Court of Appeal dismisses appeal allowing possession as automatic right upon default without valid defence.

COURT OF APPEAL

CIVIL

[approved]

[no redaction needed]

[2015 No. 83SP]

[2025 No. 38]

The President Neutral Citation Number [2025] IECA 222

Whelan J. Allen J.

BETWEEN

PERMANENT TSB PLC FORMERLY IRISH LIFE AND PERMANENT PLC AND

START MORTGAGES DESIGNATED ACTIVITY COMPANY AND MARS CAPITAL

FINANCE IRELAND DESIGNATED ACTIVITY COMPANY

PLAINTIFFS/APPELLANTS

AND

BRIAN DONOHOE

DEFENDANT/RESPONDENT

JUDGMENT of Ms Justice Costello delivered on the 10th day of November, 2025

Introduction

1. This is an appeal from an order of the High Court made on an application brought by the appellants by special summons for an order for possession of two properties referring certain issues to plenary hearing. The respondent has cross-appealed and contends that he should be entitled to defend the application on grounds additional to those specified in the order of the High Court.

Background

2. On foot of a loan approval which was accepted on 30th April 2007, the first appellant (“the Bank”) advanced to the respondent a loan in the sum of €543,450. The loan was secured by way of a mortgage dated 8th May 2007 in favour of the Bank over two properties: 301A Tirellan Heights, Headford Road, Galway, Folio GY16988F and 27 Grange View Drive, Clondalkin, Dublin 22, Folio DN138512F (“the properties” or the “Galway property” or “the Clondalkin property” as appropriate). The mortgage was registered as a charge on the two folios on 5th June 2008. The loan was for a period of 25 years and for the first two years the repayments were fixed rate interest only. This period expired in May 2009. There is an issue between the parties as to the applicable interest rate thereafter, or indeed whether any interest rate applied, which I will consider later in this judgment. The respondent continued to repay interest on the loan until July 2010 when he ceased making repayments. It is accepted that he has made no repayments since that date.

3. The mortgages, in the ordinary way, provided that in default of repayment of the mortgage monies when due, the Bank would be entitled to possession to realise its security. In the High Court, the Bank sought to make the case that it issued a demand for payment on 7th January 2014, but it failed to prove that the letter was sent. Accordingly – for the purposes of the appeal – the appellants are no longer relying upon this letter in the proceedings as establishing that the mortgage monies were due.

4. The Bank issued a special summons in April 2015, seeking possession on the basis of the respondent’s default which the appellants say grounds the right to possession in respect of the two charged properties. The Bank says that it sold the loan and the security to the second named appellant (“Start Mortgages”) on 1st February 2019. Start Mortgages was registered as owner of the charges on the folios on 27th March 2019. On 1st November 2019, the Court of Appeal made an order adding Start Mortgages as co-plaintiff in the proceedings.

5. The respondent opposed the application for possession of the properties on numerous grounds, filing 15 affidavits in the process. Some of his grounds were abandoned and some of his arguments were held by the High Court to be incapable of affording him any defence to the application for an order for possession. The High Court remitted the proceedings to plenary hearing in respect of six issues, while holding that the other purported grounds of defence relied upon by the respondent could not afford him a defence to the claim for an order for possession. They are:

(i) The necessity to prove service of a valid letter of demand.

(ii) The enforceability of Special Condition Number 6 of the letter of loan approval by reference to the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995.

(iii) The admissibility of the documentary evidence relied on by the appellants.

(iv) The purchase by Start Mortgages of the Bank’s rights and entitlements in relation to the respondent.

(v) Compliance by the appellants with the terms of the contract regarding notification of interest rate changes and the ending of the fixed rate period of the loan.

(vi) Compliance by Start Mortgages with the terms of s. 28 of the Central Bank Act 1997, as amended by the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015.

6. The respondent cross-appealed and argued that he should be permitted to defend the matter on a wide variety of additional grounds.

The Application for an Order for Possession on a Summary Basis

7. The mortgages at issue in these proceedings were created before 1st December 2009, and therefore, by virtue of s. 1 of the Land and Conveyancing Law Reform Act 2013, s. 62(7) of the Registration of Title Act 1964 still applies. Section 62(7) of the 1964 Act provides: “(7) When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge . . . may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant...” In Bank of Ireland v Cody [2021] IESC 26, the Supreme Court (Baker J) explained what an applicant is required to prove in order to obtain an order for possession pursuant to s. 62(7): “49. The owner of a charge who seeks to obtain possession pursuant to s. 62(7) has to prove two facts:

(a) That the plaintiff is the owner of the charge.

(b) That the right to seek possession has arisen and is exercisable on the facts.”

In relation to the first fact she continued:-

“50. The summary process is facilitated by the conclusiveness of the Register as proof that the plaintiff is the registered owner of the charge is a matter of the production of the folio, and, as the Register is by reason of s. 31 of the Act of 1964 conclusive of ownership, sufficient evidence is shown by that means: see the discussion in the Court of Appeal in Tanager DAC v. Kane [2018] IECA 352. The judgment of the Court of Appeal inter alia held that the correctness of the Register cannot be challenged by way of defence in summary possession proceedings, and that a court hearing an application for possession pursuant to s. 62(7) of the Act of 1964 is entitled to grant an order at the suit of the registered owner of the charge, or his or her personal representative, provided it is satisfied that the plaintiff is the registered owner of the charge and the right to possession has arisen and become exercisable.”

8. It was not disputed that at the time of the hearing in the High Court, Start Mortgages was the registered owner of the charge over each of the properties as appeared from the folios, which were exhibited and before the court in evidence.

9. After the High Court had delivered judgment and the appellants had appealed, the appellants applied to join the third named appellant (“Mars Capital”) as a co-plaintiff to the proceedings and co-appellant on the basis that the loan and associated security had been assigned and transferred to Mars Capital. Mars Capital was duly joined to the proceedings as a co-plaintiff and a co-appellant on 2 May 2025. Mars Capital was registered as owner of the charge on Folio GY16988F on 25 July 2024.When the appeal commenced the registration appeared to be still pending on Folio DN138512F, the Clondalkin property. The appellants clarified that the dealing had in fact been registered and the appellants were given liberty to file an affidavit exhibiting the up to date folio. The evidence before this Court shows that Mars Capital is the registered owner of the charge on both folios.

10. The first of the two proofs identified in Cody has therefore been met. It follows that the possible defence(s) asserted by the respondent must relate to whether the right to seek possession had arisen and was exercisable on the facts.

Status of the Respondent: Is he a Consumer?

The meaning of a consumer

11. An issue key to many of the grounds of defence advanced by the respondent is whether he is a consumer within the meaning of the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (“the Regulations”) which gives effect to Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (“the Directive”). Regulation 3 provides: “3. (1) Subject to the provisions of Schedule 1, these Regulations apply to any term in a contract concluded between a seller of goods or supplier of services and a consumer which has not been individually negotiated.” A consumer is defined in Regulation 2 as: “‘consumer’ means a natural person who is acting for purposes which are outside his business;” “‘business’ includes a trade or profession...”

12. As the concept of a consumer derives from the Directive, it must be given an autonomous meaning. In Benincasa v Dental Kit [C-269/95], the CJEU held that it is a concept which must be strictly construed. Furthermore, it must be construed objectively “having regard to the nature and aim of that contract, and not to the subjective situation of the person concerned” (para. 16). The definition of a consumer “affects only a private final consumer, not engaged in trade or professional activities” (para. 15).

13. In Gruber v Bay Wa AG [C-464/01], the CJEU held that a contract could only be regarded as being a consumer contract if the contract was only intended to meet the business needs of a person to a negligible extent and was primarily concerned with his private needs. At para. 47, the court held that the trial court must decide: “. . . whether the contract was intended, to a non-negligible extent, to meet the needs of the trade or profession of the person concerned or whether, on the contrary, the business use was merely negligible. For that purpose, the national court should take into consideration not only the content, nature and purpose of the contract, but also the objective circumstances in which it was concluded.”

In Milivojevic v Raiffeisenbank [C-630/17], the CJEU held that where a contract was concluded for a dual purpose, a person could only rely on the consumer protection provisions in the Directive as transposed into national law (in this case, the Regulations) if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal, and therefore had only a negligible role in the context of the transaction.

14. In this jurisdiction, Kelly J (as he then was), in AIB plc v Higgins & Ors [2010] IEHC 219, held that there was nothing in the Consumer Credit Act 1995 to suggest that the Oireachtas sought to go further than the Directive “still less to confine the interpretation of the term ‘business’ in the definition of ‘consumer’ to a single business activity”. In Bank of Ireland v Hade [2023] IECA 292, this Court considered whether the defendants in that case were consumers within the meaning of the 1995 Act. The Court rejected the argument that they were acting as consumers on the basis that the facilities advanced were to refinance or buy properties which were intended to be let for profit. The subjective intention to ultimately provide for the defendants and their family was irrelevant. It was objectively a business purpose.

15. Thus, it is clear that a contract will fall outside the definition of a consumer contract where there is a dual purpose to that contract, provided the business purpose is not negligible or so slight as to be marginal. The assessment is objective, and the subjective intention of the parties is not relevant to that assessment. The description the parties give to the agreement in the documentation is a factor to be considered, but it is not determinative. The court is required to consider the content, nature and purpose of the contract and the objective circumstances in which it was concluded.

The evidence of the contract

16. When applying for the loan, the respondent completed an application form. He disclosed that he was the owner of five properties; his residence in Leixlip, County Kildare, the two properties at issue in these proceedings, and two apartments, one in Manchester and one in Bradford, England. He said that he was a self-employed sole trader of a furniture and granite worktops business. Under the heading ‘Your Current Income’ he entered no income from this business. His “other income”, which he described as “rental income”, was €60,000 per annum. He disclosed his then current financial commitments as being owed to Permanent TSB, in respect of his home and the Galway property, and two loans with IIB Home Loans, one in respect of the Clondalkin property and one in Sterling in respect of the two apartments in England. In the section headed ‘The Mortgage You Require’, the respondent ticked two boxes: Remortgage and Residence for Letting. He gave as the reason for remortgage as “release equity for refurbishment and investments”. He indicated that the repayment method he preferred was interest only. Under the heading ‘Property to be Mortgaged’, he listed his residence in Leixlip and the Properties. In answer to the specific question “is the property for private owner occupation only?”, he answered, “no”, and in response to the query “what is the purpose of the property?”, he answered, “rented”. The application is signed and dated 15th January 2007. The application form clearly indicated that the respondent intended to service the loan from his rental income as he disclosed no other income from which he could repay the loan.

17. The application form required the respondent to give his consent, under the Consumer Credit Act 1995, to being contacted by the “chosen lender” and the “mortgage adviser”. He also consented to being contacted by telephone by the Bank.

18. In response to this application the Bank issued the letter of loan offer of 30th April 2007. Special conditions 10 and 11 required the total borrowings with IIB Home Loans and Permanent TSB to be discharged from the proceeds of the new advance. The security for the loan was to be a first charge over the Galway property and over the Clondalkin property (the rental properties indicated in the application form).

19. In the High Court, Mulcahy J afforded the respondent the opportunity to file a 13th affidavit addressing the question as to whether he was a consumer within the meaning of the Regulations. In that affidavit, the respondent said that the purpose of the loan was to refurbish his own residence and that of his father, and to invest in funds which were purchasing property in Kiev, Ukraine and in Bulgaria. On the hearing of the appeal, in answer to a question from the Court, he accepted that the Bank “may not have known” of his proposed use of the monies to be advanced as his “investments”. In the extensive documentation presented before the court, which runs to thousands of pages, he nowhere disclosed that this was how he used the funds until, at the prompting of the High Court, he filed his thirteenth affidavit well into the hearing of the application for orders for possession.

Discussion

20. As the case was tried on affidavit, this Court is able to assess the evidence and construe and evaluate the documents exhibited, though it must afford due weight to the views of the trial court. See Ryanair Ltd v Billigfluege.de GmbH [2015] IESC 11. It may form its own view on these matters and is not bound to follow the findings of the High Court. Further, as is clear from Cody, the Court is entitled to reach a conclusion on the evidence on the issue of whether the respondent was a consumer, and not refer the issue to plenary hearing, if it is satisfied that there is no credible argument on the facts or on the law that he was a consumer. It is clear from the jurisprudence discussed above that in assessing whether a party to a contract is or is not a consumer the court is required to assess what is the substance of the transaction.

21. The evidence establishes that there were three purposes identified for the loan: refurbishment, unidentified investments, and refinancing mortgages on two rented properties. The application form expressly states that the mortgage is required for “residence for letting”, and that the properties were to continue to be rented. In my judgement, even taking the respondent’s case at its height, it is inescapable that there was a business element to the loan: the refinancing of the residential properties which were rented for profit, which generated a rent roll of €60,000 per annum in 2007. The rental income was the sole source disclosed from which the loan could be repaid, so the remortgaging of the rental properties was central to the transaction. This business purpose of the contract cannot be described as negligible or immaterial. It generated a significant income. In my judgement, this takes him outside of the definition of a consumer in the Regulations as interpreted by the CJEU and the Court of Appeal in this jurisdiction.

22. The fact that the application form referred to the Consumer Credit Act 1995, as I have described, does not alter this assessment. Even taking the respondent’s case at its height in relation to this point, it amounts to a contention that if he was described as a consumer in the contract on that basis alone, he has an argument that he was a consumer. This is incorrect. First, while the description the parties give to the agreement/party is relevant, it is not determinative. The court is required to consider the substance of the contract and the substance, in my judgement, has a business purpose and even if the contract expressly stated that the respondent was a consumer for the purposes of the Directive, the Act and the Regulations - which it does not - this would not alter the substance of the agreement. Second, the references to the Consumer Credit Act 1995 are for the purpose of ensuring that the Bank and the mortgage intermediary may contact the intending borrower by a means which would be prohibited if the borrower did not consent and was a consumer within the meaning of the Act or Regulations. It is to protect the Bank and the mortgage intermediary against breaching rights which the borrower may enjoy if the borrower is a consumer; it is not describing, still less acknowledging, the borrower as a consumer.

23. The High Court held that the respondent had made out an arguable case that there was an issue as to whether he was a consumer within the meaning of the Regulations. For the reasons I have set out, I respectfully disagree. This Court is in a position to construe the relevant documents which clearly establish the business element to the loan. The law in relation to a dual-purpose loan in the context of consumer protection legislation is clear and has been definitively stated by the CJEU. It has been followed in this jurisdiction in Hade. In my view there is no arguable ground advanced that the respondent, as he claims, is a consumer and so the trial judge erred in failing to so find. In fairness to the trial judge, I should observe that the matter appears not to have been subjected to the same level of argument or scrutiny as occurred on appeal, and that the point only truly came into focus at the hearing of the appeal.

24. In my judgement, the respondent was not a consumer within the meaning of the Regulations or the Directive. It follows that all arguments based upon the contention that any of the terms of the contract were unfair terms within the meaning of the Regulations cannot afford him a defence to the appellants’ claim in these proceedings. In particular, the second point referred to plenary hearing, that Special Condition 6 of the Loan Agreement was void because it was an unfair term as defined in the Regulations, must fail as the respondent is not a consumer. Therefore, this argument ought not to be referred to plenary hearing and I would allow the appeal in respect of this point.

25. Further, I would refuse the cross-appeal in respect of all of the arguments predicated upon the applicability of the Regulations to the transaction as they too are bound to fail on the basis that the respondent is not a consumer.

The Absence of a Letter of Demand

The terms of the mortgage

26. The Bank was duly registered as the owner of the charge on the two folios. The next question is whether the right to seek possession has arisen and is exercisable.

27. The term of the loan was 25 years with an initial interest rate of 4.75%, fixed for two years. The loan was an interest only loan for the first five years of the loan period. While the Bank reserved the right to demand repayment of principal and interest at any time during the period of the loan, no such demand was made, and the appellants do not contend that they ever terminated the interest only period of the loan repayment.

28. The dispute is whether any interest was payable once the fixed interest period of 2 years expired in May 2009 and therefore whether the respondent was ever in default at all. The respondent argues that interest was claimed pursuant to Special Condition 6. He says that this is an unfair term and is therefore not enforceable against him. If he is correct in this argument, he says, then no interest was chargeable and, if that is so, then he was never in default in respect of an obligation to repay interest. As the Bank never demanded that he repay the principal, the respondent contends that he was not obliged to make any repayments after May 2009. It follows, according to the respondent, that he was never in default and the appellants were never entitled to possession of the properties under the mortgage.

29. The appellants dispute this and say that, at most, there is a dispute as to the interest rate chargeable, but not that monthly repayments of interest were due. They say that as no repayments were made after July 2010, the respondent was clearly in default under the mortgage.

30. The resolution of these arguments depends in the first instance upon the proper construction of the terms of the mortgage which, as I have already explained, this Court is in a position to do.

31. The mortgage deed expressly incorporates the Bank’s “Mortgage Conditions 2002”. They specify the circumstances in which the mortgagee would be entitled to possession. Clause 6.4 provides:

“At any time after the Total Debt has become immediately payable permanent tsb may without any previous notice to or concurrence on the part of the Mortgagor:

(a) enter into possession of the property…” Clause 7 provides: “The Total Debt shall become immediately payable to permanent tsb:

7.1 If the Mortgagor defaults in the making of two Monthly Repayments or for two months in the payment of any other monies payable under the Mortgage…”

32. The appellants contend that these terms mean that the entire principal owed under a mortgage loan becomes due automatically as soon as the borrower falls into arrears in respect of two monthly repayments. They say this is the clear meaning of these terms read together. They also place heavy reliance on the decision of the Supreme Court in Irish Life & Permanent plc v Dunne [2016] 1 I.R. 92.

Discussion

33. In Dunne, the Supreme Court was called upon to construe precisely the same terms as are at issue here. At para. 6.9 of the judgment, Clarke J (as he then was) held: “6.9 The contractual terms between the parties in this case are, therefore, clear. It is provided that the ‘total debt is immediately payable’ where a default amounting to two months' repayments has occurred. That provision is automatic in its effect. It does not require any letter of demand or other action on the part of the lender in order for the total sum to become due. ... Thus, the provisions to be found in what the Court understands to be Irish Life and Permanent's standard form documentation mean that the entire principal owed under a mortgage loan becomes due automatically as soon as the borrower falls into arrears in respect of two monthly repayments.”

34. The respondent argues that clause 2.5 of the mortgage conditions requires that a demand be sent before he is liable to repay his general indebtedness to the Bank. Clause 2.5 provides: “The Mortgagor will and hereby covenants to pay to permanent tsb and discharge on demand (or on such terms as may otherwise be agreed in writing) the general indebtedness and liability.” In my judgement this clause is not inconsistent with clause 7.1 and it does not contradict it. There is no anomaly or dispute as to the meaning of the two clauses when read together which requires to be resolved. Clause 2.5 is a covenant of the mortgagor to repay on demand his general indebtedness and liability to the Bank. It relates to the obligations of the mortgagor, specifically his obligation to repay his indebtedness, not to the remedies to which the mortgagee is entitled. Any demand letter that the Bank may have sent is issued for the purpose of engaging the covenant. It in no way contradicts the provisions of clause 7.1.

35. In my view, the construction of the mortgage is clear and not open to any real – as opposed to fanciful – debate. This conclusion is reinforced by the decision in Dunne. That

decision has been followed in numerous cases, and I see no basis to contend that it was incorrect, and this Court should construe the same document differently.

36. Further, the construction of the terms of the mortgage was not something which required to be referred to plenary hearing. It was perfectly possible for the terms to be construed at the summary hearing, a fortiori in the light of Dunne. In my judgement, the respondent’s arguments as to the construction of the terms of the mortgage and the need for a letter of demand were without merit and ought to have been dismissed as not affording a credible defence to the appellants’ claim. It was, in my view, an error on the part of the High Court to remit this argument for plenary hearing.

37. The fact, as the High Court adverted to, that the appellants had relied on the letter of demand of 7th January 2014, which the respondent says was never received, does not detract from this fact, and in my view, did not warrant the conclusion that the respondent had raised a defence “regarding the necessity for the existence of a prior letter of demand” at all.

38. In my judgement, it was open to the High Court, as indeed it is to this Court, to construe the terms of the mortgage deed and it was “clear”, as was held by Clarke J in Dunne, that the provision of clause 7.1 is automatic in its effect and does not require any letter of demand or other action on the part of the lender. Accordingly, I would allow the appeal in respect of the first issue referred to plenary hearing by the High Court. The Admissibility of Documentary Evidence Relied Upon by the Appellants

39. The third issue referred to plenary hearing by the High Court was the admissibility of documentary evidence relied upon by the appellants. The respondent argued that documents exhibited by the appellants’ deponents were unreliable and that the appellants had failed to comply with the requirements of the Bankers Books Evidence Acts or the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (“the 2020 Act”).

40. Section 13 of the 2020 Act provides: “13. Subject to this Chapter, in civil proceedings any record in document form compiled in the ordinary course of business shall be presumed to be admissible as evidence of the truth of the fact or facts asserted in such a document where such a document complies with the requirements of this Chapter.” The trial judge held that he was satisfied that the documents relied on, exhibited by the Bank, met the criteria in section 14. The High Court was further satisfied that copies of the documents had been served on the respondent as exhibited to the various affidavits and thus the information met the requirements of s. 15 of the 2020 Act. As the respondent had objected to the admissibility of these documents, the trial judge then considered whether they were admissible in accordance with s. 16 of the 2020 Act. He held: “83 . . . The overriding concern is whether the admission of the documents is in the interests of justice. In determining the interests of justice, regard can be had, inter alia, to the contents and source of the information and the circumstances in which it was compiled, whether it is a reasonable inference that the information is reliable and that the documents are authentic, and also to the question of whether any unfairness would be done to the [respondent] by admitting the document.

84. There is no reason, in my view, to doubt the reliability of the information or authenticity of the information exhibited by Mr Davis. The minor anomalies in the documents do not lead to an inference that they are unreliable or not authentic. Similarly, the documents exhibited by Ms O’Brien appear reliable and authentic. Her incorrect averments regarding the date of securitisation of the [respondent’s] loan – she refers to 2008 rather than 2009, and incorrect statement that the securitisation did not involve an assignment of the beneficial interest are unfortunate but are, perhaps, explained by the fact that at the time she swore her affidavits, the loan and related mortgage were not then securitised. Crucially, in my view, no injustice is done to the [respondent] by permitting the [appellants] to rely on business records, many of which the [respondent] insisted they produce.”

41. Notwithstanding these findings, at para. 80 of the judgment, the trial judge stated: “In the circumstances where, as I have indicated, I propose adjourning these proceedings to plenary hearing, the admissibility of evidence is a question which necessarily [sic] have to be addressed at the trial of the action. However, had I been required to resolve the matter for the purpose of this judgment, I would have tended to the view that the documentation relied on was admissible.”

Discussion

42. It was open to the High Court judge, at the hearing before him, to assess whether the documents were business records and could be admitted into evidence under the 2020 Act. In my view, the trial judge was correct in finding that the documents were admissible for the reasons he set out at paras. 83 and 84 of his judgment. That being so, he was entitled to treat them as evidence in the proceedings before him, and, in fact, he did so when ruling on a number of the arguments advanced by the respondent, in particular, when ruling that an argument based upon a securitisation process in 2009 to 2014 did not afford the respondent any arguable ground of defence. He could not have engaged in that exercise if he felt that the documents were inadmissible (for whatever reason). In this appeal, I have relied upon the application form, the loan offer, the mortgage and the mortgage terms and conditions, as is completely normal in cases of this kind. Indeed, the respondent relied upon the latter two documents in his defence of the claim.

43. So, on the one hand, the trial judge accepted, for some purposes, that some of the documentation was admissible, and that there was no reason to believe that the documents exhibited were either unreliable or were not authentic, while on the other hand, he referred to plenary hearing “the admissibility of the documentary evidence relied on by the [appellants]”. The only reason he did so was because he proposed adjourning other issues to plenary hearing. However, if those other issues are not in fact referred to plenary hearing, then there is no freestanding basis to refer the admissibility of the documents relied upon by the appellants to plenary hearing. The High Court and this Court can rule upon the admissibility of the documents if the case is tried on a summary basis and equally, if other matters are referred to plenary hearing, it will be for the trial judge to rule on the admissibility of any evidence adduced and this will be based upon the evidence adduced at that trial, not on the affidavits before the High Court and this Court.

44. In addition, it must be borne in mind that the judge referred the question of the admissibility of documents relied upon by “the plaintiffs”. Many of the documents to which the respondent objected were not primarily relied upon by the appellants at all to prove their case. They were introduced in response to arguments advanced by the respondent which have largely been ruled as not disclosing any ground of defence and so would not arise at the plenary trial ordered by the High Court. So, for example, the admissibility of the securitisation documentation cannot arise in any plenary action as the High Court has ruled that the securitisation process is not a matter which can be referred to plenary hearing. The High Court was in a position to rule on the admissibility of the core documentation upon which the appellants sought to prove their case, and in fact treated most of those documents as admissible. These are:

(i) The loan application form.

(ii) The letter of loan offer of 30th April 2007.

(iii) The mortgage deed.

(iv) The Bank’s mortgage terms and conditions 2002.

(v) The statement of accounts.

(vi) The up-to-date folios.

(vii) The Deed of Transfer from the Bank to Start Mortgages of 1st February 2019.

(viii) The “goodbye letter” from the Bank to the respondent of 1st February 2019.

(ix) The “hello letter” from Start Mortgages to the respondent of 7th February 2019. Save his argument that the 2020 Act is prospective in its application – to which I will immediately come – the respondent has advanced no argument why any of these documents are not admissible in evidence under the 2020 Act. He has not pointed to any injustice if they are. He says the signature on the application form is not his, but he does not contest the truth of the contents of the form. He relies on the form in support of his argument that he is a consumer within the meaning of the Regulations, as discussed above. He contends that the Deed of Transfer is unreliable, but on appeal, he did not address the High Court’s conclusion to the contrary. He has not shown that the trial judge erred in his conclusions at paras. 83 and

84 or shown why this Court should reverse those conclusions. Fundamentally, as the trial judge said, the objecting party must identify some injustice they would suffer if the documents were admitted and the respondent has failed to do so.

45. The respondent objects that the 2020 Act is being applied to documents which were created before the 2020 Act was enacted. He asserts this offends the principle against retrospective legislation. In my judgement, this argument is misconceived. The 2020 Act governs procedures in civil proceedings. The 2020 Act is designed to simplify civil proceedings and this aim would be largely frustrated if it only applied to documents created after the commencement date of Part 3 or, in the alternative, only to proceedings commenced after that date. There is nothing in the 2020 Act which suggests that it applies only to documents created or proceedings commenced after the appointed day for the commencement of Part 3 of the Act. The position of parties is protected by the provisions of s. 16 in particular, and the obligation of a court to determine whether the admission of the document in question is in the interests of justice. The critical question therefore is, does the 2020 Act, and in particular Part 3, impinge upon an existing right of a litigant, or does it impose any burden on him? The answer to that question must be, no. No substantive right of a litigant is impaired. As the trial judge observed, no injustice is done to the respondent by permitting the appellants to rely on business records – especially where many of them were documents which the respondent insisted should be produced – and none has been identified.

46. For these reasons I would allow the appeal on this issue also.

Was there a Valid Assignment of the Respondent’s Loan by the Bank to Start Mortgages?

47. At the date of the trial Start Mortgages was the registered owner of the charge on the folios. It was not therefore open to the respondent in defending these proceedings to challenge the fact that it was the registered owner of the charge (see Tanager DAC v Kane [2018] IECA 352, and Bank of Ireland v Cody [2021] IESC 25) and entitled to seek an order for possession pursuant to s. 62(7) of the 1964 Act. It follows that the only issue which could be determined in the High Court was whether the loan was validly assigned by the Bank to Start Mortgages. The High Court declined to decide that issue and referred it to plenary hearing.

48. The High Court accepted that the title to the charge was not in doubt as Start Mortgages was then the registered owner and that the register is conclusive proof of this fact. The High Court observed, correctly, that the register does not conclusively determine that Start Mortgages had succeeded to the Bank’s debt. The respondent’s case was that Start Mortgages was a bare trustee and that another entity was the beneficial owner of the mortgage assets the subject of the sale agreement. On that basis, the trial judge held: “94. . . the [respondent] has raised an issue regarding ownership of the underlying debt, and the entitlement of [Start Mortgages] to have been joined to these proceedings, which can most fairly be adjudicated by way of cross-examination. Although the Court of Appeal in Macken contemplated cross-examination in the context of the special summons procedure, a plenary hearing of this action will afford the parties the same opportunity and enable all the other issues in the case to be resolved in accordance with the requirements of justice.”

49. It thus appears that the basis for referring this issue to plenary hearing was to afford the respondent the opportunity to cross-examine the appellants’ witnesses in respect of the ownership of the underlying debt.

50. In my view, this can only have been necessary if the party seeking an order for possession was required to prove that they were the beneficial as well as the legal owner of the debt in question. This point has been answered definitively in the recent decision of this Court to the contrary.

51. In Mars Capital Finance Ireland DAC v Phelan [2025] IECA 117 Binchy J, with whom Woulfe and MacGrath JJ agreed, considered an argument to the effect that the Deed of Transfer did not transfer ownership of the appellant’s loan facilities to the respondent in those proceedings when it was apparent from the Deed of Transfer that the purchase monies were provided, not by the respondent, but by a company referred to as Panelview. The appellant contended that Panelview was therefore the true owner of the appellant’s loans and not the respondent. The Court dismissed this argument as misconceived. At para. 28, Binchy J held: “As the High Court judge found, the Deed of Transfer itself makes it plain that the assignee of the appellant’s loans is the respondent and not Panelview. The fact that the purchase monies may have been provided by another entity is, as the High Court judge found, immaterial. At the very most, it may be the case that the respondent holds the assets assigned to it under the Deed of Transfer on trust for Panelview, in which case it is the legal owner of those assets while Panelview may be the beneficial owner. Even if that is the case however, the appropriate party for the purpose of the proceedings would be the trustee, and not the beneficiary of the assets. For these reasons, I am satisfied that the Deed of Transfer, on the balance of probabilities, is effective to transfer the original plaintiff’s title in the appellant’s loans to the respondent.” This case makes clear that the court is concerned with the legal title to the loan and not with the beneficial ownership of the loan. No credible basis for this Court to depart from this recent authority was advanced and accordingly I accept that it correctly states the law on this issue.

52. In my judgement, it was incumbent on the High Court to consider the documentary evidence and to consider whether legal title to the loan, as well as the legal title of the charge, had passed from the Bank to Start Mortgages. If that was shown to have occurred, on the balance of probabilities, then that was the end of the matter and the question of the beneficial ownership of the loan ought not to have been referred to plenary hearing.

53. In an affidavit sworn on 15th July 2019, Ms Eva McCarthy, the litigation manager for Start Mortgages, gave evidence that the Bank sold a loan book to Start Mortgages which she said included the loan facility and mortgages/charge the subject of these proceedings, as well as the relevant claims, suits and causes of action. She averred that: “On the 1st February 2019, the Bank executed a Deed of Transfer . . . whereby the Bank transferred all its right, title, interest, estate, benefit and entitlement (past and present) in and under the Underlying Loans and each of the Finance Documents (as each of the capitalised terms is defined in the Transfer Deed) which includes the Facility and Charges in the within proceedings to [Start Mortgages].” The deed she exhibits is between Permanent TSB plc, as seller, and Start Mortgages Designated Activity Company, as buyer.

The operative part of the deed provides as follows: “2.1 It is agreed that for the consideration expressed in the Mortgage Sale Agreement (the receipt of which is hereby acknowledged) the Seller as legal owner free from Encumbrance and as the registered owner or, as applicable, the party entitled to be registered as owner, hereby grants, conveys, assigns, confirms, transfers and assures unto the Buyer absolutely; subject to the subsisting rights of redemption of the borrowers and any obligor and to the extent capable of assignment, as legal owner, all its right, title, interest, estate, benefit and entitlement (past, present and future) in and under the Mortgage Assets, each Security, Underlying Loans and each of the Finance Documents and the Seller’s rights, title and interest as legal owner in and to the Ancillary Rights and Claims.” Underlying loans are defined in clause 1.15 as:

“[T]he loans and other credit facilities advanced to the Borrowers under the Underlying Loan Agreements together with the accounts in respect of same details of which are specifically set out in Schedule 1 of this Deed and which are transferred pursuant to this Deed, each an ‘Underlying Loan’;” Underlying loan agreements are defined in clause 1.16 as: “[T]he loan documents, facility letters and ancillary documents as amended, extended, supplemented, varied, restated or replaced from time to time relating to each Underlying Loan or other agreement under which an Underlying Loan was funded and each an ‘Underlying Loan Agreement’.” Schedule 1 of the Deed is exhibited with all parties’ names redacted, save the respondent’s. Internal p. 12 discloses that the account in respect of the Clondalkin and Galway properties is included in the sale to Start Mortgages, while internal p. 1837 of the deed shows that the account is also transferred and assigned.

The account is in respect of the facility described as Facility Letter between (1) Brian Donohoe and (2) the Bank, dated 30-04-2007. It is evident from the exhibit that the Deed of Transfer was duly executed.

54. Ms McCarthy goes on to prove the transfer of the mortgage and the subsequent registration of Start Mortgages as owner of the charge on the two folios. She then gives evidence that on 1st February 2019, the Bank notified the respondent of the assignment of the loan. The letter confirmed that the transfer of the loans and security by the Bank to Start Mortgages had completed on that date and confirmed that the duties and obligations under the loan and loan documents had been transferred, conveyed and assigned absolutely to and assumed by Start Mortgages. He was notified that he should perform his duties and obligations under the loan documents in favour of Start Mortgages. Ms McCarthy gave evidence that Start Mortgages subsequently wrote to the respondent on 7th February 2019, notifying him, inter alia, of the transfer of the loan and informing him that Start Mortgages would be his new point of contact in respect of his loan. There is no suggestion that these letters were not received at the time. Even if the respondent did not receive the letters – and he does not allege this – there can be no doubt that the respondent has since received these documents, as they were served upon him when Start Mortgages brought an application to be joined as a co-plaintiff and co-appellant in the proceedings.

55. Section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 establishes the requirements for a valid assignment. The subsection provides: “Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor. . . shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed,) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor…”

56. It is clear that Ms McCarthy’s affidavit and the exhibited documents establish that the respondent’s loan was assigned in writing by the Bank to Start Mortgages; that the assignment was absolute; and that the respondent was notified of the assignment. I am satisfied therefore, on the balance of probabilities, that Start Mortgages proved that it became the legal owner of the debt on 1 February 2019 and that express notice of the assignment was given to the respondent. It was thus not necessary, nor appropriate, to remit to plenary hearing the issue as to whether Start Mortgages had purchased the Bank’s rights and entitlements in relation to the respondent. It was open to the High Court on the basis of the evidence before it to rule on that issue, and upon a proper analysis of the evidence before the court the supposed arguable basis for the contention that Start Mortgages was not the legal owner of the debt falls away. Accordingly, I would allow the appeal on this issue.

57. The question as to whether Start Mortgages has assigned all its rights and entitlements in relation to the respondent’s loan and the charge to Mars Capital was not before the High Court and is a matter which I shall address further below.

Notification of Interest Rate Changes and the Ending of the Fixed Rate of Interest Period of the Loan

58. The respondent argued that the Bank had breached its obligation to provide him with written notice of rate changes as required by clauses 2.7, 4.12 and 4.14 of the terms of the mortgage. He also claimed that the Bank was required to notify him of his options when the fixed rate period expired. Special Condition 6 of the loan offer provides: “General mortgage loan approval condition 5 ‘conditions relating to fixed rate loans’ applies in this case. The interest rate specified above may vary before the date of issue of the loan. On expiry of the fixed rate period, and where applicant chooses the option of a tracker mortgage interest rate, the interest rate applicable to the loan will be the tracker mortgage rate appropriate to the balance outstanding on the loan at the date of expiry of the fixed rate period. In the absence of instructions from the applicant at the expiry of the fixed rate period, the interest rate for the loan will be the tracker mortgage rate applicable to the balance outstanding on the loan, at the date of expiry of the fixed rate period and as may be varied in accordance with variations to the European Central Bank refinancing rate.” The High Court rejected the latter argument and held that it was clear from the terms of Special Condition 6 that it was for the respondent to choose an option at that point, in default of which his loan was switched to a tracker rate, not for the Bank to present him with his options.

59. As regards notice of changes in interest rates, the trial judge was doubtful this could afford a defence in these proceedings. At para. 96, he held: “It is not obvious how any such breach could have the effect of absolving the [respondent] from liability under the loan agreement and mortgage. At most, it might have some effect on the calculation of interest due on the loan facility. But since there have been no payments in respect of that facility since 2010, this could not, by itself, create a result whereby the defendant was not in default of the loan facility and the [appellants] were entitled to demand repayment and/or seek possession.”

60. Clearly the trial judge was of the view that if this was the only ground of defence put forward, he would not have adjourned the matter to plenary hearing in respect of this issue. He makes this plain at para. 99 as follows: “However, given the multiplicity of alleged breaches identified by the [respondent], and having regard to the fact that, for other reasons, I have concluded that it is appropriate to adjourn this case to plenary hearing, these are matters which can be further explored in that plenary hearing.” I agree with the trial judge’s construction of Special Condition 6. I also agree that the question of the correct interest rate chargeable once the fixed rate interest term had elapsed could not afford the respondent a defence to the claim for possession in the circumstances of this case for the reasons discussed above. However, in my view, the trial judge erred in adjourning this issue to plenary hearing simply on the basis that he was proposing to adjourn other matters to plenary hearing. In the first place, he himself did not believe that it afforded the respondent a defence to the claim for possession and that should have been the end of the matter. As the Supreme Court made clear in Cody, a court should only adjourn issues to plenary hearing where a credible defence is shown to exist, either on the facts or the law; and it should do so only in respect of those issues, and not generally.

61. Secondly, and related to the first point, the fact that other issues are referred to plenary hearing is no basis for referring an issue which cannot “by itself” afford a defence simply to enable such matters to “be further explored in that plenary hearing”. Unarguable grounds of defence ought not to get a second airing simply because other stateable arguments of defence do.

62. For these reasons, I would not refer the issue of the notice of change of interest rates to plenary hearing, as they do not – and could not – afford the respondent a defence to the appellants’ claim for possession.

Compliance by Start Mortgages with Section 28 of the Central Bank Act 1997 (as amended)

63. The trial judge concluded that there was some ambiguity in the affidavits of Ms McCarthy on behalf of Start Mortgages in response to the respondent’s allegations that it had contravened the provisions of s. 28 of the Central Bank Act 1997 (as amended). At para. 98 of his judgment, he said “I am far from convinced that the issues which the [respondent] raises would afford him a defence to these proceedings”. But nevertheless, for the reason given at para. 99 cited above, he remitted this question to plenary hearing.

64. Part V of the Central Bank Act 1997 (as amended) deals with supervision of regulated businesses. Section 28 defines various terms, including credit servicing and credit servicing firm, regulated credit entity and retail credit firm. The definition of credit servicing was amended by the Consumer Protection (Regulation of Credit Servicing Firms) Act 2018. Credit servicing means, subject to subsection (2): “(a) holding the legal title to credit granted under the credit agreement,

(b) managing or administering the credit agreement, including—

(i) notifying the relevant borrower of changes in interest rates or in payments due under the credit agreement or other matters of which the credit agreement requires the relevant borrower to be notified,

(ii) taking any necessary steps for the purposes of collecting or recovering payments due under the credit agreement from the relevant borrower,

(iii) managing or administering any of the following: (I) repayments under the credit agreement; (II) any charges imposed on the relevant borrower under the credit agreement; (III) any errors made in relation to the credit agreement; (IV) any complaints made by the relevant borrower;

(IV) information or records relating to the relevant borrower in

respect of the credit agreement; (V) the process by which a relevant borrower’s financial difficulties are addressed;

(VI) any alternative arrangements for repayment or other

restructuring; (VII) assessment of the relevant borrower’s financial circumstances and ability to repay under the credit agreement;

(IX) determination of the overall strategy for the management and administration of a portfolio of credit agreements;

(X) maintenance of control over key decisions relating to such

portfolio,

or

(c) communicating with the relevant borrower in respect of any of the matters referred to in paragraph (b);” Subsection (2) was substituted with the following: “(2) For the purposes of this Part, a person who holds the legal title to credit granted under a credit agreement (in this subsection referred to as ‘the holder’) is taken to be credit servicing even if any action referred to in paragraph (b) or (c), as the case may be, of the definition of ‘credit servicing’ in subsection (1) is being undertaken by a person, acting on behalf of the holder, authorised to carry on the business of a credit servicing firm.” Thus, the holder of the legal title to credit granted under a credit agreement is credit servicing, even if another entity is undertaking the actions identified on its behalf. The argument of the respondent – contrary to his earlier argument concerning the effect of the transfer of the loan by the Bank to Start Mortgages – is that as Start Mortgages is the holder of the legal title to his loan, it is credit servicing and it is not authorised to engage in this activity.

65. The respondent relies on the decision of the High Court in Start Mortgages DAC v Kavanagh [2023] IEHC 452 in support of his argument. In my judgement, his reliance is misplaced and, as Mulcahy J observes, the authority tends to support the contrary view. In Kavanagh, Simons J held:

“14. With respect, Mr. Kavanagh's submissions are misconceived for the following two reasons. First and foremost, at the time the application for an order for possession was heard and determined on 18 July 2016, Start Mortgages had been authorised as a ‘credit retail firm’ and not merely as a ‘credit servicing firm’. On the principle that the greater includes the lesser, a ‘credit retail firm’, which is authorised to provide credit in the State, is taken to be also authorised to carry on the business of a ‘credit servicing firm’. See sub-section 28(3) of the Central Bank Act 1997 (as inserted by the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015). It follows that Start Mortgages would have been entitled to carry out all of the management and administrative functions which a ‘credit servicing firm’ is authorised to carry out; but would not have been limited to those functions. Put shortly, Start Mortgages were entitled to do everything that a ‘credit servicing firm’ could do and more. A ‘credit retail firm’ is entitled to take such steps as may be necessary for the purposes of enforcing a credit agreement. In circumstances where the ‘credit retail firm’ holds the legal title to same, these steps would extend to the pursuit of legal proceedings to enforce a credit agreement. This is subject always to the obligation not to commit a ‘prescribed contravention’.”

66. Kavanagh is therefore authority for the proposition that an entity which is authorised as a credit retail firm is entitled to do everything that a credit servicing firm could do and more. Simons J also held that Start Mortgages had been authorised as a credit retail firm in 2016 and so was authorised to engage in the actions complained of (credit servicing).

67. In this case, Ms McCarthy avers that Start Mortgages Holding Limited (“Holdings”), the parent of Start Mortgages, manages and services all loans held by Start Mortgages. In her affidavit of 29 February 2024, she clarifies that Holdings “facilitates” Start Mortgages in the servicing of loans and that Start Mortgages “is the regulated entity and holds legal title to the loans it service” (sic). At para. 43, she avers “[Holdings] does not act or carry on the business of a credit servicing firm. [Start Mortgages] is the regulated entity and is the legal owner of the [respondent]’s loan and mortgage. [Start Mortgages] is authorised by the Central Bank of Ireland. [Start Mortgages] is 100% owned by [Holdings]. [Holdings] is the employer of staff for [Start Mortgages] and it provides the staff that do the work on behalf of the regulated entity that is [Start Mortgages].”

68. There is clear evidence that Start Mortgages holds the legal title to the loans, therefore whether the loans are serviced on its behalf by Holdings or are serviced by Start Mortgages is not relevant to the legal question whether it is engaged in credit servicing. Under the amended definition of credit servicing, Start Mortgages is credit servicing – possibly as well as Holdings, though that is not an issue which requires to be resolved in this judgment - because it holds the legal title to the loans; see subsection (2), notwithstanding the role of Holdings.

69. It is also clear that it is and was at the relevant time authorised as a credit retail firm – the relevant extract from the register maintained by the Central Bank was exhibited – so the factual basis for the respondent’s contention that Start Mortgages is acting without authorisation is unsustainable and directly contradicted by the evidence before the court.

70. The respondent’s argument that Start Mortgages has breached the provisions of s. 28 of the 1997 Act is misconceived as s. 28 is the definitional section for this Part of the 1997 Act. I shall treat his argument as being an allegation that it has breached the provisions of s.

29 and that this affords him an arguable defence to the claim for possession. Section 29 of the 1997 Act prohibits a person from carrying on a regulated business unless the person is the holder of an authorisation. Subsection (2) provides that a person who contravenes subsection

(1) commits an offence. The respondent’s argument is that, notwithstanding that Start Mortgages was not authorised under the Act to act as a “credit servicing firm”, it nonetheless did so. For the reasons discussed above, it is abundantly clear that the contention that Start Mortgages acted unlawfully in contravention of s. 29 of the 1997 Act, and that this affords him a defence to the claim in these proceedings, is untenable on the facts and accordingly ought not to have been referred to plenary hearing.

71. In addition, even if it were true that Start Mortgages had engaged in unauthorised credit servicing within the meaning of the Act, the argument that it would thereby afford the respondent a defence to the appellants’ claim for possession of the properties is contrary to precedent. In fairness to the trial judge, it should be acknowledged that the first High Court authority does not appear to have been opened to him, while the second was handed down between his first and second judgments and likewise was not brought to his attention.

72. Section 29 of the 1997 Act was considered by Heslin J in Start Mortgages DAC v Ward [2023] IEHC 521. He noted that s. 29(1) meant that a person is not permitted to do whatever constitutes “regulated business” without Central Bank authorisation, and that if a person does carry on regulated business without authorisation, the 1997 Act sets out criminal sanctions. At para. 82, he observes: “It is noteworthy, however, that s. 29 does not provide that any regulated business which is carried out in breach of the requirement for Central Bank authorisation shall be deemed void.” He held that even if a person engaged in activities which required specific Central Bank authorisation, s. 29 “does not render void the carrying out of such activities in the absence of authorisation (as opposed to attracting fines on convictions)”.

73. Heslin J noted that the definition of credit servicing was expanded in 2018, and at paras. 86 and 87, he held: “86. The fact that the definition of ‘credit servicing’ was expanded in 2018 to include holding legal title to credit had the effect of bringing this under the ‘umbrella’ of the Central Bank’s regime of regulation. It does not, however, mean that, prior to 2018, this activity was unlawful. It merely means that it was not previously a regulated activity. ...

87. Crucially, however, the 1997 Act does not state that an entity has no power to carry out activities other than those explicitly listed under the heading of regulated activities. In other words, the 1997 Act does not designate as unlawful, any activity which falls outside of regulated activity or business. In other words, the Central Bank’s regulatory regime is not concerned with anything other than regulated activity. In short, if an entity is doing something which is not specified in the definitions, authorisation is not required.”

74. Subsequent to the delivery of the first judgement of the High Court, but before the delivery of the second judgment, Barry O’Donnell J in Start Mortgages DAC v Doyle [2024] IEHC 561, approved of and followed the decision in Ward and concluded, at para. 27 of his judgment, that “[f]urthermore, as highlighted by Heslin J. in Ward, it appears that even if the plaintiff acted without authorisation, it does not render void the loan and mortgage agreement unenforceable or void”.

75. I agree with these two judgments of the High Court. Even if it were factually sustainable, which it is not, the fact that a defendant asserts that a party has breached the provisions of s. 29 (not s. 28) does not give rise to a defence to that party’s claim to recover a debt or to enforce security for a debt. The regulatory code is self-contained and a matter for regulation by the Central Bank. The sanctions for breach of the requirements are set out in the 1997 Act. They do not extend to rendering unenforceable, unlawful or void the credit agreements entered into – or acquired – by the unauthorised entity and a third party, or the actions to enforce same, which are governed by contract law, not regulatory law.

76. For these reasons, in my judgement, the High Court ought not to have referred for plenary hearing the question of compliance by Start Mortgages with the terms of s. 28 of the Central Bank Act 1997, as amended. I would allow the appeal on this ground also.

77. For all of these reasons I would allow the appeal of the appellants in respect of all six issues which the High Court referred to plenary hearing.

The Respondent’s Cross-Appeal

78. The respondent in his respondent’s notice set out ten grounds cross-appealing the

decision of the High Court. I address each of these below.

79. The first was that “The Current Order does not reflect certain decisions of the Judgements (sic)”. He pleads that the wording of the court order does not properly reflect the decisions reached by the court, as expressed in its judgments, regarding the court’s recognition of the respondent’s established arguable grounds of defence. In view of the fact that the order of the High Court should be set aside for the reasons I have explained, this ground necessarily falls away.

80. The second ground concerns “Admissibility of the Plaintiffs evidence”. I have already indicated that, in my opinion, the evidence advanced by the appellants is admissible for the reasons I have set out above, and accordingly, this disposes of this ground of cross-appeal. I should add that I reject the respondent’s contention that each of the three deponents who swore affidavits on behalf of the appellants engaged in misstatement, misrepresentation, concealment and positive deceptions, or perjury, as variously alleged by the respondent in both his affidavits and his submissions. These baseless, wild allegations ought never to have been made, as was clear from the judgment of the High Court. Suffice to say that I entirely agree with the observations of the High Court in this regard. Further, the allegations against Ms McCarthy are equally without substance and it is scandalous for the respondent to refer to her wilfully making false statements and swearing untruths.

81. The third ground of appeal relates to the Directive. The respondent says that the trial judge erred in law in his application of the Directive. As I have earlier held that the respondent was not a consumer and therefore cannot come within the scope of the Directive, this point falls away.

82. The fourth ground is that the trial judge erred in stating that there was no evidence that the tracker rate applied was higher than any fixed or variable rate on offer from the Bank at the relevant time. The respondent says that there was evidence from Mr Pierre Greijmans, who filed an affidavit on his behalf. The respondent therefore argues that the High Court cannot have properly considered the effects of the application of the higher rate of interest charged by the Bank. He says that the rates, as set, were clearly prejudicial to the respondent, and that the failure by the Bank to notify him of his option in May 2009, and to serve notices of the various change in applicable interest rates, therefore affords him a defence to this claim. As the High Court pointed out, a dispute as to the interest rate actually applicable to the secured loan does not provide a defence to the application for an order for possession in these proceedings. This is particularly so, where the defendant has made no repayment whatsoever since July 2010. In the circumstances, the implied submission that the respondent would have made repayments had the rate of interest been lower, lacks any credibility. In my view, it does not afford him a defence to the claim for possession.

83. The fifth ground of cross-appeal relates to the transaction involving the Bank and Fastnet Securities 7 Ltd. This transaction is a complete red herring and certainly affords the respondent no defence to the appellants’ application. As pointed out earlier in this judgment, the key question is whether the party who seeks an order from the court holds the legal title to both the debt and the security. When the special summons issued, the Bank held the legal title to both the debt and the security, and when the matter came on for trial before the High Court, Start Mortgages held both the legal title to the debt and was the registered owner of the security, for the reasons discussed above. The question of the beneficial ownership of the loan since 2007 is not relevant to the entitlement of the Bank, in the first instance, to commence the proceedings and the entitlement of Start Mortgages thereafter to the relief sought in the High Court. There is no issue relating to any securitisation process to be tried in these proceedings.

84. The sixth ground of cross-appeal relates to Special Condition 6. The respondent says that the trial judge misinterpreted the condition and that this adds support to his contention that the clause is an unfair term. In view of the fact that I have already held that he cannot avail of the provisions in the Regulations as he is not a consumer, this argument, too, must fall away.

85. The seventh ground is the contention that the appellants “had Statutory Duty to provide Respondent with Option to dissolve the Contract”(sic). This can only refer to the Regulations, which I have already explained have no application to this contract. Accordingly, this ground of cross-appeal is also without merit.

86. Ground eight of the cross-appeal relates to the second judgment of the High Court. The court rejected certain claims of misrepresentation and misleading advertising on the grounds that they were new arguments, and it was impermissible for the respondent to agitate them after he had given judgment on the issues he would remit to plenary hearing. The respondent says that the second judgment contradicts the first judgment and that the High Court erred in its own interpretation of its first judgment. I am satisfied that on a correct reading of both judgments, the trial judge knew exactly which issues he had decided to refer to plenary hearing and which he had not, and it is the respondent who misinterpreted his first judgment.

87. In the first instance, the High Court held that arguments based on claims of alleged misleading advertising, or the misrepresentation alleged could not afford the respondent a defence to these proceedings. He clearly stated that the sole issue he had referred to plenary hearing was the allegation of misrepresentation by the mortgage broker. The fifth issue the trial judge referred to plenary hearing was the question of whether the Bank had complied with the terms of the contract regarding notification of interest rate changes and the ending of the fixed rate period of the loan. The only representation which he concluded ought to be referred was the question whether the mortgage broker had represented to the respondent that “the said margin over ECB that would be offered and applied on fixed rate expiry would not exceed 1.1%”. The respondent’s argument was that the mortgage broker was the agent of the Bank, and accordingly, the Bank was fixed with his representations and therefore, according to the respondent, it had misrepresented to him the interest rate which would be applicable during the remaining term of the loan. This defence is predicated upon it being arguable that the broker was the agent of the Bank and this in turn requires that this issue be examined to ascertain whether the respondent has made out an arguable case that the broker was the agent of the Bank.

88. The respondent’s claim that the broker was the agent of the Bank is based solely on the fact that the broker had a printed form from the Bank and his bald assertion that Liberty Mortgage Corporation Ltd (“LMC”) was the agent of the Bank. On that basis he contends that there was an arguable defence to the effect that LMC was the Bank’s agent and that LMC represented the rate of interest to him. This does not take account of all of the evidence which was before the court, and that which was not. Nor does it consider the regulatory regime governing mortgage intermediaries.

89. The respondent engaged the services of LMC as a mortgage intermediary to help acquire a mortgage. On 8 March 2007, LMC wrote to the Bank asking the Bank to increase the loan offer to €543,450. The application gives the customer name as Brian Donohoe and the intermediary name as LMC. In the letter of loan application, the respondent consents to the Bank contacting his “mortgage adviser”. He consents and agrees to LMC, its servants or agents, contacting him in the manner therein specified. This is significant because mortgage intermediaries were regulated entities in 2007, when the respondent engaged LMC to apply for the loan the subject of these proceedings.

90. Section 116 of the Consumer Credit Act 1995 requires that mortgage intermediaries be authorised by the Central Bank to so act. An intermediary must hold an appointment in writing from each undertaking for which he is an intermediary (s. 116(1)). This underscores the fact that the mortgage intermediaries were entitled to – and did – hold multiple appointments from multiple mortgage lenders or credit institutions. They are regulated as separate entities carrying on separate businesses as intermediaries, not as agents of mortgage lenders and credit institutions. The respondent’s evidence is that if LMC obtained a loan and he accepted it, that the mortgage lender would pay LMC a commission. On the other hand, if LMC secured an offer and the respondent did not accept it, then the respondent was obliged to pay the intermediary – LMC – its fee. To my mind this is inconsistent with LMC being the agent of the Bank. If it were the agent of the Bank and the respondent did not accept the loan offered he could have no liability to LMC for any fee. Further, there was no evidence that LMC was a tied agent of the Bank. There was no evidence from LMC and the respondent did not exhibit the terms of his contract with LMC.

91. In those circumstances I am not satisfied that a bare assertion that the mortgage intermediary was the Bank’s agent is sufficient to support an argument that LMC was the agent of the Bank, especially when on his evidence, he would be liable for LMC’s fees if he declined to accept an offer from the Bank which it procured. The mere fact that a mortgage intermediary holds an authorisation from a financial institution does not suffice to make the intermediary the agent of the lending institution.

92. In my judgement, the eighth ground of the respondent’s cross-appeal is without merit and should be dismissed. There is no stateable basis for the contention that LMC was the agent of the Bank and accordingly any claim of misrepresentation based upon the representations of LMC cannot be imputed to the Bank.

93. The ninth ground of cross-appeal was the failure by the trial judge to hold that the question of whether or not his loan should have been included in the Central Bank’s tracker mortgage examination gave rise to an arguable defence in the proceedings. The question of whether the respondent’s loan was or ought to have been part of the Central Bank’s tracker mortgage examination is irrelevant to the appellants’ entitlement to possession under s. 62(7) of the 1964 Act of the two properties. As the trial judge pointed out at para. 44 of his first judgment, even if the respondent’s loan should have been included in the examination, this could only affect the quantum of interest due and not the fact of default, or, following on from that, the appellants’ entitlement to possession. Furthermore, regulatory matters such as “stop the harm” principle do not give rise to a defence to possession proceedings.

94. The final substantive ground of cross-appeal is an argument that the “retroactive application of the 2015 Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 and 2018 raises Constitutional and EU law property rights issues in relation to the retrospective character of a new law/terms imposed on the Mortgage Loan at issue”. This is simply incorrect and misconceived. Simply put, regulatory provisions do not alter the basic terms of the mortgage or the rights to enforce them. Therefore, this cannot afford the respondent a defence to the claim for possession pursuant to s. 62(7) of the 1964 Act. There was no question of the Bank appointing Start Mortgages to act “outside the best interests of borrowers” (in this instance, the respondent) “as a non-disclosed Third Party on behalf of a concealed and unknown other”. For the reasons I have already discussed, the beneficial ownership of the loan and the security is irrelevant to the rights of the appellants to the relief sought, and accordingly, to any possible defence advanced by the respondent.

95. For these reasons I would refuse all of the grounds upon which the respondent has cross-appealed.

Additional Reliefs sought in the Respondent’s Notice

96. The respondent requests this Court to refer questions to the Supreme Court and to the European Court of Justice. There is no issue as to the applicability or interpretation of EU law raised in these proceedings which is not acte clair, and accordingly, a reference made pursuant to Article 267 of the Treaty of Functioning of the European Union is not necessary in order for this Court to give judgment. Further, the suggestion that this Court should “refer questions to the Supreme Court for onward referral to the European Courts of Justice (sic)” for preliminary ruling is misconceived. I refuse the requested relief.

The claim of Mars Capital to possession on appeal

97. Mars Capital was not a party to the proceedings when they were before the High Court, though as I have explained in para. 9 Mars Capital was joined as a co-plaintiff and coappellant to the proceedings on a prima facie basis on the grounds that the loan and the associated security had been assigned and transferred to it. Mars Capital is the current registered owner of the charge on the two folios. That is conclusive as to the first issue it must prove to establish its right to seek possession of the properties. The only remaining issue to be determined is whether, on the balance of probabilities, it is also the legal owner of the loan. The respondent is entitled to challenge this and has done so as part of his opposition to this appeal.

98. The question that then arises is whether this Court ought to rule on this issue, which has not been considered by the High Court, or whether we should remit the issue of Mars Capital’s entitlement to an order for possession back to the High Court for consideration on a summary basis, in the first instance. Notwithstanding the fact that these proceedings have taken an inordinate length of time to the credit of none involved, in my view the question whether Mars Capital is entitled to orders for possession should be remitted back to the High Court for consideration at first instance on a summary basis. The High Court is not required to consider any arguments raised by the respondent save those arguments which address the entitlement of Mars Capital to the relief. He may not raise any other issues, whether a variation of arguments he has already advanced or any new arguments which he might seek to introduce but which he has failed to advance to date. The evolving, not to say protean nature, of the respondent’s approach to this litigation is not to be encouraged or further facilitated. The respondent has been afforded an extraordinary leeway in the defence of these proceedings: he has filed 15 affidavits and raised a bewildering myriad of unstateable arguments without establishing a single ground of defence and a line must be drawn.

Conclusions

99. The respondent is not a consumer within the meaning of the Regulations as the loan had a business purpose which was not negligible. He therefore cannot avail of any defence based upon the provisions of the Regulations.

100. The respondent was in default under the terms of his mortgage when he failed to make any repayments for more than two months. The total debt automatically became due and it was not necessary to send a letter of demand before the mortgagee’s right to possession arose.

101. The 2020 Act applies to the admissibility of documents created before the commencement of the Act and in proceedings commenced before the commencement of the Act. The documents exhibited by the appellants’ deponents were admissible under the 2020 Act and there was no reason to doubt their reliability or their credibility and it was in the interests of justice that they be admitted.

102. Start Mortgages proved in the High Court on the balance of probabilities that it was the legal owner of the respondent’s loan and that it was the registered owner of the charge registered on the folios at the time of the hearing in the High Court. It was therefore entitled to an order for possession unless the respondent established an arguable defence to its claim. The question of the beneficial ownership of either the loan or the charge did not afford the respondent an arguable defence to that claim.

103. The Bank was not obliged to notify the respondent of his options upon the expiry of the period of fixed interest under the loan so its failure to do so could not give rise to a defence to the appellants’ claim.

104. In circumstances where the respondent has made no repayments since July 2010 and the right to possession arose automatically, a dispute as to applicable interest rate does not afford a defence to the appellants’ claim.

105. There was no breach by Start Mortgages of the provisions of ss. 28 or 29 of the Central Bank Act 1997 (as amended). Even if the respondent had an arguable case that Start Mortgages was engaging in credit servicing without authorisation, this would not afford the respondent a defence to the appellants’ claim to possession which had otherwise been established.

106. Start Mortgages was therefore entitled as against the appellant to an order for possession in the High Court and the High Court erred in referring any of the six issues to plenary hearing.

107. The High Court was correct to reject the other arguments advanced by the respondent on the grounds that they could not afford him an arguable defence to the claim for possession.

108. Start Mortgages transferred and assigned absolutely its interest in and title to the associated security to Mars Capital. Mars Capital is the registered owner of the charge on the folios.

109. The question whether Mars Capital is entitled to an order for possession of the lands comprised in folios GY16988F and DN138512F will be remitted to the High Court for hearing on a summary basis at the earliest date possible.

110. My provisional view is that the appellants have been entirely successful on the appeal and the cross-appeal and are presumptively entitled to their costs of the appeal and of the proceedings. If the respondent wishes to argue for a different order he should contact the office of the Court of Appeal within fourteen (14) days of the date of this judgment requesting a short hearing on the issue of costs. He should submit written submission of no more than 2000 words in support of his application for a hearing. The appellants will have fourteen days to reply with the same word limit. The court will notify the parties of the date for the hearing on costs.

111. Whelan and Allen JJ. have authorised me to indicate their agreement with this judgment.