Court refuses stay of possession order as appeal arguments are inadmissible and lack arguable basis.

THE COURT OF APPEAL

CIVIL

[approved]

[no redaction needed]

[2023 No. 5300]

[2025 No. 151]

Neutral Citation Number [2025] IECA 143

The President

BETWEEN

STAIRWAY PROPERTY COMPANY LTD

PLAINTIFF/RESPONDENT

AND

PATRICK HALPIN, ANN KEANE, ELEKTRON HOLDINGS LTD

(IN RECEIVERSHIP)

AND

MADISON MANOR LTD

DEFENDANTS/APPELLANTS

JUDGMENT of Ms Justice Costello delivered on the 11th day of July 2025

1. On 4th July 2025, the appellants applied for a stay on the order of the High Court perfected on 19th May 2025, declaring that Stairway Property Company Ltd (“Stairway”) is the legal owner of all that and those the lands, hereditaments and premises known as Aberdeen Lodge, 53/55 Park Avenue, Sandymount, in the City of Dublin (“the Property”) and an order that the defendants, their servants and/or agents and all other persons in occupation and having notice of the order shall peaceably yield up vacant possession of the Property to Stairway.

2. The appeal in these possession proceedings (“the Possession Proceedings”), together with an appeal in constitutional proceedings entitled Patrick Halpin, Ann Keane, Elektron Holdings Ltd v Everyday Finance DAC, Stairway Property Company Ltd, the Attorney General and Ireland [2023 No. 4748] (“the Constitutional Proceedings”) is listed for hearing on 13th November 2025. The question for resolution in this judgment is whether to grant a stay on the order for possession pending the resolution of the appeal from the judgment of the High Court in the two linked cases.

Principles

3. The principles applicable to the grant of a stay pending appeal are well established and not in dispute (see Redmond v Ireland [1992] 2 IR 362; CC v Minister for Justice [2016]

2 IR 680; Danske Bank v McFadden [2010] IEHC 119; Lobar Ltd v Gladney [2018] IECA 129; Krikke v Barranafaddock SE Ltd [2020] IESC 42; and Okunade v Minister for Justice [2012] 3 IR 152).

4. Certain principles are relevant to this judgment:

(i) The appellant must show that it has a stateable or arguable basis for the appeal.

(ii) The court should be astute to ensure that the appeal is bona fide and not tactical.

(iii) The grant of a stay on the order of the High Court is not a matter of routine.

(iv) Where there is a real risk of detriment on both sides, the court must consider whether there is a form of order which might minimise the risk to both parties.

(v) In some cases, there will be an unavoidable risk of injustice in the event that the order made on the stay application is different to the order made on the outcome of the appeal. In those circumstances, the court is required to consider whether the risk of least injustice lies in granting or refusing the stay sought.

5. It is well established that an applicant for a stay must satisfy the court that there is an arguable basis for the appeal. If there is none, that is the end of the matter as it would not be just to stay an order of the High Court where there is no arguable basis for the appeal (Lobar).

6. Further, the arguable ground relied upon must be one which is open to the appellant to advance on appeal. Not all arguments are available to an appellant. For example it is well established that an appellant may not simply advance a new case for the first time on appeal, which was never raised or argued before the High Court if it is contrary to and inconsistent with the position advanced at first instance.

7. In Lough Swilly Shellfish Growers Co-operative Society Ltd v Bradley & Ors [2013] 1 IR 227, O’Donnell J (as he then was), speaking for the Supreme Court, considered the principles governing the raising of new grounds for the first time on appeal. At para. 27 of the judgment, a passage which has been frequently cited since, he said: “There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as in K.D. [v M.C. [1985] IR 697] for example); or where a party seeks to make an argument which was actually abandoned in the High Court (as in Movie News[ v Galway County Council (Unreported) Supreme Court, 25th July 1977]); or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such cases, while a court might impose terms as to costs, the Court nevertheless retained the power in appropriate cases to permit the argument to be made.” (emphasis added).

8. The matter was further explored in Ambrose v Shevlin [2015] IESC 10, when Clarke J (as he then was) acknowledged that, as identified in Lough Swilly, there are two competing considerations with which the court must be concerned: the desirability that a person who is entitled to win a case should not be faced with the prospect of losing it because a valid and decisive point was not made at trial, and, on the other side, the “very real dangers in adopting a practise which is generous in permitting new grounds to be raised”. At paras. 4.13 and 4.14 of the judgment, he held: “4.13 In addition, there can be a very real risk of injustice to the opposing party if new grounds are permitted to be raised for the first time on appeal. Precisely how a case was run at trial may well have been influenced, in ways that may not be completely obvious, by the issues which seemed to be before the court. All litigation (or at least almost all litigation) involves some degree of tactical decision by the advisers of both parties. Such tactical decisions often involve weighing up the pros and cons of a particular course of action. Those decisions are taken on the basis of the case as it reasonably appears to stand at the time the decision is taken. The more easily a party can reinvent their case on appeal, the greater the risk that real prejudice will be caused. Sometimes a party will be readily able to point to such prejudice. For example, witnesses may not have been called precisely because an issue was not before the court. Areas of evidence or lines of cross examination may not have been pursued. Legal issues may not have been raised. Many other examples could be given. But it is, in my view, important for a court to keep in mind that the sort of prejudice of which I speak can be subtle and difficult to demonstrate but nonetheless real. To all of that needs to be added the real risk that, in many cases, the only way of avoiding a risk of prejudice will be to direct a retrial. Such a course of action inevitably delays the completion of the relevant litigation and exposes the parties to much greater cost.

4.14 For all of those reasons, there are significant countervailing factors which lean heavily against allowing a point to be raised for the first time on appeal. The reason why there is a spectrum of cases, as identified by O'Donnell J. in Lough Swilly, is because the balance between those two competing factors may give different results depending on the type of case concerned. Where, for example, there is ‘a new legal argument’ … ‘closely related to arguments already made in the High Court’ … ‘and which is not in any way dependent upon the evidence adduced’, then prejudice may be non-existent or slight, a retrial unnecessary, and the strength of the argument which concerns encouraging people to put their whole case before the court may be reduced. In such a circumstance, the justice of the case may permit an argument of the type identified to be raised for the first time on appeal because the interests of seeking to do justice on the facts of the individual case may outweigh the other weighty considerations which I have sought to identify. On the other hand, a case which would ‘necessarily involve new evidence’ will place much greater weight on the side of the equation which lies against permitting a new point to be raised for the first time on appeal. The risk of real prejudice will be significant. The prospects of a new trial difficult to avoid. The need to encourage a party to bring forward its full case at trial will carry more weight.” (emphasis added).

9. The issue was again considered by the Supreme Court in Ennis v Allied Irish Banks plc [2021] IESC 12. MacMenamin J, speaking for the court, considered the judgments in Lough Swilly and Ambrose, and at para. 18, he observed: “But although a grant of leave to argue new points, or raise new evidence, may arise in the interests of justice, it must be viewed from another perspective. Exceptions are not to be seen as a licence for lax procedure. There are serious competing considerations which will also concern a court when new arguments are sought to be raised on appeal. A person entitled to win a case should not be faced with the prospect of losing it because a valid and decisive point was not made at the trial at first instance. There are real dangers in allowing a practice which is over-lax in permitting new grounds to be raised on appeal. Parties must be required to make their full cases at trial. An over-generous approach to permitting new grounds to be raised on appeal for the first time could only encourage either sloppiness, imprecision, or lead to attempts to take tactical advantage.” (emphasis added).

10. It follows that where the alleged arguable basis for an appeal is based upon either a new argument or new evidence or both, the court must first assess whether the new argument is one which the appellant would be permitted to advance at the appeal, or whether the advancing of the new argument may involve, of necessity, the hearing of new evidence with all the implications that may have for the admissibility of both the evidence and the argument. Further, parties are required to make their full cases at trial. Where, as occurred in this case, the counsel who represented the appellants in the High Court are replaced by new senior and junior counsel, that cannot be a reason to permit new arguments to be advanced which were not raised at first instance. To be fair to the appellants, this was not their contention, nonetheless the court has to be astute to ensure that simply because new counsel have been briefed who see the case differently, not to permit new counsel to advance new arguments for the first time on appeal simply because the points either did not occur to the original team or they chose not to pursue them. The new arguments must be admissible in accordance with this established jurisprudence.

Background

Borrowings and Security

11. The proceedings have their origin in loans taken out in the 1990s and 2000s and which have not yet been repaid.

12. Elektron Holdings Limited (“Elektron”) acquired the Property in 1989. A boutique hotel is operated from the Property. Initially Elektron was solely owned by Mr Halpin and was then owned by Ms Keane from 2012 until August 2021 when the shares were transferred to Madison Manor Limited (“Madison”). It carries on the hotel business at the Property and is solely owned by Ms Keane. She is also its director and Mr Halpin is its company secretary.

13. Mr Halpin has occupied the Property since 1990, when he was married to his first wife and resided there with her and their children. Ms Keane has resided there with him since 1997. Their two children (ages 11 and 17) reside there also. Mr Halpin and Ms Keane were married shortly before the trial. It is not in dispute that the Property is the principal primary residence of the family (although it is denied that they are lawfully in occupation). It is not the family home of the couple within the meaning of the Family Home Protection Act 1976.

14. The initial letter of loan offer from Irish Nationwide Building Society (INBS) to Elektron (“the borrower”) was a commercial mortgage offer dated 30th September 1998 in the sum of IR£970,000. The security for the loan was a first legal mortgage over the “asset of the borrower”, the Property. Mr Patrick Halpin was to provide a guarantee in INBS’s standard form. The letter was accepted by Elektron through its directors, Mr Halpin and Ms Keane, and it was also accepted by Mr Halpin as guarantor. Both Elektron and Mr Halpin acknowledged “that they are not ‘consumers’ as defined in the Consumer Credit Act 1995 and that this is a Commercial Mortgage Offer and is not a ‘Housing Loan’ as defined in that act (sic).”

15. In all, Elektron granted INBS eleven mortgages executed between 9th October 1998 and 17th July 2009 as security for a variety of loans (together with the loans “the Mortgages”). For the purposes of this judgment, it suffices to consider the earliest and the latest of the mortgage deeds.

16. The indenture of 9th October 1998 is described as a commercial mortgage (with floating charge). It is between Elektron and the INBS. Elektron created a mortgage by conveying the fee simple to INBS subject to Elektron’s equity of redemption. Clause 8E provided that: “. . . all monies hereby secured shall become immediately payable or shall be deemed to become immediately payable as the case may be and the security shall become enforceable if the Society shall by Notice in writing make a demand on the Company for payment of the monies hereby secured, or, whether or not the Society shall by notice in writing make such a demand, on the happening of any of the events set out in the following sub-paragraphs of this sub-clause E:

(i) If the Company shall fail to repay any monies due to the Society on demand or on the date on which same ought to be paid . . .

(ii) If the Company should make default for seven days in the payment of any interest hereby secured.

(iii) If-

(a) any judgment be obtained against the Company and

(b) (save in the case of a judgment by the Supreme Court or a judgment in respect of which no stay of execution has been granted) the period of lodging a notice of appeal in respect of such judgement shall have elapsed without such a notice having been lodged and

(c) the judgement shall not have been satisfied within seven days. ...

(vi) If . . . a receiver shall be appointed over the whole or any part of the property, undertaking or assets of the Company.” (emphasis added).

17. Clause 18 of the mortgage is headed ‘Exclusion of Certain Conveyancing Act Provisions’ and provides, inter alia, that “Section 20 of the Conveyancing and Law of Property Act, 1881, shall not apply to this Debenture or any sale made hereunder.”

18. I shall consider the significance of these provisions later in this judgment. The mortgage was executed by Mr Halpin and Ms Keane as the directors of Elektron.

19. The most recent mortgage executed by Elektron was a commercial fixed mortgage dated 17th July 2009. A related company, Crossplan Investments Ltd (“Crossplan”), had very significant borrowings from INBS. Elektron agreed to guarantee the liabilities of Crossplan to INBS and it executed a guarantee in that regard, dated 17th July 2009. The mortgage was to secure Elektron’s guarantee. Clause 6 of this mortgage sets out similar provisions relating to events of default to those set out in the paragraphs above. Clause 16 also excluded the provisions of s. 20 of the Conveyancing Law and Property Act 1881, stating that it “shall not apply to this Mortgage or any sale made hereunder”.

20. The entire business of INBS was transferred to Irish Bank Resolution Corporation (“IBRC”), including the Mortgages. IBRC sent the letters of demand to both Elektron and Crossplan dated 15th February 2012. While the text was not cited in the judgment of the High Court, nor provided in documents furnished for the hearing of the motion for a stay, it is cited in the judgment of the High Court in earlier proceedings brought pursuant to s. 316(1) of the Companies Act 1963 (as amended) between the receiver (Mr Paul McCann) and Mr Halpin and Ms Keane. It reads as follows: “We hereby demand a payment forthwith of all amounts of principal, interest, costs and expenses outstanding under the Offer Letters, being an aggregate amount of € [amount inserted] as of the date of this letter. Payment can be effected by electronic transfer to [details inserted]. We reserve the right to make further and other demands upon Elektron Holdings Limited in respect of any indebtedness or liability (now or hereafter due and whether actual or contingent) not incorporated in this demand. In the event that payment is not received by close of business on 17th February 2012, we are entitled to and reserve the right to enforce any security given to us to secure the facilities made available under the Offer Letters, to take all such actions as are permitted under the said security (including, without limitation, the appointment of a receiver) and to take such steps, as we are lawfully entitled to, to recover all monies due by you to us. Nothing in this letter constitutes, or should be deemed to constitute, a waiver of any rights or remedies of Irish Bank Resolution Corporation Ltd under the Offer Letters or any security documents entered into or otherwise available as security for the facilities made available under the Offer Letters or otherwise.”(emphasis added).

21. The loans were not repaid and on 17 February IBRC appointed Mr Paul McCann receiver and manager over inter alia Elektron.

22. The Mortgages owned by INBS which had been transferred to IBRC were subsequently sold by the liquidators of IBRC as part of a tranche of loans sold to Kenmare Property Finance Limited (“Kenmare”). Kenmare sold the Mortgages to Pepper Finance (Ireland) DAC (“Pepper”) on 11th September 2020. Pepper then entered a global deed of transfer with Everyday Finance DAC (“Everyday”) on 19th May 2023, which included the transfer of the Mortgages. On 11th September 2023, Everyday conveyed the Property without vacant possession to Stairway, relying on the power of sale contained in s. 19 of the 1881 Act.

23. On 12th September 2023, Stairway’s solicitors wrote to Mr Halpin, Ms Keane, Madison and the occupants of the Property notifying them that Stairway had acquired the freehold interest in the Property and calling on them to immediately undertake to vacate the Property within 14 days. No response was received, and the Property was not vacated. Further letters were sent on 29th September 2023 and 5th October 2023, calling on them to vacate the Property. Mr Halpin, Ms Keane, their children, and Madison remained in occupation of the Property.

Prior Litigation

24. A receiver was appointed on 17th February 2012 by the then holder of the security, IBRC (“the Receiver”). The Receiver issued two sets of proceedings: proceedings seeking directions pursuant to s. 316 of the Companies Act 1963 to determine the right of Mr Halpin and Ms Keane to withhold possession of the Property (“the Section 316 Proceedings”) and a separate special summons seeking possession of the Property (“the Receiver Possession Proceedings”). The Receiver was successful in that Peart J granted an order of possession on 17th December 2013, which was upheld by the Supreme Court on 11th March 2016 (“the Receiver Possession Order”)

25. On 29th November 2012, Elektron issued proceedings against the Receiver, IBRC, and the State, seeking a declaration that the appointment of the Receiver was invalid, which proceedings were discontinued by Elektron on 19th December 2012.

26. Ms Keane and Elektron issued proceedings against the Receiver and Kenmare in July 2015, challenging the appointment of the Receiver (“the Dismissed Proceedings”). These proceedings were dismissed by the High Court on 27 July 2016 as a collateral attack on prior court orders, a decision which was upheld by the Court of Appeal in a judgment delivered on 9th May 2018.

27. On 14th October 2016, the Receiver issued proceedings for attachment and committal against Mr Halpin and Ms Keane, which proceedings were ultimately adjourned with liberty to re-enter. Everyday asserts that the reason for this was Mr Halpin’s ill-health. The appellants contend that the adjournment was due to ongoing payments being made by Mr Halpin and Ms Keane and that no further demand to gain possession was made by the Receiver. A formal deed of discharge of the Receiver issued on 16th February 2024.

28. Separately, Kenmare petitioned for an order of bankruptcy as against Mr Halpin. This petition was adjourned repeatedly. According to Everyday’s defence to the counterclaim in the Constitutional Proceedings, this was owing to Mr Halpin’s ill-health, and Covid, and the petition was ultimately struck out on 4th December 2023, after Everyday acquired the loans.

29. In addition, IBRC obtained judgment against Mr Halpin in the amounts of €20,000,000 and €6,338,369 on 4th October 2012 and 7th November 2013, respectively, on the basis of his guarantee of the debts of Crossplan. This was reduced by €2,404,866 owing to sales achieved by the Receiver.

30. In its defence, Everyday pleads that Mr Halpin issued personal insolvency proceedings in 2018, in which he initially claimed that he had an ownership interest of 0.01% in the Property, a claim that he later abandoned. In its defence, Stairway refers to the finding by McDonald J in the personal insolvency proceedings that “no case was made that Mr Halpin had any ownership interest in [the Property].”

31. A further set of proceedings which, broadly speaking, concerned the Property, was a District Court criminal process, which was commenced on foot of a complaint made by Mr Halpin that two IBRC employees had committed the offence of dishonesty contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The Supreme Court found these proceedings to be an abuse of process by Mr Halpin.

The Stay on the Order for Possession of the Property

32. By order dated 17th October 2013, the High Court (Peart J) granted a stay on the taking of possession in the Receiver Possession Proceedings until 1 February 2014, with liberty to apply to extend that stay based in large part on Mr Halpin’s ill health. By order dated 11th July 2014, the Supreme Court extended the stay on the execution of the Receiver Possession Order until the determination of that appeal. Following the dismissal of that appeal, the Supreme Court ordered on 8th April 2016 that the stay would continue to 6th May 2016. The appellants did not vacate the Property when the stay granted by the Supreme Court lapsed.

33. On 16th December 2016, an order by consent was made by the Court of Appeal in the Dismissed Proceedings that there be a stay on the Receiver Possession Order on condition that Elektron and Ms Keane would pay €3500 per month until the determination of the appeal (being €1725 as to interest and €1775 in respect of capital on the loans) pending the appeal then pending in those proceedings. Following the dismissal of the appeal in the Dismissed Proceedings, the Court of Appeal made an order on 6th June 2018, staying the Receiver Possession Order pending the determination of an application for leave to appeal to the Supreme Court and pending the determination of that appeal (if leave was granted). This was on condition that Ms Keane and Elektron pay to Kenmare and the Receiver the sum of €5,000 per month (being €3,275 in respect of capital and €1,725 in respect of interest) (“the Final Stay”). On 15th February 2019, the Supreme Court refused leave to appeal in the Dismissed Proceedings. The Final Stay expired on that date.

34. The appellants have not vacated the Property and continue to operate their hotel business from it and Mr Halpin and Ms Keane continue to reside in it with their two children.

Key Facts

35. For the purpose of these proceedings, the key facts which are not in dispute are that:

(a) Elektron was the holder of the legal title to the Property.

(b) Loans in the amount of €26 million were obtained by Elektron and Crossplan.

(c) A sum in excess of €31 million is now owed on foot of the loans. (d)The Property was provided as security for those loans.

(e) There is a lengthy history of default on the loans.

(f) The Receiver was appointed on 17th February 2012.

(g) The Receiver Possession Order was made by the High Court on 17th December 2013 and upheld by judgment of the Supreme Court of 11th March 2016.

(h) The Final Stay on the Receiver Possession Order expired on 15th February 2019.

(i) Mr Halpin, Ms Keane, their children, and Madison continue to occupy the Property.

(j) Monthly payments of different amounts (varying from €3,500 to €5,000 monthly) have been made to the different mortgagees for most of the period from December 2016 to September 2023 (other than a period during the Covid pandemic).

The Case pleaded in the Constitutional Proceedings

36. These proceedings were commenced by a plenary summons issued 2nd November 2023. However, they were preceded by a plenary summons issued by Mr Halpin, Ms Keane and Elektron against Everyday Finance DAC, Stairway, the Attorney General and Ireland, the Constitutional Proceedings, where the plaintiffs in those proceedings sought various reliefs, but in particular: “An order declaring the power of sale provided in the Conveyancing Act 1881 and in particular at ss. 19(1) and (21) thereof insofar as it relates to a ‘family home’ to be contrary to the Constitution of Ireland…, and in particular, repugnant to Articles 40.3.2, 40.5, 41.2, 42A and 43 thereof.”

37. They also sought a declaration that the Property is the “family home” of Mr Halpin and Ms Keane and their two children. The central contention in the Constitutional Proceedings is that a mortgage which purported to give a power of sale, absent a court order, to the mortgagee of the “family home” was unconstitutional and also incompatible with Articles 6, 8, 13 and Protocol 1 of the European Convention on Human Rights.

38. A statement of claim was delivered on 23rd November 2023 in the Constitutional Proceedings. It recorded that the appointment of the Receiver by IBRC had been upheld by the High Court and the Supreme Court. It referred to the “purported deed of conveyance dated 11 September 2023” whereby Everyday, as vendor, “purported to convey” the Property to Stairway. At para. 27, the plaintiffs plead that Everyday conveyed the Property, which they described as a family home, “without orders of this Court”. It is then pleaded that the sale was unlawful because Everyday failed to notify Mr Halpin and Ms Keane of the intended sale, offer the Property to them to purchase or to apply to court for an order for sale.

39. At paras. 29 to 31, it is pleaded that to the extent that Everyday and Stairway rely on powers contained in the 1881 Act, Mr Halpin and Ms Keane contend that any such power purporting to grant a security holder the power of sale of a family home is itself unlawful and repugnant to the Constitution; to the extent that they rely on any power of sale contained in the 1881 Act in executing the conveyance, “same are unlawful and contrary” to the provisions of the Constitution insofar as they apply to a family home. They make an identical argument insofar as Everyday or Stairway rely on any power of sale contained in the underlying mortgage documentation to effect the Deed of Conveyance insofar as they apply to a family home.

40. Various bases for these pleas are advanced at paras. a, b, c, d, e, and f, which it is not necessary to reproduce here. They do not include an argument that the notice issued on behalf of Everyday’s predecessor in title in February 2012, allegedly pursuant to s. 20 of the 1881 Act, is invalid, or to the definition of a housing loan in the Consumer Credit Act 1995, or to Part 10 of the Land and Conveyancing Law Reform Act 2009.

The Case pleaded by way of Defence in the Possession Proceedings

41. The Possession Proceedings were commenced by Stairway on 2nd November 2023. It pleaded in the statement of claim that by a Deed of Conveyance dated 11th September 2023, Everyday conveyed to Stairway the fee simple in the Property in consideration for the payment of €1,800,000. It pleads that on or about 15th February 2012, IBRC demanded repayment of the loans secured by the Mortgages, and that by Deed of Appointment dated 17th February 2012, IBRC appointed Paul McCann of Grant Thornton to be receiver and manager of the assets of Elektron and Crossplan on foot of the Mortgages, including the Property. Having pleaded the chain of title, as set out in the High Court, at para. 16, Stairway pleads that Everyday became the lawful mortgagee of the Property and its power of sale under the mortgage had arisen and was exercisable as of the date of conveyance of the Property by Everyday to Stairway on 11th September 2023, and that on or about that date, it became the lawful owner of the Property.

42. The defence largely consists of either traverses or putting Stairway on proof of its claim to be the owner of the Property. It is denied that the fee simple in the Property was conveyed to Everyday and it is denied that Everyday became the lawful mortgagee of the Property, or that the powers of sale under the Mortgages had arisen or that same were exercisable by Everyday. It is pleaded at para. 10, that even if the powers of sale were vested in Everyday (which is denied), the appellants deny that Everyday was “at liberty to affect

(sic) a conveyance of the property absent first obtaining an order of court in circumstances where the property is the dwelling of [Mr Halpin, Ms Keane and their two children], a fact which Everyday knew or ought to have known of.”

43. The appellants pleaded a counterclaim against Stairway and Everyday, alleging that if Everyday was entitled to sell the “material property”, it failed to act reasonably and it is expressly pleaded that “the sale occurred in a fashion that was in breach of Everyday’s duties to the defendants herein”. The defendants include Elektron and Madison Manor Ltd, in addition to Mr Halpin and Ms Keane. The duties allegedly owed by Everyday to the defendants, other than the mortgagor (Elektron), are not specified. Elektron alone claims relief against Everyday (not against Stairway) on foot of the counterclaim. It seeks an order setting aside the sale of the Property, and further, or in the alternative, damages, including for breach of duty and/or contract. No relief is sought by either Mr Halpin or Ms Keane against either Everyday or Stairway. The defence and counterclaim was delivered on 15th February 2024.

44. At para. 70 of her judgment, Cahill J records that prior to the hearing, no specific ground of challenge to the power of sale had been particularised in the defence to the Possession Proceedings or addressed in written submissions. She then refers to certain new points which were made in oral submissions on behalf of Mr Halpin, Ms Keane and Elektron, challenging “the adequacy of the proof of the transfers”. She observes that given the lack of any advance notification of the nature of these challenges, “I have a misgiving about the propriety of their being raised in this manner.” At para. 72, she said: “If the Halpin defendants intended to raise specific technical grounds of defence to the Possession Proceedings (as distinct from relying on the Constitutional Challenge), these challenges could and should have been pleaded or, at a minimum, should have been addressed in written submissions.” At para. 76, she took exception to the fact that it was only in closing replying submissions that a new technical point was raised by the Halpin defendants for the first time, concerning a power of attorney conferring authority on Mr Keogh to act on behalf of Everyday. She found the point to have been improperly and impermissibly raised with no prior notice to Stairway (though, in any event, she also found it to be entirely lacking in merit). It is thus apparent that in the High Court, despite misgivings, the appellants enjoyed considerable leeway to argue issues which had not been pleaded or otherwise flagged in advance to Stairway.

45. The application for the stay is brought in the Possession Proceedings, so while the two actions were tried together and one judgment was delivered by the High Court, it is important to be clear as to the arguments which are relevant to the appeal in the Possession Proceedings.

46. I have set out the pleadings in each case in considerable detail because a significant issue on this motion is whether it is open to the appellants to advance as arguable grounds of appeal new arguments which were not made to the High Court, whether the new arguments are inconsistent with the case run in the High Court, whether their resolution would require the admission of new evidence and the possible ordering of a retrial or whether new parties should be joined to the proceedings, specifically as defendants to the counterclaim in the Possession Proceedings.

The Appeal

47. The notice of appeal filed on 11th June 2025 sets out 22 grounds of appeal. Opening the application for a stay senior counsel for the appellants submitted that the appeal in essence raised three serious and substantial issues, each of which met the threshold of arguability. These were:

(a) Validity of the exercise of the power of sale. The High Court erred in law and fact in holding that the statutory power of sale under s. 19 of the 1881 Act was validly exercised. The demand and notice relied upon (the 2012 notice) was issued at a time when s. 19 and s. 20 of the 1881 Act had been repealed by the Land and Conveyancing Law Reform Act 2009. The subsequent enactment of the Land and Conveyancing Law Reform Act 2013 did not retrospectively validate the 2012 notice.

(b) Beneficial ownership not disclosed/former banker. The respondent’s case was pleaded and advanced on the basis that it was both the legal and beneficial owner, but it emerged only at trial that the beneficial interest was held by a third party, Mr Padraic Ryan, who was an employee of Pepper. The late disclosure of the true beneficial owner deprived the appellants of the opportunity to investigate and challenge the circumstances of the transaction, including potential regulatory and ethical issues, and undermined the fairness of the trial.

The appellants were denied a fair opportunity to meet the case against them due to the respondent’s failure to disclose material facts regarding beneficial ownership and the circumstances of the sale.

(c) Application of consumer protection legislation. The High Court erred in its interpretation of the Consumer Credit Act 1995 and the Land and Conveyancing Law Reform Act 2009, in particular as to the definition of “housing loan” and the applicability of statutory protections to the appellants.

Is it open to the Appellants to advance one or all of these Grounds of Appeal?

The validity of the exercise of the power of sale by Everyday

48. Stairway’s case is that Everyday sold the Property to it, as mortgagee, exercising the power of sale pursuant to s. 19 of the 1881 Act. Section 19(1) provides: “(1.) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers, to the like extent as if they had been in terms conferred by the mortgage deed, but not further (namely):

(i) A power, when the mortgage money has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to prior charges, or not, and either together or in lots, by public auction or by private contract, subject to such conditions respecting title, or evidence of title, or other matter, as he (the mortgagee) thinks fit, with power to vary any contract for sale, and to buy in at an auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss occasioned thereby…”

49. Section 20 sets out the criteria for the exercise of the power of sale conferred by s. 19 as follows: “A mortgagee shall not exercise the power of sale conferred by this Act unless and until—

(i) Notice requiring payment of the mortgage money has been served on the mortgagor or one of several mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for three months after such service; or

(ii) Some interest under the mortgage is in arrear and unpaid for two months after becoming due; or

(iii) There has been a breach of some provision contained in the mortgage deed or in this Act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon.”

50. The appellants’ argument is as follows. A precondition to the valid exercise of a power of sale pursuant to s. 19(1) of the 1881 Act is that the requirements set out in s. 20 have been met because s. 20 expressly provides that a mortgagee shall not exercise the power of sale conferred by this Act (i.e. the power under s. 19) unless and until one or other of the three options is satisfied. In this case, the notice relied upon by Stairway was the notice of demand sent by IBRC on 15 February 2012. It is common case that the Land and Conveyancing Law Reform Act 2009 repealed s. 20 of the 1881 Act. The argument is that as s. 20 was not part of the law of the land in February 2012, no notice could be served pursuant to s. 20, or indeed for the purposes of s. 20. The notice therefore could not lawfully have issued under s. 20 in 2012. While the Land and Conveyancing Law Reform Amendment Act 2013 restored the section to the statute books, it did not apply retrospectively. As there was no valid notice served in February 2012, the purported exercise of the power of sale under s. 19 in September 2023 was invalid as the power to do so had not become exercisable.

51. In my judgement, this argument is not an arguable ground of appeal because it is not open to the appellants to advance this argument, regardless of its merits or otherwise. It is absolutely clear that it was not raised in the High Court; it was not part of the pleadings, it was not part of the written submissions, and it was not part of the oral submissions. It is an entirely new argument raised for the first time on appeal and no reason was advanced why it could not have been argued before the High Court. It is not a variation or elaboration of any argument pleaded or advocated in the High Court.

52. If the appellants were permitted, at this stage in the proceedings, to introduce this new argument, it would operate gravely to prejudice the position of Stairway. Had the argument been pleaded well before trial, it would have been open to Stairway to rely upon later demands which were issued after the commencement of the 2013 Act, or to rely upon whether any interest under the mortgage was in arrears and unpaid for two months after becoming due, or whether there was a breach of some other provision in the mortgage besides a covenant for the payment of the mortgage money or interest. It is apparent from the history of the prior litigation that it would have been possible for Stairway to adduce evidence to meet this defence. In the event, it did not because it simply did not arise in the case as it ran in the High Court. If the appellants were now permitted to argue this new basis for challenging the efficacy of the 2012 notice of demand Stairway will face a grave disadvantage and probably injustice in having to meet this point. Undoubtedly new evidence would be required to address this new point and it is even possible in such a scenario that the issue could give rise to a retrial.

53. I am therefore satisfied that this argument falls on the end of the spectrum identified by O’Donnell J where the court on appeal will not permit the new argument to be advanced and new evidence to be adduced on appeal.

54. Furthermore, clause 18 of the 1998 mortgage and clause 16 of the 2009 mortgage each include an express stipulation that “section 20 of the Conveyancing and Law of Property Act 1881 shall not apply to this debenture/mortgage, or any sale made hereunder”. Had the argument been advanced in the High Court which is now sought to ground the appeal, it would have been open to Stairway to rely upon this provision and to have had the benefit of a High Court ruling in respect of this provision. It would appear to afford a complete answer to the point. It was never the intention of the parties that the mortgagee would rely on the provisions of s. 20 as the sole basis for it to issue valid notice of demand. On the contrary, it was their intention that the mortgagee would not rely on that provision while retaining the right to rely upon the power conferred on a mortgagee by s. 19. A demand issued in 2012 pursuant to the terms of the loans and the mortgage, not pursuant to s. 20. That being so, whether s. 20 was on the statute book when a demand issued in 2012 is neither here nor there. One is then only concerned with the situation in September 2023 and whether the power under s. 19 was exercisable. The repeal and subsequent restoration of s. 20 is irrelevant to this question. All that is relevant is whether at a date in the past the factual preconditions to the exercise of the power under s. 19 had occurred such that the power under that section had become exercisable. It has never been questioned that s. 19 was restored to the statute book by then and thus is part of the law of the state.

55. I am also satisfied that the challenge to the validity of the 2012 notice constitutes an impermissible collateral attack on prior judgments of the High Court, Court of Appeal and Supreme Court. Mr Halpin previously challenged the validity of the 2012 demand in the Section 316 Proceedings brought by the Receiver, and in the Receiver Possession Proceedings. The two applications were heard by Peart J in the High Court, who determined that the appointment of the Receiver was lawful. His judgment was upheld by the Supreme Court. Specifically, Laffoy J, with whom Dunne and Charleton JJ concurred, held that once the deadline for repayment of the loans was reached and the prerequisite was satisfied by non-receipt by IBRC of the payment demanded, “the power to enforce the security is exercisable”. It is important to note that this is not confined to the power to appoint a receiver: it includes any power to enforce the security for the defaulting loans which includes the power of sale.

56. In the appeal in the Dismissed Proceedings Finlay Geoghegan J, speaking for the Court of Appeal, observed that the proceedings included a challenge to the validity of the appointment of the Receiver and to the order for possession of the Property in his favour, and that this was “in substance a collateral attack on the order of the Supreme Court made [in the Receiver Possession Proceedings] which granted the Receiver possession of [the Property] with effect from 6th May, 2016.” At para. 26 of her judgment, she held: “The principle at issue in this appeal is the public interest in those who resort to litigation obtaining a final and conclusive determination of their disputes. When the Receiver instituted the s.316 motion for directions, and the possession proceedings in 2012, he was doing so for the purpose of the courts determining, inter alia, whether he was entitled to possession of [the Property].” She ultimately concluded that the High Court judge was correct to conclude that the claims now sought to be made by the plaintiffs in the Dismissed Proceedings were ones which could and should have been made in the earlier litigation and that the failure to do so means that the Dismissed Proceedings “which also amount to a collateral attack on the Supreme Court order of 8th May 2016” were an abuse of process and should be struck out.

57. The Supreme Court unambiguously held that the power to enforce the security in the Mortgages was exercisable from 4.00pm on 17th February 2012. The argument sought to be advanced on the appeal pending before this Court is clearly inconsistent with this finding and amounts, in my view, to an impermissible collateral attack on the order of the Supreme Court. This has previously been held by this Court (and indeed, the High Court) to be impermissible and to amount to an abuse of process. For this second, separate reason, I am of the view that it is not open to the appellant to argue this point in the pending appeal and therefore it cannot be considered by me as an arguable ground of appeal for the purposes of assessing whether or not to grant a stay on the order of the High Court.

Beneficial Ownership not Disclosed/Former Banker

58. The first relief Stairway sought in its plenary summons and statement of claim was a declaration that it was the legal and beneficial owner of the Property. At the opening of the case, it abandoned any claim to be the beneficial owner of the Property. It is accepted that Mr Padraic Ryan, a former employee of Pepper, is the beneficial owner of Stairway and of the Property. The appellants state that this failure to disclose the true beneficial owner of the Property “had a profound and prejudicial impact on their ability to prepare and present their case”; the result was “that the trial was unfair and procedurally defective” because the beneficial ownership was relevant because “it gives rise to a defence or counterclaim that could have been pleaded but was not, as the facts were not revealed by [Stairway] until midtrial”. The appellants say that the late disclosure of Mr Ryan’s beneficial ownership of the Property and of Stairway “rendered the pre-trial procedures, including discovery and the formulation of pleedings, effectively meaningless”.

59. As regards the defences/claims, which it would have been open to the appellants to advance had they been aware of the true situation, they point to the prohibition on employees or agents of banks using confidential information obtained in the course of the relationship between the bank and its customer for personal gain or to the detriment of the customer. They contend that the sale of the Property to Mr Ryan’s company [Stairway] “is entirely in breach of this fundamental duty and is unlawful”.

60. In oral submissions, senior counsel for the appellants did not identify specific defences or counterclaims which might have been open to the appellants to deploy had they, in advance of trial, been aware of the true situation regarding the ownership of the Property. He explained that his point under this heading was a process point. The written submissions outlined specific lines of enquiry and evidence the appellants would have pursued if the beneficial ownership had been disclosed at the outset.

61. It was accepted that further pursuit of these possible issues in these proceedings would involve joining Mr Ryan, and possibly, Pepper, as defendants to the counterclaim. It was also conceded that this would involve remitting the proceedings for rehearing to the High Court. This fact weighs very heavily against permitting the appellants to raise these arguments on appeal, as is clear from Lough Swilly, Ambrose and Ennis. The countervailing arguments must therefore be sufficiently strong to overcome this strong objection to permitting a party to make arguments for the first time on appeal on the basis of new evidence which will require a rehearing and the joinder of new parties.

62. In this regard it is especially important to consider why the new argument was not advanced at first instance, whether a reasonable explanation for the failure has been offered and whether it is bona fide and not tactical.

63. Key to this argument of the appellants is the role of Mr Ryan, with Pepper, as there can be no objection to Mr Ryan acquiring the beneficial ownership in the Property unless his prior history provides a reason to the contrary. To that end, the appellants requested Mr Denis O’Sullivan, a consultant licensed under the Private Security Services Act 2004, to make enquiries in relation to Mr Ryan. He swore an affidavit in support of this application for a stay on 24th June 2025, where he averred that Mr Ryan was employed by Pepper “from in and around 2016 to in or around 2020 as a senior case manager”. Elsewhere, it is suggested that Mr Ryan ceased to work with Pepper around the middle of 2020. While there is no evidence to that effect, it is asserted that Pepper serviced the loans held by Kenmare (presumably including the Mortgages at the heart of these proceedings). Kenmare was the owner of the Mortgages up until 11th September 2020. It is therefore possible, so the argument goes, that Mr Ryan became privy to confidential information regarding the Halpin connection loans and the Mortgages during the period when Pepper presumably serviced the loans for Kenmare. On the information available at the hearing of the motion it appears that Mr Ryan ceased to be an employee of Pepper before it became the owner of the Mortgages in September 2020.

64. There is thus a gap of approximately three years between when Mr Ryan ceased to be an employee of Pepper and when Stairway purchased the Property from Everyday on 11th September 2023 when it is not alleged that he was privy to confidential information concerning the Mortgages or Mr Halpin’s dealings with Pepper.

65. It is also to be noted that in May 2023, Pepper sold a tranche of loans to Everday when it entered into a Global Deed of Transfer with Everyday , which included the Mortgages. In the circumstances, it is difficult to infer that the sale by Global Deed of Transfer of 19th May 2023 was entered into for the purpose of interposing Everyday between Pepper and Mr Ryan, as was asserted by Mr Halpin in his affidavits in support of the application for a stay.

66. This second ground of appeal ultimately is predicated on the factual premise that Mr Ryan’s beneficial interest in Stairway/the Property came to light as a “revelation” to the appellants during the trial.

67. It presupposes that the beneficial ownership/involvement of Mr Ryan was unknown to the appellants prior to the commencement of trial . However, at para. 373 of her judgment, Cahill J notes that the appellants’ counsel stated in opening submissions that: “You are going to hear from Mr Padraic Ryan, he’s the beneficial owner of Stairway Property Company. He is going to give evidence on behalf of Stairway and he owns 100% - his interest is down as 100% of the interest in that property.” (day 1, page 147). Furthermore, the Register of Beneficial Interests in respect of Stairway records Mr Ryan’s ownership of that company and this document was served on the appellants’ solicitors as one of the business documents Stairway sought to have admitted into evidence three weeks ahead of the trial. This certainly showed that Mr Ryan was the beneficial owner of Stairway. However, and most fundamentally, in direct examination on day two of the trial, Mr Halpin gave the following evidence: “Q. Okay, in relation to other matters that arise then in these proceedings, and I’ll just refer to your notes and I’m going to look at my notes, and hopefully we can advance matters. Contact with Stairway, explain to us what contact you’ve had and who you’ve had contact with Stairway, and when it began?

A. The first indication we had that Stairway even existed or had any interest in anything to do with our lives was when we received these emails . . .

Q. When was this? What year was this?

A. This was last year.

Q. Yes, just I know my Friends have said –

A. This was some days after we received these emails from Stairway.

Q. But before we get to that, I know my Friends have given me leave to refer to your notes, did you receive a phone call from Mr Padraic Ryan on 28th February?

A. Oh, yes.

Q. What was that?

A. That was going back.

Q. 2022?

A. Yes. I remember distinctly that.

Q. What was that?

A. I picked up the phone one day . . . [a]nd he said, ‘I’m Padraic Ryan’. I said – I thought he was talking, maybe, about a booking. And he said ‘oh, I’m aware of your situation’ – I forget the words exactly, but ‘I’m aware of your situation’. I said, ‘who are you?’ And he said ‘well, I’m interested in your property’. I was shocked somebody would just pick the phone up and call me, you know. I said ‘how do you know anything about it?’ and he said ‘well, I know it from Pepper, I know about the receivers’ and he referred to that he had information about our file and a lot of detail about this . . .

Q. Sorry, Mr Halpin, it’s just a little vague. Was he asking you to sell the property to him?

A. No, he was indicating – yes, that he was buying the property. He was dealing with it. He had this information that he had.

Q. Did he say how he got that information?

A. He said he got it through Pepper and he talked about the receivers. And then he had knowledge of this, he knew what was going on. And I said ‘I mean, how do you know anything about us?’ and I think he mentioned, as well, he knew something about my medical situation, which kind of . . . . so, eventually, I think I ended up putting the phone down. And about a month later, approximately a month later, I recorded that conversation on this particular day. A month later, I didn’t record it, but I got the same call, but I just quit the call very quickly. I said, no, I’m not taking a call like this. So, that’s the first indication I had. So, I wrote his name down on the top of the diary. I didn’t, – you know, we thought about it, we spoke about it, we were concerned about it, but it didn’t resurface again, his name, until –

Q. That’s in February 2022. When did it resurface again?

A. It resurfaced again when we did some investigation and found out that the people behind Stairway were not the people fronting it –

Q. Well, okay, but –

A. Yes, there were other people behind it and we really didn’t even really know who is behind it. But, anyway, I’d just say that there were other people behind it. And the name Padraic Ryan, shows up and we thought –

Q. Well, Mr Ryan is down as going to give evidence. He’s the beneficial owner. He’s accepted he’s the beneficial owner. ...

Q. Had you made attempts beforehand, I think we have probably covered this, but your attempts to resolve it, you had been in touch through the various different parties, is there anything else you want to add in relation to that?

A. No. Our accountant, Tom McGuinness, he had spent months and months writing back and forward. They had gone up the line to the more senior person in Pepper. There had been months and months of discussion. But Pepper were constantly not coming back to us. We were writing, I mean, I called the accountant and said, listen, can you write to them again? There have been reams of paper sent in over the years, and indeed, in that particular period, and nobody came back to us. We were left sit there and then suddenly – I mean, what was going on really, what was going on? In my mind, now, what was going on, that everybody knew inside that Stairway, Padraic Ryan, through his contacts in there, was buying the property and we were being excluded, being thrown out of our family home, where was the fairness there?”

68. On his own evidence, Mr Halpin had been approached by Mr Ryan to purchase the Property in February 2022, Mr Ryan had obtained information regarding his “situation” and his medical situation from Pepper, and Mr Ryan’s name “resurfaced” when he did some investigation into the people behind Stairway at an unspecified date. He concluded this part of his evidence by stating that “everybody knew inside that Stairway, Padraic Ryan, through his contacts in there, was buying the property”.

69. In light of that evidence, the express disclosure of the beneficial interest of Mr Ryan in Stairway and the opening submission of the appellants’ counsel to the High Court, it is clear that the appellants had more than sufficient information to enable them to pursue any lines of enquiry regarding the involvement of Mr Ryan in the purchase of the Property, through Stairway, had they believed that this was likely to afford them a defence to the claim by Stairway, or any counterclaim against Mr Ryan, or indeed, Pepper. According to Mr Halpin, he was aware, as early as February 2022, that Mr Padraic Ryan had access to what his current counsel describes as confidential banking information, and indeed, possibly confidential medical information. He was clearly aware of the link between Mr Ryan and Stairway before the sale of the Property to Stairway in September 2023, never mind before the institution of these proceedings, the delivery of his defence and counterclaim and the trial in the High Court. Thus, the premise of the argument that the appellants were not afforded a fair trial is fundamentally contradicted by Mr Halpin’s direct evidence and the opening submissions of his then counsel.

70. I am not satisfied therefore that the appellants have displaced the heavy weight against permitting them to introduce a new line of defence and counterclaim which will require joining at least one if not two new parties to the proceedings, an extensive rehearing of the case, add considerably to costs of the litigation and which undoubtedly flies in the face of the requirement that parties bring forth their full case at trial. The trial, as has been said elsewhere, is not a dress rehearsal. For this reason I do not accept that it is open to the appellants to rely on this argument as establishing a bona fide arguable ground of appeal and thus the basis for staying the order under appeal.

71. Furthermore, at no stage did the appellants ask the trial judge to adjourn the case in light of the “disclosure” of the beneficial ownership of Stairway. On the contrary, counsel relied upon this very fact to defend the claim for possession. But the arguments were different to the one now sought to be advanced and do not support the contention that the appellants were not afforded fair procedures because of some improper conduct of the litigation by Stairway.

72. The first argument put forward in the High Court was to the effect that Mr Ryan’s beneficial ownership of the Property demonstrated that Stairway had come to court with unclean hands when it applied for short service of a notice of motion. On this basis, it was contended that this afforded a defence to the application for possession. It was further argued that if Stairway was not the beneficial owner, it lacked standing to seek an order for possession. It was contended that the appellants had been deprived of the opportunity to join Mr Ryan personally to the proceedings, though to what end was never explained.

73. In the High Court, the appellants argued that the sale by Everyday was at an undervalue, and it was in this context that the appellants contended that the Property ought not to have been sold to Stairway (Mr Ryan’s company) because of Mr Ryan’s prior involvement in Mr Halpin and Elektron’s affairs as a former employee of Pepper. While the trial judge did not accept Mr Halpin’s evidence on this point, at para. 438, she held:

“Even if Mr Ryan was a former employee of Pepper (a point on which I cannot and do not make any findings), this does not demonstrate that Everyday did not obtain the best price reasonably obtainable. It also provides no answer to the value which Mr Halpin himself ascribed to the property. For completeness, I note that Mr Keogh [the witness giving evidence on behalf of Everyday] stated under cross-examination that neither he nor anybody else to his knowledge knew anyone in Stairway (day 4, page 12) and this was not challenged or contradicted.”

74. The case was not made in the High Court that the purchase of the Property by Mr Ryan, through his company, Stairway, amounted to a breach of confidence owed by Pepper to Elektron and Mr Halpin (and, presumably, Ms Keane).

75. Thus the appellants actually advanced a variety of arguments based on the beneficial interest of Mr Ryan, none of which found favour with the trial judge and none of which were based upon the contention that it was wrongful and impermissible for Mr Ryan to purchase the Property at all because three years earlier he was an employee of the agent servicing the Mortgages for the then owner of the Mortgages.

76. Despite this the appellants now say that the late disclosure of these facts at trial rendered the pre-trial procedures, including discovery and the formulation of pleadings, “effectively meaningless”.

77. It also has to be borne in mind that a considerable amount of what might be considered confidential information regarding the appellants’ banking affairs was in the public domain in September 2023, when Stairway purchased the Property. There are nine judgments of the superior courts, setting out in considerable detail the history of the dealings between the parties. Judgments entered against Mr Halpin, Elektron and Crossplan have been published for years, the details of Mr Halpin’s ill-health were, to some extent, already in the public domain as they had been relied upon by him in open court as a basis for obtaining stays on orders for possession and for adjournments of the attachment and committal proceedings and the bankruptcy proceedings against him. Mr Halpin himself gave interviews in 2019, in the context of the attempt by the Receiver to repossess the Property, where he was quoted as stating that, notwithstanding the expiration of the stay on the order for possession granted by the Supreme Court, that “we are standing our ground”. He himself referred to his health issues in those interviews. The repayments which the appellants were required to make as a condition of the stay extended by the Court of Appeal is also in the public domain. The fact that the appellants had refused to comply with the order for possession since 2019 was also in the public domain, given the Receiver’s contempt of court proceedings.

78. In those circumstances, counsel was asked to identify confidential information, which was not in the public domain, to which Mr Ryan would have access, and upon which, on the appellants’ case, it was improper for him to rely (assuming for the purpose of the argument that this was so), but counsel could not do so, even in a generic way.

79. In my judgement, the case which the appellants now seek to advance is based upon a demonstrably false factual premise: that the appellants were misled or were completely unaware of Mr Padraic Ryan’s involvement in Stairway, and in particular, his beneficial ownership of Stairway and the Property until the trial had started in the High Court. On their own case, they had ample information on which to make enquiries, if they had seen fit. In those circumstances an allegation of want of fairness is untenable.

80. Furthermore, they have been unable to identify, even in a generic sense, information which they allege Mr Ryan may have obtained in the period 2016 to 2020, when he was an employee of Pepper (the then service agent of the owner of the Mortgages, Kenmare) which was not in the public domain (and, accordingly, no longer confidential), the use of which by him could potentially be improper .

81. The vendor of the Property was Everyday, and it is common case that Everyday was never the employer of Mr Ryan, and the evidence of Mr Keogh (who gave evidence for Everyday) was that nobody in Everyday knew anyone in Stairway. The High Court concluded that the Property was not sold at an undervalue, and there was no evidence to the effect that Pepper agreed to sell the Property to Mr Ryan and that Everyday was simply interposed in the transaction in order to distance Pepper from the sale to Mr Ryan’s corporate vehicle.

82. There was a failure to identify any conflict of interest for Mr Ryan such that he was debarred from purchasing the Property in September 2023, when his employment with Pepper ceased in mid-September 2020, given that so much information was in the public domain and, of necessity, matters must have altered in the interval between his departure from Pepper and the purchase of the Property by Stairway.

83. In the circumstances I am not satisfied that this argument is advanced bona fide by the appellants. In my judgement it is a tactical ground of appeal advanced by counsel who were not in the proceedings at trial and who, unable to find genuine substantial grounds of appeal based on the judgment of the High Court and the hearing in the High Court, are introducing issues, evidence, arguments and even parties to the proceedings in an effort to conjure up an appeal. I am reinforced in this conclusion by the singular failure to offer any explanation why, in light of Mr Halpin’s evidence of his direct knowledge of Mr Ryan’s interest in purchasing the Property and his knowledge of Mr Halpin’s banking affairs as long ago as February 2022 and counsel’s opening statement to the High Court, this defence (if any) based upon these known facts was not investigated and pleaded and argued at trial.

84. For all of these reasons, I am satisfied that this new argument falls at the far end of the spectrum and is one which it is not open to the appellants to raise for the first time on appeal.

85. As, in my judgement, it is impermissible for the appellants to argue this ground of appeal, it follows that it cannot form the basis of a contention that it satisfies the requirement that the appellants demonstrated an arguable ground of appeal for the purposes of obtaining a stay on the order of the High Court pending appeal.

Application of Consumer Protection Legislation: Was there a Housing Loan?

86. The appellants’ argument in this regard is summarised at para. 58 of their written submissions as follows: “(i) That the definition of ‘housing loan’ [in the Consumer Credit Act 1995, s. 2(1) (as amended)] captures the loans at issue here;

(ii) the terms ‘person’ when used in legislation imports a body corporate … as well as an individual, s. 18(d) of the Interpretation Act 2005 applying; (iii ) The relevant definition the singular ought to be read to import the plural, s.

18 of the Interpretation Act;

(iv) Patrick Halpin is the principal obligor of the loans and is therefore primarily responsible for the debt;

(v) The loan/s are secured on the principal private residence of Pat Halpin and his dependents;

(vi) Pat Halpin used his company Elektron as the recipient of the funds advanced, and did so by using his principal private residence as security, while he himself was principally responsible to the lender for performance of the terms of the loan, and the definition of Housing Loan must be interpreted in that context;

(vii) Taking the definition of ‘housing loan’ being ‘an agreement for the provision of credit to a person on the security of a mortgage of a freehold or leasehold estate or interest in land on which a house is constructed where the house is to be used, or to continue to be used, as the principal residence of the person or the person’s dependents’ and to take in the combined facts that money was advanced to a company owned by a person where that person was ‘principal obligor’ of the debts and where that said loan is secured on that persons (sic) principal private residence and having regard to the Interpretation Act, the loans in question were ‘housing loans’.

(viii) The purpose of the protections afforded to those entering into housing loans, whereby agreements are entered into using a person’s private residence as security.

10. If the above is correct, the loan is a housing loan and the mortgage is a housing loan mortgage subject to s. 100 of the 2009 Act, and the requirements specified thereby and thereunder [including court supervision], which Everyday and/or Stairway failed to comply with.”

87. This argument is based upon the definition of housing loan in the Consumer Credit Act 1995, which, in the relevant part provides that a housing loan means: “(c) an agreement for the provision of credit to a person on the security of a mortgage of a freehold or leasehold estate or interest in land on which a house is constructed where the house is to be used, or to continue to be used, as the principal residence of the person or the person’s dependents.”

88. The argument is that for the purposes of this definition, Mr Halpin is the person and the Property is the principal residence of Mr Halpin and his dependents. The agreement which the appellants contend is an agreement for the provision of credit to Mr Halpin, and thus which comes within the statutory definition of a housing loan, is a continuing guarantee between INBS and Mr Halpin. This agreement was not exhibited by the appellants in either of Mr Halpin’s affidavits grounding the application for a stay, it was not introduced into evidence in the High Court and the guarantee was handed into court during the hearing of the motion.

89. The argument therefore is predicated upon the appellants being permitted to introduce new evidence. Crucial to any such application is the complete absence of an explanation why the evidence was not led and the argument advanced in the High Court. It is thus highly doubtful whether the appellants in fact would be permitted to adduce this new evidence in the appeal.

90. Notwithstanding that observation, it is appropriate to consider the argument and to determine whether it is a new argument and whether the appellants could be permitted to advance it on appeal (assuming, for the sake of the argument, that the guarantee does form part of the evidence in the appeal).

91. The guarantee is described as a “continuing guarantee”. It is: “To: Irish Nationwide Building Society (the Society) In consideration of the Society giving credit banking facilities or other accommodation to Crossplan Investments Ltd . . . Now, Patrick Halpin of [the Property] (“the Guarantor”) which expression shall include the successes and assigns of the Guarantor, as principal obligor and not merely as surety hereby irrevocably and unconditionally guarantees payment to the Society on demand of all present or future or actual or contingent liabilities of the Debtor to the Society . . . and interest thereon from the date of demand by the Society on the Guarantor.”

92. The appellants argue that Mr Halpin is liable as a principal obligor, and not merely as surety for the debts of Crossplan. Therefore, the argument goes, this is an agreement for the provision of credit to Mr Halpin, not Crossplan or Elektron. As was stated in oral submissions by senior counsel, “the concept of principal obligor puts him [Mr Halpin] in a first ranking position over the borrower.” It was accepted that the person to whom credit is provided and the person whose principal residence the Property is said to be, are and must be one and the same.

93. It was accepted in submissions that this was a new argument which had not been pleaded or advanced in the High Court in the Possession Proceedings.

94. In the Constitutional Proceedings, an argument concerning whether the loans could be housing loans, within the meaning of the 1995 Act, was raised orally, and it is discussed at paras. 249 to 266 of the High Court judgment. The trial judge notes that the appellants rely on the introduction of s. 100(2) of the 2009 Act , in the case of “housing loan mortgages”, to the effect that power of sale shall not become exercisable without a court order unless the mortgagor consents in writing to such a sale. At para. 250 of her judgment, Cahill J finds that s. 96(1)(a) of the 2009 Act only applies to mortgages created by deed after the commencement of Part 10, Chapter 3 of the Act (i.e. 1st December 2009). At para. 261, she records the submission of the appellants that “the Loans would have been within the category of ‘housing loan’ if they were entered post-2009” (emphasis added) and she rejects the argument as being untenable. At para. 260, she holds that it is not necessary to determine the meaning of “consumer” and the definition of “housing loan” “because it is manifest and not disputed that the Loans here cannot be within the scope of the Act of 2009 (having been entered between 1998 and 2009”. (emphasis added).

95. The appellants now wish to argue to the contrary. They wish to argue that the 2009 Act can apply to mortgages entered into prior to 1st December 2009, where those mortgages come within the definition of a “housing loan”. This is the exact opposite of their submissions to the High Court and is therefore clearly impermissible, as was set out expressly by the judgment of O’Donnell J in Lough Swilly. It amounts to an impermissible volte face. It follows that the appellants may not raise this argument in the appeal.

96. In addition, if the appellants were permitted to advance this argument on appeal, it necessarily will require the hearing of further oral evidence. The guarantee upon which it is based is not proved in evidence. The letter of loan offer of 30th September 1998 from INBS to Elektron, which was expressly accepted by Mr Halpin, both as a director of Elektron and as guarantor of the borrowings to be advanced, provides: “The Borrower [Elektron] and Guarantor [Mr Halpin] acknowledge that they are not ‘Consumers’ as defined in the Consumer Credit Act 1995 and that this Commercial Mortgage Offer is not a ‘Housing Loan’ as defined in that act.”

97. In my judgement the argument is a radically new argument, which is inconsistent with the position adopted at trial. For it to be advanced, additional evidence must be adduced by both Mr Halpin, and possibly, Stairway, and it is highly probable that cross-examination would be required. It would also be necessary to establish a link between the guarantee of liabilities of Crossplan to a mortgage executed by Elektron and how all of this amounts to an agreement for the provision of credit to Mr Halpin on the security of a mortgage granted by Elektron of the Property. In my judgement, this is impermissible under the authorities, commencing with Lough Swilly and through Ambrose and Ennis v AIB.

98. It follows that this third arguable ground of appeal is not available to the appellants either.

Conclusion

99. I have refrained from considering the merits of the arguments sought to be advanced because if the arguments themselves are inadmissible, this is a fruitless exercise. I have concluded that all of the arguments upon which the appellants relied as a basis for staying the order of the High Court are in fact not admissible on appeal. It follows that the appellants have failed to establish any arguable grounds of appeal. That being so, the matter ends there: the stay must be refused.

100. It is not necessary for me to consider whether the application for a stay was not brought bona fide, but was solely tacticalas argued by Stairwayor where the balance of justice lies in all the circumstances.

101. For these reasons, I refuse the stay sought.