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THE HIGH COURT
[2025] IEHC 325
RECORD NO. 2023/205S
BETWEEN
MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY
PLAINTIFF
AND
GARY KANE AND ANDREA KANE (OTHERWISE ANDREA SPYROU)
DEFENDANTS
Ex tempore ruling of Mr. Justice Mark Heslin delivered on the 29th day of May 2025
Document handed-in
1. Today, just after 'appearances' were dealt with on the morning of the hearing of 'summary' proceedings, the first named defendant - who makes clear that he appears for both defendants - handed in a one-page written document.
Application for an adjournment
2. It is not in the nature of an affidavit. It does not contain any evidence, but it is clear from its terms, and from the oral submission made by Mr. Kane, that he is seeking an adjournment of these proceedings.
Intended complaint
3. To quote from this one-page document, the first named defendant states inter alia: "My mortgage contract has been recently professionally reviewed by Barry Lyons Solicitors, an expert on unfair terms and banking regulation and best practice. Following the analysis, a formal complaint is in the process of being submitted to the provider and will ultimately be filed with the Financial Services and Pensions Ombudsman (FSPO) alleging that certain terms in the mortgage are unfair, non-transparent and potentially void" and a 'stay' is requested with reference to s. 49 of the Financial Services and Pensions Ombudsman Act 2017 ("FSPO Act 2017").
S. 49 of the FSPO Act 2017
4. S. 49 of the FSPO Act 2017 provides:
5. The defendants' document goes on to state, inter alia:
"In accordance with the intentions of s. 49 of the Financial Services and Pensions Ombudsman Act 2017, I respectfully request that these proceedings be stayed pending the determination of my complaint by the FSPO.
S. 49 provides that no legal action may be taken by a regulated entity against a complainant while a matter is under investigation or adjudication by the FSPO and no judgment or enforcement may be made in respect of the subject matter of the complaint during that time."
Adjournment application made after the 11th hour
6. On any analysis, this is an application made very 'late in the day'. It is not even an 'eleventh-hour' application, as it was made after this hearing commenced. That factor seems to me to be important. Why? Because the summary summons in question issued on 16 June 2023; and the motion which this Court is asked to determine today was issued on 9 August 2023. Appearances were entered [personally, by each of the defendants] and there has since been an exchange of affidavits. The grounding affidavit was sworn on behalf of the applicant, on 8 August 2023. Mr. Kane, himself, swore the first of his replying affidavits, on 29 November 2023. The second was sworn in March of 2024, in response to the second affidavit of Mr. Hopkins, on behalf of the plaintiff [sworn in January 2024]. The hearing date was assigned earlier this year, several months ago, and the defendants have long been on notice of it. The case was 'called on' last week, and today was assigned for the hearing date.
Resources dedicated to hearing this case today
7. As I speak, we are in Court 5 which has been dedicated exclusively to the hearing of this matter, today. It is listed for 3 hours, which is the bulk of the day. There is a Judge and a Registrar present, as are counsel for the plaintiff, instructed by their solicitor. Yet only now is this application made.
The factual position
8. It is also important to note that, as Mr. Martin submits, s. 49 of the FSPO Act 2017, upon which Mr. Kane relies, creates an entitlement to apply for a 'stay' in a situation where legal proceedings are issued after the bringing of the complaint in question. That is not at all the position here, where proceedings have long been in being. Indeed they have been ongoing for almost two years and it would seem from the document handed in - and bearing in mind that it is not evidence but taking it at 'face value' - it would seem that it is only now the complaint is "in the process of being submitted".
Delay
9. It is difficult in these circumstances - particularly where no reference, whatsoever, to any alleged unfair term is contained in the defendants' replying affidavits going back to 2023 and 2024 - it is difficult to see today's developments as other than an attempt at delay.
Decision
10. Even if I am wrong in that, I am satisfied that the interests of justice require that this case proceed today. There is an obvious public interest in the efficient conduct of litigation and, given the facts which I have outlined, to grant an adjournment would be to undermine that public interest. It would be to create a situation whereby necessarily-scarce court resources are entirely wasted. It is also important to say that, whereas the intended complaint is one in which it is asserted that the terms in the defendant's mortgage are unfair - again, to quote from the defendant's document "certain terms in the mortgage are unfair, non-transparent and potentially void" - this claim is not for possession on foot of a mortgage. Entirely different relief is being sought. The plaintiff's claim is for a 'liquidated sum', on foot of a loan agreement.
11. For these reasons, I am refusing the adjournment. The plaintiff is entitled to proceed with their application, today.