High Court remits possession application to plenary hearing due to credible jurisdictional and set-off defences.

THE HIGH COURT

[2025] IEHC 610

Record Number 2022/177 SP

ALLIED IRISH BANKS, PLC

Plaintiff

-and-

THE DRAGON’S HEAD LIMITED

Defendant

JUDGMENT of Ms Justice Nessa Cahill delivered on 28 October 2025

INTRODUCTION

1. This is the application by the Plaintiff (“AIB”) for an order for possession of a property located in Birdhill, County Tipperary and registered on Folio 23071 County Tipperary (“the Property”).

The property is a two-story building, which is occupied partly as a private residence and partly as a licensed public house, which trades as “The Cooper's Bar”.

2. The application is opposed by the Defendant on several grounds, including the failure of AIB to correctly assert a jurisdictional basis for the application; the failure to comply with provisions of the CCMA; and the asserted right to exercise a set-off arising from a claim for damages which is being maintained against AIB related to the investments made with the borrowed funds.

3. While I have not formed a view that any of the defences or challenges advanced by the Company has any particular prospect of success, I cannot conclude on the material before me that there is no credible defence to the application for possession of the Property. In particular,

I am of the view that there is a credible challenge that AIB has failed to properly invoke the provisions for summary orders for possession and that there is a credible – and factually unchallenged – defence of set-off arising from the circumstances in which the Loan was obtained and approved. I consider that further evidence and submissions are required before AIB’s claim to possession can be fairly adjudicated upon. I therefore direct that the matter be remitted to plenary hearing.

BACKGROUND

4. An indenture of mortgage was entered on 29 July 2009 according to which the Defendant (the Dragon’s Head Limited, referred to in this judgment as “the Company”) mortgaged and/or charged its estate, right, title and interest in the Property in favour of AIB (“the Mortgage”).

The Mortgage was registered as a burden on the Property on 21 June 2011.

5. By facility letter dated 24 December 2010, AIB offered the Company a loan facility in the amount of €199,618 (“the Loan”). This was a loan that was payable on demand and it restructured and replaced unidentified, unspecified pre-existing loan facilities.

6. By a resolution passed at a meeting of the directors of the Company on the 24th of December 2010 it was decided to accept the facility offered by AIB.

7. The special summons seeking possession of the property was issued on the 3 October 2022.

The summons refers to written demands dated 19 March 2015, 26 May 2016 and 2 March 2021, describing them as demands for the payment of the sum of €314,032.52 together with interest due at the date of payment. An amended summons was then issued on 3 October 2022 (amending the name of the deponent of the grounding affidavit from Marie Moylett to Brian McGuinness). The grounding affidavit of Mr McGuinness sworn on 22 September 2023 states that the letter of demand of 19 March 2015 demanded the payment of the sum of €244,602.17 and states that the sum then due and owing was the sum of €350,701.27.

8. In addition to these possession proceedings, AIB has issued separate debt recovery proceedings against both the Company and its director and shareholder, Mr. Denis Ryan (on foot of a personal guarantee).

9. The affidavit that grounds this application was sworn by Mr. Brendan McGuinness. He recites the background facts and states that “insofar as I can ascertain there is no other person other than the Defendant in actual possession of or in receipt of the rents and profits of the said lands or any premises or any part thereof.” It is said that the power of sale under the terms of the

mortgage has arisen and become exercisable and that its ability to obtain a reasonable price will be enhanced by securing vacant possession.

10. A replying affidavit was sworn by Mr. Denis Ryan on 15 November 2024, for the purpose of outlining the Company’s defence to the application for an order for possession of the Property.

He states that the Property was acquired in 1985 (his affidavit states that this occurred in 2005, but that was confirmed to be an error) and that he has lived there since then. He further explains that, since his marriage in 1994, the residential portion of the Property has been his family home and he now resides there with his wife and his two daughters (both aged 23 and in full time education).

11. According to Mr. Ryan, the Company was incorporated for the purpose of acquiring the Property. He states that the shares in the Company were divided between his parents (who held approximately 24% of the shares); each of Mr. Ryan and his two siblings held approximately 17% of the shares; and his aunt and uncle held 25% of the issued shares between them. Mr.

Ryan states that his parents operated the licensed premises from1985 onwards and that he took over its operation in approximately 1994. He states that he has since acquired all of the shares in the Defendant which were formerly held by his parents and his siblings, with just over 13% of the issued shares remaining in the ownership of another family member.

12. Before considering the defences raised by the Company, it is first necessary to address the legal test and principles that govern this application.

APPLICABLE LEGAL TEST

13. There are several provisions of primary and secondary legislation which allow parties’ rights and liabilities to be determined in summary proceedings, without the usual plenary hearing.

Such a process has been found not to infringe the rights of the defendant, provided the statutory provisions are properly invoked and applied.

14. The Supreme Court in Ulster Bank Ireland Limited v. Beades [2019] IESC 83 (“Beades”)

considered an application for summary judgment to recover a liquidated sum of money. The Court noted that whatever the virtues of such a summary process, “it must be acknowledged that where judgment results at this point in the proceedings, the overall process falls short of the more complete hearing inherent in the plenary process” (McKechnie J. delivering the judgment with which MacMenamin and Irvine JJ. concurred). McKechnie J. later described it as a “truncated process”.

15. Given these features, the Supreme Court laid emphasis on the need to weigh the potentially competing rights of the parties, using the rules created by statute, rules of court and case law “so as to ensure that the litigation process is conducted fairly and proportionately and that the outcome is just.” Against that background, the conclusion reached by the Supreme Court was that, when a summary procedure is “appropriately utilised” or “properly invoked and applied, an aggrieved party cannot be heard to have a complaint that his Constitutional or Convention rights to a fair trial has been abridged” (at [18] to [24]).

16. These points were repeated and underlined by the Supreme Court in Bank of Ireland Mortgage Bank v. Cody [2021] 2 I.R. 381 (“Cody”), a case which concerned a summary application for possession pursuant to section 62(7) of the Registration of Title Act 1964. In the course of her judgment in that case (with which the other members of the Supreme Court concurred), Baker

J. analysed the precise contours of section 62(7), its legislative history, historical context and its interpretation in previous judgments. She went on to identify the spectrum of possible outcomes of a summary application. At one end of that range, there are cases in which the plaintiff makes out its case on the affidavits and the defendant fails to demonstrate that the evidence is incomplete or that a credible defence exists (in which case the order sought will be made following the summary hearing). At the other end, are cases in which the defendant demonstrates at the summary hearing that it has a decisive defence on the merits or that the plaintiff has failed to establish the necessary proofs (in which case the order sought is refused).

17. As acknowledged by Baker J., many cases which may be tried summarily fall between these two extremes and result in a finding that the defendant has raised a sufficiently credible defence or challenge to the plaintiff’s case to warrant further examination or evidence, but not enough to enable a conclusive finding to be made against the plaintiff. Remittal to plenary hearing will also often result when complex questions of law or contested questions of fact arise.

18. In Cody itself, the High Court had ruled that the Defendant made out a credible case that she had a stateable defence to the claim based on her averments about the documents having been witnessed when she was not present and about not having seen the underlying loan documentation. These averments were not satisfactorily answered by the bank in that case.

The Supreme Court did not disturb this finding (while differing as to the outcome). The matter was ultimately remitted to the High Court for plenary hearing.

19. In making this decision, Baker J. commented that the evidence of Mrs Cody regarding the relevant facts “presented a picture of a series of events to support her statement that she did not know of the transaction, which taken together throw some and not an unreasonable level of doubt on the sufficiency of the evidence adduced by the Bank” ([87]). The findings then made by the Supreme Court are important. It was found that Mrs Cody “… had by the combination of her evidence and assertions in affidavit raised more than an implausible or generalised or vague denial, and she did present a sufficient basis to support a request for further enquiry which, taken with the fact that the Bank did not positively respond to her assertions, was broadly sufficient to make summary disposal unsatisfactory” ([88]). The Court noted that the Bank did not seek to cross-examine Mrs Cody or otherwise challenge her factual averments in replying evidence.

20. The approach taken in Cody may be read in light of the classic exposition of the test for remitting a summary application to plenary hearing, as set out by Hardiman J. in Aer Rianta cpt v Ryanair [2001] 4 IR 607:

“In my view, the fundamental questions to be posed on an application such as this remain: is it "very clear" that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendant's affidavits fail to disclose even an arguable defence?”

21. McGuinness J. in that case similarly held, “The question is… whether the proposed defence is so far fetched or so self contradictory as not to be credible” (Denham J. concurred with the judgments of both McGuinness and Hardiman JJ.).

22. These formulations of the test marry with the view expressed by Hardiman J. in the same case that “the defendant's hurdle on a motion such as this is a low one and that the jurisdiction is one to be used with great care”.

23. Reading the tests set out in Cody together with those in Aer Rianta, there is plainly a low threshold for remitting a matter to plenary hearing: if a defendant asserts the existence of a “more than an implausible or generalised or vague denial”; discloses “even an arguable case”;

casts “some and not an unreasonable level of doubt” on the bank’s evidence; then this can suffice to remit the matter to plenary hearing. It is only if it is “very clear that the defendant has no case” that remittal should be refused.

24. Baker J. further cautioned in Cody that the jurisdiction to remit to plenary hearing,

“…is perhaps the default position in any case where the affidavit evidence is evenly balanced, where there is a conflict on the affidavits between the parties which cannot be or has not been resolved by way of further affidavit, where the court considers that a matter raised on affidavit, particularly one raised in defence, might have such a bearing on the outcome that its credibility deserves to be fully tested, or where a judge considers that in the light of certain averments which are credible, but not dispositive, it would be either difficult or unfair to resolve the matter without giving both sides the opportunity to further advance that evidence or, where necessary, to test it” (at [105]).

25. This confirms that remittal to plenary hearing may be the default outcome in any of the following circumstances: (a) if the affidavit evidence is evenly balanced (b) if there is a conflict on the affidavits that cannot be resolved on affidavit (c) if there is a material matter raised on affidavit the credibility of which deserves to be fully tested or (d) there are credible averments which both parties need the opportunity to properly present or test before the matter can be fairly resolved.

26. In this case, several discrete defences were addressed by the Company, through the affidavit of Mr Ryan and in written and oral submissions. Given the low threshold for the matter to be remitted to plenary hearing, it is only necessary that the Company demonstrate a credible defence for the matter to be remitted, rather than the Company being bound to demonstrate that each and every defence and challenge advanced meets this standard.

27. I will therefore focus on one specific defence advanced by the Company which I consider does meet the low threshold of being credible and arguable and which warrants the hearing of further evidence and submissions in a plenary hearing. This is the defence that there will be a right of set-off owing to AIB’s liability in damages for the investments for which the loan monies were obtained and used (“the Belfry Defence”). I will also address the additional defences mounted by the Company, including the defence that AIB has not properly asserted or invoked the jurisdiction necessary to succeed in this summary application (“the Jurisdiction Defence”) and the defence that there has been non-compliance with the Code of Conduct on Mortgage Arrears (“the CCMA”). The resolution of each of the defences raised will be a matter for plenary trial when, as is apparent from the judgment of Baker J. in Cody, the parties will not be confined to the affidavits now before me, but will have the opportunity to contest this matter according to the usual procedures applicable to such a mode of trial (Cody at [114] – [116]).

THE DEFENCES

The Belfry Defence

28. Mr Ryan’s evidence is that, in 2005, the Company was in a position to discharge the thenexisting loan which was secured by the Mortgage. Mr Ryan and his wife (as directors of the Company) attended at the offices of AIB with the intention of clearing that loan and vacating the Mortgage. Mr Ryan states on affidavit that, instead of discharging the existing loan, he was advised by AIB to restructure the loan for the purpose of making an investment in a specific and high risk, illiquid product that was then being promoted and marketed by AIB (“the Belfry Investment”).

29. Mr Ryan confirms in his affidavit that the Belfry Investment was “an absolute failure” and that he and his wife are still pursuing a claim for compensation against AIB. He explains the background as follows:

“in 2005 your Deponent and my wife Fiona attended with the Bank, and specifically our local branch manager Mr Kelliher, for and with the express intention of paying off the Company's then indebtedness to the Bank. We were in a position to do so arising from my brother Michael and I having disposed of our business FBO Shannon, with your Deponent having received a net sum of circa €200,000 for my share in this business. We were however advised against repaying or reducing the Company's then indebtedness to the Bank by Mr Kelliher, who instead recommended that we invest in a product then being marketed and sold by the Bank to its customers being AlB's Belfry 5 investment product, a product which Mr Kelliher indicated looked "very very good'. Mr Kelliher arranged for your Deponent to meet with a Sean Carroll of AIB and Mr Carroll also strongly endorsed the Belfry 5 investment product which was described as being a no brainer investment and I was also advised that the Bank's earlier Belfry investment products had generated massive returns for investors. I say that at no point was your Deponent advised of the true position, namely that Belfry 5 was an extreme high risk investment product, this risk arising, I say and am advised, from the fact that the investment product was an illiquid, and massively geared, investment in UK commercial property…. ”

30. Over the ensuing two pages of his affidavit Mr Ryan explains the Belfry Investment and summarises his experience with it, concluding that, “Your Deponent, and my wife Fiona, are among the small cohort of remaining investors whom are still pursuing the Bank, initially by way of its internal and external appeal processes, for compensation.” It must be observed that it is not entirely clear who invested in the Belfry Investment, although it appears that it was Mr.

Ryan and his wife in their personal capacity. It is also unclear how the monies loaned to the Company are involved and what specific role AIB played.

31. AIB’s response is contained in one paragraph of Mr McGuinness’ affidavit in which he asserts that the Belfry Investments disclose no valid defence, as the claim for compensation is “entirely distinct from the within proceedings” and the Company has no claim arising from the Belfry Investments and therefore no right of set-off.

32. In written and oral submissions, the position advanced on behalf of AIB is that there are bare assertions only with regard to the claims arising from the Belfry investment; that the defence is theoretical and lacking in clarity as to whether Mr Ryan or the Company is the claimant (and if Mr Ryan, they would be legally distinct proceedings); and that it is unclear how there could be a defence of set-off in an application for possession.

Assessment

33. I consider that the affidavit of Mr. Ryan does present a credible defence to AIB’s claim for possession and that the responses by AIB are insufficient. While his evidence is not complete or clear, Mr Ryan does advance several specific facts on affidavit which point to AIB having played a significant role in the Company’s decision not to clear its existing indebtedness and to instead restructure same to facilitate the Belfy Investment. AIB made the decision not to deny, contradict or challenge any of the factual matters sworn by Mr Ryan in his affidavit and made no application for his cross-examination. Given this approach, I have no reason to doubt the credibility, veracity or accuracy of that evidence. While it is not complete evidence and certainly would not allow a final determination to be made as to the relevance or impact of the Belfy Investments on AIB’s right to possession, it does raise a credible question and I do not consider it to be possible or just to determine the right to possession of the property in which a family is residing without these questions being explored in a plenary trial.

34. In addition to the need to further explore the facts of this matter, there may also be complex legal questions to be determined, including the question of the impact (if any) of AIB’s role in relation to the Belfry Investments on AIB’s claim to possession of the Property.

35. Given the potential complexity of these legal questions, and the decision by AIB to remain silent as regards the facts, I am of the view that the Company has raised a credible defence, about which further evidence and submissions are required before AIB’s application for possession can be fairly determined.

The Jurisdiction Defence

36. The Company contests the jurisdictional basis of this application, highlighting that the special summons itself recites no legal basis for the application (referring only to the power of sale having arisen under the Mortgage). The Company also stresses that, in AIB’s written submissions, reliance is placed on section 97(2) and section 100(3) of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”). AIB then conceded at the hearing that the 2009 Act was not applicable as it was commenced after the date of execution of the Mortgage.

37. The Company contends that this would have been sufficient to warrant a refusal of the relief sought, but did not seek that order. Instead, it was contended that there was no pleading of any jurisdictional basis for the orders sought and that this reached the threshold for remittal to plenary hearing.

38. During the hearing, counsel for AIB indicated that the correct legislative provision and that which was being invoked was section 62(7) of the Registration of Title Act 1964. It was submitted that this is a pleading point only and not a defence to the proceedings. Counsel for AIB submitted that there is no authority that requires the basis of jurisdiction to be pleaded and that any such pleading point can be rectified by amendment, with the matter being adjourned if necessary for that purpose.

Assessment

39. I do not share AIB’s view that the failure to state the correct legal basis for the application for possession in the special summons is a pleading point only. Summary litigation processes have been found to be consistent with a litigant’s rights including under the Constitution, when those process are “appropriately utilised” or “properly invoked and applied” (per McKechnie J. in Beades, as endorsed in Cody). They are deviations from, and a truncation of, the plenary procedure. Accordingly, any application for the determination of rights by way of a summary process, should properly invoke, and be premised on, the relevant legislative provision. If there is no clarity as to what provision is being invoked, this is more than a pleading point.

40. Furthermore, a defendant should be aware of the legal provision that is being relied upon in order to be able to consider and take advice as to whether the summary process has been properly invoked or whether to simply accept the consequences of the summary process.

41. In Bank of Ireland Mortgage Bank v. O’Malley [2022] 2 IR 487 (“O’Malley”), the Supreme Court emphasised the onus that rests on a plaintiff in summary proceedings to demonstrate in the initiating summons the particulars necessary to justify the summary orders sought. The Court explained, “the rationale goes back at least 140 years, to the passage from the judgment of Cockburn C.J. in Walker v. Hicks (1877) 3 Q.B.D. 8. The defendant to a summons is entitled to have sufficient particulars to enable him ‘to satisfy his mind whether he ought to pay or resist’” (O’Malley at [23]). That judgment concerns particulars of the debt, and not the legal basis of the orders sought, but I nonetheless consider that there is a credible argument that the summons needs to specify its legal basis to enable a defendant to make that same calculation.

42. Indeed, this is all the more important given that there has been uncertainty in previous cases over the years as to precisely which statutory provision could and could not be invoked by a mortgagee seeking to obtain possession of a mortgaged property. The repeal of section 62(7)

of the Registration of Title Act 1964 by the 2009 Act and its re-introduction for pre-1 December 2009 mortgages by the Land and Conveyancing Law Reform Act 2013 underlines the importance of precision and clarity as to the source of the jurisdiction which a mortgagee is asking a court to exercise. Given the Mortgage in this case was entered into pre-1 December 2009 but not in fact registered as a burden on the Property until 21 June 2011, it is necessary for AIB to be highly precise as to the legal basis of its application. There is no such precision here, a fact compounded by AIB purporting in the written submissions to incorrectly invoke the 2009 Act.

43. This is a flaw in this Application, a failure by AIB to properly invoke the summary procedure which the legislature has put in place for possession proceedings. The Company has not sought an order dismissing the application on this basis, and I am not convinced that it is sufficiently serious a failure to warrant a refusal of the orders sought. Rather, I consider that it is appropriate that this matter be remitted to plenary hearing, when there can be clarity as to the statutory provision being invoked, that specific jurisdiction can be appropriately addressed, and more detailed information and submissions can be furnished to the court directed to the correct legislative provision. It must be recalled that Baker J. in Cody emphasised the need to respect the solemnity and procedures of summary proceedings with the same robustness that applies to plenary proceedings (at [47]) and I consider that the Company has identified a shortcoming in this respect. This is not a standalone reason – and would not on its own suffice - for the decision to remit this matter to plenary hearing, but it is a factor in the exercise of my discretion.

44. The alternative proposed by AIB – that the matter be adjourned to allow this to be rectified - is not attractive. These proceedings are a long time in being and concern a mortgage entered into some 26 years ago. There is no justification for AIB not to have properly identified the legal basis of the Application. Given the time that has already lapsed, I reject the suggestion that this Application could be adjourned to allow the Special Summons to be amended so as to state its correct jurisdictional basis.

Code of Conduct on Mortgage Arrears

45. The Company contends that the Mortgage and Loan fell within the CCMA, a measure that was introduced pursuant to section 117 of the Central Bank Act 1989 (as amended). It is asserted that the Mortgage Arrears Resolution Process (“MARP”) was therefore applicable to the Mortgage and Loan. The points advanced are that Mr Ryan lives in the Property with his wife, it is his principal primary residence, AIB knew this and was on notice that he was pledging his family home. It is contended that the CCMA must therefore apply.

46. The Company also emphasises that Mr Ryan is a guarantor and it is contended that he is a borrower for the purpose of the CCMA on this basis. Counsel contended that Mr Ryan was converted into being the borrower by virtue of being sued on the guarantee and is now in the position of principal and surety having been sued for the full sum. The Company’s position is that MARP was not followed, including as regards the applicable timelines for engagement with a borrower, and breach of the relevant moratorium periods, and that AIB is precluded from maintaining these proceedings.

47. The position of AIB is that this does not disclose a valid defence for several reasons. It is said that it is necessary to examine the purpose of a loan to ascertain whether it is “commercial”. If it is, then the application of the CCMA does not arise. It was argued that the Loan here is a purely commercial loan, which was not for the purpose of acquiring the Property, and that Mr Ryan has no ownership interest in the Property. It was also contended that the CCMA is only available to the parties to a mortgage and that the Loan here is one to which Mr Ryan is not a party and the fact he is a guarantor does not bring him within the CCMA.

48. Counsel for AIB highlighted that a principal primary residence for the CCMA must be a residence for which the specific loan was obtained, it must be a home mortgage account, and that this was not applicable here. Reliance was placed on the decisions in Fennell v. Creedon [2015] IEHC 711 and Tyrrell v. Wright [2018] IECA 295.

Assessment

49. I find it difficult to conclude that there is no credible argument that the CCMA applies. The purpose of the CCMA is as follows:

“This Code sets out how mortgage lenders (referred to in this document as “lenders”)

must treat borrowers in or facing mortgage arrears, with due regard to the fact that each case of mortgage arrears is unique and needs to be considered on its own merits.

This Code sets out the framework that lenders must use when dealing with borrowers in mortgage arrears or in pre-arrears. All such cases must be handled sympathetically and positively by the lender, with the objective at all times of assisting the borrower to meet his/her mortgage obligations.”

50. On its terms, “[t]his Code applies to the mortgage loan of a borrower which is secured by his/her primary residence.” The definition of “borrower” is that it “includes all parties named on the mortgage loan account”. It does not purport to be an exhaustive definition.

51. The definition of “primary residence” in the CCMA is a “a property which is a) the residential property which the borrower occupies as his/her primary residence in the State or b) a residential property which is the only residential property in this State owned by the borrower.”

The definition therefore hinges on the residence or occupation of the Property, not on its ownership.

52. Three factors are important here: first, while Mr McGuinness made an averment to the effect that no person other than the Company was in possession of the Property, there was no challenge to, or attempt to cross-examine Mr Ryan on, his evidence that he resided in the residential portion of the Property since 1985 or that he and his family have resided in that portion of the Property since 1994. Second, there was no challenge to, or attempt to cross-examine Mr Ryan on, his affidavit evidence that AIB at all times knew that he (and, since 1994, his family) resided at the Property. Third, Mr Ryan is now being sued on his personal guarantee for the entirety of the sums owing on the Loan.

53. Given these facts, this case is not quite the same as Fennell v. Creedon, in which an important factor in finding the CCMA not to be applicable was that the defendants to those proceedings only moved into the property in question four years after the loan and mortgage were concluded. It is also relevant to note that the lender in that case (EBS) dealt with the borrowers on the basis the CCMA did apply. In Tyrrell v. Wright [2018] IECA 295 (on which AIB also relies) the Court of Appeal similarly proceeded on the assumption that MARP did apply but nonetheless found that, as there was a clear breach of contract, there was no legal basis for the bank to be compelled to comply with the MARP code even if it applied. The Court concluded that it was unnecessary to decide whether MARP applied or not (Whelan J. at [61], [62], [72]).

While the Court of Appeal in Tyrrell (endorsing the High Court judgment in Fennell) did address the commercial character of the loans at issue, an important factor in both cases was that the residence in the property commenced some years after the entry into the mortgages.

54. This is not the situation here. On the basis of his unchallenged evidence, Mr Ryan has resided at the Property since before the Mortgage was entered. Nonetheless, AIB does quite accurately identify that there is a difficult question for the Company as to whether Mr Ryan can be categorised as “a borrower” and whether the “mortgage loan” can be said to be that of Mr Ryan. I do not believe that this question is apt to be determined as a summary matter in the circumstances of this case and, in particular, I have insufficient information before me regarding the proceedings against Mr Ryan or the correct approach as a matter of law to his liability for the Loan to be able to fairly or satisfactorily decide this point. No authority was opened to me which conclusively determines whether the CCMA applies to a guarantor in the position of Mr

Ryan and I consider that this is a credible question and one on which further evidence and submissions are required.

55. I would note that, even if the CCMA was found to apply, there would need to be more extensive submissions and evidence to establish whether there was a breach of the CCMA and what impact this could have on the application for possession (including by reference to the judgment of the Supreme Court in Irish Life and Permanent plc v. Dunne [2015] IESC 46, an authority which was not opened to me during the summary hearing of this application). The attention of both parties focused on whether the CCMA applied and not on the provisions of that Code or how they are alleged to be breached. The Company made only quite generalised references to breaches of the CCMA, but, as against this, there was no dispute at the hearing that the terms of the Loan were very aggressive. Moreover, there was no real attempt by AIB to contend that there has been compliance with the CCMA (by contrast with Fennell, for example). While the case put forward by the Company is certainly not complete or heavily persuasive, that is not the threshold.

56. In short, I do not believe the Company’s reliance on the Code can be dismissed as lacking in credibility or that it is possible or just to determine summarily whether the CCMA applies or the impact this has on the application for possession.

The SME Code

57. It is asserted on behalf of the Company that the Loan is within the scope of the Code of Conduct for Business Lending to Small and Medium Enterprises (“the SME Code”) which was effective since 1 January 2012 (and its predecessor issued by the Central Bank on 13 March 2009). It is then claimed that AIB failed to comply with the applicable Code(s). The alleged breaches include that the business loan was secured on a premises which was partly a residential dwelling and the requirement of a repayment of €200,341.01 three months after entry into the loan.

58. The position of AIB in reply is that the reliance on the SME Code constitutes an admission that the Loan is a commercial loan and not a loan within the scope of the CCMA. It was contended that this undermines the credibility of the Company’s position. Counsel for AIB relied on the fact that the SME Code came into effect on 1 January 2012, some two years after the Loan was entered. It is also said that the Company has failed to identify the allegedly unfair terms.

Assessment

59. The Company’s reliance on the SME Code is not addressed in any detail by either party. The Company identified features of the Loan which are asserted to be in breach of provisions of that Code, without citing any specific provision of that Code. For its part, AIB does not address the proposition that the SME Code in place in 2009 was applicable to this Loan. Further, AIB does not suggest that there was compliance with the provisions of either the SME Code in place in 2009 or that in place in 2012.

60. It seems to me that there may well be a valid defence based on the SME Code, but there is extremely limited information before me, and neither party has addressed whether or how this could impact on an application for possession. That said, AIB’s contention that, because the CCMA was invoked, the SME is not applicable, is not persuasive and I do not believe it is lacking in credibility for the Company to suggest that one or other should apply to AIB’s lending practices in this case.

61. If this was the only defence being advanced, I would not be minded to accept its sufficiency as a ground for remittal to plenary hearing, but given the findings already made, I do not need to reach a conclusion in this respect.

General terms and conditions

62. The Company contended that the failure to furnish the Court with a copy of the general terms and conditions was a good defence to the application and it was said that, absent that documentation, compliance with the SME Code or the CCMA could not be assessed and judgment could not be entered. The Company relied on Mars Capital Finance Ireland DAC v.

Temple [2023] IEHC 24 (“Temple”). The response by AIB was that no reliance was being placed on any provisions of the terms and conditions and they did not therefore need to be furnished.

Assessment

63. The general terms and conditions relied upon by the Company cannot be equated with the document analysed by Simons J. in Temple. That case concerned a heavily redacted deed of transfer evidencing the transfer of the debt from one lender to another which was a necessary proof to establish title to the debt being enforced. The general terms and conditions here, by contrast, appear to be the uniform, standard terms of lending and there is no suggestion these were not available to the Company itself or that any particular importance or relevance attaches to them.

64. While I do not see any merit to this point on the facts of this matter, and would not regard it as a sufficient basis for remitting the matter to plenary hearing, the matter is now being so remitted

on other grounds. Any issue with the proofs and evidence being relied upon can be addressed in the plenary process.

Lack of particularisation

65. The Company relies on the Supreme Court judgment in O’Malley and asserts that there has been a failure to properly particularise the monies owed in this case. The position of AIB in reply is that O’Malley only applies to summary applications for judgment for the recovery of liquidated sums and that it has no application to these proceedings, and is misconceived. It is contended that the only question is whether there was a validly registered charge and default in repayment and that particularisation of the debt is not an issue and that the full account statements are exhibited to the replying affidavit of Mr McGuinness. The Company’s written submissions do not refer to this point and those of AIB only do so in one paragraph.

66. The height of the evidence is Mr Ryan’s averment that the amount of the debt varied from €244,602.17 in the letter of 19 March 2015 to €314,032.52 in the letter of 1 March 2021 and states that “it is not understood what interest rate and/or penalty or surcharge rates or charges may have been levied against the pleaded loan account”.

Assessment

67. The Company relies on O’Malley as a defence to the summary proceedings. The facts relied on are stated in bare terms and very limited submissions were made to indicate the nature of the defence being invoked.

68. Furthermore, the complaint made is about the particularisation of the debt in the letters of demand. This point seems at odds with recent judgments (most notably the judgment of Mulcahy J. in Seniors Money Mortgages Ireland DAC v. Fingleton [2024] IEHC 423) which reject complaints about the inclusion of incorrect figures in letters of demand, provided the debtor has sufficient information to understand the obligations and steps required to be taken.

69. The sum that is now being pursued is clearly recorded in the bank statements of account exhibited to the second affidavit of Mr McGuinness and no real attempt was made to undermine or challenge the sufficiency of the particularisation of that figure.

70. A more fundamental difficulty for the Company in seeking to raise a defence on this basis (which is how the Company deploys the point), is that the Supreme Court in O’Malley established that a failure to particularise the debt owed in a summary proceeding may be a basis for refusing to grant the relief so sought, but is not a defence which would warrant the matter being referred to plenary hearing. This was stated in the following terms by Clarke J:

“[25] However, it also seems clear that the obligation on a defendant to establish an arguable defence is, in reality, one which only arises if the plaintiff has first placed sufficient evidence before the court to establish prima facie the debt alleged is due.

There are, therefore, two questions. The first is as to whether the plaintiff has put sufficient evidence before the court to establish a prima facie debt. If the answer to that question is no, then the plaintiff cannot be entitled to summary judgment in any event.

If, however, the answer to that question is yes, then the court must go on to consider, in accordance with the established jurisprudence, whether the defendant has put forward a credible defence.

[26] It is important to emphasise that no question of the second type arises on this appeal. Rather, counsel for Mr. O'Malley places his entire argument on what he says is the absence of sufficient evidence, or perhaps more accurately put, evidence of sufficient particularity, on the part of Bank of Ireland so as to discharge the initial burden which lies on it to establish its prima facie debt. As counsel pointed out, if he is correct in that argument, then there would have been no obligation on Mr. O'Malley to establish a positive defence, for there would, in substance, be nothing to defend or, at least, nothing to defend at this stage, having regard to the insufficient evidence which would, on that hypothesis, have been put forward by the plaintiff.”

71. The Company relies on O’Malley as a defence to these proceedings, a basis for remitting them to plenary hearing. In light of the above findings in O’Malley, and I am not persuaded that the question of whether the debt was sufficiently particularised in the letters of demand (as raised by the Company) is a question that could constitute a good defence in a plenary action.

72. A broader objection is made by AIB, to the effect that O’Malley does not apply to a summary possession action. This is a question of some potential legal complexity and importance and was not addressed in any detail by either party to this application. It is also not an issue that needs to be resolved in the context of this application both for the reasons just given and also because this matter is being remitted to plenary hearing on other grounds. I do not therefore need to decide AIB’s argument that O’Malley has no application to an application for possession. Even if this technical argument based on the form of the proceedings did fall to be determined, it would seem a somewhat unattractive argument, given the failure by AIB to properly assert the jurisdictional basis of this application,

73. In any event, I am not persuaded that the Company’s bare references to the failure to particularise the debts demonstrates a valid, credible defence which would justify these proceedings being remitted to plenary hearing. That said, the special summons in this matter fails to recite the amount of the debt alleged to be outstanding as at the date of the issue of the proceedings and further clarity or consideration of this point may certainly be required when this matter comes on for plenary hearing.

Additional defences

74. The Company made certain additional points at the hearing about the resolution of the directors of the Company passed on 24 December 2010 not properly authorising the Loan transaction, owing to the fact that it recites a date and figure different to those of the loan facility letter itself.

Having heard very limited submissions on this point, I do not see how it advances the Company’s defence, particularly given the presumptive validity of the registration of AIB’s mortgage. Nonetheless, the matter is being remitted to plenary hearing and the parties can there advance the claim and defence as they see fit. I make no findings on this point.

CONCLUSIONS

75. Having considered the summary application by AIB for possession of the Property and the defences raised by the Company, I am satisfied that credible defences have been raised to AIB’s application (including the Belfry Defence, the Jurisdiction Defence and the defence based on the CCMA). It is therefore appropriate to remit this matter to plenary hearing.

76. As the Company has been successful in resisting the summary application for possession, I am of the provisional view that the costs of this application should be awarded to the Company.

Should the parties wish to contend for a different costs order, they may deliver written submissions of no more than 1,000 words in length by 4 November 2025. The matter will be listed before me at 10.30am on 7 November 2025.