High Court allows substitution of plaintiff in possession proceedings following business sale and assignment.

THE HIGH COURT

[2025] IEHC 615

Record No. 2025 116 CA

BETWEEN

START MORTGAGES DESIGNATED ACTIVITY COMPANY

PLAINTIFF

AND

KEVIN BROWNE

DEFENDANT

EX TEMPORE JUDGMENT delivered by Mr. Justice Sean Gillane on 10 November 2025

1. This application comes before the Court by way of appeal from the Circuit Court in relation to an order made on the 9th of April 2025 substituting Mars Capital Finance Ireland Designated Activity Company (“Mars Capital”) as the plaintiffs in possession proceedings before the Kilkenny Circuit Court initiated by civil bill.

2. The substantive proceedings concern a claim to recover possession of registered land.

3. The defendant appeared as a litigant in person before the Circuit Court and before this Court for the purposes of this appeal.

4. At the outset, it is to be noted that no possession order has been made by the Circuit Court, and the hearing in relation to the substantive issues in the case has yet to be held.

5. The current application is a procedural one made pursuant to Order 22, rule 4 of the Rules of the Circuit Court. All of the defendant’s substantive and procedural rights before the Circuit Court in relation to the proceedings are extant and he will be in a position to advance any arguments he wishes in those proceedings in due course. This position has been confirmed in this Court by counsel for the plaintiff.

6. Order 22, rule 4 of the Rules of the Circuit Court provides as follows: “Where, by reason of the death, or bankruptcy, or any other event occurring after the commencement of an action, proceeding or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the action, proceeding, or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court upon an allegation of such change or transmission of interest or liability, or of such person interested having come into existence.”

7. The plaintiff moves the application on the affidavit of Grainne Dever. The evidence establishes that the application arises from the sale of the business and assets of Start Mortgages, in whose name the proceedings were being maintained at the time of the application before the Circuit Court. The business of Start Mortgages was sold to Mars Capital.

8. The business of Start Mortgages included the charges and loan facility, the subject matter of the within proceedings, as well as the relevant claims, suits and causes of action in relation thereto.

9. A global deed of transfer was executed on the 31st of May 2024. The global deed of transfer is exhibited in the case, and the body of the deed is presented in an unredacted form. There is an unconditional assignment of security documents, finance documents and the ancillary rights and claims set out in the schedule.

10. The schedule is redacted in relation to accounts not connected with this case but clearly displays an account connected to the defendant ending in the digits 4507.

11. An executed ‘Form 56’ has also been exhibited, establishing the transfer to Mars Capital of all of the rights, title, interest, estate, benefit and entitlement (past and present) in the charges. This form also clearly identifies the property, the subject matter of these proceedings, as being Folio 24627F of the Register of Freeholders in County Kilkenny.

12. By correspondence dated the 4th of June 2024, Start Mortgages notified the defendant of the date of transfer and the amounts then due and owing in respect of the charges. This letter also informed the defendant of when the sale took effect, and that any obligations arising under the charges and amounts owing in respect of the charges would be owed to Mars Capital. This has been referred to in the proceedings as the ‘goodbye letter.’

13. By correspondence dated the 18th of June 2024, Mars Capital wrote to the defendant confirming that the transfer had been completed on the 31st of May 2024. This has been referred to in the proceedings as the ‘hello letter.’

14. I note that the assignment has been registered on the Folio and that a copy has been exhibited.

15. The defendant complains of missing pages and hearsay in the affidavit, and places emphasis on the inappropriateness of redactions in the exhibited documents. In that regard, he relies on the decision of Simons J. in Pepper v. Moynihan [2024] IEHC 625.

16. I am satisfied that Moynihan can be distinguished. That case concerned an appeal against an order for possession. That does not arise here where the defendant has yet to make all of the substantive arguments that he wishes to make.

17. Further, Simons J. in Moynihan criticised wholesale, unexplained redactions in the operative part of a deed which made it impossible to interpret. In this case, the redactions have been explained, have a rational basis and do not affect the interpretation of the document in so far as it concerns the defendant.

18. The redactions have been explained as being concerned with matters that are commercially sensitive, confidential or are irrelevant to the transfer and assignment of the facility and charges with which this court is concerned.

19. I note that the application before the Circuit Court could have been made ex parte but for sound practical reasons was made on notice to the defendant.

20. A full set of papers is before the Court, and I am informed that a copy was sent to the defendant notwithstanding the fact that it was his appeal.

21. I am of the view that the principles set out by Kelly J. (as he then was) at paragraphs 30-32 of IBRC v. Comer [2014] IEHC 671 are applicable: “What I am asked to do is to consider a procedural application which, if it is granted, will have the effect of bringing to an end the entitlement of IBRC to further prosecute these proceedings. It will substitute for that entity, Launceston, who will take over the entitlement to prosecute the proceedings, subject to all of the imperfections that may have been present when the action was constituted as between IBRC and the defendants and subject also to proving at trial, that there has been a valid sale of the underlying assets, a valid assignment of the chose in action which is this action, and a valid notice given.

What I do have to satisfy myself about is whether there is prima facie evidence of that having occurred. In order to come within the relevant rule of court, there has to be evidence adduced which would justify the substitution of the existing plaintiff by Launceston.

That seems to me to be the standard of proof that has to be achieved. Much of the argument which took place concerning the deployment of material, the entitlement to redact, the reasons for redaction, the entitlement of the defendant to see the original document in un-redacted form are all matters, which in my view, are for another day.”

22. For these reasons, I am of the view that the appeal should be refused and that the order for substitution should be made.

23. The defendant is free to pursue all of his arguments before the Circuit Court in the possession proceedings.