Court is deciding whether the assignee is entitled to the judgment as of the date of the appeal itself.” I agree. The appeal will be heard by the High Court de novo. Pepper will have to prove its claimed entitlement to an order for possession, and to do so, it will have to prove, inter alia, that it is the assignee of the loans and the security. It must prove the case in full, not simply that it is the beneficiary of an order of the Circuit Court. If it succeeds, a new order for possession will be granted, and it is that order, rather than the order of the Circuit Court, which will be enforced (assuming it succeeds on the appeal).

24. For this reason, I also agree with the submission that it is neither necessary nor appropriate to join Pepper as a co-plaintiff in these proceedings, as it is simply not possible for both the alleged assignor and the alleged assignee both to be entitled to possession of the property (assuming the secured party succeeds on appeal). Therefore, the continued participation in the proceedings, even if in name only, of the alleged assignor is superfluous and unnecessary in appeals from the Circuit Court to the High Court. Appeals from the High Court to the Court of Appeal are appeals against error. These are different to de novo appeals.

Should this Court depart from the decision in IBRC v Halpin?

25. The case made by Pepper was that while there may be cases where joining an assignee as a party is required, rather than substituting the assignee in place of the alleged assignor, substitution will be the more appropriate choice in many, if not most, cases, and that the bar to substitution presented by the decision of this Court in Halpin should be revisited. It emphasised that it was not arguing that the substitution was the only way an assignee can be joined to the proceedings.

26. In Re Worldport Ireland Ltd [2005] IEHC 189, Clarke J (as he then was) identified three potential reasons which would justify a court of equal jurisdiction revisiting an otherwise binding precedent:

(a) Where the original decision was clearly not based upon a review of significant legal authority;

(b) Where there was a clear error in the judgment; and

(c) Where a sufficiently lengthy time had passed since the judgment, such that it could be said the jurisprudence of the court has advanced in the intervening period.

27. The judgment in Halpin was delivered on 10th December 2014, shortly after the Court of Appeal was established. It was also at the start of what proved an avalanche of litigation, involving sales of loan books by lending institutions to third party funds who were not licensed banks. A considerable body of jurisprudence has built up in the ten years since the judgment was delivered concerning many issues thrown up as a result of assignments of loans, underlying security and judgments at various stages in proceedings. There has been a rapid development in the jurisprudence around substitutions and leave to issue execution.

28. In addition, the court in Halpin does not appear to have been addressed on the law in relation to assignments and the relevance of this law to an application to substitute an assignee pending an appeal. Nor are the precise provisions of O. 17, rules 3 and 4, or O. 42, r.

24 of the Rules of the Superior Courts addressed. Collectively, these factors support the view that it is open to this Court, ten years later, to revisit the decision in Halpin.

29. This Court has had the benefit of extensive legal argument regarding the precise application or O. 17, r. 4, and in the light of ten years of experience of the courts since the

decision in Halpin, I respectfully disagree with the conclusions reached by that very strong court, and, applying the jurisprudence in Worldport, with the greatest of respect, depart from that decision.

30. In Dellway Investment Ltd v National Asset Management Agency [2011] IESC 14 (“Dellway”), Finnegan J concisely stated the long-established position regarding the transfer of a mortgage. He held: “On a transfer by a mortgagee the transferee steps into the shoes of the transferor and cannot stand in a better position than the transferor: Ashenhurst v James [1745] Atk. 270. The transferee is bound by such equities as would bind the transferor: Earl of Macclesfield v Fitton [1683] 1 Vern. 168.” Thus, an assignee of a mortgage (assuming it to be valid) steps into the shoes of the assignor. There is a complete identity of interests. The assignor’s interest in the mortgage ceases and the assignee is entitled to that interest in the mortgage. Equally, the assignee becomes entitled to the benefit of any judgment obtained in respect of the secured loan. The assignee cannot stand in a better position than the assignor. If it takes an assignment post judgment and pending appeal, it is bound by the evidence and arguments advanced in the High Court at the hearing of the appeal by the Court of Appeal save insofar as it is granted leave to adduce new evidence or to advance new arguments in accordance with well established jurisprudence.

31. Order 17, r. 3 applies, without any distinction, to cases of an assignment, creation or devolution of an estate or title. O. 17, r. 4 refers to a change or transmission of interest or liability arising whether by reason of death or any other event. As there is no distinction between the various circumstances which can give rise to applications made under O.17, r. 4, the interpretation of the rule must be equally applicable to all such applications. In other words, the rule must be interpreted in the same way, whether the application is grounded upon the death of a party or the assignment of an interest.

32. If a party dies, self-evidently, they cannot continue in the proceedings. The personal representative of the deceased (or an administrator pendente lite) will be substituted in the proceedings in place of the deceased party. The proceedings will continue in the name of the personal representative as the personal representative of the deceased party. They stand in the shoes of the deceased party. This applies, whether the party dies before judgment or postjudgment and pending an appeal, or pending execution. The personal representative is a necessary party within the meaning of O. 17, r. 4.

33. In Halpin, the key reason the court declined to substitute Kenmare for IBRC was because such an order would “permit Kenmare as plaintiff to be considered (subject to the outcome of the appeals) as entitled to have been granted judgment in its favour against Mr. Halpin” at a time when it had no entitlement to be granted judgment.

34. I disagree with the Court’s interpretation of the effect of an order of substitution of an assignee of a loan in respect of which judgment had been granted and which was the subject of a pending appeal and with its conclusion that it was necessary that the plaintiff in whose favour judgment was granted remain in the proceedings for the purpose of the appeal.

35. In the first place, as was re-stated in Dellway, the assignee stands in the shoes of the assignor, so at the hearing of the appeal, it will be seeking to uphold the judgments granted in favour of the assignor. It will not be contending that it was entitled to judgment in the High Court on the relevant date, but rather, that the High Court was correct to enter judgment in favour of the assignor when it did.

36. Secondly, if the objection be a valid one, it would apply equally in the circumstances of the death of a party. It is commonplace and acceptable to continue proceedings in the name of a personal representative, both after as well as before judgment, so I cannot see that the objection to an order for substitution identified by the Court could apply in the case of transmission of interest on death. That being so there can be no objection to substituting a party where the change in interest arises by reason of a transmission of interest. There has never been any suggestion that a personal representative would be added as a co-plaintiff (or co-defendant) in lieu of substitution with the deceased remaining as a party in the proceedings. Quite simply it is not possible. But neither is it necessary and if it is not necessary in the case of the death of a party I do not see why it becomes necessary in the case of an absolute assignment (assuming that such has occurred). The key point is that the interest remains unchanged, but the identity of the party upholding it, of necessity, has to change. I cannot agree with the conclusion of the court in Halpin to the effect that it was not possible to substitute a plaintiff pending appeal if the identity of the person seeking to uphold the judgment changed.

37. The analysis in Halpin seeks to address a potential difficulty which, in truth, does not arise i.e. that a substituted party would be arguing that it was entitled to judgment in the High Court at the time the court entered judgment and prior to the assignment of the interest grounding the judgment. The assignee steps into the shoes of the assignor and argues that the assignor, not it, as the holder of the chose in action at the time, was entitled to judgment in the lower court. The question of whether the assignee would thereafter be entitled to enforce that judgment (or any new judgment granted by the Court of Appeal) is not a matter for consideration in an application under O. 17, r. 4.

38. If the assignee succeeds on the appeal and thereafter seeks to enforce the order of the court, under O. 42, r. 24 the assignee will have to apply to the High Court for leave to issue execution. The rule provides that “[t]he Court may…order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried…” The question of the validity of the assignment can thus be considered by the High Court prior to any execution of the order. Thus the defendant, if he or she so wishes, will have an opportunity to contest the validity of the assignment before the assignee can recover against him or her. Any objection that an order substituting a plaintiff by reason of an absolute assignment of the chose in action post judgment and pending appeal would prejudice a defendant because the defendant would not have an opportunity to challenge the validity of the assignment is not well founded. The opportunity arises if and when the assignee seeks to execute any judgment entered in the proceedings.

39. The situation in this case, and indeed, in Halpin, can be distinguished from Ó Cearbhaill v Bord Telecom Éireann [1993] ELR 253, and O’Keefe v An Bord Pleanála [1993]

1 IR 39. In each of those cases, the parties who had appeared before the High Court remained parties in the appeal and their respective interests did not change but new parties, who sought to advance their own distinct points of view sought to be added as parties to appeals. There was no question of substitution.

40. In O’Keefe, the developer, Radio Tara, sought to be joined to the appeal in order to argue its specific interests which clearly differed to those of An Bord Pleanála or the planning authority. It was permitted to be added as a respondent on terms that it would not be allowed to introduce fresh evidence or to raise any fresh issue which was not raised in the High Court.

41. In Ó Cearbhaill, the Communication Workers Union sought to be joined to an appeal brought by 147 employees of the defendant. The action centred around an agreement entered into between the defendant and the union which affected the terms of employment of the plaintiffs, but to which the plaintiffs had never consented. The plaintiffs were successful at first instance, and the defendant appealed. Before the appeal was heard, the union applied to join the action with a view to arguing matters which went beyond those which had been presented in the High Court and which did not align with the plaintiffs’ case. Finlay CJ held that it would be unjust to the plaintiffs to permit a new party to join the appeal and to argue new grounds and that it would be inconsistent with the appellate jurisdiction of the Supreme Court that there should be any question of an issue which was not tried in the High Court being determined on the appeal.

42. The cases are clearly distinguishable from applications to substitute an assignee as plaintiff/respondent in lieu of an assignor who will no longer play any part in the proceedings. They do not require the court to add rather than substitute an assignee as a party to the proceedings and the Court in Halpin did not treat them as authority for any such principle. Furthermore, the conditions attached to the participation of Radio Tara in the appeal in O’Keefe are unnecessary in the case of an assignee. As an assignee, who stands in the shoes of the assignor, pursuant to the normal principles governing appeals, the assignee is confined, on appeal, to the evidence and argument advanced in the High Court unless the court orders otherwise.

43. It is also worth noting that in the ten years since the Court gave its decision in Halpin, while many assignors have remained party to the proceedings, in practice they never participate in the proceedings after the date of the assignment. In practice the assignee conducts the proceedings and, where judgment has been entered, upholds the decision of the High Court, with one legal team representing both the assignor and the assignee. The continued presence of the assignor in the proceedings is superfluous and potentially merely adds an unnecessary layer of costs.

44. The final point to consider is whether O. 17, r .4 permits the court to substitute a party in a cause or matter, as opposed to adding a party. The rule does not use the word ‘substitute’. The rule refers to a person not already a party being made a party. Notwithstanding this, there are numerous instances where both the High Court and the Court of Appeal have accepted that the court may order substitution under O. 17, r. 4, notwithstanding the fact that it is not expressly referred to in the rule. In Pepper Finance Corporation (Ireland) Ltd v Macken [2021] IECA 15, at para. 24 of his judgment, Murray J held: “The better view is, I think, that an application of the kind in issue here [substitution] is more appropriately treated as made pursuant to Order 17, rule 4. In Irish Bank Resolution Corporation v Lavelle [2015] IEHC 321, Baker J. accepted the submission that the purpose and effect of Order 15, rule 14 is to fix the time at which an application to add, strike out or substitute a party may be made and said that it is not an empowering provision. She further held that Order 17, rule 4 permits an application to be made to add or substitute a party who has taken a legal assignment of a loan book from the original plaintiff. On the basis that there had been a change or transmission of the interests of the plaintiff in loan facilities, she made an order in that case pursuant to Order 17, rule 4 instead of Order 15, rule 14. This conclusion was confirmed on appeal by the Court of Appeal in Stapleford Finance Ltd v Lavelle [2016] IECA 104.”

45. As noted by Murray J, in IBRC v Lavelle, Baker J considered an application to substitute as sole plaintiff, Stapleford Finance Ltd, in place of IBRC. The application had been brought in the alternative under O. 15, r. 14, and/or O. 17, r. 4. Baker J. set out her conclusions in relation to O. 15, r. 14. She continued by observing that while the court, of its own motion, could add a party as a co-plaintiff under O. 15, r. 13, under that rule, it could not make an order for substitution. She was focused on the distinction between adding or substituting a party and the correct construction of the rules of court where the word substitution (or a cognate thereof) was omitted. At para. 40 of her judgment, Baker J concluded that O. 17, r. 4 “as properly interpreted . . . permits application to be made to add or substitute a party who has taken a legal assignment of the relevant loan book from the original plaintiff” notwithstanding the fact that substitution is not expressly mentioned in the rule.

46. In IBRC v Comer [2014] IEHC 671, Kelly J (as he then was) granted an order of substitution and observed, albeit obiter, in reference to O. 17, r. 4, “[a]rguably, that rule could also be applicable in the current case, although it does not mention substitution”.

47. More recently, in Everyday Finance DAC v Bradley, Doyle and Byrne practising under the style and title of Malcomson Law [2024] IECA 54, Whelan J, giving judgment for the Court, at paras. 54 and 55, held: “54. Insofar as some grounds . . . and submissions on the part of Mr. Morrissey might be understood to impugn or contest the validity of the order made by the President substituting Everyday for AIB as plaintiff in the proceedings pursuant to O.17, r. 4 RSC to the intent that from the date of the making of the order on 12 May 2023 the within proceedings be carried out between Everyday as plaintiff in substitution for AIB, and that the latter should no longer be a party to the within proceedings, such grounds are wholly unmeritorious and unsustainable. ...

55. The President's analysis of the jurisprudence (para. 51 et seq.) in regard to the making of substitution orders pursuant to the rules was entirely correct. Having regard, inter alia, to the provisions of the Supreme Court of Judicature Act (Ireland) 1877 and in particular s. 28(6) thereof in light of the jurisprudence, including the

decision in Bank of Scotland plc v. McDermott [2019] IECA 142, AIB/Everyday met the relevant test for a substitution order pursuant to O.17(4) to the standard of the balance of probabilities.”

48. This is in keeping with an approach to the construction of the rules which is facilitative. As I pointed out in Stapleford Finance Limited v Lavelle [2016] IECA 104, this was the approach adopted in BUPA Ireland Ltd v Health Insurance Authority [2005] IEHC 291, Dome Telecom Ltd v Eircom Ltd [2008] 2 IR 726 and Abbey International Finance Ltd v Point Ireland Helicopters Lt. [2012] IEHC 374. In the latter case Kelly J. (as he then was) said “the rules of court are the servants of justice, not its master”. I pointed out at para. 20 of Stapleford that the legislative intent of the Supreme Court of Judicature Act (Ireland) 1877 is defeated if the rules of court do not provide for the substitution of the assignee of the chose in action as plaintiff in the proceedings commenced by the assignor. The legislative intent was to dispense with the unnecessary continuance of the assignor in proceedings in which it no longer had any interest. That is not achieved if an assignor is required to remain a party to proceedings where it has assigned its interest in the judgment and underlying loan (and security) post judgment but pending appeal and it is unnecessary to construe the rules in a manner which requires this outcome.

49. I am satisfied that the correct interpretation of the rule, notwithstanding the fact it does not mention substitution (or a cognate thereof) is that the court has power to make an order substituting a new party for an existing party and may do so where the application otherwise meets the requirements of the rule.

Conclusion

50. For these reasons I answer the case stated as follows. In general, in circumstances where there has been an assignment of interest in a registered charge, and the underlying debt subsequent to the making of an order for possession by the Circuit Court, but prior to the hearing of an appeal to the High Court, it is appropriate to substitute the transferee/assignee as plaintiff in lieu of the original plaintiff. I say in general because there will be cases where it will be appropriate to retain the assignor as a party to the proceedings, for example if there is a counterclaim against the original plaintiff, liability for which could not have been assigned. In such cases substitution will not be appropriate because the original party remains a necessary party and there is not an identity between the interests of the assignor and the assignee.

51. Applying the decision in Worldport, I would respectfully decline to follow the

decision of this Court in IBRC v Halpin. There was no requirement in Halpin that IBRC remain a plaintiff and there was no bar to substitution of Kenmare in place of IBRC merely because the assignment of the plaintiff’s interest occurred between the granting of the judgments under appeal and the hearing of an appeal. The continuance of the assignee in the proceedings is not required, save in the circumstances I have identified above, and usually substitution of the assignee rather than the addition of the assignee will be the appropriate order.

52. My provisional view is that there should be no order as to costs on the case stated and if either party wishes to contend for a different order as to costs, they should do so within 14 days of the delivery of this judgment in written submissions not exceeding 1500 words to be served on the other party and the office of the Court of Appeal. In the event that such a submission is made, the other party may have 14 days in which to respond in written submissions not exceeding 1500 words.

53. Whelan and Binchy JJ. have authorised me to indicate their agreement with this judgment.