High Court dismisses defendants' opposition to possession claim in mortgage default case where prima facie case is established.

THE HIGH COURT

CIRCUIT APPEAL

[2025] IEHC 496

[Record No. 2014 NO. 29CA]

BETWEEN

MARS CAPITAL FINANCE IRELAND DAC

AND

BANK OF SCOTLAND PLC

PLAINTIFFS

-AND-

PAT O’CONNOR AND JOAN O’CONNOR

DEFENDANTS

JUDGMENT of Mr. Justice Mark Heslin delivered on the 26th day of August 2025

Introduction

1. These proceedings concern an application for possession of unregistered land, in which the defendants do not deny that (i) they applied for loan facilities; (ii) entered into a mortgage loan agreement in 2007, the terms of which specified their repayment obligations; (iii) entered into a mortgage and charge over their property, in accordance with the mortgage loan agreement, thereby providing security for the loan in question; (iv) the mortgage contains a power of sale of the property in the event of the defendants’ default regarding repayment obligations; (v) they received the relevant monies, being the sum of €1,250,000.00; (vi) went into substantial arrears, from 2010 onwards, and defaulted on their repayment obligations, thereby triggering the mortgagee’s entitlement to demand repayment; (vii) failed to make repayment, despite formal demand and; (viii) failed to surrender possession of the property, despite formal demand.

2. The case proceeded by way of a de novo hearing (per s. 37 of the Courts of Justice Act 1936). Mr. Neuman BL represented the first named plaintiff, Mr. Hutchinson BL represented the second named plaintiff. Ms. Kilrane BL represented the second named defendant who filed the notice of appeal (the first named defendant having, very sadly, passed away since the proceedings were issued).

3. I received helpful written legal submissions from Mr. Neuman and am grateful to all 3 counsel who articulated, clearly, the positions of their respective clients during the course of oral submissions at the hearing, which took place on 10 July 2025.

Opposition to the possession claim

4. A wide range of issues were raised in the affidavits sworn by the second named defendant (hereinafter “the defendant”) in advance of the Circuit Court hearing, which did not feature at the hearing before me.

5. Instead, at the trial which took place on 10 July 2025, the opposition to the claim for possession focussed exclusively on a motion issued by the defendant, on 3 July 2025. Indeed, responding to my query, counsel for the defendant made clear that her client’s opposition to the possession claim was to move the said motion, which sought the following relief:-

“1. An order setting aside the Orders dated the 25th January 2016 and the 18th July 2016 obtained by Tanager Limited a predecessor in title to the within first named plaintiff/respondent adjoining the within second named plaintiff/respondent to this appeal.

2. An order removing Bank of Scotland Plc as a co-plaintiff/respondent from the within appeal…” (emphasis added).

6. For reasons presently explained, when both orders were made in 2016 the title of these proceedings was “Tanager Limited, Plaintiff -and- Pat O’Connor and Joan O’Connor, Defendants”. The first in time of the orders which the defendant now wants to set - aside is an order made by this Court (Moriarty J.) which joined Bank of Scotland Plc as a co-plaintiff. The second order (also by Moriarty J.) amended the figure “18” in the first order to the figure “17”. This was in circumstances where the first order mistakenly referred to “Order 18 Rule 4” instead of “Order 17 Rule 4” of the Rules of the Superior Courts (“RSC”).

The ‘slip’ rule

7. Order 28 of the RSC confers on the Superior Courts the power to correct mistakes or errors, in that it states: “clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court on motion without an appeal”. The foregoing is often referred to as the ‘slip rule’. There was nothing at all unusual about the manner in which it was employed.

8. It is a statement of the obvious to say that both of this Court’s 2016 orders were made after the Circuit Court’s (2014) possession order and before the (2025) hearing of the present appeal. The significance of the foregoing is that both of the orders which the defendant wishes to have set – aside were made during the course of a ‘live’ appeal against the possession order (also illustrated by the record number “2014 29 CA” which appears on both orders).

9. In light of the foregoing, it is appropriate to quote s. 39 of the Courts of Justice Act 1936 (“the 1936 Act”) which provides:

“The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable.” (emphasis added).

10. The significance and scope of s. 39 was considered by the Court of Appeal in ACC Loan Management Limited v. Fagan & Anor [2018] IECA 353 (“ACC v. Fagan”) wherein McGovern J. stated:- “4. This Court has considered the decision of the Supreme Court in Kinahan v. Baila, an unreported judgment of the Supreme Court on the 18th July 1985. In the course of that judgment Finlay C.J. said that the “basis on which it was sought to distinguish this appeal from what would appear otherwise to be the very clear and unambiguous terms of s. 39 was that the application made to the High Court was an interlocutory application touching on a matter, namely, security for costs which had not been the subject of any application, and therefore, of any decision, in the Circuit Court proceedings. I am quite satisfied that that does not take this appeal outside s. 39 and I am quite satisfied that any interlocutory application made and any decision made by the High Court exercising its appellant jurisdiction under the Courts of Justice Act 1936 in relation to appeals from the Circuit Court is captured, as is every other decision by the High Court on a Circuit Appeal, by s.

39 and there is no room in the interpretation of Section 39 to make a special exception in relation to matters by way of interlocutory application raised for the first time in the proceedings, provided they are raised in a Circuit Appeal.”

5. The words of Finlay C.J. are quite specific and he refers not only to any interlocutory application made but also he refers to any decision made by the High Court exercising its appellate jurisdiction under the Courts of Justice Act 1936.”

11. In light of the analysis in ACC v. Fagan, both of the 2016 orders which the second defendant very belatedly seeks to set - aside were made in exercise of this Court’s appellate jurisdiction. Thus, both orders were, and remain, final and unappealable, by virtue of s. 39. It follows that this Court has no jurisdiction to entertain what is, in substance, an appeal to this Court against final orders by this Court.

12. Without intending any disrespect, the submissions made on behalf of the second named defendant simply did not engage at all with s.39 as interpreted in ACC v. Fagan. That is not to criticise counsel in any way. On the contrary, it may well have reflected learned counsel’s view that if ACC v. Fagan was good law (and there was no suggestion to the contrary) there was no answer to the s.39 issue and, therefore, it was inappropriate to waste court time trying to argue otherwise.

13. In circumstances where it was made clear that the opposition to the possession claim was the second defendant’s motion, which motion has been entirely unsuccessful, it would be tempting to say no more than, having carefully considered the evidence before me I am satisfied that (i) the plaintiff has established ownership of the mortgage/charge; and (ii) the right to seek possession has arisen and is exercisable on the facts. The foregoing are the two central facts which the owner of a charge seeking possession had to prove, per Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26, albeit in an application for possession of registered land (see para. 49 of the judgment of Ms. Justice Baker).

14. However, given that this is a de novo hearing, where the onus of proof rests on the party seeking possession, it seems more appropriate to set out in detail my assessment of all the evidence before me. Doing so will necessarily involve identifying the plethora of arguments canvassed in the defendants’ various affidavits, even though these were not pursued at the hearing. As well as ensuring that the reasons for this Court’s decision will be as clear as possible, this approach is consistent with the views expressed by Mr. Justice Woulfe in Start Mortgages DAC v. Ryan [2021] IEHC 719 (“Start v. Ryan”), wherein he stated at para.22:

“Order 5B requires a plaintiff to establish a prima facie case on the affidavit evidence for an order for possession, and it is then necessary for the defendant to proffer evidence or argument sufficient to establish a credible defence.”

15. I now propose to set out relevant facts which emerge from a careful consideration of the evidence, and to engage with the various issues raised, with a view to determining whether the plaintiff has established a prima facie case on the affidavit evidence for an order for possession and whether the defendant has put forward any credible defence.

October 2012 - Civil bill

16. On 24 October 2012, Bank of Scotland Plc (hereinafter “BoS”) issued a civil bill seeking possession of “All that and those the premises known as “Meridien”, 1 Hainault Park, Foxrock in the County of Dublin” – being the property also known as “Meridian”, Hainault Road, Foxrock, Dublin 18 (hereinafter called “the mortgaged property”)” (the “property”). Regarding jurisdiction, the civil bill contains inter alia the following pleas:-

“4. The above mortgaged property is located in the County of Dublin and within the jurisdiction of this honourable court. The rateable valuation of the premises does not exceed 252.95.

5. The plaintiff sues as Mortgagee”

Grounding affidavit

17. On 18 October 2012, Ms. Charlotte Cottham swore an affidavit grounding the claim for possession (the “grounding affidavit”), reliance upon which is referenced in the civil bill. The grounding affidavit exhibited copies of, and contained averments concerning, inter alia, the following:

Mortgage loan agreement signed by defendants

• The 19 September 2007 offer of mortgage loan by which Bank of Scotland (Ireland)

Limited (“BoSI”) offered to advance to the defendants, by way of loan secured against a first legal mortgage/charge on the property, the sum of €1,250,000 for a term of 16 years repayable in accordance with the terms and conditions specified in the loan offer itself, and in the “Home Loan Terms and Conditions” (the “mortgage loan agreement”);

• The Home Loan Terms and Conditions;

• The Form of Acceptance, signed by both defendants, on 28 November 2007, in the presence of a Mr. Eamonn Keane, solicitor, by which the defendants entered into the mortgage loan agreement.

Mortgage/charge signed by defendants

• The indenture of mortgage and charge, dated 20 December 2007, signed by both defendants, and witnessed by the same solicitor, by which the defendants (as mortgagors)

charged their interest in the property as security in favour of BOSI, as mortgagee;

• Registry of Deeds searches evidencing that the mortgage and charge was duly registered in the Registry of Deeds, on 20 February 2008.

Demand for repayment of arrears

• Letter of demand, dated 1 May 2012, in which BoS stated inter alia that “…an Event of Default has arisen under the terms of the mortgage…” and a demand for payment was made. It is common case that the defendants defaulted on their repayment obligations;

that arrears then exceeded €28,000; and that the defendants failed to make the repayment demanded.

Demand for possession

• 12 June 2012 letter of demand issued by the solicitors for BoS, informing the defendants that “… payment of money is due to the bank on foot of your mortgage account. Our client hereby requires and demands possession of the said premises within 10 days from the date hereof for the purposes of sale of the premises as the bank’s powers of sale under the mortgage have now arisen. However, should be arrears outstanding to our client be discharged forthwith, possession of the premises will not be required.” The arrears then outstanding was specified to €31, 531.90. It is common case that the defendants neither discharged the arrears, nor delivered up possession.

Statement of account

• A Statement of account detailing the total sum then due and owing by the defendants of €1,294,794.29, including arrears in the sum of €35,981.26, arising from the defendants’ periodic default, since 10 March 2010, in the payment of monies due under the mortgage loan agreement.

Certificate of rateable valuation

• A certified extract from the valuation lists dated 12 September 2012 showing a rateable valuation of €41.26.

Cross-border merger

• Order made on 22 October 2010 (Kelly J., as he then was) transferring, to BoS, all of the assets and liabilities of BoSI, including, the mortgage and charge, by virtue of a crossborder merger pursuant to the European Communities (Cross-Border Mergers) Regulations 2008 and the Companies (Cross-Border Mergers) Regulations 2007 of the United Kingdom.

18. I pause to say that, in light of the said order, made on 22 October 2010, there is conclusive evidence of a transfer of all rights in the defendants’ loan and mortgage from BoSI to BoS (being the second plaintiff in these proceedings).

Service of proceedings – October 2012

19. The proceedings were served on or about 25 October 2012, in the manner averred in an affidavit of service sworn by a Ms. Samantha Armstrong, on 7 November 2012.

Appearance – April 2013

20. The defendants entered an Appearance, in person, on 23 April 2013.

Defendants’ 1st affidavit – May 2013

21. The defendants’ swore a replying affidavit on 1 May 2013 making a range of assertions, including:-

• The grounding affidavit was sworn by someone “not properly authorised”;

• The defendants had made a data access request and “vital documentation” was awaited from BoS (without the defendant identifying any document);

• The “loan in question in these proceedings was sold as part of the Wolfhound 2008-1 or Wolfhound 2008-2 securitisations”;

• That “the bank has not complied fully with the terms of the Central Bank Code of Conduct on Mortgage Arrears (CCMA)” (without the defendant identifying any alleged breach);

• Payments of €1,650 and €1,000 on 14 August 2012 and 17 October 2012, respectively:

“were not accounted for in the arrears amount”;

• “the contract herein contains unfair terms and conditions as defined in the European Directive 93/13/EEC 5 April 1993”; (without the defendant identifying any such term);

and the assertion that:

• “the plaintiff has no bona fide cause of action”.

22. At the risk of repetition, the defendants have never denied defaulting on their repayment obligations and falling into arrears, thereby triggering the entitlement of BoS to demand repayment. Indeed, as of 1 May 2013, the fact of continuing arrears was explicitly acknowledged in the defendants’ affidavit. Furthermore, the opposition to the claim for possession could fairly be described as comprising a range of assertions, which were not supported by evidence.

Unfair terms

23. Turning to the claim that there was a breach of Directive 93/13/EEC 5 April 1993 (the “Directive”), Mr. Justice Woulfe stated the following in Start v. Ryan (at para. 36):-

“Assuming for present purposes that the appellant was acting as a consumer, the issue of unfair terms was one addressed by McDermott J. in Permanent TSB Plc. v. Davis [2019] IEHC 184, which, in turn, addressed the decision of the Court of Justice of the European Union in Aziz v. Caixa d'Estalvis de Catalunya (Case C-415/11). In Davis, having considered the terms of the mortgage and the loan agreement, McDermott J. highlighted the provisions of Article 4(2) of the Directive, which provides as follows:

‘Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language.’

In Davis, McDermott J. held that the defendants were consumers within the terms of the Directive, and the 1995 Regulations, but the alleged unfair terms related to the core terms of the agreement between the parties, primarily to the terms regarding repayment of the amount advanced in the context of income and the ability to repay.”

24. In the present proceedings the defendant has not identified any term in their mortgage loan agreement which is said to be unfair. Nor have they suggested that any term is other than plain and intelligible. Furthermore, all of the term of relevance in these proceedings comprise “core terms” in the manner I propose to explain further for the benefit of the defendant.

Mortgage/charge

25. Turning to the mortgage and charge which the defendants entered into in the presence of a solicitor, it clearly states inter alia that the defendants granted, conveyed and demised to the Bank their entire interest in the property (per clause 3). This was subject to the entitlement to redeem, which is provided for as follows:

“4. PROVISO FOR REDEMPTION PROVIDED ALWAYS that if the Borrower shall duly and punctually pay to the Bank the secured monies pursuant to the covenants in that behalf contained in this mortgage and charge then and in such case the Property shall be released and discharged from the security hereby constituted.” Repayment

26. It is common case that the borrowers did not duly and punctually pay the secured monies due, in the manner they had agreed. The Bank’s Home Loan Mortgage Conditions (which per clause 8 of the mortgage, apply to the mortgage and charge), include the following:

“3. REPAYMENT The Borrower will repay to the Bank the Debt in accordance with the provisions of the facility letter but in the absence of the facility letter the Borrower will repay to the Bank the debt when the Bank lawfully demands in writing that the Borrower does so and fully in accordance with any such demand.

The Debt shall immediately become due and payment on demand to the Bank on the occurrence of any of the following events that is to say:

(i) On the happening of any event of default…” (emphasis added). Default

27. An “Event of Default” is defined as meaning any of the events stipulated in clause 9 which provides inter alia the following:

“9. EVENTS OF DEFAULT

9.1 The Bank shall not exercise any of the powers provided for in clause 8 hereof or conferred by any enactment until any of the following events shall occur:

(a) The Borrower fails to pay any sum on the due date for payment as outlined in the Facility Letter or any other sum due and payable to the Bank…” (emphasis added). Possession

28. Clause 8 concerns the “Bank’s powers and the enforcement of the mortgage” and clearly states inter alia:

“8.1 At any time after the Bank has demanded the repayment of the debt or following a request by the Borrower and insofar as the law allows, the Bank may:

(b) exercise all of the powers conferred upon it as mortgagee by the Conveyancing Act as extended or varied by these conditions;

(c) take possession of the Property…” (emphasis added).

29. Recalling the analysis in Start v. Ryan and Davis, the present proceedings concern terms and conditions relating to the “main subject matter of the contract” which constitute “core terms” for the purpose of the Directive. The main subject matter of the agreement was that all monies advanced to the defendants would have to be repaid by them, by means of monthly instalments, in the manner clearly set out in the mortgage loan agreement, failing which the lender could take possession of the property. The security granted by the defendants (as mortgagor) over their property was in accordance with the terms of the mortgage loan agreement and the defendants were plainly aware of the fact that, in the event of defaulting on their monthly repayment obligations, the mortgagee had a contractual entitlement to invoke its right to seek possession of the property. This is readily illustrated if one looks at even the first page of the loan offer, which the defendants accepted:

“TERMS OF THE LOAN PARTICULARS OF THE OFFER

Full name of the Borrower(s) Mr. Pat & Mrs. Joan O’Connor (“The Borrower):

Address of the Property to be Meridian Mortgaged (“The Property”): Hainault Road Foxrock Dublin 18

Loan Term: 16 years Amount of the Loan: € 1,250,000.00 Loan Type: Interest Only

Applicable Interest Rate: 4.55% (at offer date) Basis of Interest Rate: 0.55% over ECB Main Refinancing Operation Rate * Interest Type: Tracker Other Charges: As detailed in Notification of Administration Charges & Fees dated 29th August 2005.

Security Required: A first legal mortgage/ Meridian charge over: Hainault Road Foxrock Dublin 18

Purchase € 2,500,000.00 Price/Valuation: Reinstatement Value € 840,000.00

(ii) An assignment of a Mortgage Protection /Life Policy of the Borrower(s)

Note: By taking an assignment of a Mortgage Protection or Life policy the Bank does not in any way represent or warrant that the surrender or maturity value thereof will be sufficient to discharge the principal sum of the Loan.

* ECB Rate refers to the European Central bank Main refinancing Operation Rate.

WARNING YOUR HOME IS AT RISK IF YOU DO NOT KEEP UP PAYMENTS ON A MORTGAGE OR ANY OFFER LOAN SECURED ON IT.

THE PAYMENT RATES ON THIS HOUSING LOAN MAY BE ADJUSTED BY THE LENDER FROM TIME TO TIME. NOTE: The above Notice in respect to the adjustment of payment rates will not apply during any period when the mortgage loan is not at a fixed interest rate.” (emphasis in original).

30. In short, I take the view that all of the terms with which this possession claim is concerned (in particular (i) the defendants’ obligations to make monthly repayments, including of interest in the manner provided; (ii) the creation of the mortgage/charge; and (iii) the plaintiff’s right to seek possession of the property in the event of the defendants’ default) constitute core terms which are exempt from review for unfairness under the Directive. Nor, as I say, does the defendant contend that any of the terms is unfair, as opposed to making a general, but baseless, assertion that the Directive has been breached. Leaving aside the reality that this issue was not pressed at the hearing, it does not constitute a credible defence to the claim for possession.

Securitisation

31. Turning to the issue of securitisation, it is well-settled that a securitisation scheme is no bar to the owner of a charge seeking possession and does not prejudice the rights a borrower. The matter was comprehensively addressed by Ms. Justice Bolger in her recent judgment in Pepper Finance Corporation (Ireland) DAC v. Egan [2025] IEHC 31:-

“13. In Kearney v. KBC Bank [2014] IEHC 260, the plaintiff’s loan facilities and/or mortgages had been sold or securitised. The plaintiff contended that the defendant bank, therefore, had no right to enforce the loan. This was flatly rejected by Birmingham J. in his decision to strike out the proceedings as frivolous and vexatious. He stated:

“24. In relation to the emphasis that the plaintiff places on the issue of securitisation;

observations made by Peart J. in Wellstead v. Judge White and Others [2011] IEHC 438, are very much on point. There, Peart J. observed:-

‘But there is another obstacle which faces the applicant, and which he has not addressed, and it is that there is nothing unusual or mysterious about a securitisation scheme. It happens all the time so that a bank can give itself added liquidity. It is typical of such securitisation schemes that the original lender will retain under the scheme, by agreement with the transferee, the obligation to enforce the security and account to the transferee in due course upon recovery from the mortgagors.’

25. The views expressed by Peart J. with which I find myself in complete and respectful agreement, also, accords with the approach of the English Court of Appeal in the case of Paragon Finance plc v. Pender [2005] 1 W.L.R. 3412. The Court of Appeal was of the view that all that the special purpose vehicle acquired, under an uncompleted agreement to transfer the legal charge, was an equity in the mortgage. Paragon remained the legal owner, and as registered proprietor of the charge, retained all the powers of a legal chargee, including the right to possession, nor was it necessary to join the special purpose vehicle. The arrangement here was similarly structured to the arrangements with which the English Court of Appeal was concerned and I reach similar conclusions.

26. In summary then as far as this issue is concerned, and it is worth repeating that it is relevant to only two of the loans, the defendant bank retains legal title to the loan facilities and mortgages and the interest that was transferred by the bank to the special purpose vehicles was an equitable interest only and accordingly the bank is clearly entitled to enforce the loan facilities and the security for same.”

14. A similar legal title to the mortgage was held by the plaintiff in Pepper Finance v. Jenkins [2018] IEHC 485. The defendant argued that the beneficial owner of the defendant’s loan or related security had to be involved in the proceedings so that the defendant could know with certainty the identity of the parties entitled to receive repayment of the loan. Binchy J. identified the sole issue in the proceedings as follows:

"30. It seems to me that it is wholly unrealistic to argue that an assignee such as Windmill could, in circumstances where no notice of the assignment has been given to the debtor, successfully bring forward any claim against a debtor such as the defendants in this case. Windmill has very deliberately structured its arrangements with the plaintiff so as to enable the plaintiff to receive repayments from the defendants, and to take such enforcement proceedings arising from non-repayment of the debt as the plaintiff considers appropriate. More importantly, both the plaintiff and Windmill have chosen not to give notice of the assignment or securitisation of the debt to the defendants. This is knowledge that they have gleaned from other sources. Although the decisions of the courts in this jurisdiction as regards the effects of securitisation of debt, to which I have referred above, do not enter upon a consideration as to the rights and entitlements of an assignor and an assignee of a chose in action, they give effect to the manner in which the securitisation was intended to operate by the parties thereto which, it must be said, is in no way prejudicial to the rights of the borrowers.

Furthermore, unless borrowers are specifically put on notice of such an assignment I consider that the risk that a borrower could be subjected to more than one suit in respect of the same debt is more illusory than real and I do not believe that the courts would countenance such a proposition.

31. For all of these reasons, I consider that the plaintiff was not obliged either to join Windmill to the proceedings or to declare its status as trustee of Windmill in the proceedings. The plaintiff is therefore entitled to succeed and the appeal should be allowed.”

15. More recently, a similar argument was trenchantly rejected by Simons J. in Start v.

Kavanagh [2023] IEHC 452, where he stated:

“16. It is implicit in Mr. Kavanagh’s submissions that only the holder of an equitable or possessory title to a consumer credit agreement is allowed to issue enforcement action in its own name. Start Mortgages are criticised for supposedly acting on behalf of a hidden and concealed principal. With respect, both the case law and the legislation make it clear that the holder of the legal title to a credit agreement is entitled to enforce same. The argument to the contrary was rejected by the High Court (Hedigan J.) in its ex tempore judgment on 18 July 2016. In this regard, the trial judge had cited with approval the judgment in Kearney v. KBC Bank Ireland plc [2014] IEHC 260.”

32. In Start v. Ryan, the defendants/respondents also argued that the securitisation of their loan facilities prevented the plaintiff from recovering possession. At para. 29 of his judgment, Mr. Justice Woulfe noted that the issue of securitisation had been considered in Freeman v. Bank of Scotland plc [2014] IEHC 284 (“Freeman”). At para. 30, Mr. Justice Woulfe quoted from the

decision of McGovern J. in Freeman, as follows:

“7. …the court was referred to the definition of securitization to be found in ‘The Law on Financial Derivatives’ by Alistair Hudson (5th Ed.) at para. 1-185, where the author states:

‘The process of “securitization” means translating a financial instrument or a group of financial instruments into a security. Securitization is the process of taking rights (such as a right to receive a stream of income from a number of different mortgages or credit cards) and translating that bundle of rights into a single security which can be marketed to investors on the open market. Securitization, then, is the process by which a range of cash receivables or similar assets are grouped together and offered to investors in the form of a security in return for a capital payment from the investors.’

Generally, the receivables are transferred to a Special Purpose Vehicle so that the receivables are taken off the balance sheet of the financial institution selling the financial instruments. The Special Purpose Vehicle issues bonds to third party investors who have no right to share in the profits of the underlying assets, and provided their notes are fully repaid for both principle and interest, any remaining surplus cash is paid back to the originator of the assets as profits.

8. It is an important principle in securitization transactions that the originating bank that sells the mortgages to the SPV, under an equitable assignment, continues to service the mortgages and the legal title remains with the originating bank. Where customers have provided their consent as part of the standard mortgage terms and conditions, they are not specifically notified that their mortgage has been securitized. In the case of housing loans held by BOSI or the bank, random selection was applied to determine which of these loans would be securitized.

Thus, in the case of the plaintiff’s loans, five of the six were securitized …

10. The SPV used in the securitization was Wolfhound Funding 2008-1 Limited (“the Issuer”). It was set up for the primary purpose of issuing notes as part of a securitization of a portfolio of Irish residential property assets…

11. At all times, legal title to the loans and related security remained with BOSI until the completion of the transfers to the Issuer and notification of the transfers being given to the borrower. Such transfers would only be completed and notifications given in the circumstances set out in Clause 7.1 of the Mortgage Sale Agreement between BOSI and the Issuer. No events specified in Clause 7.1 occurred and the assignment of each of the plaintiffs’ loans and related security was effected in equity only. Notice of the assignment was not given to the plaintiffs.

The security transaction was completed on 5th November, 2013, when the bank repurchased the SPV’s interest in the securitized loans and relevant securities.” (emphasis added).

33. I pause to say that the SPV which featured in Freeman (i.e. Wolfhound 2008) is the same entity to which the defendants’ mortgage loan agreement was allegedly “sold”, according to the defendants’ affidavit of 1 May 2013. The assertion that a sale took place is no more than that, i.e. a mere assertion which is not underpinned by evidence. It is also an assertion which flies in the face of the facts which emerge from the evidence before me. It should also be noted that in Start v. Ryan, the Court was concerned with the self-same terms and conditions as apply to the defendants’ mortgage loan agreement. Bearing that in mind, it is appropriate to quote para. 31 from Mr. Justice Woulfe’s decision in Start v. Ryan:

“31. I gratefully adopt the principles set out by McGovern J. in the Freeman case. Applying those principles to the facts of the present case, I note that General Condition 5 of the General Loan Conditions provided that: “The Borrower’s attention is drawn to Clause 11.07, 11.08 and 11.09 of the Mortgage. The Borrower hereby acknowledges the Lender’s right, without further consent from or notice to the Borrower to transfer the benefit of this Letter of Offer, the Loan and the Lender’s mortgage security…over the Property to any person, company or corporation on such terms as the Lender may think fit, without any further consent from or notice to the Borrower or any other person, or any consequential assurance or re-assurance or a release under such scheme whereupon all powers and discretions of the Lender shall be exercisable by the transferee”. I note also that Clause

11.08 of the Mortgage Deed provided that the appellant “may…at any time securitize this Mortgage without any consent of the Borrower save as is contained in sub-clause 11.09 hereof and without further notice to the Borrower or any other person”, and that Clause 11.09(ii) provided that the respondents “hereby irrevocably consent and agree to be bound by…the provisions of any securitization scheme”. In any event, I am satisfied, as per Freeman, that upon securitization of the respondents’ loans the legal title to the loans and related security remained with the appellant, and securitization did not affect the appellant’s title to the loans and the related mortgage. The first named respondent has failed to establish that the respondents’ liability to repay the loans to the appellant was affected by the securitization, and I am satisfied that this issue does not establish a credible defence.”

34. The foregoing analysis concerned the same securitisation of which the defendant complains in this case and allows me to say that the securitisation issue does not constitute a credible defence.

Authority

35. On 4 July 2013, Ms. Cottham swore a second affidavit, in her capacity as an officer of BoS, in which it was averred inter alia that: “I have access to the bank’s books and other records in relation to the within proceedings and that my grounding affidavit was prepared on the basis of a careful consideration of the relevant entries in the said books and records and from facts within my own knowledge, save where otherwise appears, and where so otherwise appears I believe same to be true”. This evidence is uncontroverted, and the defendants’ assertion that Ms. Cottham was not properly authorised to swear on behalf of BoS is another unsupported or ‘bald’ assertion, which is undermined by evidence to the contrary.

CCMA

36. Ms. Cottham’s affidavit contained further averments which can be summarised as follows:

• BoS responded to the defendants’ data access request, on 16 May 2013;

• BoS complied with the CCMA (or “Code”);

• Where a borrower is cooperating with a lender, the Code provides that the lender must wait at least 12 months from the date a borrower is classified as a MARP (i.e. “Mortgage Arrears Resolution Process”) case before it commences proceedings seeking possession;

• The defendants have been in arrears since March 2010 and, in the 6 months following the

introduction of the Code, no payments were made by the defendants;

• “On the coming into force of the coding January 2011, I say that the defendants were already substantially in arrears. In July 2011, the defendants were contacted by letter to confirm that their case was being treated as a mortgage arrears resolution process (“MARP”) case”;

• “I say that the defendants have been classified as a MARP case for in excess of 12 months, and that every reasonable effort has been made to agree an alternative arrangement with the defendants…”;

• “I say that the civil bill herein seeking possession issued on 24 October 2012, which is to say some 15 months after the defendants had been classified as a MARP case”;

• “I say that during that period the defendants were not party to any alternative repayment arrangement agreed with the bank. Further, I say and believe that the defendants had not made any complaint against the bank regarding any aspect of the Code to the financial services ombudsman’s office. Accordingly I say that at no time during this 15- month period did the clock stop running for the purpose of the 12-month moratorium contained in the Code”;

• An assessment was made of the defendants’ capacity to meet their mortgage repayments, following receipt of a request from the defendants for an alternative repayment arrangement;

• The defendants’ declared monthly income, of just under €1,800, was not considered adequate to service monthly repayments which were then in order of €10,000;

• It transpired that the defendants had lodged certain sums to the bank, but had omitted to provide the account number on the lodgement slips;

• The relevant sums have since been traced and credited to the defendants’ account;

• The defendants were, of late, making payments roughly equal to the interest due on the account, being in or around €1,400;

• However, at the time of swearing of the second affidavit on behalf of the bank, the monthly instalments due were in excess of €10,500.

Moratorium

37. No evidence has been put forward by the defendants which controverts the facts averred to by Ms. Cottham and summarised above. With regard to the CCMA and the MARP process, the headnote to the reported decision in Irish Life and Permanent plc v. Dunne [2016] 1 IR 92, makes clear that the Supreme Court held:-

“3. That a court hearing an application for an order for possession by a lender should be satisfied that there was compliance by the lender with the moratorium on the initiation of proceedings set out in the code and was obliged to decline to make the order where there had been a failure to abide by same. Failure by a lender to comply with other provisions of the code did not affect its entitlement to obtain an order for possession as a matter of law.”

38. I am very satisfied on the evidence before me that there was compliance with the moratorium, as provided for in the Code. It is very clear that there is no substance to the defendants’ bald assertion that BoS failed to comply with the terms of the CCMA. This issue does not amount to a credible defence. Nor is there any question of the defendants not having been given any documentation to which they were entitled. Again, that issue does not constitute a credible defence.

Defendants’ 2nd affidavit – November 2013

39. The first named defendant swore a further affidavit, on 6 November 2013. In opposition to the claim, a range of assertions were repeated and a number of new issues were raised, as the following verbatim extracts from the defendant’s affidavit illustrates:-

• “…Ms. Cottham is not an officer of the bank, has obviously relied on hearsay and has signed her name to documents that are inaccurate” (para. 2);

• “We specifically asked the Bank of Scotland for confirmation that they are in full legal possession of the title to the loan documents and mortgage documents” (para. 3);

• “We dealt with the bank fairly and respectfully, making numerous phone calls in an effort to sort the problem out” (para. 8);

• “In 2010 when the first defendant’s health was deteriorating, and we explained this to the bank, together with his doctors report” (para. 10);

• “The affidavit of Ms. Cottham is groundless and factually incorrect” (para. 11);

• “I say that the relevant sums have since been traced and credited to the defendants account, and while the defendants remain in arrears, the statement of account exhibited as E to your deponent’s grounding affidavit should be updated…” (para. 11);

• “The second named defendant does say and believe that the first named defendant was a known risk to the Bank, a risk they chose to disregard despite knowing the risk was inevitable and now this same Bank of Scotland are visiting the entirety of that consequence on both defendants. Through their actions Bank of Scotland contributed negligently and failed to manage its business in accordance with sound administrative and accounting principles” (para. 14);

• “This has brought about an action being against the Bank of Scotland for gross negligence and misrepresentation, the plenary summons claim is also for reckless lending procedures…” (para. 14);

• “The plenary summons is issued regarding the contract being unfair in the terms and conditions as defined in the European Directive 93/13/ EEC 5th April 1993 on unfair terms in consumer contracts” (para. 15).

Hearsay

40. The assertion that Ms. Cottham was not an officer of the bank is utterly groundless and ‘flies in the face’ of sworn averments to the contrary. Regarding the allegation that her evidence is hearsay, the Supreme Court’s decision in Ulster Bank Ireland Ltd v. O’Brien & Ors [2015] 2 IR 656; [2015] IESC 96 (“Ulster Bank v. O’Brien”) is of relevance. In Ulster Bank v. O’Brien the plaintiff bank issued a motion seeking liberty to enter final judgment, which was grounded on an affidavit sworn by an employee of the bank who managed the defendants’ loan facilities (the plaintiff did not rely on the provisions of the Bankers’ Books Evidence Act 1879). The defendants argued that the plaintiff’s evidence was hearsay and inadmissible. As the headnote makes clear, the Supreme Court held:

“Per Laffoy J: That a bank was not obliged to rely on the provisions of the act of 1879 to establish an entitlement to judgment for the sum claimed where it adduced uncontroverted evidence showing that it was entitled to summary judgment in that sum. A bank was not in a different position to any other plaintiff seeking liberty to enter final judgment for a debt on foot of a contract. A witness from a bank was entitled to give evidence of the bank’s records showing the amount due by a customer of the bank.”

41. In the present case, not only is there clear evidence of Ms. Cottham’s authority and source of knowledge, her averments which are made as an employee and officer of BoS also engage the provisions of the 1879 Act. In short, the hearsay assertion is without merit. Nothing raised by the defendant calls into question the appropriateness of this Court relying on the averments made and documentation exhibited in support of the claim for possession.

Default amount

42. The defendant’s second affidavit acknowledges, once more, the fact of arrears even after due credit for all payments made. In other words, the evidence before me makes clear that the defendants were in default and in arrears (i) when the relevant demands were served; and (ii) remained in substantial arrears at all points thereafter. Lest there be an argument made by the defendants that the quantum of their arrears affects the mortgagee’s entitlement to seek possession, where default is not in dispute, it is appropriate to quote as follows from para. 40 of Start v. Ryan, wherein Mr. Justice Woulfe held:

“The Courts have accepted that in a suit for possession, as opposed to a suit for the debt, a plaintiff was entitled to possession even if there was a dispute as to part of the indebtedness. For example, in Bank of Ireland v. Blanc [2020] IEHC 18, O’Regan J. stated as follows (at para. 30):

‘The issue of how much money is due and owing and the guide to the granting or withholding of possession was dealt with by Ms. Justice Dunne in the High Court in 2009 in Anglo Irish Bank Plc v. Fanning [2009] IEHC 141, when it was indicated that a default was the issue, not the amount. That is clearly the case in circumstances where possession only is sought and not judgment of a particular sum of money, and possession is the only matter before this Court’.” (emphasis added).

Ad misericordiam

43. The defendant’s assertion that “reasonable efforts” were made to sort out “the problem”, even if it amounts to an ad misericordiam argument, does not constitute a credible defence.

Gross negligence/misrepresentation

44. Whilst the defendant makes a range of allegations, including “gross negligence” and “misrepresentation”, there is not a ‘shred’ of evidence to support the breach of any legal duty owed to them. These assertions do not constitute a credible defence to the claim before this Court which, it must be recalled, is concerned with ownership of the mortgage/charge and the entitlement to possession of mortgaged property in accordance with the terms of the mortgage loan agreement which the defendants entered into.

Reckless lending

45. As for “reckless lending”, it is sufficient to say that this is a claim which is unknown to the law (see, for example, the Court of Appeal’s decision in Keane & Anor v. Ulster Bank Ireland DAC [2024] IECA 293, per Noonan J. at paras. 37 and 84).

BoS 3rd affidavit – January 2014

46. On 9 January 2014, Ms. Cottham swore a third affidavit on behalf of BoS in which information was provided by BoS in relation to (i) securitisation of the loan; (ii) updated arrears;

(iii) details of alternative payment arrangements; and (iv) clarification regarding the occupancy and address of the mortgaged property. The averments made on behalf of BoS included the following:

• “On foot of the court’s direction, I investigated the question of whether this loan was securitised, and I can confirm, on the basis of that investigation that it was securitised on the 2nd December 2009. I say, believe and am advised by counsel that, as was submitted to the court on the last adjourned date, the securitisation of the loan does not affect that bank’s right to enforce the security the subject matter of these proceedings” (para. 3);

• “…as at 22 November (the most recent date for which a statement of account is available), the balance of the defendants’ account stood at €1,305,472.85… three payments, each of €1,398.05, were made at the beginning of the year, which sum only covered the interest payments for the relevant period” (para. 4).

47. With regard to a 2 - month moratorium in 2010; a 4 - month (January to April) moratorium in 2011; and a 3 - month (January to March) moratorium in 2012, Ms. Cottham averred inter alia:

“…while the three moratoriums above were offered by the bank to the borrowers, the borrowers failed to complete the necessary documentation for the 2012 suspension (written confirmation of their acceptance of the terms of the moratorium), and consequently, it could not be applied. I say that the bank made every effort to contact the borrowers to obtain the required confirmation, but to no avail. These efforts included telephone calls and voicemail messages left on 31 January 2012 and 22 February 2012, along with letters sent on 17 January, 2 February and 22 February” (para. 7).

48. I pause to say that the defendants have not provided any evidence which calls in to question the accuracy of the averments made on behalf of BoS.

Defendants’ supplemental affidavit – January 2014

49. The second defendant swore a supplementary affidavit, on 16 January 2014, in which she made inter alia the following averments:

• “It is apparent that the plaintiff intends to transfer my facility to a company named as Tanager Limited, without actually following the protocols as laid down in the code of practise on the transfer of mortgages” (para. 2);

• “the plaintiff is not the rightful legal owner of this loan, have sold the loan and therefore have no locus standi in this court” (para. 6).

50. Without intending any disrespect to the defendants, the foregoing are, yet again, no more than ‘bald’ assertions, which entirely lack evidence to support them.

Defendants’ “Notice for Particulars”

51. On 7 February 2014, the defendants produced a lengthy document entitled “Notice for Particulars” which was filed in the Circuit Court, on 10 February 2014. The following verbatim extracts illustrate the contents of this document (emphasis in original):

• “We demand to see Documented, Verified and Attested Evidence to substantiate ALL statements and claims contained within the CIVIL BILL FOR POSSESSION and the Affidavits of Charlotte Cottham…” (p.1);

• “We question the ‘real’ motives of the Plaintiff and its agents TOWNLEY KINGSTON SOLICITORS in bringing this case before the CIRCUIT Court…” (p.1);

• “What Jurisdiction does the Plaintiff claim, in taking matters into the CIRCUIT COURT under a ‘CIVIL BILL FOR POSSESSION’ wherein the plaintiff seeks to steal a FAMILY HOME?” (p.1);

• “Isn’t it true that the plaintiff named as the, BANK OF SCOTLAND PLC are not the Real Party of Interest as named on the ‘Civil Bill for Possession’ and therefore have no standing in law (Locus Standi) in this matter?” (p.2);

• “Isn’t it true that this alleged fact renders the herein ‘Civil Bill for Possession’ a defective and a fraudulent document, and does bring the Honourable Court into disrepute?” (p.2);

• “We DEMAND and put the Plaintiff BANK OF SCOTLAND PLC on PROOF, to provide the Honourable Court and ourselves with a Sworn Statement of Evidence, signed under Penalty of Perjury from AN OFFICER of BANK OF SCOTLAND PLC that they are THE REAL PARTY OF INTEREST in this matter…” (p.3);

• “We are forensically examining the SPECIAL INDORCMENT OF CLAIM (sic) by Townley Kingston Solicitors for the Plaintiff, in relation to providing you with a NOTICE FOR PARTICULARS in relation to same, and with a NOTICE FOR PARTICULARS in relation to the GROUNDING, Second, Third AFFIDAVITS of your Deponent CHARLOTTE COTTHAM et al. Wherein we shall address each and every point denoted therein on a point by point basis as is our lawful right” (p.4);

• “You will also note, for your convenience and in the interest of Justice being served, and keeping all parties informed, we have sent same to all parties involved/inculcated and listed above. We also write to Chief Justice Susan Gageby Denham seeking clarity on points of LAW, and in relation to your abuses of the Court Rules and Orders, and other points etc.” (p.5).

52. This document can fairly be characterised as a collection of unsupported assertions of serious wrongdoing (e.g. the allegation that an attempt was being made to “steal a family home”) coupled with similarly ‘bald’ assertions to the effect that BoS had no entitlement to bring, and the Circuit Court had no jurisdiction to deal with, the claim for possession. For the reasons set out in this judgment, the contents of this document certainly do not comprise a credible defence.

Circuit Court possession order – 12 February 2014

53. On 12 February 2014, the claim was heard in the Circuit Court by Her Honor Judge Linnane. BoS was represented by counsel, whereas the defendants appeared in person. Following the hearing, the Circuit Court ordered that the plaintiff recover, from the defendants, possession of the property; BoS was awarded the costs of the proceedings to be taxed in default of agreement; and the execution of the possession order was stayed for four months (the “possession order”).

Notice of Appeal – 18 February 2014

54. On 18 February 2014, the second named defendant filed a notice of appeal against the possession order.

14 May 2014 – appointment of solicitors for Defendants

55. By notice of appointment, dated 14 May 2014, Brian F. Fox & Company Solicitors came on record for the defendant.

18 June 2014 – change of solicitors for BoS

56. On 18 June 2014, a notice of change of solicitors was filed, whereby Ivor Fitzpatrick & Company came on record for BoS.

BoS application for Tanager to be substituted as Plaintiff

57. On 30 June 2014, an application was made by BoS, ex parte, for the title of the proceedings to be amended whereby the plaintiff would read “Tanager Limited” (hereinafter “Tanager”). This application was grounded on an affidavit sworn on 19 June 2014 by Mr. Richard Sarfo of BoS who made, inter alia, the following averments:

• “…the within application for substitution of Bank by Tanager, as plaintiff, arises in circumstances where the debts and other obligations the subject of the within proceedings have been assigned to Tanager” (para. 3);

• “By Purchase Deed in relation to a Portfolio of Facilities dated the 5 th day of December 2013 (“the Purchased Deed”), the Bank (as Seller) and Tanager (as Purchaser) agreed to the sale and purchase of certain facilities and related security as more particularly set out therein…” (para. 7);

• “Pursuant to clause 2 the Seller (being the Bank) agreed as legal and beneficial owner to sell to the Purchaser (being Tanager) the Purchased Assets (as defined therein) and the Purchaser agreed to purchase the Purchased Assets, such sale to take effect on the Closing Date (as defined therein) in accordance with and subject to the terms and conditions of the said Purchased Deed” (para. 8);

• “I beg to refer to a copy extract from Schedule 1 to the Purchase Deed confirming the inclusion of the Defendants outstanding loan linked to their primary account and any related sub-accounts (which loans are the subject of these proceedings) at Tab 2 of the Booklet of Exhibits herein. I say this confirms that the loan the subject of these proceedings forms part of the “Purchased Assets” under the Purchase Deed acquired by Tanager from the Bank” (para. 15);

• “Pursuant to the Purchase Deed a Deed of Assignment in the substantially agreed form set out in the Transfer Documents Schedule of the Purchase Deed was executed as between the Bank (as Assignor) and Tanager (as Assignee) on 14th April 2014 and I beg to refer to a copy of the said of Deed of Assignment at Tab 3 of the Booklet of Exhibits” (para. 19);

• “Pursuant to clause 2.1 thereof, subject inter alia to the terms of the Purchase Deed, the Assignor unconditionally, irrevocably and absolutely assigned to the Assignee, all such rights, title and interest as the Assignor may have in and to the Purchased Assets (subject to and with the benefit in each case of the related Finance Agreements) with effect from the Closing Date (as each of those capitalised terms is defined in the Purchase Deed)”

(para. 20);

• “Pursuant to the Purchase Deed, notifications of the sale and assignment were made to the Defendants, as Borrowers, in the following manner:

(a) On or about the 12th and 13th December 2013 the Bank notified all relevant Borrowers, including the Defendants, that it had agreed to sell amounts owing to it in respect of the Borrower’s facilities to Tanager and indicated that it would write in due course to confirm the date upon which the sale would take effect.

(b) On the day of 28th day of March 2014 the Bank wrote further to the Defendants indicating that the sale would occur on 14th April 2014 from which sale date amounts owing in respect of the Defendants facilities would be owed to the Purchaser.

(c) On the 13th day of April 2014 Tanager, as Purchaser, then wrote to the Defendants in respect of their facility advising that the Bank had informed them that it had sold amounts owing to it in respect of the Defendants Facilities, and the Facility Documents (as therein defined) had been assigned to Tanager with effect from 14th April 2014”

(para. 20);

• “In the present circumstances, the Facilities the subject of the present proceedings have been absolutely assigned by writing under the hand of the Assignor in circumstances in which expressed notice in writing has been given to the Defendants, as Borrowers. In such circumstances where the said Deed of Assignment has become wholly effective as and from the Closing Date, and where notice thereof has been given to the Defendants as Borrowers in writing, the said assignment of the facilities the subject of the present proceedings has become and is deemed to be effectual in law” (para. 23);

• “In such circumstances, a legal assignment of the debts (and other obligations) the subject of the present proceedings has taken place for the purposes of Section 28(6) of the Supreme Court of Judicature (Ireland) Act 1877 and, for the purposed of Order 22 Rule 4 of the Rules of the Circuit Court I say and believe that there has accordingly been a change and/or transmission of interest in respect of the present Plaintiff’s interest in the proceedings and in that regard, by reason of the said legal assignment, the said interest has transferred absolutely and legally to Tanager, which accordingly is the proper party to prosecute the present proceedings, and which is desirous of doing the same.” (para. 24).

30 June 2014 – Order substituting Tanager in place of BoS

58. On 30th June 2014 this Court (Peart J.) ordered that the title of these proceedings be amended, so as to disclose the title of the plaintiff to read “Tanager Limited” (“Tanager”) instead of BoS.

59. Recalling the analysis in ACC v. Fagan concerning s.39 of the 1936 Act, it seems to me that the 30 June 2014 order, substituting Tanager as plaintiff, was final and unappealable. However, given that in oral submissions, counsel for the defendant asserted a failure to comply with Section 28(6) of the Supreme Court of Judicature (Ireland) Act 1877 (“the 1877 Act”), it seems appropriate to say that the averments by Mr. Sarfo, on behalf of BoS, and the contents of the documentation exhibited by him, make perfectly clear that the entire interest in the defendants’ loan and mortgage/charge was, as a matter of fact, transferred by BoS to Tanager in compliance with the 1877 Act, including, notice to the defendants.

15 October 2014 – solicitors discharged

60. By notice dated 15 October 2014, Brian F. Fox & Company Solicitors were discharged by the defendants.

14 November 2014 – solicitors appointed for the Defendants

61. By notice dated 14 November 2014, Messrs. Whelan Murtagh Solicitors were appointed to act for the defendants.

IBRC v. Halpin

62. Subsequent to the 30 June 2014 order (which substituted Tanager, as plaintiff, in place of BoS) the Court of Appeal delivered judgment in Irish Bank Resolution Corporation Ltd v. Halpin [2014] IECA 3 (“IBRC v. Halpin”) on 10 December 2014. In essence, the Court took the view that where a transfer of interest in a charge and underlying debt had taken place after a Circuit Court possession order, but before the hearing of an appeal by this Court, the transferee should be added as a co-plaintiff, not substituted as the sole plaintiff.

11 June 2015 – President’s Order

63. On 11 June 2015, the defendants’ appeal came before the then President of this Court, who made an order which very obviously reflects the decision in IBRC v. Halpin. The said order states, in relevant part:-

“… on hearing counsel for the plaintiff and counsel for the 2nd named defendant And on reading the order made herein dated the 30th day of June 2014 whereby an application by Bank of Scotland plc substituting Tanager Ltd as plaintiff was granted And on the application of counsel for the plaintiff for an order pursuant to Order 15 Rule 30 of the Rules of the Superior Courts that the court would of its own motion join Bank of Scotland plc as a co-defendant herein The court doth declined to make said order The court finds that Tanager Ltd are not the appropriate plaintiff to prosecute this de novo hearing And it is ordered that

1. the appeal on behalf of the 2nd named defendant from the order of the circuit judge for the city and county of Dublin made herein dated the 12 th day of February 2014 on notice dated the 16th day of 2014 is validly brought and remains in being…” (emphasis added).

25 January 2016 – Order joining BoS as Co-Plaintiff

64. On 25 January 2016, following an application by Tanager, this Court (Moriarty J.) made an order joining BoS as co-plaintiff in the proceedings. At the risk of stating the obvious, the foregoing reflected the then state of the law (per the Court of Appeal’s decision in IBRC v Halpin).

Snooker

65. It will be recalled that this is the first of the orders which the defendant’s motion sought, unsuccessfully and without jurisdiction, to have set – aside, 9 ½ years after the order was made. The aim of the defendant’s motion was obvious, namely, if this Court could be convinced to set aside the order joining BoS back into the proceedings, the defendants’ hoped to argue that Tanager, as sole plaintiff, could not progress the claim in light of IBRC v. Halpin – i.e. to “snooker” the claim for possession, irrespective of the merits of the claim. It does not seem unfair to characterise this strategy as an effort to persuade the Court to focus exclusively on form, and to entirely ignore substance. Leaving aside the very obvious risk of injustice which such an approach would involve, the defendants’ motion was misconceived and wholly unsuccessful, for the reasons already explained.

Pepper v O’Reilly

66. It should also be noted that, in a judgment handed down shortly before the hearing of these proceedings, the Court of Appeal departed from the approach previously taken in IBRC v Halpin. In essence, President Costello’s 8 July 2025 judgment in Pepper Finance Corporation Ireland DAC v. O’Reilly [2025] IECA 140 (“Pepper v. O’Reilly”) explains that when the interest in a charge and underlying debt has been transferred after an order for possession by the Circuit Court and before an appeal to the High Court, it is appropriate to substitute the transferee as the plaintiff instead of the original plaintiff, rather than to join the transferee as co-plaintiff. In Pepper v. O’Reilly, the Court of Appeal found that the transferee ‘steps into the shoes’ of the transferee and is bound by the same equities. Hence, substitution will typically be the correct approach (absent specific circumstances e.g. an existing counterclaim against the original plaintiff).

67. Recalling that, in the 3 July 2025 motion, the defendant essentially sought to ‘turn back the clock’ i.e. to set - aside the order joining BoS, such that the sole plaintiff was the transferee, Tanager (which outcome would no longer ‘stymie’ the possession claim, given the decision in Pepper v. O’Reilly) the defendant’s counsel valiantly submitted that this Court should, essentially, ignore Pepper v. O’Reilly i.e. hold that “it does not have any retrospective effect”. Despite the ingenuity with which counsel for the defendant made this submission, it takes no account of the significance of s.39 of the 1936 Act and the Court of Appeal’s decision in ACC v. Fagan, which is binding on this Court and which rendered the defendant’s motion doomed to fail.

18 July 2016 – Order substituting the figure “17” for “18” in the 15 Jan 2016 Order

68. Continuing to look at the chronology of events, on 18 July 2016, Mr. Justice Moriarty made an order which provides, in relevant part:

“… Upon reading the order of this court made herein on the 25 th day of January 2016… And on the undertaking of the plaintiff through its counsel to notify the making of this order to the defendants IT IS ORDERED pursuant to order 28 rule 11 of the rules of the Superior Courts that the said order be and is hereby amended by deletion of the figure “18” after the word “Order”

in the 2nd paragraph of the said Order and the substitution of the figure “17” in its stead”

69. It is clear that the 18 July 2016 order was made in circumstances where the 25 January 2016 order mistakenly referred to “Order 18 Rule 4” instead of “Order 17 Rule 4” of the RSC. The latter concerns the change of parties due to, inter alia, events causing a change in interest (whereas the former provides, inter alia, that a plaintiff may join different causes of action in the same action). As explained earlier, the defendant’s motion also sought to set - aside the foregoing order. For the reasons already explained, the defendant’s motion was misconceived and unsuccessful.

6 December 2016 – Defendants’ solicitors discharged

70. By notice, dated 6 December 2016, the defendants discharged Messrs. Whelan Murtagh as their solicitors.

14 February 2018 – change of Tanager’s solicitors

71. On 14 February 2018, a notice of change of solicitor was lodged confirming that Messrs. Belgard Solicitors had been appointed to act for Tanager.

7 October 2019 – notice of intention to proceed

72. On 7 October 2019, Belgard Solicitors for Tanager served a notice of intention to proceed.

25 October 2019 – change of Tanager’s solicitors

73. A notice of change of solicitor was filed, on 25 October 2019, confirming that Amoss Solicitors had been appointed to act for Tanager.

7 January 2020 – change of solicitors for BoS

74. On 7 January 2020, a notice of change of solicitor was filed confirming that McCann FitzGerald had come on record for the second named plaintiff, BoS.

13 December 2021 – Order substituting Pepper in place of Tanager

75. On 13 December 2021 this Court (Ferriter J.) made an order pursuant to O. 17, r. 4 of the Rules of the Superior Courts amending the proceedings by substituting “Pepper Finance Corporation (Ireland) Designated Activity Company” for “Tanager Limited” as the first named plaintiff in the within proceedings.

76. That order was final and is not the subject of any challenge in these proceedings. Taking nothing away from the forgoing, when moving the defendant’s motion, counsel submitted that there had been a failure to comply with s. 28 (6) of the 1877 Act. That being so, it seems appropriate to look at the facts averred to in the affidavit sworn by Ms. Caroline Loftus, on 2 December 2021, in her capacity as senior operations manager and head of primary servicing of Pepper Finance Corporation (Ireland) DAC (or “Pepper”) which grounded this substitution application. The said affidavit contained inter alia the following averments:

• “I say that in circumstances where the order for possession was granted in favour of Bank of Scotland Plc, an application was made substituting Tanager as a plaintiff to the above within appeal on the 30 June 2014. Thereafter, on 25 June 2016 the Bank of Scotland Plc was added back as a co-plaintiff in circumstances where it was more appropriate that Tanager be included as a party to the proceedings with, rather than in place of, Bank of Scotland Plc. I beg to refer to the said order when produced. Thereafter, I say that since the making of the application to add Tanager as a plaintiff to the proceedings, the interest in the defendants’ loan and security has been transferred to Pepper.” (para. 9);

• “I say and am advised that pursuant to a Global Deed of Transfer executed by Tanager of the one part and Pepper of the other part on 25 March 2021, the facilities which are the subject of the within proceedings were transferred by Tanager to Pepper. It was a further term of the said deed that the security would transfer pursuant to a separate transfer deed, referred to below. I beg to refer to a copy of the said Global Deed of Transfer, redacted in part for reasons of commercial sensitivity and client confidentiality…” (para.

10);

• “I have been informed by Tanager and believe that Tanager notified the defendants by letter dated 26 March 2021 that it had assigned to Pepper all of its rights, title and interest (past, present and future) in and to the underlying loan agreement relating to the defendants’ loan and all guarantees and security granted in respect of and/or guaranteeing and/or securing the underlying loan agreement (referred to in that letter as “the Documents”) and that Tanager’s duties and obligations under the Documents has been assigned and/or assumed as and from 25 March 2021. The said letter directed the defendants to perform all duties and obligations under the Documents in favour of Pepper and to remit to Pepper any and all sums due and owing under the Documents to a bank account as directed by Pepper. I beg to refer to a copy of the letter from Tanager dated 26 March 2021…” (para. 11);

• “Pepper wrote to the defendant by letter dated 30 March 2021 in respect of the changes that had occurred and the steps to be taken by the defendants. I beg to refer to a copy of the letter from Pepper dated 30 March 2021…” (para. 12);

• “I believe and have been advised by Pepper’s legal advisers that an appropriate means to give effect to the transmission of Tanager’s interest to Pepper is by the direct substitution of Pepper Finance Corporation (Ireland) Designated Activity Company as the first named plaintiff in the within proceedings in place of and by removal of the current first named plaintiff Tanager Limited, and that the within proceedings should continue thereafter in the name of Pepper Finance Corporation (Ireland) Designated Activity Company and Bank of Scotland Plc as plaintiffs.” (para. 14).

Transfer: Tanager to Pepper

77. The foregoing averments and the contents of the documentation exhibited by Ms. Loftus demonstrate that, as a matter of fact, the entire interest in the defendants’ loan and mortgage/charge was transferred by Tanager to Pepper. The submission that the relevant provisions of the 1877 Act were not complied with is (i) not underpinned by any evidence; and (ii) is wholly undermined by the facts which emerge from the evidence before me.

24 October 2023 – change of solicitors for first Plaintiff

78. By notice of change of solicitor dated 24 October 2023, Messrs. Joynt & Crawford LLP came on record as solicitors for the first named plaintiff, which was then Pepper.

19 December 2023 – application to substitute Mars instead of Pepper

79. On 19 December 2023 a motion was issued seeking an order, pursuant to O. 17, r. 4 of the Rules of the Superior Courts, substituting Mars Capital Finance Ireland DAC (“Mars”) as the first named plaintiff, in place of Pepper. This application was grounded on the affidavit sworn on 12 December 2023 by Mr. Glen Hogan, manager for Mars responsible for overseeing the proceeding, who averred inter alia:

• “This application arises from the sale of a loan book by Pepper Finance Corporation (Ireland) DAC (“Pepper”) to the applicant, which included each of the underlying facilities/debts and related security/charges which are the subject of the within proceedings as well as the relevant claims, suites and causes of action.” (para. 5);

• “On 28 July 2023 Pepper as Seller and the Applicant as Buyer executed a Global Deed of Transfer (“the Transfer Deed”) whereby Pepper transferred all its legal rights, title, interest, estate and entitlement (past and present) in and under the Underlying Loans, the Mortgage Assets and the Finance Documents which include the facility and the security which are the subject of these proceedings, to the Applicant. (“the Transfer”)” (para. 7);

• “On 28 July 2023, Pepper and the Applicant executed an Irish Law Deed of Conveyance & Assignment which concerned the mortgage/security the subject of these proceedings. By that Irish Law Deed of Conveyance & Assignment, Pepper transferred all its legal rights, title, interest, estate and entitlement (past and present) in the mortgage/security to the Applicant. The Irish Law Deed of Conveyance & Assignment was lodged with the Registry of Deeds and the Applicant is awaiting registration as owner of the mortgage/security.”

(para. 8);

• “By letter dated 2 August 2023, Pepper notified the Defendants of the date of Transfer and that the amounts owing to it in respect of the facility had been assigned and sold to the Applicant (“the Goodbye letter”). The said Goodbye letter informed the Defendants of when the sale took effect and that, from that date, amounts owing in respect of the facility, and any obligations arising under the security, would be owed to the Applicant.

The Goodbye letter also informed the Defendants of what steps, if any, needed to be taken as a consequence of the assignment and sale and further advised that the Applicant, as purchaser, would be in further contact.” (para. 11);

• “The Applicant then wrote to the Defendants on 4 August 2024 reiterating that the transfer had been completed and advising that the Applicant would be the new point of contact in respect of the facility and the security (“the Hello letter”).” (para. 12);

• As a consequence of the Transfer Deed, the Irish Law Deed of Conveyance & Assignment, the Goodbye letter and the Hello letter, Pepper’s rights to recover on foot of the facility and to enforce the security have been transferred to the Applicant. It has therefore become necessary and expedient that the Applicant be made a party to the within proceedings…” (para. 13);

• “Pepper has no further claim against the Defendants in these proceedings…” (para. 14);

• I say that the Order for Possession under appeal was made in favour of the second named plaintiff and accordingly I believe that no purpose whatsoever can be served by Pepper remaining as a party to the proceedings and I believe that it is more appropriate for the court to make an order substituting the Applicant as first named plaintiff in lieu of Pepper.”

(para. 15).

80. Mr. Hogan swore a supplemental affidavit on behalf of Mars, on 10 January 2024, exhibiting (i) a redacted copy of the Global Deed of Transfer dated 28 July 2023; (ii) a redacted copy of the Irish Law Deed of Conveyance & Assignment dated 28 July 2023; and (iii) the correspondence issued by Pepper and by Mars notifying the defendants of the transfer.

Transfer: Pepper to Mars

81. The averments by Mr. Hogan and the unredacted contents of the documentation exhibited by him make clear that, as a matter of fact, the entire interest in the defendants’ loan and mortgage/charge was transferred by Pepper to Mars, being the first named plaintiff in these proceedings, in accordance with the 1877 Act.

82. On 12 January 2024, the defendants were served with true copies of the motion; the affidavit sworn by Mr. Hogan on 12 December 2023; and the supplemental affidavit sworn by Mr. Hogan on 10 January 2024, together with exhibits. This is averred by Ms. Ciara Reilly on behalf of Mars in her affidavit sworn on 16 January 2024.

Defendant’s opposition to the substitution of Mars for Pepper

83. On 19 March 2024, the second named defendant swore an affidavit to oppose the substitution of Mars as co-plaintiff, wherein she made inter alia the following averments:

• “I have never given “MARS Capital” my “informed consent” as a consumer and/or data subject” (para. 4);

• “I am entitled to damages arising from breaches of the laws and regulations applicable to financial instruments and/or financial transactions and/or financial conduct and/or financial services by the Plaintiffs (including their servants and/or agents) and MARS Capital (including their servants and/or agents)” (para. 5);

• “I am entitled to damages arising from breach of the laws and regulations applicable to using (and/or controlling and/or processing) personal financial data without lawful informed consent by the Plaintiffs (including their servants and/or agents) and MARS Capital (including their servants and/or agents)” (para. 17);

• “I say, believe and am advised that I am entitled to damages arising from breach of competition laws and regulations” (para. 20);

• “I say, believe and am advised that an application to the Court of Justice of the European Union is required to obtain a ruling or rulings to clarify important points of public interest law raised in my averments above.” (para. 23);

• “In all of the circumstances, I therefore pray this Honourable Court to refuse all reliefs sought by the plaintiffs herein and/or MARS Capital” (para. 24).

84. It is fair to say that, other than the assertion that the defendants did not “consent”, the opposition to the transfer comprised of a range of unsubstantiated assertions of entitlement to “damages” under a wide range of headings. No evidence was proffered by the defendant which takes issue with the facts averred to by Mr. Hogan.

Consent to transfer

85. On the question of consent to the transfer, clause 18 of the “Home Loan mortgage conditions”, which the defendants accepted in their capacity as the “Borrower”, begins as follows:-

“18.1 By accepting this offer, the Borrower hereby irrevocably and unconditionally consent to the bank at any time or times hereafter transferring, assigning, disposing whether absolutely, by way of security or otherwise, mortgaging or charging or transferring as part of a securitisation scheme or otherwise, the mortgage and or that benefit of the mortgage and or any collateral or ancillary security (including, without limitation , any insurance policy or policies of life or endowment assurance) and the monies hereby secured (collectively “Transfers” and any one a “Transfer”) to any 3rd party or body …without any further consent from, or notice to, the Borrower…”

[Note: A copy of the said conditions can be seen at exhibit “C” of the grounding affidavit sworn, on 18 October 2012, by Ms. Cottham on behalf of BoS]

18 December 2024 – Order substituting Mars for Pepper

86. The motion to substitute Mars as the first named plaintiff in these proceedings, in place of Pepper, came before this Court for hearing on 17 December 2024. The order made on 18 December 2024 records that the hearing took place in the presence of counsel for the first named plaintiff; counsel for the second named plaintiff; and counsel for the defendants. The order also records the fact that judgment was reserved, on 17 December, and delivered ex tempore, on 18 December 2024. The curial part of the order provides that, pursuant to O. 17, r. 4 of the RSC, Mars was substituted as the first named plaintiff in the title of the appeal and the court directed that the proceedings “shall be carried on with Mars Capital Finance Ireland DAC as the first named plaintiff together with the existing second named plaintiff herein”.

87. Again, I emphasise that, in light of ACC v. Fagan, this order is final. Nor did the defendant attempt in these proceedings to challenge it, focussing her opposition to the possession claim on the vain effort to set aside the 2016 orders which joined Tanager.

15 January 2025 – Defendant’s application to extend time

88. By notice of motion dated 15 January 2025, the defendant sought inter alia: “1. An order of Extending the time for leave to Appeal the Order made herein on the 18 th December 2024 as amended”. That application was grounded on an affidavit sworn on 15 January 2025 by the second named defendant who averred inter alia that there were “…a number of recent High Court decisions that impact the judgment of this Honourable Court delivered on the 18 th December 2024…”.

19 February 2025 – Defendant’s motion struck out

89. On 19 February 2025 this Court (Gearty J.) heard the defendant’s application and ordered that the motion be struck out.

3 July 2025 – Defendant’s motion to set aside orders made in January and July 2016

90. In terms of the ‘timeline’ this brings us to the defendant’s 3 July 2025 motion, which has been unsuccessful. Notwithstanding the fact that the defendant made no application to this Court to adduce new evidence, I now turn to the affidavit which grounded the defendant’s motion in case it discloses any issue which could be said to constitute a credible defence. It was a short affidavit comprising just three paragraphs, as follows:

“1. I make this affidavit from facts within my own knowledge, save where otherwise appears and where so appearing, I believe the same to be true.

2. I refer to the withing Notice of Motion and the Pleading had herein. I also refer to my affidavit as was sworn, filed and served on the 16th October 2023 when produced. I say in my Notice of Motion I seek various reliefs which I believe are at least arguable. I say and I believe that the position of Bank of Scotland Plc as a co-plaintiff is not well grounded due to jurisdictional issues and procedural inadequacies which took place between June 2015 and January 2016 in relation to the issue of High Court orders. I refer to my previous affidavit of the 16th October 2023 in which I deposed the court orders referred.

3. I say that in seeking the reliefs in my Notice of Motion I shall present submissions notes to the court which shall be relevant to the orders upon which Bank of Scotland Plc will rely upon. I say based upon the submissions referred I pray the reliefs sought in the Notice of Motion.”

91. The foregoing does not disclose a credible defence. There defendant has not identified any “jurisdictional issues and procedural inadequacies” which could in any way affect the mortgagee’s entitlement to possession. It should also be noted that the affidavit sworn by the second named defendant, on 16 October 2023, set out the procedural history, including: (i) the possession order made on 12 February 2014; (ii) the defendants’ notice of appeal filed on 16 February 2014; (iii) the application made to substitute Tanager Limited for BoS; (iv) the order made by this Court (Peart J.) on 30 June 2013 to that effect; (v) the order made on 11 June 2015 by President Kearns; (vi) the application to re-join BoS as a co-plaintiff; (vii) the order made by Moriarty J. on

25 January 2016 joining BoS as co-plaintiff; and (viii) the order made on 18 July 2016 (correcting the reference to order “17”, instead of “18”). The second named defendant then made inter alia the following averments:

“6. I say since the above occurrences Pepper Finance Ireland DAC stepped into the shoes of Tanager Limited. I say that Mars Capital have now replaced Pepper Finance Ireland DAC.

3.(sic) I say as best as I can understand in the capacity of a Litigant in Person that the change of events as deposed above are correct to the best of my knowledge.

4.(sic) I say I contest the right of Bank of Scotland Plc to be part of this appeal. I say my beliefs are best addressed by submission to the court as I believe an affidavit is not an appropriate document for such purpose. I shall address this Honourable High Court in whatever manner it directs in relation to the position of Bank of Scotland Plc. I say in the position of a Litigant in Person, it is my wish that direct your deponent to deliver my submission in writing to the court and the plaintiffs/respondent.” (emphasis added).

92. Having averred to the factual position, at para. 6, the balance of the defendant’s affidavit discloses no credible defence. The defendant has not proffered a ‘shred’ of evidence to suggest that Mars is not the owner of the loan and mortgage/charge. Nor is there anything before me to suggest that ownership of the defendants’ mortgage loan agreement is not accurately reflected in the series of orders made by this Court (reflecting the successive transfers of interest).

93. Furthermore, rather than any challenge to the ownership, by Mars, of the defendants’ mortgage loan agreement, the defendant’s averments that:“…Pepper Finance Ireland DAC stepped into the shoes of Tanager Limited. I say that Mars capital have now replaced Pepper Finance Ireland DAC” (emphasis added) are entirely consistent with the claim made by Mars.

Chain of title

94. In short, this Court has before it clear evidence of an unbroken ‘chain of title’ regarding ownership of the defendants’ loan and mortgage/charge, namely, from:

• BoSI to BoS;

• BoS to Tanager;

• Tanager to Pepper; and

• Pepper to Mars.

In conclusion

95. Having carefully considered all affidavits and exhibits I am satisfied that prima facie evidence is before this Court that Mars is the owner of the mortgage and charge (which was originally created in favour of BoSI, the ownership of which then passed to BoS and, thereafter, to Tanager, Pepper, and, finally, to Mars).

96. There is no doubt about the defendants’ default and this Court has been provided with prima facie evidence that the right to seek possession has arisen and is exercisable on the facts.

97. Furthermore, possession is sought bona fide with a view to realising the security in question. As long ago as 18 October 2012, the grounding affidavit contained inter alia the following averments:

“22. I say that it is the intention of the plaintiff, in order to recover the monies advanced and outstanding herein, and in accordance with the Powers of Sale given to it under the provisions of the aforesaid Indenture of Mortgage, loan offer and terms and conditions appertaining thereto, to offer the premises sought to be recovered herein for sale, and, in order to obtain the best possible price for same vacant possession of the mortgaged property is required.

23. In the circumstances, I say and believe that an Order for Possession of the Mortgaged Property, in order to facilitate the sale of the same by the plaintiff, is the proper and expedient manner for the plaintiff to recover the monies advanced and outstanding and accordingly I pray this Honourable Court for such relief.”

98. In short, a prima facie case for possession has been made out. By contrast, the defendants have put forward nothing more than assertions of wrongdoing on the part of others which are as serious as they are unsubstantiated (including assertions of perjury; gross negligence; misrepresentation; reckless lending procedures; that the civil bill is “… a fraudulent document…”; and that these proceedings are an attempt to “steal” a home). Nothing in the defendants’ affidavits or submissions discloses a credible defence on a prima facie basis and Mars is entitled to possession.

99. In circumstances where this judgment is being delivered during the Long Vacation, I propose to list the matter before me on Friday 10 October 2025, for the purpose of making final orders, including as to costs. On that issue, a number of observations can be made. In light of IBRC v. Halpin, it was unavoidable that the second named plaintiff was a party to the proceedings and this Court was assisted by the submissions made on behalf of BoS. Mars has been entirely successful in the claim for possession. The defendant has been entirely unsuccessful in opposing the claim for possession and entirely unsuccessful in the motion which sought to remove BoS. My preliminary but strongly held view is that costs should follow the event. In the event of a dispute as to the terms of final orders, including the question of costs, the parties have liberty, but are not required, to exchange and file short written submissions by no later than 5pm on Monday 6 October. Lest an application be made for a stay on this Court’s order, the following is noteworthy. The default goes back over 13 years and these proceedings were commenced in 2012. The order for possession was made 11 years ago, in 2014. Thus, the defendant has already remained in the property for well over a decade, without any entitlement to possession of same. In addition, I note that the learned Circuit Court judge granted a stay for 4 months, which ran from 12 February 2014. Were any stay to be sought, and were I to be persuaded to grant same, I cannot envisage a stay being for longer than the same period, i.e. 4 months.