THE HIGH COURT
[2025] IEHC 275
2024 No. 103 CA
BETWEEN
TANAGER DAC and PEPPER FINANCE CORPORATION (IRELAND) DAC
PLAINTIFFS/RESPONDENTS
AND
KIERAN DOYLE AND ELIZABETH DOYLE
DEFENDANTS/APPELLANTS
JUDGMENT of Ms. Justice Eileen Roberts delivered on 13 May 2025
"3. Upon remittal to plenary or otherwise, an Order seeking Discovery, under certain named categories and prior to the issue of a Statement of Claim, wherein applicable, due to exceptional circumstances, as contained in the within application;"
Summary of relevant background to this application
6. It is useful to consider briefly the background circumstances to this application.
7. On 27 January 2020 the Circuit Court made an order (the "Possession Order") granting the first named Plaintiff ("Tanager") possession of the Defendants' property comprised in Folio DN3781F (the "Property").
8. The Possession Order was made in the context of proceedings which had been issued on 22 July 2015 by Tanager in the Circuit Court as mortgagee seeking possession of the Property (the "Proceedings").
9. The Property was mortgaged by the appellants to Bank of Scotland (Ireland) Limited by deed of mortgage and charge dated 15 May 2009. Bank of Scotland (Ireland) Limited merged with Bank of Scotland plc by Order of the Court of Session in Edinburgh with effect from 31 December 2010. Thereafter Bank of Scotland plc executed a purchase deed with Tanager [1] on 5 December 2013 to sell certain facilities including the appellants' loan secured on the Property. By deed of assignment dated 14 April 2014 Bank of Scotland plc assigned all its rights, title and interest in the appellants' loan and related security to Tanager. Tanager was registered as owner of the charge on 24 April 2014. Tanager then issued the Proceedings as mortgagee claiming possession of the Property on foot of the arrears said to be due and owing by the appellants since 2010 (Bank of Scotland plc having first called in the full debt due by letter of demand dated 19 August 2013). The aforementioned documents were exhibited in the Proceedings.
10. The appellants were legally represented in the Circuit Court. The appellants amongst other matters challenged the quantification of arrears, claimed that the loan was a tracker mortgage and challenged the proofs provided by Tanager to entitle them to maintain the Proceedings. They filed a motion to have the Proceedings struck out as an abuse of process. They issued a notice to cross-examine the deponents of Tanager's affidavits (which was not pursued). The appellants did not however seek discovery in the Proceedings.
11. In a written judgment dated 27 January 2020 the Circuit Court held that Tanager's proofs were in order, thus entitling Tanager to an order for possession of the Property, and the Circuit Court dismissed the appellants' motion.
12. The appellants appealed the Possession Order by Notice of Appeal dated 4 February 2020 and that appeal is yet to be determined by the High Court. This judgment does not deal with the merits of that appeal which will be addressed by the relevant High Court judge hearing the appeal. As previously explained, this judgment deals only with the application by the defendants for discovery in advance of the hearing of that appeal.
13. On 25 March 2021 (i.e. after the Possession Order was made), Tanager and the second named plaintiff ("Pepper") executed a Global Deed of Transfer whereby Tanager sought to transfer all its rights in the appellants' loan and security on the Property to Pepper. A Deed of Transfer was executed by those parties on 25 March 2021 and notice was provided to the appellants by letter dated 26 March 2021. In those circumstances Pepper was added as a co-plaintiff to the appeal proceedings by order of the High Court dated 7 February 2022.
14. A very extensive request for voluntary discovery was made by the appellants on 20 December 2024 after the motion for discovery was issued on the eve of the scheduled appeal hearing.
15. Complaint is made that this request postdated the motion and that appears to be so.
16. The documentation sought is extremely wide-ranging. Categories sought include:
1. Documents supporting absolute assignment claims.
2. Documents supporting the purchase deed and deed of assignment.
3. Documents supporting contractual terms and exceptions to privity of contract.
4. Documents supporting the plaintiffs right to claim possession.
5. Documents supporting loan sale agreements and transfer appointments
6. Documents proving Pepper "owns" the mortgage.
7. Documents supporting Pepper's insurable interest in the Property.
8. Documentation demonstrating consent for data processing.
9. Documents supporting Pepper's interest rate policy and competitiveness.
10. Documents supporting mortgage forbearance activity.
11. Unredacted Global Deeds of Assignment and Sale Agreements.
12. Documentation supporting exemptions to the Bankers Books Evidence Act.
13. Documentation related to tracker mortgage review and Enforcement Undertakings.
17. Each of the categories seek further sub-categories and/or specific documents.
18. It was clear to the Court that the appellants had been assisted in formulating these extensive categories.
20. These proceedings come before the High Court pursuant to Section 37 of the Courts of Justice Act 1936 which provides as follows:
"37.—(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."
21. O 61 r.8 of the Rules of the Superior Courts is also relevant and provides as follows:
"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."
22. The respondents say that the appeal of the Possession Order must proceed by way of a de novo rehearing in the High Court on the evidence adduced before the Circuit Court. That is certainly so in circumstances where, as here, no leave to adduce new evidence has been sought or granted.
23. Henchy J in Northern Bank Corporation Limited v Charlton and others [1979] IR 149 (at p.188) held that the expression "rehearing" for the purposes of s.37(2) meant that the matter would be determined on the evidence already heard in the Circuit Court "by examining documentary material, particularly a written version or report of the evidence", and that only in "exceptional cases" would "fresh or re-presented evidence" be received.
24. It is also the case that the Proceedings concluded on the basis of a summary possession hearing. In summary proceedings (in contradistinction to plenary proceedings) there are no pleadings against which to assess the relevance and necessity of documentation sought by way of discovery. In the ordinary course therefore, discovery is not available in summary proceedings unless and until the proceedings have been adjourned to plenary hearing and pleadings exchanged. In ACC Loan Management Limited v Oliver Kelly [2017] IEHC 304 Eagar J at para 18 confirmed that : "... it is only when a court decides that a plaintiff is not entitled to summary judgment, on the basis that a defence has been raised by a defendant, that the issue of discovery arises."
25. In Keating v RTE [2013] IESC 22 McKechnie J confirmed that the purpose of discovery "...is to aid a party in the progress of litigation: it is not designed to identify grounds capable of establishing a cause of action, i.e. it cannot be used to enable a person to plead a cause of action or a defence which he is not otherwise in a position to plead."
26. That is not to say that the court can never make an order for discovery in summary proceedings. For example, the High Court made such an order in Lombard Ireland Ltd v Kevin Devlin Transport [2014] IEHC 653 but the circumstances there are not comparable to the present case where the High Court on appeal is statutorily required to determine matters by way of rehearing based on the grounds advanced and the evidence given and received in the Circuit Court.
27. The appellants' application is also entirely premature. If the court accepts that the appellants have an arguable defence on appeal, then the proceedings will be adjourned to plenary hearing and pleadings will have to be exchanged. Discovery might well be ordered in those circumstances in respect of whatever issues fall to be determined at the trial of the action. It would be by reference to the pleadings in that plenary action that necessity and relevance would fall to be determined.
28. I am satisfied that there is no prejudice to the appellants in refusing to grant discovery at this stage. Instead, the appeal should proceed based on the evidence adduced before the Circuit Court (as indeed is the mechanism prescribed by statute). The burden of proof remains at all times on the respondents who must convince the High Court that the Possession Order should be upheld. The appellants can, without the need for discovery, challenge the respondents' evidence in an effort to establish an arguable defence requiring the appeal to be remitted to plenary hearing. A desire to obtain discovery of further documentation does not itself provide a justification for remitting matters to plenary hearing.
Conclusion and Orders to be made
29. The Possession Order appealed against was heard summarily in the Circuit Court on affidavit evidence. Because the substantive appeal is statutorily required to be heard by way of rehearing based on the evidence before the Circuit Court, and no leave to adduce new evidence has been sought or granted, I will not order new documentation to be produced by way of discovery in advance of the hearing of the appeal. It is not necessary for this court to engage further with the terms of the discovery sought.
30. This outcome is also consistent with the court's general approach to refusing discovery in summary applications where there are no pleadings against which to assess the relevance or necessity of any documentation sought.
31. Furthermore, I am satisfied that discovery is not required in the interests of justice in this case. The appellants retain all their ability to challenge the Possession Order. They are required to meet what is generally accepted to be a relatively low bar of an arguable defence. The respondents bear the burden of proof in respect of their entitlement to the Possession Order based on the evidence they have already adduced before the Circuit Court.
32. If the High Court, on hearing the appeal, determines that the matter should be remitted to plenary hearing, the appellants will have an opportunity to seek discovery in appropriate terms by reference to the pleadings exchanged.
33. I dismiss the appellants' application.
34. I will list this matter for mention before me on Thursday 22 May at 10.30 am to address the issue of costs and to make final orders including the transfer of the substantive matter back into the Non-Jury list so that a hearing date can be allocated to the appeal.
A close-up of a handwritten letter
Description automatically generated
[1] Then Tanager Limited - Tanager Limited converted to a Designated Activity Company on 20 September 2016 pursuant to the provisions of the Companies Act 2014.. The title to the Proceedings amending this entity to Tanager DAC was made by Order of the Circuit Court dated 3 February 2017.