“Finality Means Final” on Circuit Appeals: The High Court confirms s.39 CJA 1936 forecloses later attacks on its appellate orders and grants possession despite securitisation and transfer objections

Introduction

In Mars Capital Finance Ireland DAC & Anor v O'Connor & Anor [2025] IEHC 496, the High Court (Heslin J.) delivered a detailed judgment on a Circuit Appeal in mortgage possession proceedings concerning unregistered land. The defendants did not dispute borrowing €1.25 million in 2007, executing a mortgage and charge over their Foxrock property, defaulting from 2010, and failing to comply with repayment and possession demands (paras. 1, 17, 26–28).

The appeal proceeded de novo (s.37 Courts of Justice Act 1936). Although earlier affidavits had raised a range of issues (authorisation, securitisation, data access, CCMA, unfair terms), the defendants’ opposition at the hearing boiled down to a July 2025 motion to set aside two prior High Court orders made in 2016 which (i) joined Bank of Scotland plc (BoS) as co-plaintiff and (ii) corrected a rule reference under the slip rule (paras. 4–6, 65, 68–69).

The key issues were:

• Whether the High Court had jurisdiction to revisit its own appellate orders (joinder and a slip-rule correction) made during the pendency of a Circuit appeal, in light of s.39 Courts of Justice Act 1936 and ACC Loan Management Ltd v Fagan [2018] IECA 353 (paras. 7–12).
• Whether the plaintiffs proved an unbroken chain of title to the loan and mortgage/charge and the consequent right to possession (paras. 13–15, 94–97).
• Whether securitisation, alleged unfair terms, hearsay objections, CCMA compliance, and disputes about quantum or alleged “reckless lending” could constitute credible defences (paras. 23–45, 31–34, 36–38, 40–42).
• How the Court of Appeal’s recent departure in Pepper Finance Corporation Ireland DAC v O’Reilly [2025] IECA 140 from IBRC v Halpin [2014] IECA 3 fits with case management of appeals when loan interests transfer mid-appeal (paras. 62, 66–67).

Summary of the Judgment

• Finality under s.39 CJA 1936: Orders made by the High Court in its appellate (Circuit appeal) jurisdiction—including interlocutory and procedural orders such as joinder/substitution and slip-rule corrections—are final and unappealable. The Court lacks jurisdiction to entertain belated attempts to set them aside (paras. 7–12; reliance on ACC v Fagan and Kinahan v Baila).
• Defendant’s motion dismissed: The July 2025 motion to set aside the 2016 orders failed for want of jurisdiction and want of merit (paras. 11–12, 65, 68–69, 90–93).
• De novo proof nonetheless undertaken: Applying Order 5B and Start Mortgages DAC v Ryan [2021] IEHC 719, the Court assessed all affidavit evidence and found a prima facie case for possession, and no credible defence (paras. 14–15, 95–98).
• Chain of title proved: The Court found an unbroken chain from BoSI → BoS (by cross-border merger, 2010) → Tanager (2013/2014 assignment with notice) → Pepper (2021 transfer with notice) → Mars (2023 transfer with notice). The requirements of s.28(6) Supreme Court of Judicature (Ireland) Act 1877 for legal assignment and notice were met (paras. 17–18, 57–59, 75–77, 79–82, 94–96).
• Securitisation not a defence: Consistent with Freeman, Kearney, Pepper v Jenkins, and Start v Kavanagh, securitisation does not impede enforcement by the holder of legal title (paras. 31–34).
• Unfair terms argument rejected: The defendants did not identify any specific unfair term; the terms relied on (repayment, security, and possession) are core terms under Directive 93/13 and, when in plain language, are not subject to unfairness review (paras. 23–30).
• Hearsay complaint rejected: Bank officers may give affidavit evidence of bank records; Ulster Bank v O’Brien applies; the Bankers’ Books Evidence Act 1879 was engaged (paras. 40–41).
• CCMA compliance: The statutory moratorium was complied with per Irish Life & Permanent v Dunne; other Code breaches do not, in law, defeat a possession claim (paras. 36–38).
• Quantum disputes immaterial to possession: Where default is admitted, disagreement over the precise sum does not bar an order for possession (Bank of Ireland v Blanc; Anglo Irish Bank v Fanning) (para. 42).
• Other pleaded wrongs fail: Allegations of gross negligence, misrepresentation, and “reckless lending” were unparticularised and, in the case of reckless lending, unknown to Irish law (Keane v Ulster Bank DAC [2024] IECA 293) (paras. 44–45).
• Outcome: The Court held Mars had proved ownership of the mortgage/charge and that the right to possession had arisen and was exercisable. A final order for possession would be made upon listing for orders; costs to follow the event; any stay, if granted, would not exceed four months (paras. 95–99).

Analysis

Precedents Cited and Their Influence

• ACC Loan Management Ltd v Fagan [2018] IECA 353 (paras. 10–12): The Court of Appeal, following Kinahan v Baila (Supreme Court, 18 July 1985), held that s.39 CJA 1936 renders “any interlocutory application made” and “any decision made by the High Court” in its Circuit appeal jurisdiction final and unappealable. Heslin J. applied this strictly to hold that the 2016 joinder and slip-rule orders could not be revisited almost a decade later.
• IBRC v Halpin [2014] IECA 3 and Pepper Finance Corporation Ireland DAC v O’Reilly [2025] IECA 140 (paras. 62–67): Halpin had favoured adding the transferee as co-plaintiff where the loan transferred post-Circuit order but pre-High Court appeal; Pepper v O’Reilly now favours substitution of the transferee, who steps into the shoes of the transferor. Heslin J. noted this development but did not need to decide its retrospective effect, because s.39 foreclosed re-opening the 2016 appellate orders.
• Start Mortgages DAC v Ryan [2021] IEHC 719 (paras. 14–15, 23, 31–34, 42): Confirmed the Order 5B framework: the plaintiff must establish a prima facie case on affidavit, and the defendant must disclose a credible defence. It also addressed securitisation and unfair terms in a BOSI/BoS context, which closely parallels the defendants’ documents here.
• Permanent TSB plc v Davis [2019] IEHC 184 and Aziz v Caixa (C-415/11) (paras. 23–24, 29–30): These authorities frame Directive 93/13/EEC’s “core terms” carve-out (Article 4(2)). Terms defining the main subject matter or price/remuneration in plain, intelligible language are not subject to unfairness assessment. Heslin J. found the relevant repayment and security/possession terms to be “core”.
• Freeman v Bank of Scotland plc [2014] IEHC 284, Kearney v KBC [2014] IEHC 260, Wellstead v Judge White [2011] IEHC 438, Paragon Finance v Pender [2005] 1 WLR 3412, Pepper Finance v Jenkins [2018] IEHC 485, and Start v Kavanagh [2023] IEHC 452 (paras. 31–34): A consistent body of case law that securitisation does not deprive the legal title holder of enforcement rights, does not require joinder of an SPV/beneficial owner, and does not prejudice borrowers’ rights.
• Ulster Bank v O’Brien [2015] 2 IR 656; [2015] IESC 96 (paras. 40–41): A bank is not confined to the Bankers’ Books Evidence Act; a bank officer may give admissible evidence from bank records of the indebtedness.
• Irish Life & Permanent v Dunne [2016] 1 IR 92 (paras. 37–38): A court must ensure compliance with the CCMA moratorium before proceedings; other Code breaches do not affect entitlement to possession as a matter of law.
• Bank of Ireland Mortgage Bank v Cody [2021] IESC 26 (para. 13): Although a registered land case, it distilled two essentials for possession: ownership of the charge and that the right to seek possession has arisen and is exercisable. The High Court applied the same logic to unregistered land.
• Bank of Ireland v Blanc [2020] IEHC 18 and Anglo Irish Bank v Fanning [2009] IEHC 141 (para. 42): In a possession suit (as opposed to a debt suit), the fact of default—not the disputed amount—governs the entitlement to possession.
• Keane & Anor v Ulster Bank Ireland DAC [2024] IECA 293 (para. 45): “Reckless lending” is not a recognized standalone cause of action.

Legal Reasoning

1) Jurisdiction and finality under s.39 CJA 1936

The defendants attempted to “snooker” the possession claim by seeking to set aside the 2016 orders joining BoS and correcting a rule number (paras. 65–69). Applying ACC v Fagan and Kinahan v Baila, Heslin J held that these were orders made while the High Court was exercising appellate jurisdiction on a Circuit appeal; therefore, they were final and unappealable under s.39 of the Courts of Justice Act 1936 (paras. 7–12). The High Court consequently had no jurisdiction to entertain what was, in substance, an attempted appeal to itself against its own final appellate orders (para. 11).

The slip rule (Order 28 RSC) properly corrected an accidental error in citing O.18 instead of O.17 (paras. 7, 68–69). The Court treated the motion as misconceived, jurisdictionally foreclosed, and—given the later substitution of Mars (December 2024)—pointless even on its own premises (paras. 65–67, 86–87).

2) De novo assessment and the Order 5B framework

Despite the motion’s failure, Heslin J, mindful of the de novo nature of Circuit appeals and the plaintiff’s onus, undertook a comprehensive affidavit-based review to ensure (i) the plaintiffs established a prima facie case, and (ii) no credible defence had been raised (paras. 14–15; Start v Ryan).

3) Chain of title and the right to possession

The Court found a clear, documented chain:

• BoSI → BoS: High Court order of 22 October 2010 under the EU cross-border mergers framework transferred all assets and liabilities, including the defendants’ loan and security, to BoS (paras. 17–18).
• BoS → Tanager: December 2013 sale and April 2014 Deed of Assignment, with notice letters of December 2013, March/April 2014 (paras. 57–59).
• Tanager → Pepper: March 2021 Global Deed of Transfer and notice to the defendants (March 26 and 30, 2021) (paras. 75–77).
• Pepper → Mars: July 28, 2023 Global Deed of Transfer and Irish Law Deed of Conveyance & Assignment, with notice letters of August 2023 (paras. 79–82).

The Court held that s.28(6) of the 1877 Judicature Act was satisfied at each step: a written, absolute assignment with express written notice to the borrower, rendering the assignments effectual in law (paras. 59, 76–77, 81).

Against this, the defendants’ assertions of non-compliance were bald, unsupported, and contradicted by the documents (paras. 50, 59, 77, 81–82, 92–94). The defendants even acknowledged in affidavit form the succession—“Pepper stepped into Tanager’s shoes; Mars replaced Pepper”—which aligned with the plaintiffs’ case (para. 93).

4) Securitisation and enforcement

The Court reaffirmed that securitisation does not deprive the holder of legal title of enforcement powers. It adopted the reasoning in Freeman, Kearney, Wellstead, Paragon v Pender, Pepper v Jenkins, and Start v Kavanagh: legal title remains with the originating bank/assignee unless and until legal assignment and notice are completed; the SPV typically holds only an equitable interest and need not be joined; borrowers are not prejudiced (paras. 31–34).

5) Unfair terms and the Directive

The defendants failed to identify any specific unfair term. The Court held the operative terms—obligations to repay, grant of security, and the mortgagee’s right to possession upon default—are “core terms” within Article 4(2) of Directive 93/13 and, being plain and intelligible, are not subject to an unfairness assessment (paras. 23–30).

6) Hearsay and proof of indebtedness

The affidavit evidence from BoS’s officer (Ms. Cottham) was admissible; Ulster Bank v O’Brien confirms that a bank officer may give evidence from bank records of the amount due, and the Bankers’ Books Evidence Act 1879 can also be engaged (paras. 40–41). The Court found the hearsay complaint “without merit” (para. 41).

7) CCMA compliance

The Court was “very satisfied” that the lender complied with the CCMA moratorium (paras. 36–38). Per Irish Life & Permanent v Dunne, failures on other Code provisions (even if present) do not legally defeat a possession claim (paras. 37–38).

8) Default and quantum

The defendants never denied default. For a possession suit (as distinct from a money judgment), the fact of default is determinative; disputes about precise arrears or amounts do not prevent possession (Bank of Ireland v Blanc; Anglo Irish Bank v Fanning) (para. 42).

9) Other defences rejected

Allegations of gross negligence and misrepresentation were unparticularised and unsupported (para. 44). “Reckless lending” is not a recognised cause of action (Keane v Ulster Bank DAC) (para. 45). Appeals to fairness or hardship (ad misericordiam) cannot by themselves defeat an otherwise valid possession claim (para. 43).

Impact

• Procedural finality on Circuit appeals: This judgment is a strong, practical restatement that interlocutory and procedural orders made by the High Court while exercising its appellate jurisdiction on Circuit appeals are sealed by s.39 CJA 1936. Parties cannot re-litigate such orders years later via motions to “set aside” or similar devices. This will curtail tactical “snooker” applications designed to derail appeals on technicalities (paras. 7–12, 65–69, 90–93).
• Transfers mid-appeal: from Halpin to Pepper v O’Reilly: The Court notes the Court of Appeal’s updated approach in Pepper v O’Reilly favouring substitution over joinder (para. 66). Going forward, practitioners should expect substitution of the transferee (absent special circumstances), while remembering that any such appellate orders, once made, are final under s.39.
• Substance over form: The Court signalled little tolerance for procedural gambits aimed at exploiting historical case management choices (joinder vs substitution) rather than addressing merits (para. 65). The thrust is to ensure the party with the legal title prosecutes the appeal.
• Reliance on bank officer affidavits: The judgment reinforces that a bank can prove indebtedness and compliance via officer affidavits and properly exhibited records (Ulster Bank v O’Brien) (paras. 40–41).
• Securitisation arguments narrowed further: The Court’s survey of authorities cements that securitisation is not a defence to enforcement by the legal title holder, and that SPVs/beneficial owners need not be joined in the ordinary course (paras. 31–34).
• Directive 93/13 core terms: Borrowers seeking to rely on unfair terms arguments must identify specific non-core terms that are not in plain, intelligible language. Generic invocations of the Directive will fail when the case turns on repayment/security/possession clauses (paras. 23–30).
• CCMA/Dunne: The only Code compliance issue capable of affecting entitlement is the moratorium; lenders should adduce evidence of compliance. Defendants relying on broader CCMA grievances will rarely find a legal foothold (paras. 36–38).
• Quantum disputes: Where default is clear, arguments about precise arrears do not block possession orders (para. 42).
• Costs and stays: The Court’s provisional view is “costs follow the event”, and any stay, if granted, is likely short (four months), especially in long-delayed cases (para. 99). This signals consequences for baseless, delaying tactics.

Complex Concepts Simplified

• De novo Circuit appeal vs finality (s.37 and s.39 CJA 1936): A Circuit appeal is reheard afresh on the evidence (de novo), but orders the High Court makes in its appellate role are themselves final and unappealable by virtue of s.39. That includes procedural and interlocutory orders (ACC v Fagan). You get a fresh hearing, but you do not get to endlessly re-open the High Court’s interim appellate orders.
• Slip rule (Order 28 RSC): Courts can correct accidental slips or clerical errors in orders at any time. Changing a mistaken “O.18” reference to “O.17” is a classic application (paras. 7, 68–69).
• Legal vs equitable assignment and s.28(6) of the 1877 Act: A legal assignment of a debt requires (i) a written, absolute assignment, and (ii) express written notice to the debtor. Once done, the assignee can sue/enforce in its own name. Without notice, the assignment may operate only in equity, often leaving the original lender to enforce (paras. 57–59, 76–77, 81).
• Securitisation: Bundling loans and selling the income stream to an SPV. Typically, legal title stays with the bank/servicer so it can continue to collect and enforce; the SPV holds a beneficial interest. Borrowers’ obligations and rights are unchanged, and no new party needs to be joined (paras. 31–34).
• Bankers’ Books Evidence Act 1879 and bank affidavits: A bank officer can attest to what the bank’s records show about a customer’s indebtedness. The Act provides a framework for admitting entries from bank books, but, per Ulster Bank v O’Brien, banks can also prove cases with officer affidavits grounded in those records (paras. 40–41).
• Directive 93/13 “core terms”: Clauses defining (a) the main subject matter of the contract (e.g., the obligation to repay) or (b) the price/remuneration, are not assessed for unfairness if they are in plain, intelligible language (Article 4(2)). Here, repayment obligations and possession rights on default are “core” (paras. 23–30).
• CCMA moratorium (Dunne): Before starting possession proceedings against a co-operating borrower, a lender must observe the moratorium period. Compliance is required; other alleged Code breaches do not, by themselves, defeat a legal entitlement to possession (paras. 36–38).

Conclusion

Mars Capital v O’Connor is a comprehensive, practice-oriented judgment that does three things with clarity:

• It reaffirms—forcefully—that under s.39 of the Courts of Justice Act 1936, interlocutory and procedural orders made by the High Court when hearing Circuit appeals are final and unappealable. Attempts to re-open such orders years later are jurisdictionally doomed (paras. 7–12, 65–69, 90–93).
• It demonstrates the proper affidavit-driven pathway to proving entitlement to possession over unregistered land: establish the chain of title (including compliance with s.28(6) of the 1877 Act) and the arising of the right to possession on default; then address and dismantle common defences (securitisation, unfair terms, hearsay, CCMA) by reference to settled authority (paras. 17–18, 31–38, 40–45, 94–98).
• It situates case management of transfers mid-appeal within the evolving appellate landscape (from Halpin to Pepper v O’Reilly), while underscoring that whatever route is taken, the resulting appellate orders are final under s.39 (paras. 62, 66–67, 86–87).

The judgment’s broader significance lies in its insistence on substance over form and its consolidation of settled principles: securitisation is no defence; quantum disputes do not block possession; “reckless lending” is not a recognised tort; and generic unfair terms allegations will fail where the operative clauses are core and plainly drafted. For lenders, the case is a blueprint for evidential preparation. For borrowers, it is a caution against unparticularised and procedurally misdirected challenges, especially at the tail-end of protracted litigation.

Key takeaway: In Circuit appeals, finality means final—focus on the merits, build or answer a prima facie case on affidavit, and do not expect the High Court to re-open its own appellate orders years after the event.