High Court strikes out defence and dismisses possession claim as plaintiff has no interest in property.

[2025] IEHC 481 THE HIGH COURT Record Number 2018/1814P

KBC BANK NV acting through KBC BANK NV DUBLIN Plaintiff -and-

GORDON SMITH, LINDA HUSSEY and BEN GILROY and PERSONS UNKNOWN OCCUPYING THE PREMISES AT 37 HAMLET AVENUE, CHIEFTAINS WAY, BALBRIGGAN, COUNTY DUBLIN Defendants

JUDGMENT of Ms Justice Nessa Cahill delivered on 2 September 2025

OVERVIEW

1. These Proceedings were issued by KBC Bank Ireland plc (“KBCI”), on 27 February 2018 for the purpose of obtaining orders requiring the Defendants to vacate a property at No. 37, Hamlet Avenue, Balbriggan, now comprised in Folio 167343F of the Register of the County of Dublin, of which Mr Smith was formerly the sole registered owner (“the Property”). Orders were also sought requiring the Defendants not to obstruct or prevent the taking of possession of the Property by KBCI.

2. The essential background facts are that the Circuit Court had previously made an order granting possession of the Property to KBCI (“the Possession Order”); this Order had not been appealed; and an attempt to challenge it by way of judicial review was rejected by the High Court and the Court of Appeal.

3. The First and Second Defendants remained in occupation of the Property. Following the grant of an interim and interlocutory injunction in these Proceedings, orders were made for the attachment and committal of each of the Defendants. The Property was ultimately vacated and it was then sold in January 2019.

4. There are two motions addressed in this Judgment.

5. By the first motion (“the Substitution Motion”), KBCI seeks orders substituting (or declaring to have been substituted) KBC Bank NV Dublin Branch as Plaintiff to these Proceedings. For the reasons that will be explained in this Judgment, I am satisfied that the substitution of KBC NV Bank as plaintiff in place of KBCI occurred by operation of law on 1 December 2023 (the date on which the business, rights, obligations, assets and liabilities of KBCI were transferred to KBC NV Bank). This is the statutory effect of section 41 of the Central Bank Act 1971 (as amended) (“the Act of 1971”). Given the Oireachtas has legislated for that outcome, no Court order is necessary or appropriate to effect the substitution of the parties.

6. By the second motion (“the Strike Out Motion”), the Plaintiff seeks either summary judgment or an order striking out the Defence. For the reasons set out below, I am satisfied that there is no live issue remaining as between the Plaintiff and the Defendants to these Proceedings (save for the question of undertakings as to damages) and that the Plaintiff no longer has an interest in the Property. Consequently, I do not consider that it is appropriate to grant the relief sought by the plenary summons. However, given the existence of the undertakings as to damages, the question of whether there was a valid defence to the case as originally pleaded could – to that limited extent – still be a potentially live one. For the reasons set out below, I am satisfied that, even if the claim was still a live one, the defence as pleaded (and the defence as proposed to be amended) by the Defendants disclose no reasonable defence, are bound to fail and are an abuse of process. I will therefore grant an order striking out the Defence and releasing the Plaintiff from the undertakings as to damages previously furnished.

BACKGROUND

7. On 22 April 2005, IIB Homeloans Limited (“IIB”) agreed to advance a loan of €200,000 to Mr Smith (“the Loan”). It was a condition of the Loan that it be secured on the Property. The indenture of mortgage was dated 14 June 2005 (“the Mortgage”).

8. The chain of title to the Loan and Mortgage is described by Mr Danny Noone in his affidavit grounding the Strike Out Motion. He states that IIB assigned the beneficial interest in a portfolio of loans to Phoenix Funding 2 Limited in June 2008 and that this included the Mortgage. The mortgage sale agreement is exhibited to his affidavit.

9. He explains that IIB converted to an unlimited company, IIB Homeloans, by way of special resolution passed on 30 September 2008. By way of further special resolution dated 2 October 2008, IIB Homeloans changed its name to KBC Mortgage Bank Company. The banking business of that entity was then transferred to KBCI on 26 June 2009. This was pursuant to a scheme of transfer signed on 26 February 2009 and approved under section 33 of the 1971 Act.

Mr Noone states that the legal title to the Loan and Mortgage at all material times remained with the Plaintiff (which includes the precursor entities just mentioned).

10. It is not in dispute that Mr. Smith repeatedly failed to make repayments on the Loan. On 23 July 2013 the Plaintiff wrote to Mr Smith demanding repayment in the sum of €210,623.99 and further informing him of the intention to initiate legal proceedings. By letter dated 6 August 2013 the Plaintiff’s solicitors demanded Mr Smith deliver up vacant possession of the Property.

11. On 1 May 2014, the Plaintiff issued a civil bill in Dublin Circuit Court seeking an order for possession of the Property (“the Circuit Court Proceedings”). On 29 April 2016, the Circuit Court made the Possession Order. There was no appeal against that order. An application by Mr Smith for it to be judicial reviewed was rejected by the High Court (Humphreys J.) by judgment delivered on 24 January 2017 (Smith v. Considine [2017] IEHC 22). Mr Smith’s appeal against that decision was dismissed by the Court of Appeal on 3 April (there having been no attendance by Mr Smith).

12. In the meantime, an execution order was made and lodged with the Sheriff and, on 26 February 2018, the Sheriff attended at the Property and executed the Circuit Court Order, with Mr Smith and Mrs Smith (née Ms Hussey) being escorted from the Property. However, later that evening, the Property was forcibly entered by a large number of persons. In a judgment delivered on 23 March 2018 in the context of an appeal by Mr Gilroy against the interlocutory injunction subsequently granted by the High Court (“the Court of Appeal Judgment”), the Court of Appeal recounts that “Mr. Smith and a large group of his supporters apparently engaged in unseemly conduct in their efforts to retake possession of the property” (para 10). On the evening of 26 February 2018, Mr Smith and Mrs Smith (née Hussey) entered, and resumed occupation of, the Property.

13. These Proceedings were then issued on 27 February 2018, seeking orders requiring the Defendants and other persons to vacate the Property and not obstruct or interfere with KBCI’s right to possession. As of that date, the total balance of €274,887.70 was outstanding on the Loan. An interim order was made by the High Court (Baker J.) on 27 February 2018 requiring the Defendants (and any other persons on notice of the order) to deliver up possession. An interlocutory injunction was granted by Baker J. on 15 March 2018 in the terms sought by KBCI, including an order that the Property be vacated (“the Injunction Order”).

Undertakings as to damages were given by KBCI in the context of both the interim and interlocutory injunction orders. By the Court of Appeal Judgment of 23 March 2018, the Court of Appeal (Irvine J., Peart and Hogan JJ concurring) refused Mr Gilroy’s application for a stay on the Injunction Order ([2018] IECA 90).

14. Mr Smith and Mrs Smith (née Hussey) remained in occupation of the Property, in breach of the Court orders. There were then attachment and committal proceedings, resulting in orders being made on 26 April 2018 and 1 May 2018 for the attachment of Mr Smith and Mrs Smith (née Hussey) and their committal to prison for failing to comply with the Injunction Order (there were separate criminal contempt proceedings against the Third Defendant). The contempt of Court was purged by the Mr Smith and Mrs Smith (née Hussey) on 1 May 2018 and they vacated the Property. KBCI took possession of the Property and it was sold in January 2019.

The net proceeds of sale were applied against the indebtedness of Mr Smith.

15. The pleadings in these Proceedings are closed, the statement of claim having been delivered on

11 July 2018 and the defence of the three defendants having been delivered on 6 August 2018.

16. No steps appear to have been taken in the Proceedings by any party for a number of years. They effectively lay dormant (save for some correspondence) until the issue of a voluntary discovery request by the Defendants on 20 June 2022.

17. Then, on 25 May 2023, KBCI and KBC Bank NV agreed the transfer of substantially all of KBCI’s remaining assets, liabilities and obligations (including its interest in these proceedings)

to KBC Bank NV following KBCI’s exit from Ireland (“the Transfer”).

18. On 13 September 2023, the Minister for Finance approved this transfer pursuant to the Central Bank Act 1971 (Approval of Scheme of Transfer Between KBC Bank Ireland Public Limited

Company and KBC Bank NV) Order 2023 (S.I No. 447/2023) with effect from 1 December 2023 (“the Transfer Order”).

19. Prior to that transfer taking effect, KBCI completed the sale of its interest in the Loan to Cabot Financial (Ireland) Limited (“Cabot”) on 29 September 2023.

20. On 19 October 2023, KBCI issued the Strike Out Motion. On 12 February 2024, KBCI’s solicitors wrote to the Defendants to inform them of the Transfer and the sale of KBCI’s interest in the Loan to Cabot and of the intention to issue this Substitution Motion. Mr Smith replied by letter dated 25 February 2024, refusing to consent to the substitution of the plaintiff. The Substitution Motion then issued on 8 March 2024 seeking to have KBC Bank NV Dublin Branch substituted as plaintiff in these Proceedings.

21. A separate motion was issued by the Defendants on 2 December 2024 seeking leave to deliver an amended defence, to include a new counterclaim. That motion was not listed for hearing together with the other motions, but the proposed draft amended defence was opened by the parties and is referenced later in this judgment.

22. Before addressing the two motions, I will address briefly two preliminary points: first, the position of Mr Gilroy, who did not attend the hearing of the motions and, second, certain evidential questions raised by Mr Smith.

Mr Gilroy

23. The Court of Appeal Judgment includes findings that the case against Mr Gilroy was a very limited one, based solely on his incitement of members of the public to impede the taking possession of the Property on 26 February 2018. He was named as a party to these Proceedings to ensure he would not encourage interference with KBCI’s right to possession.

24. Given the limited case made against Mr Gilroy and the fact he had no interest in the Property, Irvine J. determined that he lacked standing to advance claims or defences based on the rights of other persons (such as Mr Smith and Mrs Smith (née Hussey)).

25. The Property was since taken into the possession of KBCI and has been sold. There is no aspect of the Proceedings which now concerns Mr Gilroy or engages any interest or right on his part.

26. Mr Gilroy did not swear an affidavit in reply to the Motions and he did not attend the hearing of the Motions. A brief written submission bearing his name and addressing the Strike Out Motion was delivered and furnished to the Court. Apart from the fact that it is not typical or appropriate to rely on a written submission without attending Court to make oral submissions, the document proferred does not address any aspect of the claim against Mr Gilroy or any possible claim for damages by him. His submissions concern the same “true sale”, “synthetic securitisation”, alleged misrepresentation, fraud and non-disclosure points that are canvassed by Mr Smith.

27. I am satisfied that Mr Gilroy has no right or interest with regard to the issues he seeks to ventilate in his written submissions, and I do not consider it to be appropriate to have regard to them.

28. In any event, Mr Gilroy’s written submissions duplicate the submissions of Mr Smith and the issues raised will be considered - to the extent appropriate - when dealing with the responses of the First and Second Defendants to the Motions.

Evidential objections

29. Insofar as objection was taken to the evidence of the Plaintiff being hearsay, or otherwise inadmissible, I reject those objections on the following grounds:

(a) Mr Noone was an employee of KBCI and Mr Groarke Keenan is legal counsel of KBC Bank NV acting through its Irish branch. These two deponents who swore affidavits were employees of the Plaintiff (at the relevant point in time) and may be considered to be “officers” for the purpose of the Bankers’ Books of Evidence Acts 1879 to 1959 (as amended). This is supported by the judgment of O’Malley J. in Ulster Bank Ireland Limited v. Dermody [2014] IEHC 140 at [50].

(b) To the extent relied upon, the documentation relied upon by the Plaintiff are “business records” for the purpose of, and are admissible pursuant to, Chapter 3 of Part 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.

THE SUBSTITUTION MOTION

30. KBCI seeks the following Orders:

“1. An Order pursuant to Order 15 rules 13 and 14 of the Rules of the Superior Courts, Order 17 rule 4 of the Rules of the Superior Courts, and/or the inherent jurisdiction of this Honourable Court substituting KBC Bank NV Dublin Branch in lieu of KBC Bank Ireland plc as Plaintiff in the within proceedings.

2. Further and in the alternative, a declaration that pursuant to the Central Bank Act 1971 (Approval of Scheme of Transfer Between KBC Bank Ireland Public Limited Company and KBC Bank N.V.) Order 2023 (S.I. No. 447/2023) and section 41 of the Central Bank Act 1971, KBC Bank NV Dublin Branch was substituted in lieu of KBC Bank Ireland plc as Plaintiff in the within proceedings with effect from 1 December 2023.”

31. The Substitution Motion was grounded on the affidavit of Andrew Groarke Keenan sworn on

6 March 2024. Mr Smith swore a replying affidavit on 18 June 2024.

32. The position of the Plaintiff is that, by operation of section 41 of the Act of 1971, KBC Bank NV, acting through its Irish registered branch, KBC Bank NV Dublin, was substituted as plaintiff in these Proceedings with effect from 1 December 2023. Mr Groarke Keenan states that this substitution motion was issued in the interests of procedural clarity and to avoid confusion.

33. The position of KBCI is that, the transfer to Cabot notwithstanding, KBCI (now KBC Bank NV) has a sufficient interest remaining in these Proceedings, as the purpose of the Strike Out Motion is to release its liability under the undertakings in damages that were given the context of the applications for the interim and interlocutory injunctions.

34. Mr Smith opposes the Substitution Motion on the basis that he wants to make allegations of fraud and otherwise challenge the title and actions of KBCI with regard to the Property. He refers to “true sale” , “traditional” and “synthetic” securitisations. His position is that the substitution of another entity for KBCI and the removal of KBCI as a named party to the Proceedings will hinder his ability to get access to documents and to ensure relevant witnesses are available. He claims that witnesses will become untraceable, that evidence will be put beyond his reach and that his defence will be prejudiced. His affidavit addresses different points he wishes to make about the sale of the Loan and Mortgage to Phoenix Funding 2 Limited. Mr Smith makes various allegations of misrepresentation and concealment and makes complaints about redactions made to the documents exhibited to Mr Noone’s affidavit.

35. In the conclusion to his affidavit, Mr Smith opposes the order sought in the Substitution Motion or, in the alternative, consents to the re-issue of the Proceedings with both KBCI and KBC Bank NV as co-plaintiffs, if the matters addressed in his affidavit are “alleviated”.

Assessment

36. Section 41 of the Act of 1971 provides:

“Where, immediately before the transfer date, any legal proceedings are pending to which the transferor is a party and the proceedings have reference to the business agreed to be transferred, the name of the transferee shall on the transfer date be substituted for that of the transferor and the proceedings shall not abate by reason of such substitution.”

37. This provision must be read in light of the other provisions of Part III of the Act of 1971 which govern “transfers of banks.” Section 33(1) is particularly relevant to understanding the transfer regime. It provides as follows:

“Whenever the holder of a licence or a building society acting through its board of directors (in this Part referred to as the transferor) agrees to transfer, in whole or in part, to another holder of a licence (in this Part referred to as the transferee) the business to which the licence relates, or where the transferor is a building society the business to which its authorisation, and all or any of the other assets and liabilities of the transferor,

(a) the transferor and transferee may, before the date on which the transfer is intended to take effect (in this Part referred to as the transfer date), submit to the Minister for his approval a scheme for the transfer,

(b) the transferor and transferee shall, not less than one month before the transfer date, publish notice of the transfer in at least one daily newspaper published in the State,

(c) the Minister, after consultation with the Bank, may, not less than two months before the transfer date, either approve of or decline to approve of the scheme by order (in this section called a “transfer order”),

(d) if the Minister approves of the scheme—

(i) the assets and liabilities of the transferor described in the scheme shall be transferred under the transfer order, and

(ii) if the scheme so provides, sections 34 to 39 and 42 have effect in relation to the transfer, but only to the extent that the scheme so provides,

(e) the Minister, if the transferor and transferee so request—

(i) may include in the transfer order such incidental, consequential and supplemental provisions as he or she thinks appropriate for facilitating and implementing the transfer and securing that it is fully and effectively carried out, including provisions for substituting the name of the transferee for the transferor or otherwise adapting references to the transferor in any instrument, and

(ii) may provide in the transfer order for such transitional matters, including the sharing of assets and other contracts, as the Minister considers appropriate,

(f) a transfer order takes effect notwithstanding:

(i) any duty or obligation to any person;

(ii) any provision of any enactment, rule of law, code of practice or agreement providing or requiring—

(I) notice to any person, or

(II) the consent, approval or concurrence of any person.”

38. The effect of the approval of a transfer by the Minister for Finance is prescribed by the Act.

Once a transfer takes effect pursuant to such Ministerial approval and order, this overrides any other duties or obligations owed by the transferor. Significantly, this also overrides any other rule or provision which would otherwise require consent or approval to such transfer.

39. In this case, the Minister made the Transfer Order on 13 September 2023 approving the transfer scheme of 25 May 2023 between KBCI and KBC Bank NV with a transfer date of 1 December 2023. It provides in clause 7 that a reference to KBCI in any contract, deed, agreement, document or instrument shall be read from the transfer date as a reference to KBC Bank NV.

40. Clause 2.9 of the transfer scheme provides that

“by virtue of section 41, where immediately before the Transfer Date any legal proceedings are pending to which [KBCI] is a party and the proceedings relate to the Transferring Assets or the Transferring Liabilities, the name of the Transferee shall on the Transfer Date be substituted for that of the Transferor and the proceedings shall not abate by reason of such substitution.”

41. Part III of the Act of 1971 contains a self-contained and unambiguous set of provisions that govern the transfer of assets and liabilities by licensed banks or building societies, subject to the approval of the Minister for Finance. Once that approval is obtained and the transfer takes effect, this supplants other approval or consents that may otherwise have been required.

42. The effect of section 41 is automatic. With effect from the transfer date, the name of the transferee is substituted into any pending legal proceedings. This was confirmed by the Supreme Court (McKechnie J., MacMenamin and Dunne JJ concurring) in First Active plc v.

Cunningham [2018] 2 IR 300 (at para. 27):

“I am of the view that the proper construction of the section is that the substitution of the title of the proceedings occurs automatically. Thus without more, i.e., by automatic process, at least for the purpose of the business transaction, the substitution in respect of legal proceedings is concluded. Indeed it is not clear that the appellant disputes this interpretation, but rather maintains that an application to the court is nonetheless required to regularise the proceedings. I cannot agree. As the substitution occurs pursuant to statute, it obviates the need for a formal application under the Rules of the Superior Courts, for of course the 1971 Act cannot be subordinated to the Rules..”

43. In the circumstances of this case, the Transfer Order was made by the Minister and is presumptively valid. The effect of that Order on these Proceedings is mandatory, automatic and immediate: as of the transfer date, 3 December 2023, the name of KBC Bank NV “shall… be substituted” for the name of KBCI “and the proceedings shall not abate by reason of such substitution.”

44. The issues raised by Mr Smith do not and cannot alter the operation of this unambiguous legislative provision. I am reluctant to go any further than that, but, for completeness, I would note that none of the points raised by Mr Smith in his affidavit or submissions would in any event justify any deviation from the operation or effect of section 41. I can see no basis to apprehend that the substitution of the correct entity, which is the transferee of all assets and liabilities of KBCI, as plaintiff to these Proceedings would have any of the negative, prejudicial consequences that Mr Smith refers to. There is simply no basis to believe that it would result in the destruction of documents or unavailability of witnesses or alter the case which Mr Smith may have wished to advance.

45. The other points Mr Smith makes about the title of KBCI to the Loan, the interests of Phoenix Funding 2 Limited and about “true sale” and “traditional” securitisations are based on a misunderstanding about the intention and effect of the Substitution Motion: it does not alter the merits or facts of the Proceedings or the rights of the Defendants. The question of whether and which arguments the Defendants may wish to advance to challenge the title of the Plaintiff to the Loan is not affected by the substitution of the name of the correct party as plaintiff.

46. The name of KBC Bank NV was substituted as plaintiff to these Proceedings as of the 1 December 2023 by operation of law, specifically by the combined operation of Part III of the Act of 1971 and the Transfer Order. The wording of section 41 makes plain that the substitution occurred on that transfer date, and does not depend upon, require or even allow for an application to the made to Court for an order for substitution.

47. Instead, the Rules of the Superior Courts governing the substitution of parties are supplanted by the provisions of Part III of the Act of 1971. The inherent jurisdiction of the Court is similarly displaced, as the Legislature has enacted an unambiguous express statutory provision that conclusively provides for the substitution of the plaintiff in this case, which has already occurred as of 1 December 2023.

48. In the circumstances of this case, I do not consider that it is appropriate or necessary to make any of the orders sought by the Substitution Motion. The correct entity to be named as plaintiff to these Proceedings is “KBC Bank NV acting through KBC Bank NV Dublin” (as so described in the Transfer Agreement and the Transfer Order) and I have amended the title to the Proceedings in this judgment accordingly.

THE STRIKE OUT MOTION

49. By the Strike Out motion, KBCI seeks:

(a) An Order pursuant to the inherent jurisdiction of this Honourable Court granting judgment in terms of reliefs 1, 2 and 3 of the Statement of Claim delivered on 11 July 2018, viz:

a. An Order restraining the Defendants, their servants or agents, or any other person having notice of the said order, from preventing, impeding and/or obstructing the Plaintiff, its servants or agents, from retaining possession of the premises;

b. An Order restraining the Defendants, their servants or agents, or any other person having notice of the said order, from preventing, impeding and/or obstructing the Plaintiff, its servants or agents, from securing the premises;

and

c. An Order restraining the Defendants, their servants or agents, or any other person having notice of the said order, from trespassing upon, entering upon or otherwise attending at the premises.

(b) In the alternative, an Order pursuant to Order 19 rule 28 of the Rules of the Superior Courts and /or the inherent jurisdiction of this Honourable Court, striking out the Defence delivered on 6 August 2018 on the grounds that the said Defence discloses no reasonable answer and/or is frivolous, vexatious, bound to fail and/or an abuse of process.

(c) If appropriate, in respect of the Plaintiff’s undertaking as to damages, noted in the Orders of this Honourable Court (Ms. Justice Baker) dated 27 February 2018 (perfected 27 February 2018) and 15 March 2018 (perfected 16 March 2018):

a. An Order releasing the Plaintiff from the said undertaking;

b. Further and in the alternative, an Order holding that no inquiry as to damages is required;

c. Further and in the further alternative, an Order holding that no damage was suffered by the Defendants or any of them in consequence of the said Orders dated 27 February 2018 (perfected 27 February 2018) and 15 March 2018 (perfected 16 March 2018).

50. This motion is grounded on the affidavit of Danny Noone of KBCI sworn on 19 October 2023 and supported by the affidavits of Andrew Groarke Keenan of 9 February 2024 and 21 August 2024.

51. The position advanced on behalf of the Plaintiff (by way of affidavit and written and oral submissions) is that the Proceedings are not moot, but that the only question remaining arises from the fact that an undertaking as to damages was given by the Plaintiff in the context of the injunction applications.

52. Mr Smith swore replying affidavits on 12 January 2024 and 20 September 2024 and affirmed affidavits on 11 March 2024 and 10 July 2024 in which he advances a series of different grounds on which he wishes to challenge the title of KBCI to the Mortgage and the Loan, including allegations of concealment, fraud and perjury. He also furnished written submissions and made detailed oral submissions at the hearing of the motions. While Mr Smith in his affidavits and submissions makes a number of allegations against various persons, this judgment addresses only those matters which are relevant to the motions being decided.

Assessment

53. Taking the Proceedings as they are currently constituted and pleaded, the important facts are the following:

(a) The Plaintiff’s right to possession has been determined by the Circuit Court and the Possession Order was made in 2016.

(b) There was no appeal against that order and Mr Smith’s application for judicial review was dismissed (including the dismissal of Mr Smith’s appeal by the Court of Appeal).

(c) The question of the right of the Plaintiff to possession of the Property was therefore finally decided and is res judicata. It cannot now be challenged.

(d) Attempts to enforce the Possession Order by the entry of the sheriff were unsuccessful.

(e) These Proceedings were then issued to secure the enforcement of the Possession Order.

(f) Following the grant of the interim and interlocutory injunctions and the attachment and committal proceedings, the Plaintiff secured possession of the Property in May 2018 and the Property was sold in January 2019. These Proceedings have fulfilled their purpose.

(g) The Plaintiff has since sold its interest in the Loan to Cabot.

(h) At this point in time, the Plaintiff has no interest in the Loan or in the Property and no interest in the Proceedings.

(i) The only outstanding issue from the Plaintiff’s perspective are the undertakings in damages that were given to secure the interim and interlocutory injunctions.

54. Taking the case as pleaded by, and the reliefs as sought by, the Plaintiff in these Proceedings, it is clear that the Plaintiff has no interest in the Property and the reliefs sought to secure possession of the Property, and restrain trespass, are no longer reliefs which are properly recoverable by the Plaintiff. On the basis of the material before me, it appears that there has been no trespass by the Defendants since in or around May 2018. There are claims for damages, but the Plaintiff in this Motion makes no attempt to suggest damages are now being pursued. Consequently, I do not believe an order of this Court granting the substantive relief sought by the plenary summons is necessary to decide any live issue between the parties or that it is appropriate to grant such an order. For these reasons, I am not attracted by the Plaintiff’s argument that the final orders sought by the plenary summons should now be granted.

55. This does leave the question of the undertaking in damages to consider. In this regard, one of the alternative reliefs sought is an order striking out the Defence. If the Defence is found to disclose no reasonable basis of defending the Proceedings (as issued), then there can be no recourse to any undertaking as to damages given by the Plaintiff. I will therefore consider the merits of the Defence as pleaded to assess whether it is appropriate to make an order striking out the Defence under Order 19, Rule 28(2). In weighing this question, it is appropriate to have regard to the affidavits and exhibits relied upon by the parties, as well as the pleadings themselves. This is confirmed by Order 19, Rule 28(3):

“The Court may, in considering an application under sub-rule (1) or (2), have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.”

Assessment of the Defence

56. By the Defence delivered on 6 August 2018, the Defendants set out a series of denials and make various affirmative assertions including that Mr Smith or Mrs Smith are “people of eire” and not residents or citizens of Ireland and that they “dwell” but do not “reside” at the Property (which is said to be a “premises but not a dwelling”).

57. It is pleaded that the Loan and Mortgage are invalid and that any rights under the Mortgage were transferred to “one of the Phoenix Funding Companies.” It is pleaded that there was fraud and perjury including arising from the transfer of interests in the Loan and Mortgage to the Phoenix Funding company. There is a pleading that Mrs Smith has equitable rights to the Property and that there was a failure to refer to the interest of Mrs Smith when seeking the Possession Order. The Defence includes a challenge to the existence of a “sheriff” and to the attempt by the sheriff to take possession of the Property, including allegations of treason and that the sheriff is an “agent of the Crown (city of London)”.

58. I do not see that the Defence as pleaded provides any justification for the continuation of these Proceedings or any stateable defence to the Proceedings (if there was still a live issue in the Proceedings). The primary issue with the Defence is that it is an attempt to challenge the validity of the underlying Mortgage and the Loan and the right of the Plaintiff to pursue the enforcement of same. The Plaintiff’s right to possession of the Property, based on its rights under the Mortgage and the Loan, was conclusively and finally determined by the Circuit Court in 2016 in making the Possession Order. The Possession Order was not appealed and is final.

The challenges now attempted are a clear and impermissible collateral attack on that Order and cannot be advanced as a valid defence to any aspect of these Proceedings (even if they were not spent).

59. The position of Mr Smith was described in the Court of Appeal Judgment:

“Mr. Gordon Smith, who is (or was) the owner of the property, did not appear at the hearing of the interlocutory injunction to contest the entitlement of the bank to the relief sought on the basis of the claim as advanced. Neither has he sought to appeal the lawfulness of that order.”

60. Irvine J also noted, “it may reasonably be inferred from his failure to engage with the injunction process that he has accepted the bank's entitlement to possession of the property and that he does not wish to raise any defence to the bank's claimed entitlement” (para 4).

61. The Court of Appeal placed some reliance on this fact:

“It should be said that Mr Smith, for whatever reason, elected not to contest the bank's entitlement to possession of his property. Neither did Ms. Hussey. Relevant also is the fact that Mr. Smith has not appealed the order of Baker J. requiring him to deliver up possession of the property on the basis of the Circuit Court order.” (para 12).

62. These findings demonstrate unambiguously the position as of March 2018 and are clear findings that Mr Smith and Mrs Smith (née Hussey) elected not to challenge the Possession Order or contest the Plaintiff’s right to possession of the Property. An attempt to now collaterally attack the Possession Order cannot be permitted. Similarly, several of the points sought to be advanced by Mr Smith (ostensibly by way of defence to the Proceedings, but in truth by way of attack on the Possession Order) could have been – but were not – made previously. I agree with the Plaintiff that several of the grounds Mr Smith now seeks to advance fall foul of the rule in Henderson v. Henderson (1843) 3 Hare 100.

63. Even taking them on their merits, the other pleadings in the Defence as filed do not assist the Defendants or provide any basis for keeping these Proceedings alive.

64. For example, the conduct and role of the sheriff in the initial attempts to recover possession are not relevant to the Proceedings. Possession of the Property was ultimately recovered (apparently) without incident when Mr Smith and Mrs Smith (née Hussey) purged their contempt of court, following the making of the Injunction Order in these Proceedings and attachment and committal proceedings. I fail to see how complaints about the conduct of the sheriff before the issue of these Proceedings are relevant.

65. In addition, the various pleadings about the Defendants being “people of eire” not residents or citizens of Ireland and about the Property being “a dwelling” not “a residence” are absolute nonsense.

66. Turning to the position of Mrs Smith (née Hussey), Mr Smith places some emphasis on the averments made on behalf of the Plaintiff on 24 April 2014, in the context of the Circuit Court Proceedings. It was said on affidavit that Mr Smith was the only person in possession of the

Property; that he was single at all material times; and that no consent was required under the Family Home Protection Act 1976.

67. Mr Noone explains in his affidavit that these were erroneous averments and that KBCI was not then aware that Mrs Smith (née Hussey) was the spouse of Mr Smith since their marriage on 9 September 2005 or that she resided at the Property. It is pointed out that the Loan and Mortgage predated the marriage and that Mrs Smith (née Hussey) was present in the Circuit Court when the Possession Order was made, but did not intervene.

68. I do not see how any valid defence can be advanced by the Defendants arising from these facts.

I accept the submissions by the Plaintiff that, if the Defendants wanted to challenge the Possession Order on this basis, the correct course of action was to advance that objection before the Possession Order was made or appeal that Order. Neither of these steps was taken and this is not a stateable ground of defence or claim now.

69. In summary, I consider that, if these Proceedings were still live, the pleaded Defence would disclose no reasonable defence to the Proceedings, be bound to fail, have no reasonable chance of succeeding and amount to an abuse of the process of the Court within the meaning of Order 19, Rule 28(2) of the Rules of the Superior Courts.

70. In making that decision, I have had regard to the authorities cited by the parties, including the judgment of Mulcahy J. in Hosford v. Minister for Employment Affairs and Social Protection [2024] IEHC 154, which in turn referred the judgment of the Court of Appeal in Mullaney v Ireland [2023] IECA 195. In Mullaney, the Court of Appeal (Costello J.) found that it was impermissible to bring proceedings for the purpose of challenging final orders made in earlier proceedings “It is an abuse of process to bring proceedings whose purpose and effect is to launch impermissible collateral attacks on valid, final, un-appealed Orders of the High Court”

(para 8).

71. Accordingly, I am satisfied that this is a case in which it is appropriate to strike out the Defence.

There is therefore no basis, need or warrant for the undertakings in damages to continue (which is the only point of potential ongoing concern raised by the Plaintiff).

72. These conclusions are sufficient to dispose of the Strike Out Motion. However, Mr Smith spent considerable time addressing additional arguments he wishes to make to challenge the validity of the Mortgage and the Loan and the rights of the Plaintiff. The motion to amend the Defence was not listed for hearing before me. Nonetheless, both sides addressed the draft amended defence and I am conscious that Mr Smith is a litigant in person. If he were represented, his legal representative may well have sought to rely on the proposed amendments to save the Defence and prevent it being struck out (as permitted by an established line of caselaw including Fulham v. Chadwicks Limited & Ors [2021] IECA 72 and McAndrew v. Launceston Finance Property DAC [2023] IECA 43). While the draft amended defence (and the points which Mr Smith focused heavily upon in his affidavits and submissions) were not presented in that manner, I will nonetheless give Mr Smith the benefit of this procedural point, and will consider the draft amended defence and the primary net ground he seeks to advance, as if this was presented as a set of amendments designed to prevent the striking out of the Defence.

Proposed Amendments to the Defence

73. The primary argument Mr Smith makes (which he describes in his written submissions as “the net issue”) is that IIB Homeloans Limited, KBCI and KBC Bank NV conveyed the full legal and equitable title to the Mortgage and Loan to a Phoenix funding company and have engaged in fraud, misrepresentation, deceit and “criminal abuse”. The crux of the point is that the mortgage sale agreement between IIB Homeloans and Phoenix 2 Funding Limited (“Phoenix”)

dated 16 June 2008 (which is exhibited to the affidavit of Mr Noone grounding this Strike Out Motion) (“the Mortgage Sale Agreement”) was a “true sale” (ie a sale of the legal and equitable interest) and not a “synthetic securitisation” (in which legal title was retained). Mr Smith addressed at length the difference between a “true sale” and a “synthetic securitisation”

and cited academic writings on this topic. He asserts that the Plaintiff engaged in deception by presenting the Mortgage Sale Agreement as a “synthetic securitisation”. He contends that IIB and KBCI were servicing agents only (or “mortgage managers”) and held no legal title to the Loan or Mortgage when the Possession Order was obtained.

74. For several reasons, I consider that any reliance on this point – or on any aspect of the draft amended defence - to defend the Proceedings and/or challenge the right to possession of the Plaintiff is bound to fail and does not prevent the making of an order striking out the Defence.

75. First, this is a very belated attempt to challenge the Possession Order which was made in 2016.

That decision was never appealed and the subsequent Injunction Order made by the High Court was similarly not appealed by Mr Smith or Mrs Smith (née Hussey) (as emphasised in the Court of Appeal Judgment in March 2018). Any attack now on the Possession Order that was made in 2016 is impermissible. It is blatant from the relief sought by the draft amended defence (which includes an order setting aside the Possession Order) that this is what is impermissibly attempted. All of the arguments sought to be advanced by Mr Smith, and the draft amended pleadings, are bound to fail and are an abuse of process on this ground alone.

76. Second, Mr Smith is effectively trying to launch a new challenge to the Possession Order under the guise of a defence and counterclaim to these Proceedings. The extent of the attempt to make a radically different new case is manifest from the 37-page draft amended defence that is proposed, which bears scant resemblance to the four-page Defence delivered in 2018 and involves the proposed introduction of six new parties to the Proceedings and several blatantly unstateable and scandalous pleadings (well-exemplified by the claim that the attempt to recover possession of the Property constituted attempted murder). This attempt to expand and re-write the case is not appropriate or permissible. It runs contrary to the imperatives of finality in litigation and the efficient use of valuable resources to allow an unappealed order made in 2016 to now be challenged by the comprehensive re-writing of pleadings delivered in 2018 and the very late attempt to introduce an entirely new counterclaim against six new parties.

77. Third, as pointed out by the Plaintiff, there is an unambiguous line of authority that securitisation does not as a general proposition affect a lender’s right to enforce a debt. The Plaintiff refers to the judgment of Peart J. in Wellstead v. Judge Michael White [2011] IEHC 438, which has been applied consistently in a series of cases, including in the judgment of Bolger J. in Pepper Finance Corporation (Ireland) DAC v. Egan [2025] IEHC 31. These cases firmly establish that a lender can pursue the enforcement of a debt, despite the assignment of

the beneficial interest in that loan to another entity. I note that Mr Smith in his written submissions refers to Wellstead as “bad law”. I reject that submission.

78. Fourth, applying these legal principles to the Mortgage Sale Agreement here, the position of KBCI, as set out in the affidavit of Mr Noone, is that the beneficial, and not the legal, title to a basket of loans and mortgages was transferred to Phoenix, and that the basket included the Loan and Mortgage. In submissions and on affidavit, it is confirmed that a specific notice was required for the transfer of legal title, and that this notice was never sent. The following clause (5.2) is material to this point:

“unless the Issuer serves notice on IIB two days prior to Completion requesting otherwise, IIB (i) shall not be required to execute and deliver items 5.2.1, 5.2.2, 5.2.3,

5.2.4 and 5.2.5 upon Completion… and (ii) hereby declares that it holds the Original Loans with effect from Completion upon trust for the issuer as the beneficial owner thereof.”

79. Mr Noone makes the averment that “no such notice was served by the Issuer on the Bank and the Bank therefore held the legal interest in the Original Loans, including the loans advanced by the Bank to Mr Smith on trust for the Issuer as beneficial owner until February 2021… at all material times hereto, the legal interest in the loans remained in the Bank”.

80. This is an unequivocal confirmation on affidavit that legal title to the loans and mortgages did not transfer to Phoenix. While Mr Smith makes reference to documents that he asserts could be available on discovery and expert evidence he wants to adduce to contradict that averment (as well as certain documents he found on the internet), this is speculation, does not answer the evidence presented by the Plaintiff, and falls far short of what is required to assert a case of fraud. The Defence as pleaded and the amendments proposed are not stateable, have no prospect of success on the basis of the material before me, and are an abuse of process, particularly given the history of these Proceedings and the Circuit Court Proceedings.

81. I note that Mr Smith relies on the principle that concealment of a relevant fact can undermine rights of enforcement, citing Canada Square v. Potter [2023] UKSC 41. Whether and when concealment of a material fact may affect a party’s right to rely on the UK statute of limitations (as arose in that case), bears no resemblance to the issue here. Here, a decision was made in the Circuit Court in 2016 declaring the Plaintiff to have a right of possession and that order, as well as the subsequent High Court injunction orders, were not appealed by Mr Smith or Mrs Smith (née Hussey). Given that the holder of a legal title to a loan has the right to pursue its enforcement, and that the sworn evidence given on behalf of the Plaintiff is that the Plaintiff held legal title to the Loan and Mortgage at the material times, I see no basis for the allegations of fraud and concealment – or other related complaints - made by Mr Smith. The other cases relied upon by Mr Smith (such as Mohan v. Revenue Commissioners [2025] IEHC 63 and Cave Projects Ltd v. Gilhooley [2025] IESC 3) have no correlation with, or bearing on, this case.

82. Finally, the draft amended defence itself is replete with offensive, irrelevant allegations against numerous individuals and misconceived complaints. For example, there are complaints about alleged concealment of court orders, but one such order (1 May 2015) was an order for an adjournment only and there can be no suggestion Mr Smith was at any disadvantage: on the contrary, the Plaintiff states that the adjournment was to allow Mr Smith time to engage in the matter. This point has no conceivable relevance to Mr Smith’s defence. Mr Smith then assets that the non-production of a court order of 3 October 2016 “scuppered the appeal of the judicial review decision and interfered with the administration of justice”. The simple fact, recorded in the order of the Court of Appeal of 3 April 2019, is that Mr Smith did not attend when the appeal was listed for hearing and it was then dismissed. Far from saving the draft Defence, the amendments proposed in fact demonstrate and confirm that the Defence is an abuse of process and that there is no reasonable defence and no reasonable prospect of defending the Proceedings. The correct order remains an order striking out the Defence as filed.

83. For the avoidance of any doubt, if the draft amended defence was being considered on its own merits, I would consider it to amount to an abuse of process, to be bound to fail, and to have no reasonable prospect of success, on the basis of the document itself and the affidavits and material advanced by the parties to these Proceedings.

CONCLUSIONS

84. There is no basis or justification for these Proceedings to continue in being. The Plaintiff has no existing interest in the Property, the underlying issues or the relief sought. I therefore refuse to make an order granting the Plaintiff the relief sought by the plenary summons. As undertakings as to damages remain in place since 2018, I am satisfied that it is appropriate to make an order formally striking out the Defence under Order 19, Rule 28(2).

85. I will then also grant the order sought by paragraph 3 of the Strike Out Motion releasing the Plaintiff from the undertakings as to damages recorded in the orders of the High Court of 27 February 2018 and 15 March 2018.

86. It may then be appropriate for the Court to formally order that the Proceedings be discontinued pursuant to Order 21, Rule 1, but I will hear the parties as to whether and what precise form of order is sought.

87. Turning to the question of costs, while I have found that the Substitution Motion was not necessary, I am mindful that it was appropriate for the Transfer to be brought to the attention of the Court and the title to the Proceedings to be formally corrected. I am of the provisional view that there should be no costs order in respect of the that motion.

88. With regard to the Strike Out Motion, the Plaintiff has been successful in obtaining certain of the reliefs sought and I am accordingly of the provisional view that the Plaintiff is entitled to recover its costs of that Motion as against the First and Second Defendants.

89. Should any party wish to contend for a different order as to costs, they should deliver a written submission of no more than 1,000 words in length by 3 October 2025 and I will then list the matter before me at 10.15 am on 9 October 2025 for the purpose of determining the allocation of costs and making final orders.