High Court allows execution of possession order after six years due to defendant's prolonged appeals.

APPROVED

FOR PUBLICATION

THE HIGH COURT

[2025] IEHC 678

[2025 79 CA]

BETWEEN:

EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY

RESPONDENT / PLAINTIFF

AND

COLIN BRENNAN

APPELLANT / DEFENDANT Ex tempore judgment of Ms. Justice Nuala Jackson delivered on the 19th day of November 2025

1. This application comes before me by way of appeal from an Order of the Circuit Court (12th March 2025) substituting the Applicant, Everyday Finance Designated Activity Company trading as Link Financial (“Everyday”) as Plaintiff in the within proceedings pursuant to Order 22 rule 4 of the Circuit Court Rules. Additionally, Everyday seeks leave to issue execution on foot of an Order for Possession made by the Circuit Court on the 3rd May 2016 and to do so, if necessary, in circumstances in which more than six years have elapsed since the making of the said Order for Possession. These latter reliefs were also granted by the Circuit Court Order referenced above.

BACKGROUND

2. In 2008, IIB Homeloans Limited (subsequently KBC Bank Ireland PLC), entered into a loan agreement with the Defendant which loan was secured by way of mortgage over property. The loan in question, together with the securitisation of it, has now been assigned on multiple occasions.

3. Prior to these assignments, the within proceedings for possession were commenced, in July 2014, and an Order for Possession was obtained from the County Registrar, County of Louth on the 3rd May 2016. The Defendant appealed the said Order unsuccessfully and a further Order for Possession was made by the Circuit Court on the 24th July 2016. This Order was subject to a stay of six months on execution. This Order was further appealed, unsuccessfully, by the Defendant to this Court (10th March 2020 MacGrath J.) at which time a further six months stay on execution was afforded the Defendant. Thereafter, the Defendant sought leave to appeal from the Supreme Court which leave was refused by a Determination of the 10th May 2021.

4. It would appear that the loan and the associated security were first assigned to Pepper Finance Corporation (Ireland) DAC (“Pepper”) and application was made to the County Registrar for the appropriate county by that company to be substituted as Plaintiff by motion issued on the 12th October 2022. As the Circuit Court Rules provide, this application was made on an ex parte basis. Substitution was permitted by Order of the County Registrar of the 7th November 2022. As the Circuit Court Rules also envisage, the Defendant brought a motion seeking to set aside this Order which motion is dated the 22nd February 2024. At the time of the swearing of the Affidavit of Andrew McCudden (14th January 2025), which Affidavit grounds the application before me, this set aside motion remained extant (para. 27 of the Affidavit). There was no stay on the Order of the 7th November 2022. Additionally, the Circuit Court order currently under appeal before me affirms the Order of the County Registrar of the 7th November 2022.

It would appear that thereafter there was a further assignment of the loan and the associated security to Everyday and it is in that context that the current application arises. The Applicant in the within proceedings, Everyday, seeks to be substituted as Plaintiff for the purposes of executing the Order for possession.

5. The motion currently under appeal came before the Circuit Court on the 12th March 2025 and the following orders were made:

(a) The Order of the County Registrar of the 7th November 2022 was affirmed (this is the Pepper substitution order);

(b) An Order substituting Everyday as sought in the Motion of the 7th February 2025 was permitted;

(c) Orders were made giving liberty to execute pursuant to Order 36 of the Circuit Court Rules and

(d) A six-month stay was granted to facilitate engagement with the services of a personal insolvency practitioner.

6. There is no stay on the said Orders in place at this time the six-month period referenced therein having expired.

7. The Notice of Appeal dated the 18th March 2025 appeals the whole of the Order of the Circuit Court given on the 12th March 2025.

8. The Circuit Court Rules provide at Order 22 as follows:

“4. 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.

5. An order obtained as in the last preceding Rule mentioned shall, unless the Court shall otherwise direct, be served upon the continuing party or parties, or their Solicitors, and also upon each such new party unless the person making the application be himself the only new party, and the order shall from the time of such service, subject nevertheless to the next two following Rules, be binding on the person served therewith, and every person served therewith who is not already a party to the action, proceeding, or matter, shall be bound to enter an Appearance thereto within the same time, and in the same manner, as if he had been served with the originating document.

6. Where any person who is not under disability, or who although under disability, has a guardian ad litem in the action, proceeding, or matter, shall be served with such order as in Rule 4 of this Order mentioned, such person may apply to the Court to discharge or vary such order at any time within ten days from the service thereof.”

9. The present substitution motion was issued on or about the 10th February 2025. It is grounded on the Affidavit of Andrew McCudden, Legal Manager of Everyday. In this Affidavit, inter alia, the Deponent avers:

i. That subsequent to the issuing of the within proceedings and subsequent to the Order for Possession being granted, the loan and mortgage the subject matter of the within proceedings was assigned by the Plaintiff to Pepper.

ii. That a Global Deed of Transfer was executed as between Pepper and Everyday on the 30th May 2024 which transferred, inter alia, “all its legal rights, title, interest, estate and entitlement (past and present) in an under the Facility, the Mortgaged Assets and each Finance Agreement (as Defined in the Transfer Deed)” in respect of scheduled facilities and securities which schedule includes the facility and security the subject of the within proceedings. The Global Deed is exhibited with limited redactions. Importantly, the operative part (at Clause 2) is entirely unredacted. It references the Mortgage Assets as including (a) the Security, including, for the avoidance of doubt, the Mortgages; and (b) the Facilities, the former defined as “any Security Interest granted to secure any Facility” and the latter defined as, inter alia, the outstanding loans. The schedule has been redacted save for the details of the loan of the Defendant which is described as “Braunton Property Finance DAC” together with loan account reference numbers.

iii. That a Form 56 was executed and lodged for registration with Tailte Eireann.

iv. That the registration process has been completed such that the Folio for the property in question now reflects the registration of the Applicant, Everyday, as the owner of the relevant burden on the Folio. The Folio is exhibited.

v. The relevant “Goodbye” and “Hello” letters are exhibited and the account numbers reflected in these letters corresponds with the details in the Schedule to the Global Deed.

vi. That “As a consequence of the Transfer Deed, the updated Folio, the Goodbye Letter and the Hello Letter, the Plaintiff’s rights to recover on foot of the facility and to enforce the security have been transferred to the Applicant.” It is further averred that Pepper is consenting to the substitution application.

vii. The circumstances giving rise to the substitution of Pepper for the original Plaintiff are deposed to in para. 25 of the Affidavit and reference is made to the Affidavit of Niamh O’Shea of the 5th September 2022 in this regard which Affidavit grounded that first substitution application.

10. No replying Affidavit was sworn or filed by the Defendant in respect of the motion of the 7th February 2025. He did swear an Affidavit to ground his set aside motion, which Affidavit was sworn on the 22nd February 2024. This being an appeal pursuant to section 37 of the Courts of Justice Act 1936, it is to be heard on the same evidence as the court below unless with leave of the Court. No such application was made to me, but submissions were made and these reflected similar arguments made by the Defendant on Affidavit in the set aside application before the Circuit Court, referenced above.

11. Submissions made by the Plaintiff argue that:

A. the Applicant must satisfy on the balance of probabilities that it is the party entitled to execute the Order for Possession. Reference is made to the judgement of Allen J. in Pepper Finance v. Moloney [2023] IECA 161 and to the judgment of Baker J. in Tanager Designated Activity Company v. Kane [2018] IECA 352 (Tanager DAC).

B. the Applicant references the conclusiveness of the Folio, and that the Applicant is the registered owner of the charge on the Folio relating to this property.

12. The Defendant opposes this application on a number of grounds:

i. The redaction of documents.

ii. The reference to “(EXCLUDING PROPERTY)” on the title page of the Global Deed of Transfer and the reference to “Loans” on the title page to Schedule 1 of the said Deed. He argues that the loan has been transferred but not the security upon which it was advanced.

iii. That Braunton Property Finance DAC are the owners of the loan and that “Pepper are the servicers”. It is contended that as Pepper does not own the mortgage, they cannot transfer it to Everyday or give it away. He states that the loan and the mortgage have been “split” and Everyday are not the beneficial owners.

iv. That there is no seal on the Global Deed.

v. The fact that the reference to the charge on the Folio in favour of the Plaintiff has not been extinguished while the reference to the subsequent assignment of the charge to Pepper has been so extinguished. The Folio entry does clearly reference, after the entry of the charge in favour of the Plaintiff, that “The ownership of this charge has been transferred”, firstly to Pepper (which ownership is cross out) and then to the Applicant.

vi. That the registered owner of the charge per the Land Registry folio is not conclusive. He argues that the beneficial owner of the charge is Braunton Property Finance DAC.

13. The Plaintiff, by way of oral submission, responded to the Defendant’s contentions as follows:

i. Consent to the transfer of the mortgage is contained in the original Mortgage Deed of the 28th August 2008 at Clause 11(iii) and also in the general loan conditions.

ii. The charge transfers by the Form 56 not the Global Deed. Reference was made to Affidavit of McCudden at paragraph 9 in this regard. The charge is not transferred by the Global Deed of Transfer but rather by the execution and lodgement of a Form 56, resulting in the registration of the transfer of the charge. It is submitted that the mortgage assets, the securities including the mortgages and the facilities transferred by the Global Deed of Transfer and that the charge has been properly registered on the folio and the Applicant is the registered owner of it.

iii. It is submitted that this is “a very very unredacted” Global Deed of Transfer, of which the Court can make sense of without any concern. The terms of the operative clause (Clause 2 - transfer and assignment clause) states that the schedule lists the facilities the subject of the transfer. The terms of the Deed itself indicates that the Schedule contains the loan details. It is submitted that redacted material concerns the facilities of third parties.

iv. That the execution of Deeds has been entirely properly done and there is no evidence to suggest any difficulty with execution of the Deed. The evidence of Mr. McCudden is uncontested.

v. I was directed to the “Goodbye Letter” from Pepper dated the 5th June 2024 and to the explanation given therein. It was submitted that this letter does not just reference transfer of the loan(s) but indicates clearly what was being transferred namely “… the legal ownership of your Loan(s) and any related facility letter(s), mortgages, guarantee(s), security documents and rights relating to your Loan(s) (together you “Loan(s)”) …”. It is submitted that it is clear the assignment does not only relate to loans.

vi. In relation to the Folio, Counsel referenced the necessity to distinguish entries 5 and 7 – 5 is the charge for present and future advances in favour of KBC. When assigned, a new charge is not created but rather the original charge remains and the transfer of it is reflected (7).

14. I have considered these points raised by the Defendant. I am satisfied that the consent to transfer is clearly provided for in the original loan documentation. It is clear from the Tanager DAC decision that the charge is transferred by the execution of the Form 56, its lodgement and its reflection on the folio and that the folio is conclusive in this regard. Baker J. stated at para. 67:

“67. A plaintiff seeking an order for possession must adduce proof, inter alia, that he or she is the registered owner of the change. It is the registration that triggers the entitlement to seek possession. In those proceedings, the court may not be asked to go behind the Register and consider whether the registration is, in some manner, defective. In the possession proceedings, the court must accept the correctness of the particulars of registration as they appear on the folio, because the statutory based for the action for possession is registration. This is one consequence of the statutory conclusiveness of the Register, and of the statutory limits to rectification.”

15. “Goodbye” and “Hello” letters in respect of both assignments are in evidence (through the Affidavit of Mr. McCudden and the Affidavit of Niamh O’Shea referenced in the former Affidavit).

16. I do not consider that issues arise herein in relation to redaction. It is clearly appropriate that the personal details of third parties who have loans transferred under a

Global Deed of Transfer should be redacted. It is entirely proper that the personal information of such third parties should not be revealed to others. The degree of redaction is constrained in the present instance. The position in this instance is entirely distinguishable from the position in the decisions including Pepper Finance Corporation (Ireland) DAC v. Moynihan [2024] IEHC 625 and Start Mortgages DAC v. Ramseyer and Another [2024] IEHC 329 (Ramseyer). In the former, Simons J. states at paras. 19 – 21:

“19. Pepper Finance has exhibited a heavily redacted deed entitled “mortgage sale deed” dated 28 September 2012. The mortgage sale deed appears to consist of 26 pages. Of these, the equivalent of approximately 18 pages have been redacted entirely. The redactions are not confined to the schedule of properties and security documents, i.e. information which might identify other borrowers. Rather, whole swathes of the operative clauses of the deed have been omitted. The table of contents of the deed indicates that there are 18 clauses. Of these, 15 have been redacted almost in their entirety.

20. In consequence, it is simply impossible for the court to interpret the deed or to determine its precise legal effect. It is not, for example, possible to identify the events which would trigger an obligation on the part of Pepper Finance to transfer the legal title in the underlying debt to the purchaser or its nominee. Still less is it possible for the court to know whether any of these (undisclosed) events might already have occurred. The court cannot be satisfied, therefore, on the basis of the heavily redacted version of the deed that the legal title to the underlying debt still remains with Pepper Finance.

21. If a party to litigation wishes to rely on a deed as establishing a particular proposition (here, that the ownership of the legal title remains with Pepper Finance), then it is necessary for that party to exhibit the deed in a form which is meaningful. It is not appropriate to exhibit a deed with more than three quarters of its contents obliterated. Nor is it appropriate to attempt to summarise in a few lines of an affidavit what is undoubtedly a complex commercial transaction.”

17. In the present case, there is no such difficulty identifying or interpreting the operative part of the Deed or in determining the precise legal effect of it. The reasons for the redaction are clearly deposed to by Mr. McCudden in his grounding affidavit at paragraphs 7 and 8 and the reason for and the extent of the redaction is appropriate.

The distinction between acceptable and unacceptable levels of redaction are clearly described by Simons J. in Ramseyer (above) at para. 23 where he states:

“23. It should be emphasised that this is not a case where minor redactions have been made on the grounds that same are necessary to protect the privacy of third parties whose debts are said to have been encompassed as part of a global transfer of assets. Nor is it a case where it has been asserted, on a reasoned basis, that certain information has been redacted on the grounds of commercial sensitivity (cf. Farrell v. Everyday Finance DAC [2024] IECA 16). Rather, whole swathes of the operative part of the deeds have been blanked out, without any meaningful explanation or justification having been offered. The redactions are so extensive that this court cannot safely interpret the legal effect of the deeds with a view to determining whether or not they had the consequence of transferring to Start Mortgages the debt outstanding in respect of the loan originally advanced by the Governor and Company of the Bank of Scotland. The limited material before the court does not establish, even on a prima facie basis, that the defendants’ debt has been transferred to Start Mortgages.”

18. I am satisfied that no issue arises in relation to the execution of the Global Deed and, in any event, the evidence of Everyday in this regard is uncontested, no Affidavit or averment in opposition having been provided by the Defendant. I have considered the Affidavit of the Defendant of the 22nd February 2024 in this regard and there is no such averment contained therein.

19. The Defendant has in two respects referenced headings or portions of documents without having regard to the totality of the documents concerned. This arises in relation to what was transferred under the Global Deed and also in relation to the “Goodbye” letter. In the first instance, the Defendant referred to the term “excluding property” on the title page when the Deed itself is very clear as to what is being transferred under it, with the assignment of the charge thereafter being reflected in the folio through the lodgement of the Form 56. Likewise, the “Goodbye” letter is not in any manner restricted to “loans” but rather is comprehensive, referencing a comprehensive definition of “your “Loan(s)””. In relation to the folio, it is amply clear from the folio that the charge was registered in the first instance and that thereafter the assignments were registered and reflected therein. The charge remains but it has been assigned. The first assignment is excised upon the registration of the second, as is entirely appropriate.

20. I therefore find that the objections raised by the Defendant are not such as negatively impact upon the granting of the reliefs claimed to Everyday.

21. However, Everyday is still obliged to prove that it is entitled to the reliefs which it seeks.

22. The first issue in this regard relates to the application for substitution. In this regard, the recent judgment of the Court of Appeal (Costello P.) in Pepper Finance Corporation (Ireland) DAC v. O’Reilly [2025] IECA 140 (O’Reilly) is instructive.

This case involved an application for substitution post the granting of an Order for Possession by the Circuit Court but prior to the hearing of the appeal in respect of such Order by the High Court. At paras. 30 – 32 of her decision, Costello P. states:

“30. In Dellway Investment Ltd v National Asset Management Agency [2011] IESC 14 (“Dellway”), Finnegan J concisely stated the long-established position regarding the transfer of a mortgage. He held:

“On a transfer by a mortgagee the transferee steps into the shoes of the transferor and cannot stand in a better position than the transferor: Ashenhurst v James [1745] Atk. 270. The transferee is bound by such equities as would bind the transferor: Earl of Macclesfield v Fitton [1683] 1 Vern. 168.”

Thus, an assignee of a mortgage (assuming it to be valid) steps into the shoes of the assignor. There is a complete identity of interests. The assignor’s interest in the mortgage ceases and the assignee is entitled to that interest in the mortgage.

Equally, the assignee becomes entitled to the benefit of any judgment obtained in respect of the secured loan. The assignee cannot stand in a better position than the assignor. If it takes an assignment post judgment and pending appeal, it is bound by the evidence and arguments advanced in the High Court at the hearing of the appeal by the Court of Appeal save insofar as it is granted leave to adduce new evidence or to advance new arguments in accordance with well-established jurisprudence.

31. Order 17, r. 3 applies, without any distinction, to cases of an assignment, creation or devolution of an estate or title. O. 17, r. 4 refers to a change or transmission of interest or liability arising whether by reason of death or any other event. As there is no distinction 12 between the various circumstances which can give rise to applications made under O.17, r. 4, the interpretation of the rule must be equally applicable to all such applications. In other words, the rule must be interpreted in the same way, whether the application is grounded upon the death of a party or the assignment of an interest.

32. If a party dies, self-evidently, they cannot continue in the proceedings. The personal representative of the deceased (or an administrator pendente lite) will be substituted in the proceedings in place of the deceased party. The proceedings will continue in the name of the personal representative as the personal representative of the deceased party. They stand in the shoes of the deceased party. This applies, whether the party dies before judgment or post judgment and pending an appeal or pending execution. The personal representative is a necessary party within the meaning of O. 17, r. 4.”

23. In the context of the present case, the reference to the appropriateness of substitution post-judgment, where execution is pending, is of particular application. Costello P. continued at para. 36 to say:

“It is commonplace and acceptable to continue proceedings in the name of a personal representative, both after as well as before judgment, so I cannot see that the objection to an order for substitution identified by the Court could apply in the case of transmission of interest on death. That being so there can be no objection to substituting a party where the change in interest arises by reason of a transmission of interest. There has never been any suggestion that a personal representative would be added as a co-plaintiff (or co-defendant)

in lieu of substitution with the deceased remaining as a party in the proceedings. Quite simply it is not possible. But neither is it necessary and if it is not necessary in the case of the death of a party, I do not see why it becomes necessary in the case of an absolute assignment (assuming that such has occurred). The key point is that the interest remains unchanged, but the identity of the party upholding it, of necessity, has to change.”

Having regard to the foregoing, I find that the necessary proofs have been satisfied such that Everyday would be substituted for Pepper as Plaintiff in the within proceedings. I am also satisfied that it has been proved that Pepper was also properly substituted as Plaintiff and therefore that I am dismissing the appeal from Order 1 of the Order of the Circuit Court of the 12th March 2025 which affirmed the substitution order of the County Registrar of the 7th November 2022.

24. In relation to the relief sought at (b) of the Notice of Motion, Everyday seeks leave to issue execution. This is an important step, particularly in the context of substitution having occurred post-judgment, appeal in respect of the Order for Possession having been exhausted. The timing of substitution is of relevance. In Promontoria (Oyster)

DAC v McCool [2025] IEHC 9, Simons J. considered the standard of proof required for substitution prior to judgement. He stated, at p. 28:

“The nature and extent of the evidence which must be adduced in support of an application under Order 17, rule 4 has also been addressed in the case law. The leading judgment remains that of the High Court (Kelly J.) in Irish Bank Resolution Corporation v. Comer [2014] IEHC 671. The judgment was delivered in respect of an application by the purchaser under the sale of a bank's loan book to be substituted as plaintiff in existing proceedings. The sale was characterised as an assignment of a chose in action for the purposes of section 28 of the Supreme Court of Judicature Act (Ireland) 1877. Crucially, the application had been made prior to the substantive hearing of the proceedings. The High Court held that the legal test for such an interlocutory application is whether there is prima facie evidence that there has been (i) a valid sale of the underlying assets; (ii) a valid assignment of the chose in action; and (iii) a valid notice given. It was not necessary for the court to adjudicate, at that juncture of the proceedings, on the efficacy or validity of the assignment or the efficacy or validity of the notice. Those were matters to be determined at the substantive hearing.” (underlining added)

25. The significance of the timing of the substitution application was also addressed by Costello P. in O’Reilly (above) at para. 38:

“38. If the assignee succeeds on the appeal and thereafter seeks to enforce the order of the court, under O. 42, r. 24 the assignee will have to apply to the High Court for leave to issue execution. The rule provides that “[t]he Court may…order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried…” The question of the validity of the assignment can thus be considered by the High Court prior to any execution of the order. Thus, the defendant, if he or she so wishes, will have an opportunity to contest the validity of the assignment before the assignee can recover against him or her.

Any objection that an order substituting a plaintiff by reason of an absolute assignment of the chose in action post judgment and pending appeal would prejudice a defendant because the defendant would not have an opportunity to challenge the validity of the assignment is not well founded. The opportunity arises if and when the assignee seeks to execute any judgment entered in the proceedings.” (underlining added)

26. Therefore, in the present instance, it is in the context of the application for leave to issue execution that the Defendant has the final opportunity to challenge the validity of the assignment(s). I have considered the arguments of the Defendant in this regard, and I am satisfied that they do not impact upon the validity of the assignments.

27. In relation to the application for leave to issue execution, the Plaintiff has referred me to the judgment of Allen J. in Pepper Finance Corporation (Ireland) DAC v. Moloney [2023] IECA 161. This decision considers the legal standards applicable to an application for liberty to issue execution on foot of an order for possession. At paragraph 37, Allen J. states:

“…, the judge correctly founder that to obtain leave to issue execution under

O. 42, r. 24, in a case in which six years had elapsed since the judgment or order, the appellant would first have to satisfy the court that it was the party entitled to issue execution, and if it did that, that the power to grant leave to issue execution is discretionary.”

These same principles are engaged here. Allen J. continued on to consider the necessary proofs to establish the first element, namely satisfying the court that it was the party entitled to issue execution. At paragraphs 41 and 42 of his judgment Allen

J. stated:

“41. The substance of the appeal – put variously, this way and that, in ten of the grounds of appeal – was that the High Court judge erred in looking behind the Folio. In particular, it was submitted that although the judge correctly referenced s. 31 of the Registration of Title Act, 1964, she erred in finding that the Folio was only conclusive up to the date of printing of the certified copy.

42. The decision of this court Tanager v. Kane [2018] IECA 352, [2019] 1 I.R.

385 makes clear that in hearing an application for possession of registered land, the High Court may not entertain a challenge to the correctness or conclusiveness of the register. I accept the submission on behalf of the appellant that the same principle must apply to an application for leave to issue execution on foot of an order for possession made in favour of a registered owner of a charge.”

28. In the context of the arguments of the Defendant herein, I consider it appropriate to also reference the dicta in the judgment of Allen J. concerning beneficial ownership. At para. 57, Allen J. states:

“57. At the hearing before the High Court and again on the appeal, the appellant relied on the transcript of an ex-tempore decision of Ní Raifeartaigh

J. of 11th January, 2018 in a case of Pepper Finance Corporation (Ireland)

DAC v. Hanlon in which the borrowers sought to rely on the same Determination of the Tax Appeals Commission. In that case – as the High

Court in this case noted – Ní Raifeartaigh J. was satisfied that the plaintiff, the appellant in these proceedings, retained the legal interest in the loan and security and had the exclusive power to exercise the powers thereunder.

Further – as the judge noted – Ní Raifeartaigh J. cited established legal authority to the effect that a securitisation transaction does not invalidate or affect the entitlement of the holder of a legal interest in the security to enforce that security for the benefit of the beneficial owner.”

29. In the particular circumstances of this case, I am satisfied that the requisite proofs, as set out in the Moloney decision, have been satisfied. This requires that there is a clear and unambiguous chain of title from the original Plaintiff to the substituted Plaintiff who desires to execute. In this instance, there have been two assignments. The first, to Pepper, satisfies the requisite legal proofs as does the second to Everyday.

DELAY

30. Order 36 of the Circuit Court Rules provides:

9[1]. An execution order based on any decree of the Court or judgment in default of appearance or defence may be issued in the Office within six years from the date of such decree or judgment. After the expiration of six years from the date of such decree or judgment, an execution order may be issued with the leave of the Court. An application for such leave shall be made by motion on notice to the party sought to be made liable.

10[2]. If, at any time after the making of a decree or judgment in default referred to in rule 9, any change has taken place, by death, assignment or otherwise, in the parties entitled or liable to execution, the party claiming to be so entitled may apply to the Court on notice for leave to issue execution, and the original decree or judgment may be amended so as to give effect to any order made by the Court on the application.

31. The Applicant argues that execution herein is within the six-year period permitted, the “date of such decree or judgment” being the date of the dismissal of the Defendant’s appeal to this Court, being the 10th March 2020. I consider that this is most likely correct having regard to dicta in the judgment of Costello P. in O’Reilly (above) at para. 23, when discussing the difference between appeals from the Circuit Court to the High Court and appeals from the High Court to the Court of Appeal:

“23…. The appeal will be heard by the High Court de novo. Pepper will have to prove its claimed entitlement to an order for possession, and to do so, it will have to prove, inter alia, that it is the assignee of the loans and the security. It must prove the case in full, not simply that it is the beneficiary of an order of the Circuit Court. If it succeeds, a new order for possession will be granted, and it is that order, rather than the order of the Circuit Court, which will be enforced (assuming it succeeds on the appeal).”

32. In the alternative, if the date of such decree of judgment is the date of the original possession order (3rd May 2016), the Applicant argues that the legal proofs for leave to issue execution after such six-year period are satisfied in this case. At the hearing herein, the Defendant fairly accepted that the delay here was significantly in consequence of his appeals and attempted appeals and that execution could not have issued while these appeals were extant. I was referred to the authority of Smyth v Tunney [2004] IESC 24 and the judgment of Geoghegan J. in the context of the similar provision in Order 42 of the Rules of the Superior Courts. Geoghegan J. stated:

“… it is not necessary to give some unusual, exceptional or very special reasons for obtaining permission to execute out of time provided that there is some explanation at least for the lapse of time.”

33. In the present case, I find that there is a very clear explanation for the delay. There was an appeal from the County Registrar to the Circuit Court and from the Circuit Court to the High Court. The exhaustion of the appeal journey before this Court occurred on the 10th March 2020. Thereafter, the Defendant sought leave to appeal to the Supreme Court which determination refusing such leave was on the 10th May 2021. Since that time, there have been two assignments necessitating substitution applications with appeals in the context of these applications also. In the circumstances, I am satisfied that the test referenced by the Supreme Court has been satisfied.

34. I will therefore dismiss the appeal and affirm the Order of the Circuit Court. I will hear submissions in relation to matters arising.