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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Permanent TSB PLC v Burns & Anor [2020] IEHC 24 (27 January 2020)
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Cite as: [2020] IEHC 24
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Page 1 ⇓
THE HIGH COURT
[2020] IEHC 24
2015 No. 183 SP
BETWEEN
PERMANENT TSB PLC
(FORMERLY IRISH LIFE & PERMANENT PLC)
AND
GERRY BURNS
ANN BURNS
JUDGMENT of Mr. Justice Garrett Simons delivered on 27 January 2020
PLAINTIFF
DEFENDANTS
INTRODUCTION
1. This judgment is delivered in respect of two procedural applications made in connection
with the enforcement of orders for possession. The orders for possession relate to three
parcels of land which are owned by the Defendants (“Mr & Mrs Burns”). The title to one
of the parcels is registered under the Registration of Title Act 1964; the title to the other
two parcels is unregistered.
2. The orders for possession had been made on the basis of an indenture of mortgage and
charge (“the Mortgage”) which had been entered into between the Plaintiff, Permanent
TSB plc (“PTSB”), as mortgagee, and Mr & Mrs Burns, as mortgagors. The ownership of
the mortgagee’s interest in the Mortgage (and in the underlying loan facility) has since
been transferred from PTSB to Start Mortgages DAC (“Start Mortgages”).
3. Start Mortgages has applied for the following two orders in consequence of this transfer of
ownership. First, an order is sought pursuant to Order 17, rule 4 of the Rules of the
Superior Courts to the effect that the within proceedings should be carried on as between
Start Mortgages and Mr & Mrs Burns. Secondly, an order is sought pursuant to Order 42,
rule 24 granting Start Mortgages liberty to issue execution in respect of the orders for
possession.
4. These applications have been made on notice to Mr & Mrs Burns. This is so
notwithstanding that Order 17, rule 4 appears to envisage that such an application be
made on an ex parte basis. The two applications were heard together on Monday 16
December 2019, and judgment reserved until today’s date. Mr & Mrs Burns represented
themselves at the hearing in December. The applications were opposed by them
primarily on the grounds (i) that the deponent on behalf of Start Mortgages “cannot claim
to have first hand knowledge of any of the events” and that his evidence is hearsay; and
(ii) that they never consented to the transfer of the Mortgage to Start Mortgages DAC and
that the clause which allowed such an assignment is an “unfair term”.
5. For the reasons set out in this judgment, I have concluded that Start Mortgages has
discharged the onus of proof upon it, and that it is entitled to the orders sought by it in all
the circumstances of the case.
PROCEDURAL HISTORY
Page 2 ⇓
6. The within proceedings were instituted by way of Special Summons on 2 July 2015. The
Special Summons had been amended subsequently by order of the High Court dated 14
March 2016, to correct an error in the spelling of the Defendants’ address (“Killeshranda”
instead of “Killesandra”).
7. The proceedings relate to three parcels of lands in Leitrim and Cavan, respectively. Title
to one of the parcels is registered under the Registration of Title Act 1964, and an order
for possession was sought pursuant to section 62(7) of the 1964 Act in respect of that
parcel. Title to the other two parcels of land is unregistered.
8. The application for orders for possession had been grounded on the affidavit of Jacqueline
O’Brien sworn herein on 8 July 2015. Ms O’Brien identified herself as a manager with
PTSB, and averred that she made her affidavit on behalf of and with the authority of PTSB
and from an examination of the books, records and accounts of PTSB, and, in particular,
the accounts held by the Defendants. The affidavit exhibited inter alia the indenture of
mortgage and charge in favour of PTSB entered into by Mr & Mrs Burns on 23 September
2007.
9. The High Court (Ní Raifeartaigh J.) made orders for possession in respect of the three
mortgaged properties on 16 January 2017. Mr & Mrs Burns, as is their right, brought an
appeal against the High Court order to the Court of Appeal. That appeal was dismissed
by the Court of Appeal (Irvine, Whelan and Baker JJ.) on 28 November 2018. Thereafter,
Mr & Mrs Burns applied to the Supreme Court for leave to appeal to that court. Leave to
appeal was refused by Determination dated 6 June 2019 (Permanent TSB v. Burns
[2019] IESCDET 116).
10. Given the nature of the arguments which have been relied upon by Mr & Mrs Burns in
opposition to Start Mortgages’ applications, it is to be noted that one of the grounds upon
which leave to appeal had been sought is the alleged failure of PTSB to have produced the
original loan offer letter signed by Mr & Mrs Burns. This argument had been rejected by
both the High Court and the Court of Appeal.
11. In summary, therefore, these proceedings have thus reached the stage where all rights of
appeal as against the substantive orders, i.e. the orders for possession, have been
exhausted. The only issue which remains outstanding is the enforcement of the orders.
APPLICATION TO MAKE START MORTGAGES A PARTY
12. The application to make Start Mortgages a party to the proceedings has been made
pursuant to Order 17, rule 4 of the Rules of the Superior Courts. The Order reads as
follows.
4. Where by reason of death, or any other event* occurring after the commencement
of a cause 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 cause 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
Page 3 ⇓
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.
*Emphasis (italics) added.
13. The interpretation of Order 17, rule 4 has been considered in a number of recent
judgments. The Court of Appeal addressed two aspects of the wording of the Order as
phrase “any other event”, in the opening sentence of the Order, included events such as
the assignment of loans and a chose in action. 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.
14. 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. It was further 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. The Court of Appeal held that the
legislative intent of the Supreme Court of Judicature Act (Ireland) 1877 would be
defeated if it were not possible to substitute the assignee as a party.
“Since the Supreme Court of Judicature Act (Ireland) 1877 it has been possible
legally to assign a chose in action. The intent of the statute is to do away with the
formal necessity of joining the assignor in any proceedings brought by the assignee
to enforce the chose in action. The legislative intent is defeated if the rules of court
do not provide for of the substitution of the assignee of the chose in action as
plaintiff in proceedings commenced by the assignor.”
15. At a later point in the judgment, the Court of Appeal observed that a requirement for an
assignee to have to commence new proceedings (as opposed to its being made a party to
existing proceedings taken by the assignor) could lead to very considerable wasted time,
effort and expense. It could also present difficulties in respect of the Statute of
Limitations.
16. The question of whether Order 17, rule 4 can be invoked in proceedings seeking the
recovery of lands by way of an order for possession has been expressly considered in
In each instance, the High Court accepted that it is 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.
17. Mr & Mrs Burns did not appear to dispute this interpretation of the Order. Rather, the
disagreement between the parties to the present case centres on the separate question of
the nature and extent of the evidence which must be adduced in support of an application
Page 4 ⇓
under Order 17, rule 4. This question has also been addressed in the case law. Before
turning to consider that case law, however, it should be emphasised that the application
in the present case has been made at a more advanced stage of the proceedings than had
been the position in the cases opened to me. More specifically, the application has been
made subsequent to the substantive hearing, and subsequent to the making of the orders
for possession. A further point of distinction is that much of the case law relied upon
involved proceedings by way of Summary Summons, rather than proceedings seeking to
recover the possession of lands by way of Special Summons.
18. The leading judgment remains that of the High Court (Kelly J.) in Irish Bank Resolution
Corporation v. Comer [2014] IEHC 671. The judgment was delivered in respect of an
application by the purchaser under the sale of a bank’s loan book to be substituted as
plaintiff in existing proceedings. The sale was characterised as an assignment of a chose
in action for the purposes of section 28 of the Supreme Court of Judicature Act (Ireland)
1877. Crucially, the application had been made prior to the substantive hearing of the
proceedings. The High Court held that the legal test for such an interlocutory application
is whether there is prima facie evidence that there has been (i) a valid sale of the
underlying assets; (ii) a valid assignment of the chose in action; and (iii) a valid notice
given. It was not necessary for the court to adjudicate, at that juncture of the
proceedings, on the efficacy or validity of the assignment or the efficacy or validity of the
notice. Those were matters to be determined at the substantive hearing.
19. The standard of proof to be met on an application to substitute a party which is made
subsequent to the substantive hearing will be higher. This is because there will, by
definition, be no further hearing at which these matters can be ventilated. Put shortly,
the efficacy or validity of the assignment will have to be considered on the joinder
application.
20. This distinction is explained as follows by the Court of Appeal in McDermott v. Ennis
Property Finance DAC [2019] IECA 142.
“37. Where, as in the present case a substitution application is made after judgment has
been granted, and where therefore there is no opportunity at trial to raise any
issues in relation to the proofs adduced in support of the application, it seems to
me that the prima facie test referred to by Kelly J. in IBRC v. Comer is not the
correct test. In such cases the correct test is that applicable in civil proceedings
generally, namely on the balance of probabilities. The evidence will nonetheless be
adduced in the normal way in such applications by affidavit, and if necessary any
deponent may be cross-examined on their affidavit as provided for by the Rules of
the Superior Courts. But such applications remain purely procedural in nature, and
there can be no question of such an application becoming in the nature of a mini-
trial.”
21. This is the approach to be applied in the present case, where, of course, the application is
being made subsequent to the making of the orders for possession (16 January 2017).
Page 5 ⇓
EVIDENCE OF TRANSFER
22. The two applications presently before the court are grounded on an affidavit sworn by Mr
Justin Nevin on behalf of Start Mortgages DAC dated 29 July 2019. Mr Nevin identifies
himself as the “litigation manager” for Start Mortgages DAC, but goes on to explain that
he is employed by Start Mortgages Holding Ltd., which he describes as the parent
company and sole shareholder of Start Mortgages DAC. As discussed presently, Mr & Mrs
Burns attach significance to the fact that Mr Nevin is not directly employed by Start
Mortgages DAC.
23. Mr Nevin sets out his means of knowledge as follows.
“1. I am the Litigation Manager for Start Mortgages Designated Activity Company (the
‘Applicant’) and employed by Start Mortgages Holding Limited (‘SMHL’) which is the
parent company and sole shareholder of Start Mortgages Designated Activity
Company. SMHL manages and services all loans held by the Applicant. I make this
affidavit on the Applicant’s behalf and with its authority, from facts within my own
knowledge and from a diligent perusal of its books and records, save where
otherwise appears and where so otherwise appearing I believe the same to be
true.”
24. In his supplemental affidavit of 2 December 2019, Mr Nevin states as follows.
“4. As previously averred to in the Grounding Affidavit I am employed by Start
Mortgages Holding Limited (‘SMHL’) which is the parent company and sole
shareholder of Start Mortgages Designated Activity Company the Applicant herein.
SMHL manages and services all loans held by the Applicant. All employees of SMHL
have been authorised by the Applicant to access its books and records. In those
circumstances, I am giving evidence on behalf of the Applicant from facts which are
within my own direct knowledge of the books and records of the Applicant. This is
first-hand evidence contrary to what is contended by the First Named Defendant.
5. Accordingly, I say and believe that I am an appropriate and correct person in which
to swear Affidavit on behalf of the Applicant.”
25. Mr Nevin has exhibited, as part of his first affidavit, a deed entitled “Irish Law Global
Deed of Transfer, Conveyance and Assignment (Excluding Property)”. This deed is dated
1 February 2019, and has been entered into by Permanent TSB plc, as the seller, and
Start Mortgages DAC, as the buyer.
26. Mr Nevin avers that the loan facility and indenture of mortgage and charge the subject
matter of the proceedings have been transferred to Start Mortgages under this deed of
transfer.
“13. On the 1st February 2019, the Bank executed a Deed of Transfer (the ‘Transfer
Deed’) whereby the Bank transferred all its right, title, interest, estate, benefit and
entitlement (past and present) in and under the Underlying Loans and each of the
Finance Documents (as each of the capitalised terms is defined in the Transfer
Page 6 ⇓
Deed) which includes the Facility and the Indenture of Mortgage and Charge in the
within proceedings to the Applicant (the ‘Transfer’). I beg to refer to a copy of the
Transfer Deed and the relevant extracts from Schedule 1 to the Transfer Deed
confirming the inclusion of the Defendants’ mortgage loan account, the Facility and
the Indenture of Mortgage and Charge upon which, and marked with the letters and
number ‘JN2’, I have signed my name prior to the swearing hereof.
14. At Schedule 1 to the Deed of Transfer as exhibited at ‘JN2’ above, there are a
number of headings and entries which remain unredacted. The account number
column in Schedule 1 identifies the loans which are the subject of the Transfer. As
part of Schedule 1, the Defendants account number – 90028733 – appears in the
‘Account Number’ column’s at page 11 and 1337 thereof.”
27. The affidavit goes on to explain that information relating to borrowers who are not parties
to the proceedings has been removed or redacted entirely for reasons related to
commercial sensitivity, restrictions imposed by the Data Protection Acts 1988 to 2018 and
banker/client confidentiality.
28. The affidavit also exhibits a deed entitled “Irish Law Deed of Conveyance & Assignment
(Unregistered Property)”. Extracts from the schedule are then exhibited which purport to
show that the ownership of the two parcels of unregistered land has been transferred to
Start Mortgages.
29. Insofar as the third parcel of land is concerned, i.e. the parcel of land in respect of which
title is registered, a copy of the relevant folio has been exhibited. The folio indicates that
Start Mortgages has been registered as the owner of the charge. (Folio 16003F, County
Leitrim).
30. The affidavit also establishes that notice of the assignment, for the purposes of section 28
of the Supreme Court of Judicature Act (Ireland) 1877, has been given to Mr & Mrs Burns.
The relevant letters have been exhibited at “JN7” and “JN8” of Mr Nevin’s first affidavit.
31. As noted above, Mr Nevin has sworn a supplemental affidavit dated 2 December 2019.
As part of this affidavit, he refers to Clause 6.7 of PTSB’s 2002 mortgage conditions
(which had been exhibited in the verifying affidavit of Jacqueline O’Brien sworn herein on
8 July 2015). This clause provides that Permanent TSB may at any time (without the
consent of the mortgagor) transfer the benefit of the mortgage to any person.
MR BURNS’ TWO AFFIDAVITS
32. Mr Burns has sworn an affidavit dated 11 November 2019. The principal point made in
the affidavit is that Mr Justin Nevin is not directly employed by Start Mortgages DAC. The
affidavit makes a submission to the effect that the evidence in Mr Nevin’s affidavit is
hearsay in nature. It is further submitted that Start Mortgages cannot rely on the
Bankers’ Books Evidence Act 1879. The judgment of the Supreme Court in Criminal
Assets Bureau v. Hunt [2003] 2 IR 168 is then cited.
Page 7 ⇓
33. At paragraphs 9 and 10 of his affidavit, Mr Burns criticises what is said to have been a
failure on the part of the company secretaries of Start Mortgages and PTSB to exhibit
what is described as “the alleged mortgage”.
34. Mr Burns has filed a supplemental affidavit dated 16 December 2019. This affidavit
largely repeats the objection that the evidence put forward by Start Mortgages is hearsay
and that Mr Nevin does not have first-hand knowledge.
DISCUSSION AND DECISION ON ORDER 17 APPLICATION
35. For ease of exposition, I propose to address the position in respect of the registered land
first, before moving on to consider the two parcels of unregistered land.
(i). Registered land
36. The change of ownership of the charge has been formally recorded on the Register of
Title. More specifically, the change of ownership is recorded under Folio 16003F, County
Leitrim, which has been exhibited by Mr Nevin, as follows.
“(2) 07 – May – 2010
Charge for present and future advances repayable with interest. IRISH LIFE &
PERMANENT plc is owner of this charge.
Note: The ownership of this charge has been transferred. See Entry No. 4.
[…]
(4) 27 – Mar – 2019
START MORTGAGES DESIGNATED ACTIVITY COMPANY is owner of the charge
registered at Entry No. 2.”
the Register of Title cannot be challenged in possession proceedings. See paragraphs
[67] and [68] as follows.
“A plaintiff seeking an order for possession must adduce proof, inter alia, that he or
she is the registered owner of the charge. It is registration that triggers the
entitlement to seek possession. In those proceedings, the court may not be asked
to go behind the Register and consider whether the registration is, in some manner,
defective. In the possession proceedings, the court must accept the correctness of
the particulars of registration as they appear on the folio, because the statutory
basis for the action for possession is registration. This is one consequence of the
statutory conclusiveness of the Register, and of the statutory limits to rectification.
The challenge to registration is brought by other types of proceedings inter partes,
or where the PRA is respondent, and in the manner I have described.”
Page 8 ⇓
38. Leave to appeal to the Supreme Court was refused by Determination dated 12 April 2019,
Tanager DAC v. Kane [2019] IESCDET 80.
39. The uncontroverted evidence before the court establishes, therefore, that Start Mortgages
has succeeded to PTSB’s interest in the registered charge. Start Mortgages have
established to the requisite standard that they have succeeded to PTSB’s interest as
mortgagee in the land and, accordingly, there has been a “change or transmission of
interest” such as to justify the making of an order pursuant to Order 17, rule 4. As the
owner of the registered charge, Start Mortgages is entitled to the benefit of the order for
possession. They are a proper party to be joined to the proceedings.
(ii). Unregistered land
40. Turning now to the two parcels of unregistered land, there is, of course, no equivalent
statutory register which objectively establishes the transfer of the ownership of the
mortgagee’s interest in those lands from PTSB to Start Mortgages. Rather, Start
Mortgages has sought to establish the transfer of ownership (and of the benefit of the
proceedings) by way of affidavit evidence and the documentation exhibited thereto.
41. The principal objection made by Mr & Mrs Burns is that the affidavits and exhibits
represent inadmissible hearsay evidence. It is suggested that, save in the limited
circumstances provided for under the Bankers’ Books Evidence Act 1879, a financial
institution is not entitled to rely on hearsay evidence. The 1879 Act was said not to apply
in circumstances where the deponent, Mr Nevin, was not an “officer” of Start Mortgages
DAC.
42. It may be useful to pause here to recall what precisely it is that Start Mortgages is
required to establish, namely that there has been a change or transmission of interest to
Start Mortgages. To this end, a copy of the relevant deed of transfer and the deed of
conveyance have been exhibited. These documents have been put before the court by a
deponent who expressly avers that he is authorised by Start Mortgages to access its
books and records.
43. The commercial transaction at issue is very different from the type of transaction which
typically arises in the context of debt collection proceedings. In most such cases, the
dispute is concerned primarily with transactions as between the creditor and debtor, i.e.
between the bank and an individual customer. The dispute will normally relate to details
of the repayments made in respect of a loan, and the calculation of arrears and interest.
It is in such a context that a financial institution may wish to consider invoking the
Bankers’ Books Evidence Act 1879. This affords a financial institution a method of
proving entries in a banker’s book (as defined and updated by the Central Bank Act
1989). Section 4 provides as follows.
4. A copy of an entry in a banker’s book shall not be received in evidence under this
Act unless it be first proved that the book was at the time of the making of the
entry one of the ordinary books of the bank, and that the entry was made in the
Page 9 ⇓
usual and ordinary course of business, and that the book is in the custody or
control of the bank.
Such proof may be given by a partner or officer of the bank, and may be given
orally or by an affidavit sworn before any commissioner or person authorised to
take affidavits.
44. As appears, the legislation is directed to entries made “in the usual and ordinary course of
business”. It may be doubtful as to whether the legislation extends to the sale of a loan
book. At all events, as elaborated upon below, Start Mortgages have not sought to rely
on the Banker’s Book Evidence Act 1879 in this case.
45. The objection made by reference to the Bankers’ Books Evidence Act 1879 appears to
misunderstand the approach taken by Start Mortgages. Start Mortgages have not sought
to rely on the 1879 Act. Rather, Start Mortgages have put before the court copies of the
relevant contractual documentation by which the transfer of the mortgage and underlying
loan facilities is said to have been effected. This documentation has been exhibited by a
deponent who expressly states he has made his affidavit on behalf of Start Mortgages
DAC and with its authority, and from a diligent perusal of its books and records. The
contractual documentation exhibited is documentation to which Start Mortgages DAC is a
party.
46. Mr & Mrs Burns have not sought to query the authenticity of the contractual
documentation, nor to suggest that the commercial transactions described in Mr Nevin’s
affidavit did not occur. They have not sought to cross-examine Mr Nevin.
47. The circumstances of the case are somewhat similar to those considered by the Supreme
judgment concerned an application for a summary judgment pursuant to Order 37 of the
Rules of the Superior Courts. The bank had sought to prove the debt by filing an affidavit
from a bank employee and exhibiting the relevant loan documentation. The Supreme
Court held that the swearing of an affidavit and its service in court proceedings which
make allegations that a sum is due, can be accepted, in the absence of denial, where the
form and the content of what is deposed to and the exhibits supporting it carry sufficient
indications of reliability.
48. The uncontroverted evidence before the court in the present case establishes that Start
Mortgages has succeeded to PTSB’s interest in those lands. Mr Nevin has exhibited the
global deed of transfer and the subsequent deed of conveyance. In each instance, there
is an express reference to the underlying loan facilities and the mortgage. Mr & Mrs
Burns have not sought to challenge the validity of these 2019 deeds, nor to suggest that
they do not apply to the relevant lands. Rather, the concern expressed in Mr Burns’ two
affidavits appears to be addressed principally to an earlier point in time, namely the
entering into of the Mortgage on 23 September 2007. With respect, any challenge to the
validity of the underlying mortgage was a matter which fell to be determined in the
context of the application for orders for possession. This application was determined by
Page 10 ⇓
the High Court in January 2017, and the subsequent appeal against those orders was
dismissed by the Court of Appeal on 28 November 2018. It is not open to Mr & Mrs Burns
to seek to re-agitate these issues in the context of a narrow procedural application to, in
effect, substitute Start Mortgages as plaintiff in the proceedings.
49. Start Mortgages have put sufficient material before the court by way of affidavit evidence
and exhibits to establish a “change or transmission of interest” from PSTB to Start
Mortgages in 2019. None of this evidence has been challenged by Mr & Mrs Burns. Nor
have Mr & Mrs Burns sought to cross-examine the deponent on behalf of Start Mortgages.
50. Finally, it is clear from the copy of the Mortgage which has been exhibited in the affidavit
of Jacqueline O’Brien sworn herein on 8 July 2015 that Permanent TSB may at any time
(without the consent of the mortgagor) transfer the benefit of the mortgage to any
person. This does not represent an “unfair term” for the purposes of the Unfair Contract
Terms Directive (93/13/EEC) or the European Communities (Unfair Terms in Consumer
Contracts) Regulations 1995 (as amended), for the reasons set out in AIB Mortgage Bank
v. Cosgrove [2017] IEHC 803 and the case law cited, in particular, at paragraph [54]
thereof.
APPLICATION FOR LEAVE TO EXECUTE
51. A party who has the benefit of an order is generally required to execute same within a
period of six years. If this is not done, then it is necessary to make an application for
leave to issue execution pursuant to Order 42, rule 24. That rule provides as follows.
24. In the following cases, viz.:
(a) where six years have elapsed since the judgment or order, or any change has
taken place by death or otherwise in the parties entitled or liable to
execution;*
(b) where a party is entitled to execution upon a judgment of assets in futuro;
(c) where a party is entitled to execution against any of the shareholders of a
company upon a judgment recorded against such company, or against a
public officer or other person representing such company;
the party alleging himself to be entitled to execution may apply to the Court for
leave to issue execution accordingly.
The Court may, if satisfied that the party so applying is entitled to issue execution,
make an order to that effect, or may order that any issue or question necessary to
determine the rights of the parties shall be tried in any of the ways in which any
question in an action may be tried: and in either case the Court may impose such
terms as to costs or otherwise as shall be just. Provided always that in case of
default of payment of any sum of money at the time appointed for payment thereof
by any judgment or order made in a matrimonial cause or matter, an order of fieri
facias may be issued as of course upon an affidavit of service of the judgment or
order and non-payment.
Page 11 ⇓
*Emphasis (italics) added.
52. The grant of leave to issue execution under Order 42, rule 24 is discretionary. The
criteria governing the exercise of this discretion have been set out in Smyth v. Tunney
[2004] IESC 24; [2004] 1 IR 512. The Supreme Court held that it is not necessary to
give some unusual, exceptional or very special reasons for obtaining permission to
execute out of time provided that there is some explanation at least for the lapse of time.
Even if a good reason is given, the court must consider counterbalancing allegations of
prejudice.
53. On the facts of the present case, the necessity for an application under Order 42, rule 24
arises as a result of a change in the parties entitled to execute. For the reasons set out in
detail under the previous heading, I am satisfied that Start Mortgages has succeeded to
PTSB’s interest as mortgagee and/or charge holder in respect of the three parcels of
lands. The proceedings have also been assigned to it. As a consequence, it is entitled to
the benefit of the orders for possession made in January 2017. The grant of an order of
leave to execute is necessary so as to allow Start Mortgages to enforce the orders for
possession. This formal order is necessary to reflect the underlying reality that they are
now the moving party.
CONCLUSION AND FORM OF ORDER
54. Start Mortgages has succeeded to PTSB’s interest as mortgagee and/or charge holder in
respect of the three parcels of lands. The proceedings have also been assigned to it. As
a consequence, it is entitled to the benefit of the order for possession made in January
2017. Start Mortgages is, accordingly, entitled to the procedural orders sought in its
notice of motion of 29 July 2019.
55. An order is made pursuant to Order 17, rule 4 making Start Mortgages DAC a party to the
proceedings and providing that the proceedings shall be carried on between the
Defendants, as continuing parties, and Start Mortgages DAC, as a new party in
substitution for Permanent TSB plc.
56. An order is made amending the title of the Plaintiff in the within proceedings to Start
Mortgages DAC in lieu of Permanent TSB plc, the title hereof to be duly entered in the
Central Office of the High Court with the proper officer.
57. An order pursuant to Order 42, rule 24 granting Start Mortgages DAC liberty to issue
execution in respect of the orders for possession made by the High Court on 16 January
2017.
58. I will hear the parties on the question of costs.
Result: Transferee entitled to be substituted as party in possession proceedings.