High Court dismisses defendants' appeal as an abuse of process for bringing meritless motions years after final orders.

THE HIGH COURT

[2025] IEHC 681

RECORD NO. 2025/129CA

BETWEEN

START MORTGAGES DAC

PLAINTIFF/RESPONDENT

-AND-

PAUL SULLIVAN AND CATHERINE SULLIVAN

DEFENDANTS/APPELLANTS

JUDGMENT of Mr. Justice Mark Heslin delivered on the 28th day of November 2025

Introduction

1. On 8 April 2025, the Circuit Court (his Honour Judge McAleese) dismissed the second named defendant's motion, in which the defendants sought to vacate previous orders made by the Circuit Court, in particular, an order made on 7 December 2021 (his Honour Judge Comerford) which granted the plaintiff possession of property at Taghart North, Shercock, Cavan (“the property”) with a stay on execution of three months (the “possession order”). The defendants have appealed the 8 April 2025 order.

2. On 25 June 2025, the first named defendant issued a motion, seeking to adduce additional evidence for the purposes of the said appeal.

3. The defendants also appeal against the order made on 28 October 2025 (her Honour Judge Browne) which dismissed the defendants’ (July 2025) motion wherein a range of declarations were sought, to the effect that the Circuit Court lacked jurisdiction to make the possession order; the plaintiff lacked entitlement to sue in its own name or enforce a credit agreement; the plaintiff committed statutory and constitutional breaches; and that the defendants were entitled to an order for expenditure and losses since 2017.

Representation

4. The foregoing came for hearing before me on 12 November 2025. Mr. Newman BL represented the plaintiff. The first named defendant moved the applications on behalf of both defendants. The papers with which I was furnished ran to a dozen folders in two full banker’s boxes. The voluminous nature of same would seem to reflect two things. First, as was their entitlement, the defendants chose not to avail of legal representation, however, this resulted in a ‘scattergun’ approach to their applications, with a multiplicity of, often overlapping, assertions being made. Second, the central points made by the defendants are repeated, time and again, in correspondence, affidavits and in various sets of written submissions. I have considered all of the foregoing.

What this judgment is not about

5. Before proceeding further it is important to note that this Court did not hear an appeal against the possession order, which was made 4 years ago. It had no jurisdiction to do so. Why? Because the defendants never appealed that order. I emphasise this at the very outset because, in substance, the affidavits sworn by the first named defendant and his submissions, both written and oral, comprise of arguments as to why possession should not have been granted to the plaintiff.

6. Given that the defendants’ objection to making of the possession order is at the very ‘heart’ of all 3 applications, coupled with the fact that the defendants, as non-lawyers, would not appear to appreciate certain basic principles of relevance to these applications, I felt it appropriate to explain in considerable detail the reasons for this Court’s decision. To do so requires a setting out of the very particular history of these proceedings, which began ‘life’ in 2017 and I propose to do so in chronological order, as follows.

2017 Civil Bill seeking possession

7. The Civil Bill for possession was issued on 20 July 2017 bearing record number 2017/00210 (“the Civil Bill”) and the original plaintiff was “Permanent TSB plc formerly Irish Life & Permanent plc”. With regard to the Circuit Court's jurisdiction, the Civil Bill expressly pleads inter-alia:

“28. The market value of the property does not exceed €3 million and the plaintiff claims

(a) An order for possession of the mortgaged property described in the schedule hereto pursuant to Order 5B of the Rules of the Circuit Court…” Jurisdiction

8. The jurisdiction of the Circuit Court (and of this Court on appeal) is a statutory one, created by section 22 (1) of the Courts (Supplemental Provisions) Act, 1961 (“the 1961 Act”). Section 45 of the Civil Liability and Courts Act 2004 introduced a definition of “market value” in place of “rateable valuation” and increased the monetary value from “£200” to “€3 million”. Furthermore, section 53 A (1) of the Civil Liability and Courts Act 2004 creates a presumption as to market value, meaning that where a plaintiff in Circuit Court proceedings pleads that the market value does not exceed €3 million “… it shall, in the proceedings concerned, be presumed, until the contrary is proved, that the market value of such land does not exceed the foregoing amount”.

9. In light of the foregoing, the Circuit Court undoubtedly had jurisdiction to deal with the possession proceedings. I am fortified in this view by the decision in Bank of Ireland Mortgage Bank v. Finnegan & Anor [2015] IEHC 304 (“BOIM v. Finnegan”) delivered by Ms. Justice Murphy, on 20 May 2015. In BOIM v Finnegan, the learned Judge addressed the jurisdiction of the Circuit Court to hear the plaintiff's claim for possession of the defendant’s home. Having regard to the analysis contained therein, there can be no doubt about the jurisdiction of the Circuit Court to deal with the plaintiff's claim, which resulted in the possession order. For the sake of completeness, even though the defendants repeatedly assert that the Circuit Court lacked jurisdiction, in their appeals to this Court they have taken no issue with the market value of the property and have not, in fact, challenged the statutory jurisdiction of the Circuit Court.

No Appearance

10. It is common case that, despite having been served with the Civil Bill, the defendants chose not to enter any Appearance and they neither retained legal representation, nor swore any affidavits in opposition to the possession claim.

The defendants’ actions

11. Instead of engaging in any way with the claim for possession, the defendants chose to write directly to a named director of the plaintiff, by means of what the defendants describe as a “Notary Sealed Statement of Truth of Paul & Catherine Sullivan sworn 13th February 2019” (“the Statement”).

13 February 2019 - Statement

12. The Statement contained a list of questions 1 to 8, and 9 (a) to (y), and included inter alia the following:

“Is it a true fact that within the above notice of demand dated 14/02/19 I/we did state that I/we did not accept and I/we did not consent to the content or import of any Start Mortgages DAC correspondences in their entirety including but not limited to offers of any kind, any assertions of alleged fact, any allegations of debt owing or financial obligations, any offers of legal proceedings, any presumption of existence of contractual relationships, any assumption or presumption of authority, jurisdiction or claim over our private property, affairs or trusts or presumption by any party to adjudicate any of our private affairs, any assumption or presumptions of commercial contractual arrangements or relationship on the part of Paul Sullivan and/or Catherine Sullivan and Start Mortgages DAC or any other variation of that business name or entity and that my/our response correspondence was to be considered strictly as a counter offer, that I/we did not consent to any contractual offers -no contract-contract denied and that Paul and/or Catherine Sullivan had no contract with, no knowledge of, no business with, no wish to contract with nor have any prior, present or future contractual relationship or indeed any relationship whatsoever with Start Mortgages DAC or any other variation of that name or entity” (Statement para. 5);

“Is it a true fact that on and for the record consequent to the terms of verification, and consequences of default of our demand therein dated 14/02/19 that both John Hennessy a living man, director of and authorised agent for and on behalf of Start Mortgages DAC and Start Mortgages DAC themselves have failed, refused, neglected and were unable to respond to or satisfy my 14 day notice of demand for specific proofs dated 14/02/19 sent under UPU registered post or under our further notice of first demand dated 01/03/19 with five (5) day time extension under UPU registered post or under our further notice of second default & dishonour dated 07/03/19 with five (5) day time extension under UPU registered post which according to the terms of verification within said demand such failure to satisfy the above demands within 14 days of date of that notice of demand and or subsequent time extensions afforded them, admits that John Hennessy as living man, director of and authorised agent for and on behalf of Start Mortgages DAC/and they Start Mortgages DAC are unable satisfy same demands, that he and they Start Mortgages DAC are unable to meet any legal standards and the required conditions therein, to validate any debt obligation and that his and their inability admits he and his employer/company Start Mortgages DAC have misrepresented their positions, and further admits that their correspondences of 7th February 2019 were and are a solicitous attempt to create a contractual commercial relationship where none previously exists, and are frivolous, vexatious, without lawful merit, misrepresented, without jurisdiction, without authority, and further admits that both John Hennessy as living man, director of and authorised agent for and on behalf of Start Mortgages DAC and Start Mortgages DAC's claims are without claim of right made in good faith, without consent, contract, authority, standing or bona fides in our private affairs, that Start Mortgages DAC are foreign third-party trespassing interlopers upon our private affairs and that John Hennessy and they Start Mortgages DAC are liable. Thus an appropriate remedy by John Hennessy and Start Mortgages DAC is recommended at this time”

(Statement, para 8);

“Is it a true fact that John Hennessy as a living man, director of and authorised agent for and on behalf of Start Mortgages DAC and Start Mortgages DAC when demanded did fail, refuse, neglect and was unable to document and verify what he/they paid for each alleged mortgage account he/they alleged was transferred as a purported obligation of Paul Sullivan and/or Catherine Sullivan” (Statement para. 9(d));

“Is it a true fact that John Hennessy as living man, director of and authorised agent for and on behalf of Start Mortgages DAC and Start Mortgages DAC when demanded did fail, refuse, neglect and was unable to provide specific documented verifications that any current commercial relationship existed between Permanent TSB plc and Paul and/or Catherine Sullivan at the time of purported transfer of the alleged loan facilities alleged to exist or to have existed (your references 99069590596450; 99069590566942; 99069598984933; 99069599095088) and alleged to have been an obligation upon Paul and/or Catherine Sullivan residing on the books of Permanent TSB plc and alleged to have been transferred/acquired to/by Start Mortgages DAC” (Statement para. 9 (n));

“Is it a true fact that John Hennessy as living man, director of and authorised agent for and on behalf of Start Mortgages DAC and Start Mortgages DAC when demanded did fail, refuse, neglect and was unable to provide a sworn and attested unaltered un-defaced original wet inked signed copy of each individual alleged loan application alleged to exist and allegedly grounding each of the four (4) individual alleged mortgage accounts… alleged to have been an obligation upon Paul and/or Catherine Sullivan residing on the books of Permanent TSB plc and alleged to have been transferred/acquired to/by Start Mortgages DAC including the front and back of all pages, as it stands original on today's date, from Start Mortgages DAC, an alleged real party of interest, who claims to be a party to these original signed loan applications” (Statement para. 9 (q));

“Is it a true fact that John Hennessy as living man, director of and authorised agent for and on behalf of Start Mortgages DAC and Start Mortgages DAC when demanded did fail, refuse, neglect and was unable to provide a time, a date, and a place, to forensically view, by my experts, the four (4) individual, alleged to exist, unaltered un-defaced original wet inked signed deeds of transfer and assignment (Permanent TSB plc to Start Mortgages DAC) instrument, for each of the four (4) individual alleged mortgage accounts… alleged to have been an obligation upon Paul and/or Catherine Sullivan residing on the books of Permanent TSB plc and alleged to have been transferred/acquired to/by Start Mortgages DAC including the front and back of all pages, as it stands original on that date in the future, from Start Mortgages DAC, an alleged real party of interest, who claims to be a party to these alleged individual original signed deeds of transfer and assignment (Permanent TSB plc to Start Mortgages DAC) instrument”

(Statement para. 9 (x));

“Any man or woman having first-hand knowledge of all the facts asserted herein, and having absolute power and authority to rebut this affidavit, must rebut with the rebutting party's own signature and endorsement notarised, under the penalty of perjury and willing to testify, and executed as true, correct and complete with positive proof attached. Absent positive proof any rebuttal shall be deemed null and void having no force or effect.” (emphasis added)

(Statement final paras.).

Plethora of issues

13. As the foregoing illustrates, the defendants were well aware of the then ongoing Circuit Court possession proceedings but, for reasons which have never been explained, they chose to ignore the proceedings. Instead of engaging in any way with the evidence tendered by the plaintiff in the proceedings (comprising of sworn averments as to facts, and the exhibiting of relevant documentation consistent with the facts averred to) the defendants chose to canvass a plethora of issues outside of the legal process, in their Statement which, inter alia, referred to: “allegations of debt”; asserted “contract denied”; challenged the “existence of contractual relationship”; took issue with “jurisdiction”; alleged that “Start Mortgages DAC have misrepresented their position”; contended that “wet ink signed deeds” were required; and the defendants characterised the plaintiff's claim as “frivolous, vexatious, without lawful merit, misrepresented, without jurisdiction, without authority”.

Art. 34.1

14. Why the defendants chose this course of action is, quite frankly, a mystery. Despite not having instructed legal representatives, the defendants could not have been unaware of the role of the Courts in determining legal disputes on the basis of evidence. They have certainly not asserted any lack of awareness. As Art. 34 .1 of the Constitution makes clear:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as many be prescribed by law, shall be administered in public”.

Private process

15. Despite this, the defendants’ response to the proceedings was to call upon the plaintiff to engage in a private ‘process’ of their own making, outside of court proceedings, which, although employing the language of law, had injustice at its very ‘core’. This is readily demonstrated by the contents of the defendants’ Statement, which concluded:

“Any rebuttal shall be mailed to the undersigned within twenty-one (21) calendar days of receipt of this affidavit. When a rebuttal is not received by the affiant within twenty-one

(21) calendar days this entire affidavit and default provisions shall be deemed true and correct” (emphasis added)

Unfairness

16. In other words, the ‘process’ devised by the defendants involved (i) disregarding Art. 34.1;

(ii) ignoring the Circuit Court proceedings and the evidence tendered in support of the plaintiff’s claim for possession; (iii) making a wide range of assertions, including of the most serious wrongdoing, without a ‘shred’ of evidence to support same; (iv) insisting that the absence of a “rebuttal” (which the plaintiff had no legal duty to provide) constituted proof that these assertions were “true and correct”; (v) all within a private process, shielded from oversight; and (vi) designed and presided over by the defendants alone.

Kangaroo Court

17. To the extent that the language employed by the defendants echoed that used in court proceedings, the ‘process’ which they devised and insisted upon was of the ‘kangaroo court’ variety, only. Unofficial. Unfair. Illegitimate.

Repetition

18. By way of a further observation, the various assertions in the defendants’ (early 2019) Statement were repeated almost 6 years later during the (late 2025) hearing before this Court, despite the defendants:-

(i) declining to raise same in the Circuit Court proceedings (which commenced in July 2017 and concluded with the making of the possession, order over 4 years later, in December 2021);

(ii) declining to appeal the possession order; and

(iii) declining to seek an extension of time within which to bring any such appeal.

14 October 2019 – Order substituting the plaintiff

19. Returning to the chronology of relevant events, on 14 October 2019 the Circuit Court made an order amending the title of the proceedings to read “Start Mortgages Designated Activity Company”, as plaintiff, which order went on to state inter alia:

“The court doth order that a copy of this Order be served on the defendants and the defendants be informed in writing of the following:

1. That a copy of the affidavit and exhibits grounding this application are available on request;

2. That the defendants may make an application to court, on notice, to set aside this order;

3. That the defendants be informed of their entitlement to contest the said transfer to Start Mortgages Designated Activity Company…” (emphasis added)

No challenge by defendants

20. It is perfectly clear, including from the contents of the defendants’ Statement, that they were aware of the transfer to the plaintiff. Nor is there any suggestion that the defendants were not served with the said order and informed of their entitlement to contest the transfer. However, for reasons known only to the defendants, they chose neither to contest the transfer, nor to engage in any fashion in the Circuit Court proceedings.

12 March 2021 – defendants’ letter to the Central Bank Governor

21. Remaining with the ‘timeline’, on 12 March 2021 the defendants wrote to the Governor of the Central Bank of Ireland. Before looking at the contents of that letter, it is appropriate to note that the “Submissions on behalf of the appellants/defendants in support of the motion to set aside void proceedings 2017/00210 and all orders emanating from same”, which were relied upon during the hearing in 2025, include, inter alia, the following:

“At all material times from 2008 to 2018, Paul and Catherine were the legal and beneficial owners and, since 18th November 2018, have continued to reside in their home as beneficiaries of a trust wherein a foreign-domiciled trust company holds legal title as memorialised in the Registry of Deeds, Dublin, since then”.

22. During the hearing before me, the first named defendant went on to make oral submissions to the effect that the possession order was “void” by reason of he and his wife having divested themselves, in 2018, of any interest in the property. This, he described as a “foundational jurisdictional defect”. The self-same issue was canvassed by the defendants in their letter to the Governor of the Central Bank, dated 12 March 2021. The said letter, entitled “Notice of fraudulent misrepresentation-notice of data error-stop and correct”, referred to 4 records held by the Central Bank in respect of credit agreements in favour of the plaintiff and proceeded to state, inter alia:

“(1) To preface this notice correspondence we Paul-Mary Sullivan and Catherine-Mary Sullivan, a living man and woman respectively, are the holders in due course and first in line creditors & executors of the ‘Paul Sullivan’ named estate & ‘Catherine Sullivan’ named estate respectively, of which you appear to hold forward on a register, alleged debt claims upon, claims of the existence of credit agreements, and alleged defaults of same alleged to exist (as referenced above) upon the same estates.

(2) Both estates are held in irrevocable private contract trust with no authorised administration or dealings of any kind on/or upon the Paul Sullivan estate nor Catherine Sullivan estate permitted without specific prior written authorisation, consent and instruction from the executor.

(3) For the purposes of specificity and the avoidance of all doubt the entity Start Mortgages DAC listed as a purported lender is a stranger without standing, without contract, devoid of any commercial relationship to/with the private affairs of Paul-Mary Sullivan and Catherine-Mary Sullivan and/or the ‘Paul Sullivan’ named & ‘Catherine Sullivan’ named estates respectively.

(4) For the further purposes of specificity and the avoidance of all doubt the four [4] reference numbers listed above by the Central Bank of Ireland credit register as CIP contract numbers are fictitious, non-existing contract numbers for the purposes of fraud on the part of Start Mortgages DAC.

(5) Furthermore the four [4] reference numbers listed above by the Central Bank of Ireland credit register as CCR contract codes state that all four [4] alleged to exist credit contracts are subject to legal proceedings. As Start Mortgages DAC are egregious nonparties of interest, devoid of any legal standing, trespassers upon Paul-Mary: Sullivan and Catherine-Mary: Sullivan and the ‘Paul Sullivan’ named & ‘Catherine Sullivan’ named estates respectively no legal proceedings are possible nor existing, rendering further damage and egregious trespass by the representing of same upon a public record.

(6) We Paul-Mary: Sullivan and Catherine-Mary: Sullivan put you Gabriel Makhlouf, as governor of the Central Bank of Ireland, as per the above and attached verifications, that the Central Bank of Ireland credit register holds wholly and entirely inaccurate, untrue, financially and reputationally damaging data on the record in the form of four [4] fictitious credit register entries referenced above.

(7) You are referred to the herein attached notary sealed statements of truth on Paul: Sullivan & Catherine: Sullivan on their own behalf and as executors, general guardians and beneficiaries of the ‘Paul Sullivan’ named & ‘Catherine Sullivan’ named estates respectively setting out the inability of Start Mortgages DAC to verify any contractually relationship nor debt due or owing in favour of Start Mortgages DAC upon any of the above named/estates. This document stands stare decisis res judicata as the established absolute law in this matter.

(8) We Paul: Sullivan & Catherine: Sullivan as executors of the named estates demand and require that you Gabriel Makhlouf, within 21 business days of date of this letter, do instruct, effective and execute a full removal, from the credit register of all four (4) fictitious credit contracts referenced and identified as above.

(9) Further to the above demanded we, Paul & Catherine: Sullivan, in the event of your default, require provision of public indemnity bond for you Gabriel Makhlouf, and separately for the Central Bank of Ireland in the minimum amount of two million, five hundred thousand euros (€2,500,000) each, sufficient to indemnify jointly and severally Paul & Catherine: Sullivan, the Paul Sullivan estate, the Catherine Sullivan estate and all third parties incurring losses consequent to and resulting from the holding, by the Central Bank of Ireland of noticed false, fictitious, fraudulent and damaging data on the public record.

(10) We further require evidence that the bonding agency/carriers of same public indemnity bonds have been notified of impending claims/liabilities on the same bond. The above noticed issues not be rectified within the 21 day time period afforded.

(11) … you are now on notice of a fraud by same Start Mortgages DAC entity. No such obfuscations will be accepted. All responsibility and full unlimited liability remains with you Gabriel Makhlouf as principal of the Central Bank of Ireland for the holding, representing and processing of noticed and established false data on a public record and its immediate rectification” (emphasis added)

Same issues

23. The possession order was not made by the Circuit Court until eight months after the defendants sent the foregoing letter to the Central Bank Governor. The allegations contained in this (March 2021) letter reflect the contents of the defendants’ (February 2019) Statement, including, assertions that: (i) the defendants had no obligations to the plaintiff; (ii) the defendants’ interest in the property was now held by a trust; (iii) the plaintiff had engaged in a fraud; and (iv) the possession proceedings were entirely void. All of the foregoing also featured in the defendants’ appeals to this Court, in 2025.

Fraud

24. According to the ‘process’ devised by the defendants, all of their unsubstantiated allegations, including allegations of fraud and misrepresentation, stood as proven fact. They did not. It will be noted that, ‘dressing up’ their position in the language of the law, the defendants’ asserted that their Statement “…stands stare decisis res judicata as the established absolute law in this matter”. It did not. Piling unfairness on top of unfairness, the defendants ‘built upon’ their ‘bald’ assertions, the allegation that the Central Bank Governor was party to a fraud, perpetrated by the plaintiff. There was no fraud and he was not. To baseless assertions, the defendants added a threat, namely, that if the Governor did not do what the defendants required, the Governor would have “All responsibility and full unlimited liability…” and both he and the Central Bank were called upon to secure a “public indemnity bond”, each in the sum of €2.5 million. In this manner, whilst continuing to shun the then extant legal proceedings, the defendants showed themselves willing to make the gravest of allegations of fraud and wrongdoing, without a ‘whit’ of evidence to support them, notwithstanding the obvious potential to cause harm and distress to others. This was utterly inappropriate, as the defendants must have known. This is a topic I will return to.

20 October 2021

25. Continuing with the ‘timeline’, the defendants wrote to a director of the plaintiff, on 20 October 2021, and stated inter alia:

“As you are aware the property associated with the account numbers referenced herein, was sold with contracts settled and receipted over three years ago…”;

“… for the last number of years, Start Mortgages DAC and its many alleged predecessors have failed to prove and verify their equitable capacity in relation to the alleged October 2008 agreements with Irish Life and Permanent…”;

“In respect of options on the part of Start Mortgages DAC to sue or indeed defend a High Court case in this matter, we note for the record that the statutory Supreme Court has confirmed the raised bar, in respect to any equity action or any equity & title action-pursuant to Bank of Ireland Mortgage Bank v. Cody’s in the judgment of Baker J. delivered the 14 th day of April 2021… Start Mortgages DAC need to be mindful and aware of the mandatory requirements of any plaintiff, that such a court must verify, in that the money/equity must be proven to be due, and that such a plaintiff must provide proofs to copper fasten that they have/hold the equitable capacity to issue an equable demand, for any conveyance burden to be charged and secured; to date Start Mortgages DAC have not exhibited any equitable right to stand in the 2008 shoes of Irish Life and Permanent, similar to Permanent TSB; the above requirement is in addition, to the EU mandated courts own motion assessment of contractual terms – which will be quite hard for any court to accomplish in this matter, as no specific nor generic T&C's in relation to a loan offer, can ever be exhibited by any plaintiff party, as Irish Life and Permanent did not issue, neither, nor a loan offer, which is mandatory under part IX of the CCA 1995…”

“In the event that this statutory notice is defaulted, the default indicates by consent, that Start Mortgages DAC, does not carry the equitable capacity to act as agent nor principal in regard to those agreements of 2008 and we agree by law and precedent, that no act nor statute commenced after the initiation date of October 2008 can ever retrospectively apply to the terms and conditions contained within the alleged agreements; and we agree that by same future default, Start Mortgages DAC does not contractually enjoy any equitable benefits to the contractual agreements of 2008 (even if established to exist), and we agree that Start Mortgages DAC company consents to my issuing a statutory declaration pursuant to the 1938 Act, outlining this status.” (emphasis added)

26. There is no need to repeat what I have said earlier about the rank unfairness of the private ‘process’ which the defendants insisted upon (full in the knowledge that Circuit Court possession proceedings were ongoing) of which the foregoing letter constituted a further element. It is sufficient to emphasise two things. First, as a matter of law the defendants’ ‘process’ was meaningless. Second, the plaintiff had no obligation to engage with it.

1 December 2021 – Declaration

27. Exhibit B to the first named defendant's affidavit, sworn on 25 March 2025, includes what he describes as the “Perfected Statutory Declaration of Paul & Catherine Sullivan 01/12/2021” (the “Declaration”). Bearing in mind that the defendants’ Declaration was also produced prior to the possession order, it is appropriate to note what it contains, including:

“… we were in full possession of the real dwelling, a real home, commonly known as c/o Taghart North, Closnabradden, Shercock, Cavan until its sale on the 18 th November 2018 to Yranoisiv Capital Limited and from thereafter we have continued in full possession of same real dwelling, a real home, as licensee tenants to Yranoisiv Capital Limited”

(Declaration, para. 2);

“In exercise of statute acting as part 9 equity consumer, we enforced and required, that Start Mortgages DAC confirm their equitable capacity, as the alleged current sole legal titleholder, and as the alleged current sole equitable beneficial holder (the alleged current principal) for the said original consumer agreements of 2008-(allegedly) assigned/receipted;

Despite being permitted an ample 21-day statutory timeline, Start Mortgages DAC and its officers wilfully defaulted, and did wilfully neglect and did wilfully fail to respond to same statutory demand/notice…” (Declaration, paras. 5 & 6);

“As Start Mortgages DAC have defaulted, and have also further wilfully failed and refused to clarify, nor provided the statutory equitable proofs, both being required to validate by way of evidence, the grounding basis to any lawful, legal and equitable (assigned/receipted) beneficial claim against the consumer contractual agreements of 2008, they, by their same default, have admitted that they never could provide good redemption, nor good discharge, upon the initiation of this consumers contractual and statutory right to redeem;

On such grounding by statutory default, Start Mortgages DAC having so refused, and so denied these mandatory equitable and consumer contractual rights, Start Mortgages DAC have surrendered all/any previous or present alleged entitlement or right, to any past, present or future cause of action against the names Paul Sullivan and/or Catherine Sullivan; and same default proving beyond doubt that Start Mortgages DAC never held nor enjoyed any equitable right to issue any demand for monies in the past, nor do they hold any equitable right to any and all past contractual entitlements nor payments in relation to the names Paul Sullivan and/or Catherine Sullivan specifically under the said contractual agreements from 2008, nor any such conveyance security or burden granted as a term, under the same consumer contractual agreement” (Declaration, paras. 7 & 8);

“By the statutory default, these acting equitable part 9 statutory consumers, and acting nationals, both irrevocably enjoy the right to sue and counter sue Start Mortgages DAC, its officers (in a private capacity), any and all agents (or agents of agents) for Start Mortgages DAC, for ongoing misrepresentation, and for ongoing fraudulent misrepresentations, under the Sale of Goods and Services Act 1980, or Tort, in a statutory venue, in any national venue, or in any court venue, for losses incurred since 2008, plus associated damages, being a multiple of the losses from the outset;

“Specifically as Start Mortgages DAC has failed many times in the past, to provide their equitable capacity with respect to the consumer loan contractual agreements of 2009, and again more specifically under the recent statutory demand, and as they have failed to provide the required proofs and evidences to the chain of equity, from the consumer loan contractual agreements of 2009 to date, Start Mortgages DAC have confirmed that they were never in a position, nor ever held any equitable capacity, to avail of any equitable benefit against the (originating predecessors) specific deed, within the Registry of Deeds; and thus same deed has had an equitable net value of €0.00, namely a worthless deed; and despite the worthless deed, we sold the dwelling to Yranoisiv Capital Limited by way of a settled and receipted contract on 18th November 2018, as is our fundamental right, and same contract has been stamped to the statutory revenue to record and confirm the closing of the equitable sale & purchase…”

(Declaration, paras. 9 & 10);

“Any concerned party to this declaration has seven days from receipt of delivery of this statutory declaration by the signor to deliver the outstanding evidential proofs to the signors, as otherwise bilateral consensual acceptance is perfected forthwith, on the seventh day, within this sealed instrument”

(Declaration, para. 11).

28. Once again, the defendants insisted upon pursuing their private ‘process’, outside of court proceedings, at the ‘heart’ of which was their ‘absence-of-denial-of-baseless-assertions-amountsto-conclusive-proof-irrespective-of-the-facts’ principle. The unfairness and meaninglessness of this ‘process’ does not appear to have troubled them, then or now. All the while, the defendants could have raised any and all issues which they regarded as relevant to the plaintiff’s claim, and could have tested the plaintiff’s evidence, in the one and only process where the plaintiff’s claim fell to be determined, namely, the then ongoing legal proceedings. They made the deliberate choice not to.

Sham

29. I say deliberate because, in the manner detailed in their Declaration, they took the stance that, because the plaintiff had not engaged in their sham process, the plaintiff had “surrendered all/any previous or present alleged entitlement or right, to any past, present or future cause of action” against them. This view, if it was ever sincerely held, is offensive to justice.

Affront

30. It also an affront to every citizen of this State, because it ignores the will of the Irish people as expressed in Art. 34.1 of the Constitution, to the effect that justice shall be administered in courts, in public (not in a counterfeit private ‘process’ where legal vernacular is misused and justice is mocked).

Inappropriate

31. I have no way of knowing to what extent, if any, the defendants took ‘inspiration’ from others in designing and pursuing their sham process. Either way, it was utterly inappropriate and, in truth, produced no more than volumes of meaningless and valueless paper. Sadly, the old adage that ‘paper never refused ink’ has never appeared more true.

7 December 2021

32. Continuing with the ‘timeline’, it is common case that the defendants chose not to attend the Circuit Court hearing of the plaintiff’s application for possession of the property, on 7 December 2021. Why this is so is explained by the contents of the Statement and Declaration. At the risk of repetition, the defendants adopted the position that the absence of a response by the plaintiff (and the Governor of the Central Bank) constituted agreement with, and proof of, their various assertions, including, assertions to the effect that: (i) the plaintiff had no rights or title to the mortgage facilities;

(ii) the defendants had divested themselves of their rights in the property; (iii) the possession proceedings were void; and (iv) the Circuit Court enjoyed no jurisdiction. In all of this, the defendants were entirely mistaken. The self-same assertions were made in the hearing before me.

Possession Order

33. The possession order records the fact that the defendants were “duly served with the civil bill for possession” and that is not in dispute. Bearing in mind that the Civil Bill issued in 2017, the possession order was granted 4 years later, on 7 December 2021. In the manner already examined, instead of opposing the plaintiff’s claim, the defendants devoted their energies (in particular, from 2019 to 2021) to their ‘parallel’ sham ‘process’, of which there is no more to be said at this juncture. The possession order explicitly records the consideration, by the Circuit Court, of the pleadings and documents filed; the evidence adduced; and what was offered by counsel for the plaintiff, going on to state that:

“… AND there being no appearance by or on behalf of the defendants, the court having considered the correspondence received from the defendants this day AND it appearing to the court that the plaintiff is entitled to possession of the premises as claimed in the civil bill for possession…”

No appeal of the Possession Order

34. It is uncontroversial to say that the defendants had a right to appeal to this Court against the order for possession. As I noted earlier, they chose not to exercise that right. The evidence before me certainly did not disclose any impediment to the making of an appeal within the time prescribed by the Rules.

Final Order

35. Given that the 7 December 2021 possession order was neither the subject of an appeal, nor was any application made to extend time for the purpose of an appeal, it constitutes a final order.

Collateral attack

36. In the manner explained in this judgment, the present applications are, in substance, an impermissible collateral attack on a final order made almost 4 years ago. Rather than end the analysis at this point, and so that the defendants can see the close engagement by this Court with the evidence before it, I now return to the relevant ‘timeline’, following which I will turn to certain relevant legal principles.

Execution order

37. Following an application by the plaintiff, on foot of the possession order, the Cavan County Registrar issued an Execution Order, dated 1 March 2024, which stated, in relevant part:

“… the several sheriffs and county registrars with whom this order may be lodged are hereby authorised and required to take possession of the premises at all that and those the property at Taghart North, Shercock, County Cavan which is comprised in unregistered title and deliver same to the plaintiff with costs to be taxed in default of agreement.”

17 April 2024 - possession by the plaintiff

38. The execution order was stated to be in force for one year. On 17 April 2024, the Cavan County Registrar duly executed same and possession of the property was delivered to the plaintiff.

Re-entry by the defendants post-execution

39. It is not in dispute that after execution of the possession order, the defendants re-entered the property.

40. For example, the defendants’ written legal submissions, dated 9 November 2025, handed into court on the day of the hearing stated inter alia:

“1.4 The orders sought and pursued since 2019 by Start Mortgages DAC and executed against my family were therefore directed at parties with no legal title and the courts subsequent jurisdiction over those parties was never properly established…

8.3 … the substitution, possession and execution orders and subsequent eviction had no lawful foundation, and the respondent acquired no lawful authority to repossess…”

(emphasis added)

41. Furthermore, the fact of the defendants’ re-entry to the property after execution of the possession order is explicitly acknowledged at para. 17 of the affidavit sworn by the first named defendant, on 13 August 2025, wherein he seeks to explain the defendants’ re-entry, post-execution, in the following terms:

“The defendants re-entry into their dwelling post execution of this order by ‘Start’ in April 2024 was necessitated by the plaintiff's failure to prove lawful ownership of any loans post alleged 2019 TSB assignment nor prove any valid, lawful execution, bona fides order nor mortgagee in possession status on the part of Start.” (emphasis added)

42. I pause to say three things. First, it is certainly not correct to say that the plaintiff failed to prove any of the foregoing. The opposite is true, having regard to the terms of the possession order.

43. Second, insofar as the defendants wished to raise any of the foregoing issues, they had two opportunities to do so i.e. (i) in opposition to the plaintiff's claim in the Circuit Court; and (ii) by way of an appeal against the possession order. As to (i) the defendants chose not to engage in any way with the proceedings or to appear at the Circuit Court hearing, which took place on 7 December 2021. Regarding (ii) the defendants chose not to appeal the possession order which, for the purpose of these appeals is not only valid on its face, but final, and the defendants never sought an extension of time for the purpose of making an appeal.

44. Third, the fact that execution of the possession order took place before the defendants brought the present applications to set-aside the possession order seems to me to be of very considerable significance, in the manner I will now explain.

45. In the manner explained above, the defendants acknowledge the fact that the execution of the possession order took place. They also acknowledge that, after execution, they re-entered the property, in April 2024.

46. It is also a matter of fact that the defendants’ motion seeking to set-aside the possession order did not issue until July 2024, i.e. over 2 months after execution of the possession order and re-entry by the defendants. Against this backdrop, counsel for the plaintiff drew my attention to the

decision of the Court of Appeal in Carlisle Mortgages Limited v. Eugene Costello [2018] IECA 334, (“Carlisle Mortgages”) wherein Mr. Justice Peart considered an appeal in relation to a trespass which had occurred after execution of a possession order. The analysis by the learned Judge, at para. 31, is particularly relevant:

“… the agent of the receiver attended at the lands and by 2:50 p.m. had taken possession of the lands and secured them. In my view, at that point the order for possession had been executed. Possession had been taken of the lands on foot of the order for possession. Thereafter no further action needed to, or could, be taken on foot of that particular order. Its purpose had been achieved. Thereafter, any adverse action taken by the appellant after the date constituted an act of trespass. None amounts to a re-taking of possession as such. It follows that the respondent did not need to re-execute the order for possession by making any application to renew the execution order for possession… because he was already in possession as mortgagee in possession. He was entitled to seek to restrain any subsequent trespass of the lands by the appellant…”

47. Guided by the foregoing analysis, and bearing in mind that execution of the 7 December 2021 possession order took place on 17 April 2024, the possession order had already served its purpose (i.e. it was ‘spent’) before the defendants issued either of the two motions, the subject of the present appeals.

48. The present applications seem to me to be based on the proposition that the possession order can somehow be un-executed. The defendants proffer no legal authority in support of this proposition, which the analysis in Carlisle Mortgages would appear to fatally undermine. In these particular circumstances, I am not satisfied that this Court enjoys any jurisdiction to re-visit the possession order. On that basis alone, the appeals must fail.

49. Lest I be wrong in the foregoing view, I have also looked at the defendant's motions through the ‘lens’ of the well-established jurisprudence concerning the setting-aside of a final order and the admission of new evidence, in the manner I will presently explain. For now, I continue with the chronology.

May 2024 - Plenary proceedings

50. On 22 May 2024, the plaintiff issued plenary proceedings against the defendants (bearing record number HP2024/2613) wherein the plaintiff pleads inter alia:

“On 17 April 2024, the Cavan county registrar duly executed the order for possession and possession of the property was handed over to the plaintiff through its authorised agent Sean Cahill of Blackwater Asset Management.

On 17 April 2024, the plaintiff's agent secured the property on behalf of the plaintiff.

On 19 April 2024, the plaintiff's agent attended at the property but could not gain access as the property was unlawfully occupied by the defendants and/or unknown persons.

As at the date of issuance of these proceedings the defendants have not vacated the property.

The defendants and/or unknown occupants remain in unlawful possession of the property as trespassers despite them being required to vacate the property.”

(paras. 6 – 10 of the general indorsement of claim)

Injunction application to restrain trespass

51. On 23 May 2024, the plaintiff issued a motion seeking injunctive relief by way of, inter alia, an order directing the defendants and all persons having notice of the making of such an order to vacate and deliver up possession of the property to the plaintiff; an order restraining the defendants and any other person having notice of such an order from preventing, impeding and/or obstructing the plaintiff, its servants or agents, from taking possession; and orders restraining the defendants, their servants or agents or any other persons having notice of such an order, from trespassing or entering on the property.

15 May 2024 – Defendants’ letter

52. The application for injunctive relief was grounded on an affidavit sworn, on 21 May 2024, by the plaintiff's Risk and Asset Manager who exhibited, inter alia, a letter, dated 15 May 2024, which was sent by the first named defendant to the plaintiff's solicitors. In the said letter, the first named defendant confirms that he is currently in possession of the property and goes on to make inter alia the following assertions:

“… our dwelling and lands at Taghart North… is irrefutably and undeniably our family home and constitutionally protected dwelling”;

“… to eject citizens from their dwelling or family home… is repugnant to the Irish Constitution Article 40.5 and ECHR…”;

“… under Enforcement Act 2023 enforcement guards can only ‘remove people from any premises or place in order to take possession of the premises or place’ therefore such action by these individuals is trespass and repugnant to the Constitution”;

“I say Start Mortgages are not the owner of any purported mortgage as they have Central Bank authorisation to ‘hold’ a charge but not enforce same [Consumer Protection (Credit Services) Act 2015 & 2018]”;

“Start Mortgages DAC is a self-defined credit servicing agent (CRO returns), an entity who is a stranger to our private affairs with no legal or equitable title to any purported to exist Permanent TSB mortgage.”;

“… Start Mortgages as a service agent do not have the capacity to enforce any purported mortgage and… they cannot claim to be ‘a mortgagee in possession’ …”

(emphasis added)

53. These assertions ‘echo’ those made in the defendants’ earlier correspondence; in the defendants’ 2019 Statement; and in their 2021 Declaration.

June 2024

54. The defendants’ position is articulated in affidavits sworn by the first defendant in the plenary proceedings, including, on 13 June 2024, wherein he avers inter alia that:

“… the applicants rushed a terminally corrupted flawed premise in grabbing a private home dwelling, masquerading as a lawful possession, wherein in fact it was a home invasion, attempted theft of private property by deception…” (emphasis added)

55. Whilst the plenary proceedings remain extant, it would be remiss of me not to stress that this Court has not been provided with a ‘scintilla’ of evidence to support any allegation of wrongdoing by the plaintiff, its servants or agents. Having looked at the chronology, I now propose to focus on the principal application before this Court.

The Defendants’ application to vacate the Possession Order

56. On 1 July 2024, the first named defendant issued a motion (initially returnable for 23 September 2024) seeking the following relief:

“1. An order vacating and setting aside all of the orders for Permanent TSB & Start Mortgages DAC v. Paul Sullivan and Catherine Sullivan including the order of possession made on the 07th day of December 2021…”

57. I pause at this juncture to note that the defendants issued this motion over 2 months after execution of the possession order (which occurred in April 2024). I will return to this issue towards the end of this judgment. In support of the relief sought, the first named defendant contended inter alia that:

“The originating matter was not constituted lawfully;

Reliance wholly upon the Order 5B court procedure for the summary possessory relief being sought does not confer any statutory jurisdiction to constitute, commence nor hear a matter when no statutory cause of action exists;

All the sections of the Conveyancing Acts 1881-1911 (S2, S18-24 1881, and S3-S5 1991) saved by the Land and Conveyancing Law reform Act 2013 are not only repugnant to Bunreacht na hEireann 1937 (fundamental rights, property rights, family rights, dwelling rights, and a national's sovereignty), but are also unlawful, with respect to post-1937 statute…”;

“There is no statutory cause of action within the saved sections of Conveyancing Acts 1881-1911 to ground such a summary order of possession matter, and there is no cause of action within the exhibited indentures to ground such a summary order of possession matter…”;

“… reliance on sub inferior statute (Circuit Court rule order 5B procedure) as the only relief when there is a vacant statutory cause of action is unlawful and has rendered all orders issued in this matter ultra vires ab initio”;

“… the lands are not described as required by law for the Registry of Deeds, in the exhibited mortgage indentures, nor within the civil bill claim, nor within the order of possession…”;

“… Ad hoc non-statutory procedure utilised by Permanent TSB plc, and Start Mortgages DAC, renders the matter fundamentally defective, for once in jurisdiction and cause, on the face of the unlawful originating document, particularly at commencement, for breaches in acts, statutes, court rules, unlawful cause of action, and particularly for fundamental defects and wats in jurisdiction pursuant to order 5 rule 9…”;

“… Start Mortgages DAC misrepresented their locus standi… committing perjury, not least by swearing in court documents that the plaintiff owned the said mortgage… and merely authorised to act solely as a credit servicing agent of an undisclosed third-party, without owning any mortgage and being without any enforcement capacity whatsoever”;

“… the plaintiff is not the owner of any mortgages…”;

“… Start Mortgages DAC were acting solely as credit servicers to the true documented owner…”;

“… the plaintiff had and has no locus standi simply because they do not and never have owned the said mortgage and at best can only claim to be a charge holder…”

(emphasis added)

58. Once more, it is appropriate to note that the defendants had the opportunity to ventilate these arguments (i) in the Circuit Court prior to the making of the possession order; and (ii) by way of an appeal against the possession order. They chose not to. In a replying affidavit, sworn on 11 September 2024, the plaintiff's solicitor made inter alia the following averments (at paras. 12-16):

“I am advised by counsel and believe that this honourable court does not enjoy jurisdiction to set aside all orders made in these proceedings for a variety of reasons. In the first instance, this honourable court is ‘functus officio’ in respect of these proceedings which were determined in the Circuit Court by the order of Judge Comerford. I say that no appeal was lodged against the possession order and the time for an appeal has long since passed. I say that no application to extend time to appeal to the High Court has been issued.

I am advised and believe that this motion is issued contrary to the rule in Henderson v.

Henderson. The matters raised by Mr. Sullivan at 1A. through J. of his motion ought to have been ventilated whilst these proceedings were ongoing before the court in the circa four years between 2017 and 2021. I am advised that by operation of the rule in Henderson v.

Henderson the defendants are now estopped from raising arguments which ought to have been canvassed many years ago.

This Honourable Court cannot, with respect, set aside an order for possession which has already been executed. Even if the Circuit Court did enjoy a jurisdiction to set aside its own final order, such an application could only be made prior to execution of the order in question.

There is no evidence whatsoever before the court which might encourage it to exercise a remarkably exceptional jurisdiction to set aside a final and executed order made on 07 December 2021.

I believe that the within application has been solely issued for the purpose of frustrating the plaintiff and its High Court proceedings to restrain the defendant’s trespass on the property which ought to be in the possession of my client.” (emphasis added)

8 April 2025

59. No issue can be taken with the foregoing analysis, in my view. The defendants’ motion came before the Circuit Court, on 8 April 2025, and the order made by his Honour Judge McAleese states in relevant part:

“… WHEREUPON and on reading the pleadings and documents filed and on hearing Mr. Mark Garry BL of Counsel for the plaintiff and the second named defendant in person.

THE COURT DOTH ORDER that the second named defendant's notice of motion herein be and the same is hereby dismissed with costs to the plaintiff to be taxed in default of agreement…”

June 2025 – application to adduce new evidence

60. On 25 June 2025, the first named defendant issued a motion seeking the following relief:

“1. An order pursuant to Order 61, rule 8 of the Rules of the Superior Courts granting leave to the defendants/appellants to adduce new evidence in the above-entitled appeal, being the sworn affidavit of Eric Rochford of Eric Rochford & Co. Ltd. Accountants, together with the exhibits thereto, which evidence was not available at the time of the fore mentioned date of the defendants/appellant motion in the Circuit Court on April 8, 2025 which was not heard.

2. An order, if necessary, directing that the said affidavit and exhibits be admitted as evidence in the hearing of the appeal in the above-entitled proceedings…”

61. The first observation to make is that, in support of the defendant's motion which sought to vacate the possession and other orders, the defendant swore no less than 3 affidavits, namely, on

27 June 2024; 18 December 2024; and 25 March 2025. A key theme in the motion and in the affidavits sworn by the first named defendant is the assertion that the plaintiff did not own the defendants’ mortgage. This is readily illustrated by the following:

“… Start Mortgages DAC were acting solely as credit servicers to the true documented owner…”;

“… the plaintiff had and has no locus standi simply because the[y] do not and never have owned the said mortgages and at best can only claim to be a charge holder…”

(paras. I and J of the defendant’s motion);

“… the plaintiff has deliberately concealed from the court the terminal invalidity of their position, in any enforcement action whatsoever from the outset, as a consequence of the plaintiff being a non-creditor, and currently any alleged debt cannot be proven due to him, and that statutory non-creditor status, strictly precludes them from any enforcement action, by the regulation of the registered authorisation he enjoys under the Consumer Protection

(Regulation of Credit Servicing Firms) Act 2015-2024 particularly pursuant to section 1, (F),

(ii) when he acts as a credit servicer” (para. 4 of the first named defendant's affidavit sworn on 18 December 2024);

“I say Start has and never enjoyed nor had any right to sue. As credit servicers, these entities do not have the statutory right to sue in their own name nor enforce a credit agreement or loan offer in their own name…” (para. 8 of the first named defendant’s 18 December 2024 affidavit);

“I say the proceedings 2017/00210 which are subject to this application were constituted in 2017 by Permanent TSB Plc in the plaintiff name Permanent TSB formerly known as Irish life & Permanent Plc, a non-legal non-CRO registered non-legal entity using an erroneous civil bill procedure wherein subsequently Start Mortgages DAC falsely represented themselves post February 2019 as the legal and beneficial purchaser and owner of loan accounts/mortgage securities said to ground those 2017 proceedings, obtaining substitution into the proceedings and a possession order from Cavan Circuit Court on 7 December 2021.”;

“I say Start Mortgages DAC did not and does not enjoy the capacity to sue in their own name, nor enjoys the capacity to issue demands in their own name, nor hold any absolute assignment to the alleged chain of debt in their own name (as required by the provisions of

28 (6) of the 1877 Act (Judicature Act), nor enjoys the capacity to act as creditor, nor enjoys the capacity to have this litigant act as a contractual debtor, to this acting and authorised credit servicer” (paras. 6 & 7 of the first named defendant's affidavit sworn on 25 March 2025);

“Start Mortgages DAC… is not the beneficial or legal owner of the mortgages purportedly purchased from Permanent TSB… In February 2019… a. There is no claim in the audited accounts for Start Mortgages DAC from 2019 to date that it owns any mortgages;

b. There is no record of any ‘asset’ in the audited accounts of Start Mortgages DAC for the relevant periods that could represent an asset such as a mortgage. This is a legal admission that the company does not legally or beneficially own any mortgage.

c. The only claim in the audited accounts is that the company claims that ‘the company is authorised as a retail credit firm by the Central Bank of Ireland through the Central Bank Act 1997, as amended. The company provides mortgage management services’.…”

(para. 11 of the first named defendant’s affidavit sworn 25 March 2025);

“I say Start Mortgages DAC, have, since 2019, misrepresented their locus standi in the 2017/00210 proceedings, substituting as plaintiff in 2019 to falsely procure a possession order for a home dwelling on 7th December 2021, falsely claiming ownership of mortgage loan accounts…”

(para. 14 of the first named defendant’s affidavit sworn 25 March 2025)

62. It is clear from the foregoing that the defendants contend that the plaintiff has never been either the legal or beneficial owner of their mortgage. Furthermore, this assertion is made with reference to the audited accounts of the plaintiff.

63. The new evidence which the defendants seek to adduce comprises of an affidavit sworn on

19 May 2025 by Mr. Eric Rochford, accountant. In the manner averred by Mr. Rochford at paragraph

3 of his affidavit, the defendants engaged him “… to examine the financial statements and other documents of both Mars Capital Finance Ireland Designated Activity Company (DAC), hereinafter referred to as the ‘MCFID’, and Start Mortgages DAC (plaintiff), in relation to matters arising from the above-mentioned proceedings” (being the plaintiff's proceedings bearing record number 2024/2613HP). As Mr. Rochford explains, this involved examining the documentation provided by the defendants and documents available through the Companies Registration Office.

64. It is perfectly clear that the defendants seek to adduce this new evidence in support of the self-same assertion made by the first named defendant in July 2024; December 2024; and March 2025, i.e. that, based on an analysis of financial accounts, the plaintiff was not the legal or beneficial owner of the defendants’ mortgage.

65. Given that, at all material times, this was the assertion which the defendants sought to make and also bearing in mind that, at all material times the defendants had access to publicly available accounts, there is no evidence before me which offers any explanation whatsoever as to why the evidence which the defendants now seek to introduce was not put before the Circuit Court. In the present case, the new evidence, which was created for the specific purpose of the appeal to this Court, is based on public financial information which was available before the Circuit Court hearing.

Reasons why ‘new’ evidence was not before the Circuit Court

66. At this juncture, it is appropriate to turn to the relevant legal principles, beginning with Order

61 of the Rules of the Superior Courts (“RSC”) which concerns appeals from the Circuit Court. Ord. 61, r. 8 provides:

“8. Where any party desires to submit fresh evidence upon the hearing of an appeal in any action or matter at the hearing or for the determination of which no oral evidence was given, he shall serve and lodge an affidavit setting out the nature of the evidence and the reasons why it was not submitted to the Circuit Court. Any party on whom such affidavit has been served shall be entitled to serve and lodge an answering affidavit or to apply to the Court on the hearing of the appeal for leave to submit such evidence, oral or otherwise, as may be necessary for the purpose of answering such fresh evidence, provided, however, that the Court may at any time admit fresh evidence, oral or otherwise on such terms as the Court shall think fit, and may order the attendance for cross-examination of the deponent in any affidavit used in the Circuit Court or the High Court.” (emphasis added)

67. As to why the evidence in question was not put before the Circuit Court, the first named defendant makes the following averment at para. 6 of the affidavit sworn on 25 June 2025:

“We were not aware of the particular services and expertise of Eric Rochford & Co Ltd in the provision of services for the analysis of the financial records of Start Mortgages DAC and Mars Capital Finance (Ireland) DAC until after the Circuit Court hearing.”

68. In my view, this falls well short of satisfying the requirements of O. 61 r. 8. Without prejudice to the analysis with reference to s. 37 of the Courts of Justice Act, 1939 (which follows, presently) this Court has not been provided with the details of the efforts made to obtain the evidence in question in advance of the Circuit Court hearing. Indeed, whether there were any such efforts is entirely unclear.

69. On the state of the evidence before me, there was no impediment to the defendants trying to identify and secure the “particular services and expertise” in question prior to the Circuit Court hearing. On the evidence, I simply cannot hold that efforts on the part of the defendants, if any were made prior to the Circuit Court hearing, were adequate.

70. The ‘bald’ statement that the defendants were unaware of the services of Eric Rochford & Co until after the Circuit Court hearing does not, in my view, constitute a reason which adequately explains why the evidence, which the defendants now wish to rely upon, was not submitted to the Circuit Court.

Special leave

71. Section 37 of the Courts of Justice Act 1936 is also relevant, and it states:

“(1) An appeal shall lie to the High Court sitting in Dublin from every judgment given or order made (other than judgments and orders in respect of which it is declared by this Part of this Act that no appeal shall lie therefrom) by the Circuit Court in any civil action or matter at the hearing or for the determination of which no oral evidence was given.

(2) Every appeal under this section to the High Court shall be heard and determined by one judge of the High Court sitting in Dublin and shall be so heard by way of rehearing of the action or matter in which the judgment or order the subject of such appeal was given or made, but no evidence which was not given and received in the Circuit Court shall be given or received on the hearing of such appeal without the special leave of the judge hearing such appeal.” (emphasis added)

Exercise of discretion

72. As the foregoing makes clear “special leave” is required for the admission of new evidence. In Murphy v. Minister for Defence [1991] 2 IR 161 (at 164) (“Murphy”) the Supreme Court gave the following guidance in relation to the proper exercise of this Court's discretion to admit new evidence on an appeal.

“1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”

In existence

73. With reference to what might be called the ‘Murphy test’ the new evidence which the defendants seek to adduce was not in existence at the time of the Circuit Court hearing. It was created after it, but based on publicly-available financial information available before the hearing in the Circuit Court took place. Furthermore, there is simply no basis upon which I could validly take the view that the new evidence could not have been obtained with reasonable diligence for use in the Circuit Court.

74. At all material times (i.e. in July 2024; December 2024; and March 2025, when the defendants swore affidavits in support of their Motion to dismiss the possession order) they based the assertion that the plaintiff was not the legal or beneficial owner of the defendants’ mortgage on the first named defendant’s analysis of the plaintiff’s financial accounts.

Efforts

75. Thus, from the point at which the defendants issued their motion to the point at which it was dismissed, the defendants were very much ‘alive’ to the need, from their perspective, to analyse the plaintiff’s financial accounts. Despite this – and whilst it involves repetition - there is simply no evidence of any efforts whatsoever by the defendants to find the expertise and services in question (i.e. analysis of financial accounts) in advance of the Circuit Court hearing.

76. Counsel for the plaintiff also directed my attention to the Court of Appeal's decision in Ulster Bank Ireland DAC & Ors v. McDonagh & Ors [2022] IECA 87 (“Ulster Bank v. McDonagh”), wherein the court addressed at para.31, as follows, an application to adduce additional evidence on appeal, particularly at a late stage:

“For present purposes in this case we will limit ourselves to observing that the issuing of a motion to admit further evidence or to amend a Notice of Appeal is a step that should never be taken lightly or regarded as routine. When the hearing date for an appeal is proximate – in particular a hearing date in a very substantial appeal of the kind presented by these proceedings – such a motion should issue only in exceptional and compelling circumstances.

Solicitors and counsel owe a duty to the Court not to engage in such a course of action unless they have satisfied themselves that it is necessary, proper and appropriate so to do.

If they determine that it is appropriate to proceed with such an application it is incumbent upon them to ensure that the Court is given full details of why the motion is being brought at such a late stage. That does not mean just baldly stating when the solicitor accepted instructions and asserting that upon such late instruction he proceeded to research an issue which has produced the information which it is sought to introduce. Rather, it means providing the Court with a complete picture of when the solicitor was first approached, why he or she was approached (as in this case) at such a late stage and when and to whom the idea leading to the “discovery” of the fresh “evidence” first occurred. It is difficult to see how that comprehensive picture can be painted by an affidavit from the solicitor alone.”

(emphasis added)

Complete picture

77. In my view, the defendants have done even less than the Supreme Court found to be deficient in Ulster Bank v. McDonagh. It is not in doubt that, in advance of the Circuit Court hearing, the defendants regarded the analysis of the plaintiff’s financial accounts as important (illustrated by the fact that they made assertions based on the analysis of the plaintiff’s financial statements). However, for the purpose of their application to introduce new evidence, the defendants have chosen not to give this Court a “complete picture”. Many questions remain unanswered, including, but certainly not limited to:

• Why did the defendants not seek out the relevant services and expertise prior to the Circuit Court, given what they regarded as the importance of analysing financial records?

• When did it first occur to the defendants to ask a firm of professionals to analyse the plaintiff’s financial statements?

• Why did the defendants not ask a firm of professionals to review the financial records when the first named defendant was doing the self-same thing?

Special circumstances

78. Both section 37 and order 16 make clear that it is only in special or exceptional circumstances that this Court should permit new evidence to be adduced on appeal. In my view, the defendants have fallen very far short of meeting this threshold and have failed to satisfy the Murphy test. Therefore, if I were to permit the admission of the evidence in question it would be a flagrant breach of the principles governing the proper exercise of this Court’s discretion. For these reasons I am refusing the defendants’ application to adduce new evidence.

Prejudice

79. The decision of this Court in respect of an appeal from the Circuit Court is (per s. 39 of the 1936 Act) final and conclusive and not appealable. Therefore, if the plaintiff were required to meet this new evidence for the first time in the present appeal, it would be during a hearing from which no appeal lies. I acknowledge that this might be said in relation to any case where an application to adduce new evidence is made in respect of a hearing by the High Court on a Circuit Court appeal under section 37. However, the potential for significant prejudice to a plaintiff, arising from being required to meet new evidence for the first and only time during an appeal hearing, emphasises the obligation on the defendants to meet the test outlined in Murphy, which they have utterly failed to meet.

Influence

80. I am also satisfied of the following. Having taken the time to consider Mr. Rochford's affidavit de bene esse, it cannot be said that, if given, this evidence would probably have an important influence on the result. On the contrary, I take the view that this new evidence cannot conceivably assist the defendants with regard to either of their motions. Mr. Rochford is a qualified and practising accountant. He is not a lawyer and, without intending any disrespect, his averments simply do not address the legal significance of ownership, or the nature of legal as opposed to beneficial title, as a matter of law. On the contrary, Mr. Rochford’s views are from the following perspective:

“I say that, from an accounting perspective, a key determinant of whether an asset should be recognised in the financial statements of an entity, relates to the ability of that entity to control the assets and derive benefits from that asset in the future and also carry any risks associated with such an asset.” (emphasis added)

Relevance

81. Whereas the application to set aside the possession order (and all other Circuit Court orders) is based on assertions that the plaintiff lacked title to the defendants’ loan and mortgage, I am satisfied that evidence concerning the accounting treatment of assets, for the purpose of financial statements, cannot be of any relevance.

Reiteration

82. For the sake of completeness, my decision to refuse to admit new evidence is fortified by the oral submissions made by the first named defendant during the hearing, including:

• “It's only a reiteration by an expert witness of what I set out myself, prior to coming across Mr. Rochford”;

• “His expert evidence essentially corroborates I've said”; and

• “This is simply a report by a forensic accountant”.

83. Bearing in mind that this Court is not hearing an appeal against the possession order, I now return to the principal application (which seeks to set aside a final, un-appealed, order of the Circuit Court, made almost 4 years ago).

Submissions

84. During the hearing before me, the first named defendant made oral submissions, reflecting the contents of his various affidavits and written submissions, which can be summarised as follows:-

• There was no valid plaintiff; no valid defendant; and no valid proceedings before the Circuit Court;

• Start Mortgages DAC had nothing belonging to me;

• There was no possession order; there is no possession order; the possession order was and is void;

• The possession order was obtained in very dubious circumstances;

• The incurably void nature of the possession order is irreparable, having regard to the misrepresentation involved in the procuring of the order;

• The wrong parties were before the Circuit Court, because the plaintiff was not the owner of the mortgage facilities and the defendants did not have any entitlements in the property;

• The Circuit Court had no jurisdiction to deal with the possession claim;

• The plaintiff never had any right or interest in the defendant’s mortgage loan;

• Since 2019, since 2021, and to this day, the defendants’ position is that the possession order is void;

• The plaintiff was acting as a credit servicer and had no right to sue in its own name;

• The plaintiff was a holder of legal title to mortgages it didn't own;

• Start Mortgages DAC outsourced servicing to Start Mortgages Holdings;

• Start Mortgages DAC was being utilised, essentially, as a ‘shell’ company;

• Start Mortgages Holdings was engaged in credit servicing without a Central Bank licence;

• The plaintiff is a non-beneficial owner prohibited from enforcing;

• The plaintiff did not disclose that they were a credit servicer;

• The plaintiff acted in contravention of Central Bank legislation;

• In the affidavit sworn on 6 July 2021, it is falsely averred that the defendants are indebted to and, thus, a debtor to the plaintiff, Start Mortgages DAC, as creditor;

• By reference to the first named defendant's examination of 2019 financial statements, it is contended that LSF Xi Glas Investments Designated Activity Company was the beneficial owner of the relevant mortgage loans, whereas the plaintiff acted solely in the capacity as credit service agent;

• The plaintiff, as a credit servicing firm, was prohibited from enforcing a credit agreement;

• Even if the plaintiff had acquired rights in the relevant mortgage facilities, it was prohibited from enforcing a credit agreement by virtue of the Consumer Protection (Regulation of Credit Servicing Firms) Act, 2015;

• The contents of the 1 February 2019 Irish Law Global Deed of Transfer, Conveyance and Assignment between Permanent TSB plc (the seller) and Start Mortgages Designated Activity Company (the buyer) are false, based on the first named defendant's analysis of the accounting treatment of assets in 2019 financial statements.

Inconsistent

85. It also must be said that the arguments made by the defendants are not consistent. At various points in the written and oral submissions, the first named defendant contends that the plaintiff acquired neither legal nor beneficial ownership of the relevant mortgage facilities. However, at other points, the plaintiff is described as having acquired the legal title and the first named defendant attempts to dismiss the significance of this by means of a submission that the plaintiff was merely a ‘shell’. In so doing, the defendants not only display a lack of understanding of the significance of legal ownership (which may be excusable for non-lawyers) but a willingness to assert different, and mutually-exclusive factual positions, depending on what suits the particular argument being advanced (for which there is no excuse) It is also fair to say that the defendants’ canvassed the same arguments in support of both the motions which are the subject of present appeals (i.e. the application to dismiss the possession order, and the application for declarations to the effect that the possession order is void).

Exceptional jurisdiction

86. Keeping in mind the assertions made by the defendants in support of the relief sought, it is appropriate to turn to the nature of this Court’s jurisdiction to set aside a final order. The first point to make is that the jurisdiction to revisit the possession order is an exceptional one. The second is to say that it is not in the nature of an appeal against the possession order.

87. This second point deserves emphasis because, as the defendants’ submissions make clear, they have treated this application as if it is a re-hearing of the plaintiff’s application for a possession order. It is not. To put it crudely, ‘that ship has sailed’. Remaining with the nautical metaphor, the defendants looked at the ship for over 4 years (i.e. between 2017 and 2021) and decided to take no action whatsoever before it sailed out of sight.

88. As regards the exceptional nature of the jurisdiction, I gratefully adopt the analysis of Mr. Justice Simons in Start mortgages DAC v. Kavanagh [2023] IEHC 37 (para.29):-

“EXCEPTIONAL JURISDICTION TO SET ASIDE JUDGMENT

29. The Supreme Court held in In the matter of Greendale Developments Ltd (No. 3) [2000]

2 I.R. 514 that there is an exceptional jurisdiction to reopen a final judgment. The principles governing this exceptional jurisdiction have been most recently considered by the Supreme Court in Student Transport Scheme Ltd v. Minister for Education and Skills [2021] IESC 35.

The nature of the jurisdiction is summarised as follows (at paragraph 2.13 of the judgment):

“There is, therefore, a clear and consistent line of authority on this topic. A high weight has to be attached to the principle of finality. The reason behind this is clear.

Where proceedings have reached an end, the parties are entitled to expect that they will not have to continue to litigate the issues which have been finally determined.

However, there may be exceptional circumstances where a failure to reopen may itself amount to a clear and significant breach of the fundamental constitutional rights of a party, going to the very root of fair and constitutional administration of justice, such that the decision sought to be reopened can properly be considered to be a nullity and not merely arguably in error. Where such a situation arises through no fault of the party concerned, then it follows that the limited jurisdiction to reopen the case can be exercised.”

30. The Supreme Court in Student Transport Scheme Ltd v. Minister for Education and Skills endorsed the following two principles which are of immediate relevance to the present proceedings. First, the party seeking to have a final order set aside must clearly establish a fundamental denial of justice against which no other remedy, such as an appeal, is available (L.P. v. M.P. [2001] IESC 76, [2002] 1 I.R. 219 (at page 229 of the reported judgment)).

Secondly, the exceptional jurisprudence does not exist to allow a party to re-argue an issue already determined (Murphy v. Gilligan [2017] IESC 3 (at paragraph 138)).”

(emphasis added) Fundamental denial of justice

89. I have no hesitation in saying that there is no evidence before this Court of any exceptional circumstances. There is simply nothing before this Court on which to base a view that a failure to re-open the Circuit Court proceedings, which resulted in a final un-appealed possession order, would go to the root of constitutional justice. The defendants have most certainly not established that a fundamental denial of justice occurred. Rather, the defendants, who had every right to engage in the Circuit Court proceedings (with or without legal representation) deliberately chose not to. Furthermore, they chose not to exercise their right to appeal. Additionally, they never applied to extend time for the bringing of any appeal. Instead, in a mockery of justice, they chose to pursue their own private ‘process’, outside of the legal proceedings, by which the defendants purported to obtain ‘proof’ of a variety of baseless assertions. Moreover, the defendants permitted weeks and months to give way to years before bringing the present applications.

Attempt to re-argue issues already finally determined

90. In addition to the foregoing, at the very ‘core’ of the defendants’ applications is the desire to re-argue issues which have already been determined, finally, by the Circuit Court (illustrated by the first named defendant’s ‘core’ contentions that that the plaintiff was not the owner of the defendants’ loan; and that the defendants had sold their interest in the property).

Res judicata and the rule in Henderson v. Henderson

91. It will be recalled that in the defendants’ 12 March 2021 letter to the Governor of the Central Bank, they claimed that the contents of their 13 February Statement stood res judicata. In his judgment in Vico Ltd & Ors v. Bank of Ireland & Ors. [2015] IEHC 525, (“Vico”) Mr. Justice McGovern (at para.8) stated the following with regard to the doctrine of res judicata and the related jurisdiction derived from Henderson v. Henderson:

“Res judicata and the rule in Henderson v. Henderson

8. The doctrine of res judicata has its origins in public policy considerations which require that there should be finality to litigation and parties should not be permitted to re-litigate matters which have already been determined by the courts. In Dublin Corporation v.

Building and Allied Trade Union [1996] 1 I.R. 468, Keane C.J. at p. 481 said that the court recognised:

‘[T]he interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved – the anxiety, the delays, the costs, the public and painful nature of the process – there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easy in the knowledge that he need never return to court again.’

9. A complementary jurisdiction to avoid multiplicity of proceedings is to be found in Henderson v. Henderson (1843) Hare 100, which has been approved by the Supreme Court in Re. Vantive Holdings [2010] 2 I.R. 118, where Murray C.J. quoted with approval the trial judge where he said at pp. 124 – 125:

‘The rule in Henderson v. Henderson is to the effect that a party to litigation must make its whole case when the matter is before the court for adjudication and will not afterwards be permitted to reopen the matter to advance new grounds or new arguments which could have been advanced at the time. Save for special cases, the plea of res judicata applies not only to issues actually decided but every point which might have been brought forward in the case. In its more recent application this rule is somewhat mitigated in order to avoid its rigidity by taking into consideration circumstances that might otherwise render its imposition excessive, unfair or disproportionate’.” (emphasis added)

Choices

92. The defendants’ applications offend the foregoing principles. They had every opportunity to put their whole case to the Circuit Court in the course of the possession proceedings but decided, instead, (i) to pursue a private ‘process’, which was a travesty of justice; and (ii) to rely on ‘outcomes’, as they see them, derived from that fundamentally unfair ‘process’, to contend, inter alia, that the Circuit Court had no jurisdiction and that the possession proceedings were invalid. The defendants then chose not to appeal against the possession order and have never sought an extension of time to bring an appeal. Having made these choices, the defendants now seek, 4 years later, to have a previously-determined matter re-opened, specifically, to advance grounds which could have been advanced before the Circuit Court. I have no way of knowing whether the defendants have come to regret their choices. Even if this is so, it does not provide a valid basis for challenging the possession order, or any other un-appealed order made by the Circuit Court.

Volte face

93. Given that the defendants (i) ‘set their faces’ so firmly against engaging in the Circuit Court proceedings (which ran their course from 2017 to 2021); and (ii) declined to appeal the possession order; and (iii) decided not to seek any extension of time to appeal; and (iv) delayed for years thereafter (in a manner never explained), the present applications constitute a complete volte face on the defendants’ part.

Delay

94. Given their prior refusal, over so many years, to engage with court proceedings, one might reasonably ask why the defendants have now chosen to engage with the court, albeit at this very late stage? There is no explanation given in the evidence, but the inescapable inference is that the defendants’ applications have been brought with the deliberate aim of delaying, further, the legitimate exercise of the plaintiff’s rights.

Special cases

95. In Vico Ltd. & Ors v. The Governor and Company of the Bank of Ireland & Ors. [2016] IECA

273 Ms. Justice Finlay Geoghegan, (at para.27) provided the following analysis in relation to “special cases” constituting exceptions to the res judicata principle:-

“27. The special cases referred to by him are those primarily where the judgment was procured by fraud: see Dublin Corporation v. Building and Allied Trade Union [1996] I.R.

468 at 481. The nature of the fraud which must be proved was identified by Fennelly J. in Kenny v. Trinity College Dublin [2008] IESC 18, at paras. 54 to 55 where he set out the evidential requirements in an action to set aside a final judgment:

‘[54]…I am satisfied that, in order to ground an action to set aside a judgment, the plaintiff must allege fraud in the true sense, that is deliberate and purposeful dishonesty, knowing and intentional deceit of the court. That approach is consistent with the statement of principle made by Keane J, in Dublin Corporation v. Building & Allied Trade Union and others, with the interests of parties to litigation who have secured a final decision of a court and with the overriding public interest in finality of litigation.

55. In addition, the fraud alleged must be such as to affect the impugned decision in a fundamental way. It will not suffice to allege that the new situation revealed by the uncovering of the fraud might have affected the judgment. It will not be enough to show, for example, that a witness lied unless it is shown that the true version of his evidence would probably have affected the outcome…. I believe that, in an action to set aside a judgment based on an allegation that the court was deliberately deceived into making the impugned decision no less stringent test should be required. There must be something fundamental, something that goes to the root of the case.’”

Fraud

96. Leaving aside the significance of the fact that execution of the possession order has already taken place, the defendants have certainly not put before this Court a ‘shred’ of evidence to suggest that the possession order was obtained through fraud. Whilst the first named defendant swore numerous affidavits with voluminous exhibits, they certainly do not disclose “something fundamental” which “goes to the root” of the possession order. The defendants have proffered nothing which could have affected the outcome of the Circuit Court hearing.

97. The essence of the case made by the defendants is described, as follows, in the written legal submissions, dated 9 November 2025, which were handed into court during the hearing:

“6. Primary submission ‘The court was induced, unknowingly, to make orders against individuals who were not the legal owners and had no capacity to be subject to such orders. In those circumstances, the orders cannot stand and must be set aside ex debito justitiae.’

6.1 This is the primary ground; all other issues-procedural irregularities, multiplicity of misrepresentations and incapacity of the plaintiff, - serve to reinforce this core principle, but are secondary.”

98. It seems fair to say that the exceptional jurisdiction to set aside a final order (in effect, to regard the order as a nullity) arises out of the court’s duty to protect constitutional rights. For the court to exercise, validly, this exceptional jurisdiction requires the defendants to establish that exceptional circumstances exist necessitating the setting aside of the possession order in the interests of constitutional justice. They have come nowhere near doing so.

Finality

99. The analysis by Mr. Justice Noonan in the Court of Appeal’s decision in Start mortgages DAC v. Kavanagh [2023] IECA 251 (“Kavanagh”) is equally relevant to the approach taken by the defendants in the present case. At paras. 21 and 22 in Kavanagh, the learned Judge stated:-

“21. Of course, the difficulty with that contention is that if it was a requirement in 2016 and before, then he failed to raise it at the relevant time. As such he fails that part of the Greendale test which requires that the injustice complained of arises through no fault of the party bringing the challenge to the earlier judgment. As for relying on O'Malley simpliciter, a party cannot be permitted years after the giving of a final judgment to re-open a case simply because a later judgment casts doubt on a particular practice or procedure previously adopted. Were parties free to come back to court to re-open their cases in such circumstances, the principle of finality of litigation would be fatally undermined, as no case could ever be said to be finally determined. Mr. Kavanagh's final complaint is that the judge rebuked him for attempting to put in further written submissions after the

conclusion of the hearing, which as the trial Judge correctly observed offends the principle of justice being administered in public.

22. This appeal and indeed this entire application by Mr. Kavanagh is a manifest abuse of process. It is impossible to avoid the conclusion that this is no more than a further attempt by Mr. Kavanagh to postpone the inevitable, triggered by Start's application to the Central Office to renew the possession order. The application is, as the trial judge identified, based on a total misconception, deliberate or otherwise, of the terms of O. 124 and amounts to little more than a cynical attempt to reagitate all the issues that were comprehensively decided against Mr. Kavanagh now over seven years ago. Mr. Kavanagh, who in his original replying “affidavit of truth” describes himself in familiar terms as a non-individual living man and refers extensively to wet ink documents, is part of a small but significant minority of litigants in person who appear to think nothing of making the most serious imaginable allegations against members of the judiciary and legal profession, apparently untroubled by the need for any scintilla of evidence. As has been said many times in the past, such conduct is to be deprecated in the strongest possible terms.”

Cynical

100. The present proceedings came to an end in December 2021, when the possession order was made. The possession order itself served its purpose once execution took place. Given the absence of any appeal of that order, the plaintiff was entitled to believe that they would not have to face what is, in substance, an attempt to re-litigate the issues which were determined, with finality, in December 2021. In my view, the present applications are, to borrow from Kavanagh, a cynical attempt to reagitate the case decided against the defendants over 4 years ago; are an abuse of process; and the defendants’ conduct must be deprecated in the strongest of terms. Similar to the view expressed in Kavanagh, it is impossible to avoid the conclusion that the defendants’ applications in the present case are other than a further attempt by them to postpone the inevitable and avoid facing up to their obligations to the plaintiff (i.e. flowing from the validly-made possession order, which was, in fact, executed before the present applications were issued).

101. To set aside the possession order would be for this Court to aid a manifest abuse of process. Similar comments apply in relation to the balance of the orders made by the Circuit Court which the defendants seek to have set aside. The defendants’ applications are, in substance, an impermissible attempt to re-litigate the plaintiff's claim for possession. Were this Court to accede to the defendant’s applications, it would be the very opposite of justice. It would involve an impermissible breach of the principles articulated in the various authorities to which I have referred. In short, there is no basis, in fact or law, for the relief which the defendants seek.

Sale

102. Given the foregoing analysis, it is unnecessary to engage further with the submissions made by the defendants, none of which provide a basis for the relief sought. It seems appropriate, however, to observe that during the hearing before me the first named defendant repeatedly submitted that the defendants sold their interest in the property to a 3rd party prior to the making of the possession order. It was clear from his focus on this submission that the first named defendant regards it as an important, and, from the defendants’ perspective ‘winning’ point.

103. For the defendants to assert, in late 2025, that, in 2018, they divested themselves of their interest in the property does not constitute a valid basis for this Court to review a final order made by the Circuit Court in December 2021. Whilst not suggesting for a moment that the argument ever had any merit, it is an argument which the defendants could have put to the Circuit Court but deliberately chose not to (as opposed to ventilating it in their private ‘process’). Emphasising, once more, that this Court is not hearing an appeal against a possession order, counsel for the plaintiff made a range of submissions of obvious relevance. First, the assertion by the defendants of having entered into a private trust arrangement regarding the mortgaged property is not a defence to a possession application. Second, under the terms of the security granted by the defendants, as mortgagors, they explicitly agreed that they would not divest themselves of their interest in the property. Third, no 3rd party is asserting any rights in the property.

Standing

104. For the sake of completeness and clarity, I also wish to address the defendants’ contention that the plaintiff had no standing to oppose the defendants’ applications. The first named defendant submits that, as of 31 May 2024, the plaintiff divested itself of all its interest in the mortgage loans the subject of the possession proceedings and, on 10 September 2024, surrendered its Central Bank ‘Retail Credit Firm’ licence. Building on this, the first named defendant submits:

“Start does not have the capacity to defend or oppose my set-aside motion or my motion to adduce new evidence, or to instruct solicitors”

105. For the following reasons, I regard this submission as entirely without merit. First, the defendants’ motion seeking to set aside the possession order, specifically identified the plaintiff as the “Respondent to this motion”. Second, the grounding affidavit sworn by the first named defendant, on 27 June 2024, specifically invited the plaintiff to engage with the defendants’ application, as can be seen from the following averments:

“3. I say that if Start Mortgages DAC intend defending this motion by filing a defending affidavit, I will lodge a supplementary affidavit.

4. In the event that Start Mortgages DAC do not defend this application-they concur that I am entitled to the reliefs I seek”. (emphasis added)

106. Third, the plaintiff did oppose the motion, by means of sworn affidavit evidence. Fourth, each of the assertions made by the defendants relate, not to the position in 2024 or thereafter, but to the position when the possession order was made, in December 2021 (from the defendants’ perspective, the assertions that the plaintiff did not have title to the mortgage loan; the defendants no longer had title to the property; the Circuit Court did not have jurisdiction; and the possession order was void).

107. In short, it is simply not open to the defendants to serve the plaintiff with an application; invite opposition from the plaintiff; ask this Court, in 2025, to exercise an exceptional jurisdiction to set aside a final order made in the plaintiff's favour, in 2021; and simultaneously argue that the plaintiff cannot instruct solicitors and/or oppose the relief sought by virtue of events which occurred in 2024, years after the making of the allegedly-void order.

108. I have no hesitation in saying that it would be the very opposite of justice to “permit the defendant's application to proceed unopposed” based on their submission that “Start Mortgages DAC has no standing or capacity to maintain or oppose these proceedings or to instruct solicitors or counsel” as the defendants’ urge (see page 3 of the defendants’ written submissions, dated 5 November 2025).

Declarations

109. The second of the defendants’ motions does not even seek to set aside the possession order. Rather, it seeks declarations to the effect that the Circuit Court proceedings were a nullity and the possession order was and is void.

110. The first named defendant made oral submissions at the hearing before me to the effect that these declarations were “self-evident” and should be granted in circumstances where, according to the defendants, (i) the plaintiff did not own the mortgage loan; (ii) the defendants had no interest in the property; (iii) even if the plaintiff did own the mortgage loan, the plaintiff was not entitled to enforce same; (iv) the Circuit Court lacked jurisdiction; and (v) “therefore”, the Circuit Court proceedings and orders were void.

111. The defendants’ second motion is based on the same groundless assertions canvassed by the defendants in the motion to set aside the possession order which constitute, in substance, an impermissible attempt to appeal the possession order. Similar to the first, the defendants’ second motion is an application entirely devoid of merit.

112. Furthermore, and crucially, it is simply not open to the defendants to apply for a range of declarations in respect of proceedings which have long since concluded.

Serious allegations

113. Just as they did prior to the making of the possession order, the defendants make a range of allegations against the plaintiff; its employees; agents; and legal representatives in the present applications (including, allegations of misrepresentation, fraud, and criminality) the following being examples:

Perjury

• At para. g. of the defendants’ set aside motion, it is alleged that a named representative of the plaintiff who swore the affidavit grounding the application for possession was “…committing perjury…”;

• At para. h. of the said motion, it is asserted that the plaintiff made statements “…untruthfully…”;

Concealment

• At para. 4 of the affidavit sworn by the first named defendant on 18 December 2024, it is asserted that “…the plaintiff has deliberately concealed from the court the terminal invalidity of their position…”;

Unlawfulness

• At para. 8, of the same affidavit, it is asserted that the plaintiff “…has concealed and not disclosed their status nor capacity…”; and the first named defendant goes make allegations

of “…misrepresentation…”; “…perjured evidence…”; “…fraud…”; “…credit servicers remaining

silent on…unlawfulness…”; “…fraud, particularly when there was never any alleged debt due nor assigned prior to suing an enforcement…”; and asserts that the plaintiff “…received an unlawful gain…”;

Criminality

• At para. 6 of the same affidavit, a “…criminal offence…” is imputed to the plaintiff;

An Garda Siochana

• At para 8. of the first named defendant’s affidavit, sworn on 25 March 2025, he avers “…your deponent has filed a complaint with the An Garda Siochana National Economic crime bureau citing false evidence having been sworn upon affidavit for the purposes of dispossession of private property by deceit by the plaintiff’s affiant…” and he identifies the representative of the plaintiff by name and cites a “Pulse ID” number;

Misrepresentation

• At para. 9, it is alleged that a named representative of the plaintiff “…falsely represented…that Permanent TSB Plc sold and Start Mortgages DAC bought a tranche of mortgages….”;

• At para. 10, it is asserted that the plaintiff has, “…since 2019, misrepresented their locus standi in these 2017/00210 proceedings, substituting as plaintiff in 2019 to falsely procure a possession order for a home dwelling on 7th December 2021…”;

Deception

• Paras. 10 and 23 of the defendants’ 25 March 2025 affidavit contains allegations that a named representative of the plaintiff has engaged in “positive deceptions by way of and misrepresentations of facts material to the within proceedings”; and it is also asserted, at para. 10, that the plaintiff has acted “…duplicitously…”;

• At para 20 of the same affidavit, it is alleged that “Affidavits in possession proceedings … frequently misrepresent the facts to the Courts….”;

• At para. 21 a named individual is alleged to have “…falsely purported to represent…” the plaintiff;

• At para. 26 it is asserted that the plaintiff “…deceitfully relied upon…falsehoods to obtain an order for possession which is an act of misrepresentation and deception”;

• At para. 28, it is alleged that a named representative of the plaintiff “…has falsely averred that the defendants are indebted to…” the plaintiff;

Withholding of evidence

• At paras. 32 of the 25 March 2025 affidavit, it is asserted that a named representative of the plaintiff “…withheld critical evidence material to the possession proceedings 2017/00210 namely that the property subject to the possession proceedings was the registered property of a third party whom were not a party to the proceedings…”;

• At para. 33 of the same affidavit, it is also alleged that the plaintiff’s representative “…withheld critical evidence material to the possession proceedings 2017/00210 namely that Start…were unable to evidence proofs of any acquisition of any facility nor mortgage proven to be an obligation upon Paul and/or Catherine Sullivan or as security over dwelling house…”;

• At para. 34, it is also alleged that the plaintiff’s representative “…withheld critical evidence material to the possession proceedings 2017/00210 namely a perfected Statutory declaration sworn by the original respondents Paul & Catherine Sullivan 1 st December 2021, setting out Starts inability to prove ownership of the purported mortgage loan accounts…”;

Untruth

• At para. 46, it is asserted that “…despite these misrepresentations and corrupted locus standi…” a named representative of the plaintiff “….by way of her affidavits sworn in 24/06/2019 and 06/07/2021 respectively, procured court orders of substitution of Start Mortgages DAC as plaintiff…by misrepresentation, untruth, omission of facts material to the herein proceedings 2017/00210”.#

Scandalous

114. These allegations are as serious as they are devoid of any basis in fact. They are scandalous, both in the legal sense and as that term is commonly understood. Having no basis whatsoever, these allegations can only have been made with a view to causing damage, embarrassment, offence and/or delay.

115. I want to make ‘crystal’ clear that it was entirely inappropriate for the defendants to make these baseless allegations, and their conduct must be deprecated. Whilst the defendants chose not to avail of legal representation, one does not need to be a qualified lawyer to understand the potential damage to others arising from the making of baseless and offensive allegations of dishonesty and wrongdoing.

116. As Mr. Justice O’Moore pointed out in the recent decision of the Court of Appeal in Howley v. McClean & Anor. [2025] IECA 77:-

“…the effect on persons accused of fraud can be significant. An allegation of fraud, even if not actually proven at trial, can nonetheless be significantly damaging to the reputation of the person accused of deceitful or fraudulent behaviour. Particularly from the point of view of someone engaged in business or in a profession, an allegation formally made in court proceedings that such an individual has acted fraudulently is of the greatest seriousness”.

(para. 8)

“…the making of an allegation of fraud is so toxic that, even if struck out at an early stage, it is quite likely to result in lingering but palpable damage to the reputation of the person or institution accused of fraud.” (para. 29).

117. In the present case, not only have the defendants singled-out a representative of the plaintiff for these toxic and baseless allegations, they have chosen to involve an Garda Siochana, thereby showing themselves willing, not only to inflict needless distress on those falsely-accused of wrongdoing, but to deliberately waste necessarily-scarce public resources. This is utterly unacceptable.

118. It must also be said that at no stage did the defendants resile from or apologise for these toxic allegations, which are as potentially damaging to others as they are devoid of any basis in evidence.

119. The defendants have also shown themselves willing to use meritless court applications as a ‘delivery method’ for toxic and baseless allegations against a named individual, who did no more than swear an affidavit on behalf of their employer, the contents of which the defendants chose not to challenge at any stage during the course of the possession proceedings. This cynical and inappropriate conduct must be deprecated in the clearest and strongest terms.

Conclusion

120. Whilst the following is not intended as a substitute for the analysis in this judgment, matters can be summarised as follows.

121. Were this Court to admit new evidence, it would be to breach the Murphy test.

122. In the present case, the defendants have come nowhere near establishing that there has been a breach of constitutional justice which would justify the revisiting of final orders.

123. On the contrary, the defendants’ motions constitute a clear abuse of process by individuals who chose:

(i) not to participate in the Circuit Court possession proceedings;

(ii) not to challenge the substitution of the plaintiff in those proceedings;

(iii) not to appear at the hearing;

(iv) not to appeal the Circuit Court possession order;

(v) not to seek an extension of time to appeal;

(vi) to ventilate a myriad of issues by means of a private ‘process’, of their design, outside of the legal possession proceedings, which the plaintiff had no obligation to engage with, which ‘process’ was as meaningless as it was unfair;

(vii) to ‘rely’ on the outcome of that ‘process’ to take the stance that the legal proceedings were void; that the plaintiff had not standing; and that the orders made in the proceedings were void;

(viii) to bring motions, years later, in proceedings which had run their full course and were ‘spent’;

(ix) to seek to set aside a possession order after it had been executed and had served its purpose;

(x) to raise, in support of their motions, issues which the defendants could have raised, but chose not to raise, in the proceedings;

(xi) to ‘pepper’ their applications with allegations of misrepresentation; fraud; deception;

and criminality on the part of others, which allegations are baseless and scandalous.

124. For the reasons set out in this decision, the defendants’ applications are utterly without merit and constitute an abuse of process. They must be dismissed.

125. I have no hesitation in saying that there is no factor which would argue against a departure from the ‘normal’ rule that ‘costs’ should ‘follow the event’. The event is that the plaintiff has been entirely successful.

126. I will list this matter at 10.30 am on Thursday 18 December for the purpose of making formal orders.