High Court allows execution and plaintiff substitution after dismissing appeal on possession order.

THE HIGH COURT

[2026] IEHC 308 RECORD NO. 2025/150 H.CA

BETWEEN:

START MORTGAGES DESIGNATED ACTIVITY COMPANY

PLAINTIFF -and-

RAYMOND CLARKE AND IRENE CLARKE

DEFENDANTS / APPELLANTS

EX TEMPORE JUDGMENT delivered by Mr. Justice Mark Dunne on 18th May 2026

1. This is an appeal by the second Defendant, from the Order of the Circuit Court made the 23rd May 2025 substituting Mars Capital Finance Ireland Designated Activity Company [hereinafter Mars Capital] as the Plaintiff in this action and giving it leave to issue execution in these proceedings, on foot of the Order for Possession obtained by Order of the Circuit Court made 21st November 2023, which granted to Start Mortgages Designated Activity Company [hereinafter Start Mortgages], possession of the Defendants’ property comprised in Folio 170L of the Register of Freeholders Co. Cavan, [hereinafter the Defendants’ property] which said order for possession was affirmed by the High Court by Order made the 19th June 2024, on an appeal taken by the second Defendant.

2. The Appellant, the second Defendant herein [hereinafter the second Defendant] appeared as a litigant in person. The first Defendant has not appealed the Order of the Circuit Court.

3. The appeal is a de novo hearing of the motion brought by Mars Capital dated 24th February 2025 seeking an Order pursuant to Order 36 rule 10 of the Circuit Court Rules granting it leave to issue execution in these proceedings on foot of the Order for Possession and also an Order pursuant to Order 22 rule 4 of the Circuit Court Rules substituting Mars Capital as plaintiff in this action.

4. There is an extensive background to this case, which need not be rehearsed here, but suffice it to say that the second Defendant, has strenuously resisted the possession proceedings from the outset, as she was entitled to do. Ultimately, she was unsuccessful in her attempt to defend the possession proceedings and on the appeal to the High Court, Heslin J. delivered a written Judgement in May 2024, [2024] IEHC 310, wherein he was satisfied that Start Mortgages was entitled to an order for possession and that there was no credible defence to the possession proceedings. In refusing a stay on the possession order Heslin J. took the following into account when he stated: -

“134. Having carefully considered the matter, I am satisfied that the interests of justice do not require a further stay. I have come to this view having taken all relevant considerations into account, including the following factors: -

• The last payment was made by the Defendants on 12 May 2016, some 8 years ago;

• The Defendants were offered alternatives to legal proceedings (including to surrender possession; a voluntary sale; or to explore a ‘mortgage to rent’ option) but declined same;

•Circuit Court proceedings commenced in October 2018 and His Honour Judge Aylmer's order was made 5 years later, in November 2023;

• As well as having been entirely successful in the lower court, the Plaintiff has been entirely successful in these proceedings;

• The choices made by the Defendants have resulted in significant delays, and the expenditure of otherwise avoidable costs (Counsel for the Plaintiff submitted, without objection, that the case came before the lower court on

17 occasions, including listings before the County Registrar, before it was ultimately heard on 25 July 2023; and an appendix to the Plaintiffs' written submissions, furnished without objection, sets out the relevant chronology);

• The Defendants conduct has included the making of entirely groundless allegations of fraudulent and criminal activities;

• Whilst this court is granting no stay, it will be necessary for the Plaintiff to take further steps in order to execute this court's order and that will selfevidently involve a further period of time.”

5. There was then an application by the second Defendant for leave to appeal to the Supreme Court, which was refused by determination dated 13th September 2024 [2024] IESCDET 112.

6. The application by Mars Capital for substitution and leave to issue execution is grounded on the Affidavit of Eva McCarthy sworn the 18th February 2025. Therein, she explains that the application arises from the sale of the business and assets of Start Mortgages to Mars Capital and she exhibits a Global Deed of Transfer dated 31st May 2024, a Transfer Agreement dated 31st October 2023 and a Deed of Amendment to Transfer Agreement dated 28th May 2024, to explain how Mars Capital became the owner of the Defendants’ loan and the security for it, as well as the present proceedings and the order for possession of the Defendants’ property.

7. The Global Deed of Transfer was the primary mechanism by which this took place, and it is unredacted, save for the names of borrowers other than the Defendants. The redactions are explained as being necessary for reasons of commercial sensitivity, client confidentiality and restrictions imposed by the Data Protection Acts.

8. The Global Deed of Transfer refers to the Transfer Agreement and Deed of Amendment. These later documents were redacted. These were exhibited to assist the Court in interpreting the Global Deed of Transfer and Ms. McCarthy in her Affidavit explained that the redactions were required because those parts of the documents were commercially sensitive, confidential to the parties to the transfer agreement and were irrelevant to the transfer and assignment of the Defendants’ loan and security from Start Mortgages to Mars Capital. She also averred that no amendments were contained in the Deed of Amendment which impacted that transfer.

9. The second Defendant has put before the Court an affidavit sworn the 20th May 2025 for the purposes of resisting the application of Mars Capital.

10. Before proceeding to address the issues between the parties, it is important to set out what is not in dispute.

11. Firstly, it is not in dispute but that the Defendants obtained a loan from Start Mortgages in April 2007 secured by way of a charge on their property comprised in Folio 170L Co. Cavan with the loan account number ending in the numbers 7805 (the loan).

12. Secondly, it is not in dispute but that the Defendants defaulted on the loan. Indeed, what is notable is that not a single payment has been made by the Defendants by way of an attempt to repay the loan since 12th May 2016.

13. Thirdly, it is not in dispute and cannot be in dispute, but that Start Mortgages has obtained an Order for possession of the Defendant’s property, which said Order for Possession was affirmed on an appeal taken by the second Defendant to the High Court.

14. In addition to that, in her written and oral submissions to the Court, the second Defendant accepted that Mars Capital is registered on the Folio of the property as the owner of the charge covering the loan. As she put it, she accepts that Mars Capital “owns the security” but that “they haven’t proved that they have the loan.”

Thus, she says in her written submissions that she “does not challenge the conclusiveness of the register as to title of land” and “does not dispute that Mars Capital Finance Ireland appears on the folio as registered owner of the charge. The issue before the Court is whether the cause of action in respect of the underlying debt has vested in that entity. Registration of a charge reflects an interest in land.

It does not in and of itself, establish ownership of the underlying debt or the right to enforce it.”

15. Therefore, the only material issue in dispute between the parties, is the ownership of the loan, and the debt arising on the loan and the ownership of the right to enforce and execute the possession order made in respect of the Defendants’ property.

16. Mars Capital’s position is that it purchased the Defendants’ loan and the security for it, as well as the chose in action – (that is the present proceedings and the order for possession of the Defendants’ property), as part of the purchase of the Start Mortgage business and that this is evidenced by the Global Deed of Transfer. It says that since it owns the loan, security and all ancillary rights that relate thereto, it is entitled to the orders sought.

17. The second Defendant has put forward a number of grounds on foot of which she seeks to resist the Mars Capital application. During the course of oral submission, the Court had a concern that the words used in the second Defendant’s written submissions were not hers. When she was finished her oral submissions, she was asked if her submissions were written with the assistance of Artificial Intelligence.

Initially she denied it stating “No, I know my own case, so it’s my own words.”

When pressed further she again reiterated that she knew her own case and that she didn’t use AI for her arguments, but “did use it a little”. When pressed further she accepted that AI had been used “for some of it, yes” but reiterated that she knew her own case.

18. As was pointed out by the Court of Appeal in its recent decision in Guerin v O'Doherty [2026] IECA 48 where a party uses AI to assist in carrying out research or in the preparation of written legal submissions, they must ensure that they do so responsibly and that they do not, even inadvertently, mislead the Court by advancing propositions or relying upon supposed authorities which in fact have no foundation at all. Furthermore, where they do use the assistance of AI they must expressly inform both the other party and the Court of their use of AI in this regard.

19. In the present case, while it was obvious to the Court that the second Defendant had used AI to assist her in the preparation of her written submissions and did not inform the Court of this, until pressed by the Court, I am satisfied and accept that the second Defendant knew her own case and did not try to mislead the Court.

20. Some of the grounds put forward by the second Defendant are in truth an attempt to reopen and reargue the possession proceedings. For example, she seeks to rely upon the Unfair Terms in Consumer Contracts Directive and related caselaw. I do not propose to address those arguments that relate to the possession proceedings, but instead will address the ground put forward by her, as to why Mars Capital should be refused the reliefs it now seeks.

21. Firstly, she says that Start Mortgages has no standing to make the application being made on the Motion, as it is no longer on the Central Bank Register as a retail credit firm and she exhibits a printout from the Central Bank Register for Retail Credit Firms.

22. Secondly, she challenges the means of knowledge of Eva McCarthy and says that everything she says is hearsay, because she is employed by Mars Capital Management Ireland, as opposed to Mars Capital Finance Ireland and that she is thus an agent of a third party which has no authorisation from the Central Bank and no banking licence.

23. Thirdly, she says that the Global Deed of Transfer, which she says is the primary evidence of the alleged transfer of the loan account and chose in action, is not stamped for stamp duty purposes and that pursuant to section 127 of the Stamp Duties Consolidation Act 1999 it is therefore inadmissible in evidence for the purposes of proving the transfer of the legal and beneficial interest in the loan.

24. Fourthly, she says that because of the redactions in the Global Deed of Transfer, there is a lack of transparency and that it is difficult to know what was and was not transferred and she seeks to rely on the decisions of Simons J. in Pepper Finance v Moynihan [2024] IEHC 625 and Start Mortgages v Ramseyer [2024] IEHC 329.

She also seeks to rely on the decision of the Court of Appeal in Fannon v O’ Brien & Ors [2024] IECA 51 and says that Mars Capital has failed to prove the absolute nature of the assignment to it. She also says that because of the redactions there is a lack of fair procedures as she is deprived of a proper opportunity to test the claim that Mars Capital is the owner of the loan and chose in action.

25. Fifthly, she seeks to rely upon an unfiled affidavit of an Eric Rochford, who she says is an expert witness to “cast doubt on” Mars Capital’s assertion of ownership of the loan.

26. Two Circuit Court Rules have to be considered in this application, Order 22 Rule 4 and Order 36 Rule 10. Order 22 Rule 4 provides:

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

27. Order 36 Rule 10 of the Circuit Court Rules provides:

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

28. The equivalent order, in the Rules of the Superior Courts to Order 22 Rule 4 of the Circuit Court Rules (namely Order 17, Rule 4 RSC) has been considered by the courts on a number of occasions. In Stapleford Finance Ltd. v. Lavelle [2016] IECA 104 the Court of Appeal addressed two aspects of the wording of the Order. It held that the phrase “any other event”, in the opening sentence of the Order, included events such as the assignment of loans and choses in action and that an “event” was not confined to an extraneous event (such as death or bankruptcy), but also embraced an event such as a contract for the sale of loans and mortgages. Secondly, it was held that the phrase “change … of interest” was not confined to an interest in land but embraced an assignment of a chose in action. The Court also held that there was no distinction in this regard between the assignment of a chose in action and the assignment of an existing cause of action.

29. Whether Order 17, Rule 4 RSC (or in this case Order 22 Rule 4 of the Circuit Court Rules), could be invoked in proceedings seeking the recovery of lands by way of an order for possession has been considered in Permanent TSB v. Doheny [2019] IEHC

414. In that case Meenan J. accepted that it was open to the transferee under a deed of transfer to apply to be made a party to possession proceedings which had previously been instituted by the transferor.

30. The equivalent order, in the Rules of the Superior Courts to Order 36 Rule 10 of the Circuit Court Rules (namely Order 42 Rule 24 RSC) has also been considered by the courts. In Irish Nationwide Building Society v. Heagney [2022] IEHC 12 Allen J. stated as follows:

“[47] I am satisfied that O. 42, r. 24, properly construed – as the applicant correctly submits it should be – having regard to O. 42, r. 23 means that an application by an assignee of a judgment or order is to be approached on the same basis as an application by or against the party originally entitled or liable to execution. In the case of a change of entitlement or liability within six years of the judgment or order, the applicant need prove no more than that there has been such a change. In the case of an application made upwards of six years from the date of the judgment or order, however, the applicant, in the same way as the party originally entitled, must demonstrate the reason for the delay. If the discretion of the court is so engaged, the court will move on to consider whether it should be exercised in favour of, or against, granting leave.”

31. In assessing whether to make the orders sought, consideration must be given to section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877, which provides:

“Any absolute assignment, by writing under the hand of the assignor, … ….

of any debt or other legal chose in action, of which express notice in writing shall be given to the debtor trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law, … … to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor: ….”

32. What this section means in practical terms has been explained by Simons J. in Promontoria (Oyster) DAC v McCool & Everyday Finance DAC [2025] IEHC 9 where he stated:

“[29]. Section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 provides that an absolute assignment of a debt or other legal chose in action is “effectual in law” provided that “express notice in writing” shall have been given to the debtor. The assignment is deemed to have been effectual in law from the date of such notice. Thereafter, the assignee (i) will be entitled to pursue all legal remedies without the concurrence of the assignor; and

(ii) will have the power to give a good discharge for the debt or legal chose in action. In practical terms, this means that the assignee can pursue proceedings in their own name, without having to join the assignor as a party; and that the debtor may make payments to the assignee safe in the knowledge that such payments go towards reducing the debt and that the assignor no longer has any interest in the debt.”

33. As was pointed out by Simons J. what is required in terms of notice under section 28(6) has been considered in AIB Mortgage Bank v Thompson [2018] 3 IR 172. In that case Baker J. stated that the purpose of s. 28(6) was so that a debtor be given notice of the assignment of a debt or chose in action. As to the formalities required of the notice she stated:

“49. I consider that in order to be a valid notice under s. 28(6) the debtor must be given express notice in writing of an assignment of his debt to another, that other must be identified, and the notice must contain sufficient information to enable the debtor to know with reasonable certainty that the assignment did assign the debt so that he may without acting at his peril pay the debt to the identified assignee. The absence of a date is not relevant, and this must be because s. 28(6) expressly provides in its terms that the date of the notice to the debtor is the effective date of the assignment for the purposes of the assignment at law.

52. ……… [i]t would be wrong to interpret the statutory requirements as imposing technical or procedural requirements which are not therein expressed. The test is, in the circumstances of each case, whether there was sufficient information to enable the debtor to know not merely that a third party claims to own his debt, and claims to have the right as a matter of law to give a discharge for that debt, but that that party has taken an assignment or assurance of that debt from the party with whom he or she originally contracted.

53. While a notice does not have to be sent with the intention of constituting a statutory notice, a notice must be sufficiently clear as the legislation requires that the notice be express. This precludes the argument advanced by the plaintiff that it is sufficient that documents sent to a debtor by implication identify an assignment, and I do not consider that s. 28(6) leaves open an argument that a notice which impliedly identifies an assignment can be sufficient, or that a prior general consent performs the statutory function of a notice. A notice must be given, it need not be formal, it need not refer to the statute, but it must be an express notice of an assignment and not merely a claim to the debt by another party. The existence of a prior assignment ought not to be implied. There is nothing in the statute to my mind which suggests that the notice must be contained in one document and for that reason the joinder of documents may be sufficient to constitute a notice of assignment.”

34. As to the standard to be applied, in assessing whether the substitution of a party under Order 22 Rule 4 should be made and leave granted pursuant Order 36 Rule 10 of the Circuit Court Rules. While many of the cases, such as Permanent TSB v.

Doheny apply the prima facie evidence test, that is because the applications were made prior to the substantive hearings of those proceedings. In McDermott v Ennis Property Finance DAC [2019] IECA 142 Peart J. writing for the Court of Appeal made a distinction between a substitution order being made prior to the substantive proceedings being heard and a substitution order being made after final judgment has been granted. He noted that in the latter case, there is no opportunity at a subsequent trial to ventilate issues as to the validity of the assignment of the loans.

Therefore, while the fact remained that such applications to substitute a party were still of a purely procedural nature, in such cases the correct test was the balance of probabilities.

35. In the present case, since the only issue in dispute between the parties is whether Mars Capital has proven that the Defendants’ loan and the security for it, as well as the relevant chose in action – (that is the present proceedings and the order for possession of the Defendants’ property), was part of the transfer by Start Mortgages to Mars Capital, before making the Orders sought, this Court must be satisfied on the balance of probabilities that (i) there was a valid transfer to Mars Capital of the Defendants’ loan and the chose in action relating thereto, and (ii) that valid notice of that was given to the Defendants for the purposes of section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877.

36. In the first and second grounds put forward by the Second Defendant as to why the relief should be refused, she argues that Start Mortgages has no standing to make the application being made, as it is no longer on the Central Bank Register as a Retail Credit Firm and that the affidavit of Eva McCarthy is inadmissible as hearsay because she lacks the requisite knowledge to swear the grounding affidavit.

37. I am satisfied that these arguments are without merit. The application for the reliefs sought in the Notice of Motion are being sought, not by Start Mortgages but by Mars Capital. That a non-party to proceedings, who has the necessary interest in them can make the application, is clear from the wording of both Order 22 and Order 36 Rule (10) of the Circuit Court Rules. Thus Order 22 Rule 5 dealing with service of an order substituting the new party, directs service upon the continuing party or parties and also upon any new parties “unless the person making the application be himself the only new party.” Order 36 Rule 10 gives the right to apply to “the party claiming to be so entitled” to execution. Therefore, I am satisfied that Mars Capital has the standing to make the application that is before the Court by way of the Notice of Motion dated 24th February 2025.

38. As to Ms. McCarthy’s means of knowledge, she clearly sets out that she is a litigation manager with Mars Capital Finance Ireland DAC, in the employment of Mars Capital Management Ireland DAC and that she makes the affidavit with Mars Capital’s authority and consent, “from facts within my own knowledge and from a diligent perusal of its books and records in relation to the Defendants and the account of the Defendants herein, such files and records having been compiled within the ordinary course of business.” She goes on to say that the books and records reviewed by her for the purposes of swearing her affidavit, were prepared in the ordinary course of business of Mars Capital and its predecessors and constitutes business records within the meaning of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020. Therefore, I am satisfied that she has demonstrated the necessary means of knowledge. Indeed, given that Ms. McCarthy had previously been employed by Start Mortgages before the transfer of its loans to Mars Capital, and had sworn the affidavits in the possession proceedings, it is difficult to think of another person who would have better knowledge of the relevant facts.

39. Ms. McCarthy in her affidavit avers to the fact that Mars Capital’s application to be substituted as Plaintiff and for leave to issue execution arises from the fact that “Start’s rights to recover on foot of the Facility/Facilities and to enforce the Mortgage/Charge have been transferred to [Mars Capital].” As set out above she exhibits the Global Deed of Transfer dated 21st May 2024, the Transfer Agreement dated 31st October 2023, and a Deed of Amendment of the Transfer Agreement dated 28th May 2024.

40. It is the Global Deed of Transfer that was the primary mechanism by which the transfer and assignment of the loans and securities were transferred from Start Mortgages to Mars Capital. This document is unredacted, save for the names of borrowers other than the Defendants, that would otherwise appear in the schedule to the Deed. The redactions are explained as being necessary for reasons of commercial sensitivity, client confidentiality and restrictions imposed by the Data Protection Acts.

41. Clause 1 of the Deed makes it clear that Start Mortgages “grants, conveys, assigns, transfers and assures onto” Mars Capital “the legal interest in the Security, the Security Documents and Finance Documents” and “any and all of [Start Mortgages’] rights, title and interest in and to” the loans, further details of which are set out in the schedule. When one goes to the schedule of the Deed, the Defendants’ loan account ending with the numbers 7805 is set out in the column headed “Acc number “and the Defendants are identified in the corresponding column headed “Borrowers.”

42. Clause 1 of the Deed also makes clear that what is being transferred includes “the principal amounts, accrued interest or other amounts outstanding or which become due under or in connection with the loans”, together with “all of the other commitments, ….. claims and other rights of [Start Mortgages] including [its] participation under, in respect of or included in the Finance Documents, together with any and all corresponding rights and benefits under any Finance Documents”

and “ancillary rights and claims.”

43. The Global Deed of Transfer directs the reader to the Transfer Agreement, for the definitions of these phrases. That document records that Start Mortgages agrees “to and shall absolutely and unconditionally sell, transfer, assign novate and/or deliver to” Mars Capital the transferring assets. Security is defined as meaning “the security (including guarantees) granted by the Borrowers and each other Obligor pursuant to the Security Documents.” Security Documents are defined as meaning “the security and guarantee documents …. relating to the Underlying Loan Agreements or, any Encumbrances granted by a Borrower or Obligor and securing amounts due under any Underlying Loan Agreement …” and Finance Documents are defined as meaning “the Security Documents and the Underlying Loan Agreements and the Title Deeds.” Underlying loan Agreements is defined as meaning “the loan documents and facility letters related to each Underlying Loan or any other agreement under which an Underlying Loan was funded” and Underlying Loans as meaning “the legal title to loans and other credit facilities (including Credit balances and the Unsecured shortfalls) advanced to or in respect of the Borrowers to be transferred by Start to [Mars Capital] pursuant to this Agreement”.

44. The second Defendant also argues that the Global Deed of Transfer, is inadmissible in evidence pursuant to section 127 of the Stamp Duties Consolidation Act 1999 and that because of the redactions in the Deed it is difficult to know what was and was not transferred to Mars Capital. I am satisfied that these arguments are also without merit.

45. At least, since the amendments made to the Stamp Duties Consolidation Act 1999 by Part 4 of the Finance Act 2007, agreements such as those to be considered here are not chargeable to stamp duty and therefore are admissible in evidence without the payment of stamp duty.

46. Furthermore the Global Deed of Transfer is not redacted at all, save for the names and account numbers of borrowers other than the Defendants, that would otherwise appear in the schedule of the Deed and it is perfectly clear from reading the Deed and the unredacted part of the schedule, that the Defendants’ loan and the security for it, as well as the relevant chose in action, have been transferred to Mars Capital.

While the second Defendant repeated on a number of occasions in her submissions that she couldn’t see the operative clause in the Global Transfer Deed, this suggestion is without substance.

47. As regards the redactions, the second Defendant’s relies on Pepper Finance v Moynihan [2024] IEHC 625 and Start Mortgages v Ramseyer [2024] IEHC 329. In both those cases, extensive and unexplained redactions in similar documents led Simons J. to refuse to make orders for possession, because he was not satisfied that the evidence of the transfer of interest in the debt had been made out and he adjourned both matters to plenary hearing. It cannot be said in this case, that there have been extensive and unexplained redactions in the Global Deed of Transfer such that it cannot be read as showing the transfer of the Defendants’ loan and the security for it, as well as the relevant chose in action. While the Transfer Agreement is more heavily redacted, all of the necessary definitions are available to the Court as is the operative clause. Therefore, it cannot be said that the redactions result in a situation where the Court cannot safely interpret the legal effects of the Global Deed of Transfer with a view to determining whether or not the Defendants’ loan, debt and security together with all rights arising in connect with it were transferred to Mars Capital.

48. The second Defendant also seeks to rely on the decision of the Court of Appeal in Fannon v O’ Brien & Ors [2024] IECA 51 and says that Mars Capital must prove the absolute nature of the assignment of the loan, chose in action and charge to it and that because of the redactions this has not been done. I disagree. The situation in Fannon was very different to the situation here. In that case, which was an application by Ulster Bank to strike out proceedings brought by Mr. Fannon, the Bank had inter alia relied upon section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 and its alleged assignment of Mr. Fannon’s loan and mortgage to Promontoria (Oyster) DAC, without putting in evidence even a redacted copy of the Deed of Transfer. Thus Barniville P. (writing for the Court of Appeal) noted that neither the High Court nor the Court of Appeal was afforded the opportunity to consider the precise terms of the document alleged to constitute the assignment, in order to assess whether it was an “absolute” assignment or not, because of the failure by Ulster Bank to provide a copy of the relevant deed to the court. This, Barniville

P. held, amounted to an insurmountable barrier to Ulster Bank succeeding insofar as it relied on the alleged absolute assignment and the provisions of section 28(6) of the 1877Act.

49. However in the present case, Mars Capital has put in evidence, the Global Deed of Transfer dated 31st May 2024 (in unredacted form, save for the redaction of the names and account number of customers other than the Defendants), the Transfer Agreement dated 31st October 2023 between Start Mortgages and Mars Capital, (which while redacted, shows the relevant definitions and operative clause), and the Deed of Amendment to the Transfer Agreement (in redacted form). It is clear from these documents that there was an absolute and unconditional transfer of the Defendants loan account, debt and charge together with all associated and ancillary rights, from Start Mortgages to Mars Capital.

50. The second Defendant also argues that because of the redactions made to the documents there is a lack of fair procedures as she is deprived of a proper opportunity to test the claim that Mars Capital is the owner of the loan account, debt and chose in action. Again, this argument is without merit. Not only has Mars Capital put in evidence the documents identified above, it has also put in evidence the Deed of Transfer – Form 56 duly executed by both Start Mortgages and Mars Capital, of the transfer of the relevant charge over the Defendants’ property from Start Mortgages to Mars Capital, together with a copy of the Folio showing Mars Capital as the owner of the relevant charge. In addition, it has put in evidence, the “goodbye” letter from Start Mortgages notifying the Defendants of the transfer of their mortgage to Mars Capital and the “hello” letter from Mars Capital notifying them that their mortgage loan had been transferred from Start Mortgages to it.

Therefore, there has been no lack of an opportunity for the second Defendant to test the claim that Mars Capital is the owner of the loan, charge and chose in action.

51. Finally, the Second Defendant relies upon the affidavit of an Eric Rochford sworn the 19th May 2025, as purported expert evidence undermining Mars Capital’s claim that the Defendants’ loan facilities were transferred to it by Start Mortgages. This affidavit was never filed but rather was purportedly put before the Court as an exhibit. In it, Mr. Rochford, describes himself as a practicing accountant and fellow of the Chartered Institute of Management Accounts. He says that the Defendants have engaged him to “examine the financial statements and other documents of both [Mars Capital] and [Start Mortgages] in relation to matters arising from the abovementioned proceedings.” He goes on to say that the Defendants have provided him with “sufficient documentation” and “supporting documentation” including the pleadings and motion, although he does not identify all of the documentation provided to him. He then goes on to indicate that he has carried out his analysis on the basis of annual reports and financial statements and then proceeds to make various assertions which, he asserts “from an accounting perspective,” might suggest or imply that there could have been no substantive transfer of loans from Start Mortgages to Mars Capital.

52. Having carefully considered this affidavit I am satisfied that it amounts to little more than bald assertion and conjecture “from an accounting perspective” and certainly does not amount to evidence, that as a matter of law, there is a credible basis for suggesting, in the teeth of the documents put before the Court by Mars Capital, that the Defendants’ loan and the security therefor were not transferred by Start Mortgages to Mars Capital.

53. For the sake of completeness, while the second Defendant is not disputing that the charge, securing the loan the subject matter of the proceedings, has been transferred to Mars Capital and that it appears on the Folio as the registered owner of the charge, I am also satisfied from my examination of the documents that as part of the transfer from Start Mortgages to Mars Capital, the security for the Defendants’ loan i.e. the charge first registered on the Folio on 28th May 2007 in favour of Start Mortgages Limited, was unconditionally and absolutely transferred to Mars Capital.

54. I am also satisfied that the Defendants were properly notified of the transfer of the loan, debt and chose in action to Mars Capital for the purposes of section 28(6) of the Supreme Court of Judicature At (Ireland) 1877.

55. Therefore, having considered all of the evidence before the Court and all of the submissions made, I am satisfied that Mars Capital has put before the Court the necessary proofs and evidence and that it is entitled to the orders sought. I am also satisfied that the second Defendant has not put forward any credible basis or grounds upon which the Court should refuse the reliefs sought by Mars Capital.

56. Therefore I refuse the appeal and will make the orders sought, namely an order pursuant to Order 22, Rule 4 of the Circuit Court Rules, substituting Mars Capital Finance Ireland Designated Activity Company as Plaintiff in the within proceedings together with an Order pursuant to Order 36 Rule 10 of the Circuit Court Rules granting Mars Capital Finance Ireland Designated Activity Company, leave to issue execution of the Order for possession of the Defendants’ property on foot of the Order for Possession obtained on 21st November 2023 in favour of Start Mortgages D.A.C.