Finality of Executed Possession Orders and Rejection of “Private Process” Defences in Mortgage Litigation: Commentary on Start Mortgages DAC v Sullivan & Anor [2025] IEHC 681

1. Introduction

This judgment arises from a series of attempts by borrowers, Mr Paul Sullivan and Ms Catherine Sullivan, to undo a Circuit Court possession order made in December 2021 in favour of Start Mortgages DAC over a property at Taghart North, Shercock, Co. Cavan.

The case sits at the intersection of several important themes in Irish civil procedure and mortgage enforcement:

• the strict finality of executed possession orders;
• the very narrow, exceptional jurisdiction to set aside final judgments;
• the stringent limits on admitting fresh evidence on appeal from the Circuit Court;
• the doctrine of res judicata and the rule in Henderson v Henderson;
• the treatment of so‑called “sovereign citizen” or “private process” tactics in litigation; and
• the court’s response to baseless allegations of fraud and perjury against lenders and their officers.

Although formally an appeal from two Circuit Court orders (one refusing to set aside the possession order and one refusing declaratory relief), together with an application to adduce new evidence, the High Court’s judgment is, in substance, a firm restatement of the principles of:

• finality of litigation, especially where an order has been executed;
• respect for the constitutional role of the courts under Article 34.1; and
• proper, evidence‑based advocacy and the limits of self‑styled “private tribunals” or notarised “statements of truth”.

2. Factual and Procedural Background

2.1 Origin of the proceedings

• In July 2017, a Civil Bill for possession was issued in the Circuit Court by Permanent TSB plc (formerly Irish Life & Permanent plc) seeking possession of the mortgaged property.
• The Civil Bill expressly pleaded that the market value of the property did not exceed €3 million, invoking the Circuit Court’s statutory jurisdiction under s.22(1) of the Courts (Supplemental Provisions) Act 1961 as amended by the Civil Liability and Courts Act 2004 (ss.45, 53A).
• The defendants were duly served but:
  • did not enter an Appearance,
  • did not file any defence or affidavits, and
  • did not attend the possession hearing.

2.2 Substitution of Start Mortgages as plaintiff

• On 14 October 2019, the Circuit Court ordered that Start Mortgages DAC be substituted as plaintiff in place of Permanent TSB.
• The order expressly informed the defendants that:
  1. a copy of the grounding affidavit and exhibits was available to them;
  2. they could apply on notice to set aside the order; and
  3. they were entitled to contest the transfer to Start Mortgages DAC.
• The defendants, despite being aware of the assignment and the substitution, did not contest it and continued to ignore the court process.

2.3 The defendants’ “private process” (2019–2021)

Instead of engaging with the Circuit Court proceedings, the defendants embarked on a self‑created, notarised “process”, involving:

• a “Notary Sealed Statement of Truth” (February 2019) sent to a named director of Start Mortgages, containing:
  • lengthy lists of questions and demands for “wet‑ink” documents;
  • assertions such as “no contract – contract denied”, “no relationship whatsoever” with Start Mortgages;
  • allegations that Start Mortgages were “foreign third‑party trespassing interlopers”;
  • a provision that failure to respond within a set period would be deemed to admit all allegations as true.
• a letter to the Governor of the Central Bank (March 2021) asserting that:
  • Start Mortgages was a stranger to their affairs and had no standing;
  • credit register entries were “fictitious” and fraudulent;
  • their own notarised statement was “stare decisis res judicata… absolute law in this matter”; and
  • the Governor and Central Bank would bear “full unlimited liability” unless they removed the entries and provided indemnity bonds of €2.5m each.
• a “Perfected Statutory Declaration” (December 2021) asserting, inter alia, that:
  • the property had been sold in 2018 to a trust company (Yranoisiv Capital Limited),
  • Start Mortgages had “surrendered all/any” rights to act due to “statutory default” in not answering their demands, and
  • the defendants now enjoyed rights to sue Start Mortgages for fraud and misrepresentation.

The core premise of this “process” was that silence or non‑engagement by others equated to conclusive proof and binding legal determinations in the defendants’ favour.

2.4 The possession order and non‑appeal

• On 7 December 2021, the Circuit Court granted a possession order to Start Mortgages DAC, expressly noting:
  • service of the Civil Bill;
  • the absence of any appearance by or on behalf of the defendants; and
  • its consideration of correspondence from the defendants.
• No appeal was ever lodged against the possession order.
• No application was brought to extend time for an appeal.
• The order therefore became final.

2.5 Execution, re‑entry and plenary proceedings

• On 1 March 2024, an Execution Order issued on foot of the possession order, authorising the sheriff/county registrar to take possession.
• On 17 April 2024, the Cavan County Registrar executed the order and handed possession of the property to Start Mortgages’ agent.
• Shortly afterwards, the defendants re‑entered the property and resumed occupation. In an affidavit they admitted re‑entering “post execution” but attempted to justify it on the basis that Start Mortgages had not proven lawful ownership or mortgagee‑in‑possession status.
• On 22 May 2024, Start Mortgages issued High Court plenary proceedings (trespass) and on 23 May 2024 sought injunctive relief to restrain the defendants’ continued trespass.

2.6 The 2024–2025 motions in the Circuit Court

The defendants then launched two main applications in the Circuit Court:

1. Motion to vacate all orders, including the possession order (July 2024):
   • Issued over two months after execution of the possession order.
   • Alleged that:
     • there was no valid statutory cause of action for possession;
     • reliance on Order 5B RSC (Circuit Court Rules) was ultra vires;
     • the Conveyancing Acts provisions were unconstitutional or repugnant;
     • Start Mortgages misrepresented its locus standi and committed perjury;
     • Start Mortgages was merely a credit servicer and not the owner of the loans.

   The Circuit Court (McAleese J) dismissed this motion on 8 April 2025.

2. Motion for declaratory relief (July 2025):
   • Sought declarations that:
     • the Circuit Court lacked jurisdiction;
     • Start Mortgages had no entitlement to sue or enforce;
     • the possession order was void ab initio; and
     • the defendants were entitled to compensation for losses since 2017.
   • This motion was dismissed by the Circuit Court (Browne J) on 28 October 2025.

2.7 Appeals and motion to adduce new evidence

• The defendants appealed both Circuit Court orders to the High Court.
• On 25 June 2025, they brought a High Court motion under Order 61 rule 8 RSC seeking to adduce fresh evidence – an affidavit by accountant Mr Eric Rochford, purporting to show from financial statements that Start Mortgages was not the legal or beneficial owner of the defendants’ mortgages.
• The High Court heard all matters on 12 November 2025 and delivered judgment on 28 November 2025.

3. Summary of the High Court’s Judgment

3.1 Core outcomes

The High Court:

• refused leave to adduce fresh evidence (the Rochford affidavit) on the appeals;
• dismissed the appeal from the 8 April 2025 order refusing to set aside the possession order;
• dismissed the appeal from the 28 October 2025 order refusing declaratory relief;
• held that it had no jurisdiction in effect to “un‑execute” an executed possession order, which was already “spent” once possession was taken; and
• awarded costs to Start Mortgages, indicating that the usual rule that costs follow the event should apply.

3.2 Key legal findings

The judgment establishes or re‑states several important principles:

• Once a possession order has been duly executed, it is spent and cannot be retrospectively “un‑executed”; any later re‑entry by the borrower is a trespass, not a “re‑taking” of possession.
• The High Court’s jurisdiction to set aside a final judgment (here, indirectly, a Circuit Court possession order) is exceptional, requiring proof of a fundamental denial of justice going to the root of constitutional fairness and arising through no fault of the applicant.
• The doctrines of res judicata and the rule in Henderson v Henderson bar attempts to re‑litigate or raise, years later, issues that could and should have been raised in the original proceedings or on appeal.
• Fresh evidence on a Circuit Court appeal under s.37 of the Courts of Justice Act 1936 will only be admitted by special leave, and subject to the well‑known Murphy v Minister for Defence criteria. Those criteria were not met here.
• Self‑constituted “private processes” – notarised “affidavits of truth”, unilateral declarations, default‑based “admissions” – are legally meaningless, unfair, and characterised by the Court as a “kangaroo court” process, an “affront” to Article 34.1 of the Constitution.
• Baseless allegations of fraud, perjury, deception and criminality against a lender, its staff and legal advisers, made without evidence and amplified through Garda complaints, are scandalous and are to be deprecated in the strongest terms.
• A plaintiff who was the successful party in the original proceedings retains standing to oppose later set‑aside applications relating to that judgment, notwithstanding any subsequent assignment of the loans or regulatory licence changes.

4. Analysis

4.1 Precedents and Authorities Cited

4.1.1 Jurisdiction of the Circuit Court in mortgage possession claims

The Court first confirms that the Circuit Court had jurisdiction to grant the possession order, relying in particular on:

• Courts (Supplemental Provisions) Act 1961, s.22(1) – confers the Circuit Court’s civil jurisdiction.
• Civil Liability and Courts Act 2004, ss.45 and 53A – replace “rateable valuation” with “market value” and provide that where the plaintiff pleads that the market value does not exceed €3 million, this is presumed to be so unless the contrary is proved.
• Bank of Ireland Mortgage Bank v Finnegan & Anor [2015] IEHC 304 – where the High Court (Murphy J) confirmed the Circuit Court’s jurisdiction to deal with possession proceedings based on the pleaded market value.

The defendants had never challenged the market value or statutory jurisdiction in the original proceedings or on appeal. Heslin J therefore treats jurisdiction as beyond doubt.

4.1.2 Effect of execution of a possession order

The Court relies on the Court of Appeal in Carlisle Mortgages Ltd v Costello [2018] IECA 334. Peart J held that once the order for possession has been executed and possession taken:

“… at that point the order for possession had been executed… Thereafter no further action needed to, or could, be taken on foot of that particular order. Its purpose had been achieved. Thereafter, any adverse action taken by the appellant… constituted an act of trespass. None amounts to a re‑taking of possession…”

Heslin J applies this reasoning directly to the Circuit Court order: once the county registrar executed the possession order in April 2024, the order was “spent” and could not be revived or “un‑executed” by later motions. The defendants’ re‑entry constituted trespass, not a legal undoing of execution.

4.1.3 Exceptional jurisdiction to reopen final judgments

The judgment draws heavily on Supreme Court authority concerning the limited jurisdiction to reopen final orders:

• In the Matter of Greendale Developments Ltd (No.3) [2000] 2 IR 514 – recognised an exceptional jurisdiction to reopen a final judgment in rare cases.
• Student Transport Scheme Ltd v Minister for Education and Skills [2021] IESC 35 – re‑states the test:
  • the principle of finality carries very high weight;
  • only exceptional circumstances, where failure to reopen would be a clear and significant breach of fundamental constitutional rights, can justify reopening; and
  • the injustice must arise through no fault of the party.
• L.P. v M.P. [2001] IESC 76, [2002] 1 IR 219 – a party must clearly establish a fundamental denial of justice against which no other remedy (such as appeal) is available.
• Murphy v Gilligan [2017] IESC 3 – the exceptional jurisdiction does not exist to let a party re‑argue issues already determined.
• Start Mortgages DAC v Kavanagh [2023] IEHC 37 (Simons J) and Start Mortgages DAC v Kavanagh [2023] IECA 251 (Noonan J) – applied the Greendale/Student Transport principles to attempts by a borrower to revisit a mortgage possession judgment years later; the Court of Appeal denounced such moves as a “manifest abuse of process”.

Heslin J adopts these principles and finds no exceptional circumstances, no fundamental denial of justice, and significant fault on the part of the defendants (their deliberate refusal to participate or appeal).

4.1.4 Res judicata and the rule in Henderson v Henderson

The Court engages with:

• Vico Ltd & Ors v Bank of Ireland & Ors [2015] IEHC 525 (McGovern J) and the Court of Appeal sequel [2016] IECA 273 (Finlay Geoghegan J) – summarising:
  • Res judicata: once a matter has been judicially decided, it cannot be reopened except in “special cases”, typically fraud;
  • Henderson v Henderson (1843) 3 Hare 100: a party must advance their whole case when the matter is before the court; they cannot later bring fresh proceedings to raise points that could have been raised earlier.
• Dublin Corporation v Building and Allied Trade Union [1996] 1 IR 468 – emphasising finality of litigation and that, save for fraud, a successful litigant is entitled to “sleep easy”.
• Re Vantive Holdings [2010] 2 IR 118 – Supreme Court approval of the Henderson principle.

Heslin J finds the defendants’ applications classic examples of Henderson‑type abuse: all their complaints about jurisdiction, ownership, trusts, and assignment could have been raised in 2017–2021, or on appeal, but were instead consciously withheld while they pursued a “private” process of their own.

4.1.5 Fresh evidence on appeal: Murphy and Ulster Bank v McDonagh

Two core sources govern admission of fresh evidence:

• Order 61 rule 8 RSC – requires an affidavit setting out:
  • the nature of the fresh evidence; and
  • the reasons why it was not submitted to the Circuit Court.
• Courts of Justice Act 1936, s.37 – appeals from the Circuit Court (where no oral evidence was taken) are by way of rehearing, but “no evidence which was not given and received in the Circuit Court shall be given… without the special leave” of the High Court judge.

The Supreme Court in Murphy v Minister for Defence [1991] 2 IR 161 set a three‑limb test for admission of new evidence:

1. The evidence must have been in existence at trial time and could not have been obtained with reasonable diligence for use at the trial;
2. It must probably have an important influence on the result;
3. It must be apparently credible.

The Court of Appeal in Ulster Bank Ireland DAC & Ors v McDonagh & Ors [2022] IECA 87 added that late applications to admit new evidence should be exceptional and compelling. Solicitors and counsel must provide a “complete picture” of:

• when they were first instructed;
• why the issue arose so late; and
• how and when the new evidence was “discovered”.

Heslin J holds that:

• the defendants’ explanation – that they were unaware of Mr Rochford’s firm until after the Circuit Court hearing – falls far short of these standards;
• the affidavit fails to give any meaningful detail of efforts to obtain similar expertise earlier; and
• the purported new evidence was compiled after the Circuit Court hearing but based entirely on publicly available financial statements that were always accessible.

Thus, the Murphy test is not satisfied; nor are the “special” or “exceptional” circumstances required by s.37 and Order 61 rule 8.

4.1.6 Fraud as a ground to set aside a judgment

The Court addresses fraud in the context of the “special cases” where a final judgment might be set aside:

• Kenny v Trinity College Dublin [2008] IESC 18 (Fennelly J) – to set aside a judgment for fraud, the plaintiff must show:
  • “deliberate and purposeful dishonesty, knowing and intentional deceit of the court”; and
  • fraud “going to the root” of the case, such that the true position would probably have affected the outcome.

Heslin J finds there is not a “scintilla” of evidence that the Circuit Court was deceived or that the possession order was obtained by fraud. The defendants’ serious allegations against Start Mortgages’ officers are wholly unsupported.

4.1.7 Toxic nature of fraud allegations: Howley v McClean

The Court aligns with the Court of Appeal in Howley v McClean & Anor [2025] IECA 77 (O’Moore J), which stresses:

“…the effect on persons accused of fraud can be significant. An allegation of fraud, even if not actually proven at trial, can nonetheless be significantly damaging…” (para. 8)

and

“…the making of an allegation of fraud is so toxic that, even if struck out at an early stage, it is quite likely to result in lingering but palpable damage…” (para. 29)

Heslin J uses this authority to underscore how improper it is to weaponise ungrounded accusations of fraud and perjury within civil litigation, particularly against named individuals and with Garda complaints.

4.2 The Court’s Legal Reasoning

4.2.1 No jurisdiction to “un‑execute” a spent possession order

A central plank of the judgment is the conclusion that the High Court has no jurisdiction to revisit an executed possession order in the manner sought.

• By April 2024, the possession order of 7 December 2021 had been fully executed: the county registrar had delivered possession to Start Mortgages.
• Following Carlisle Mortgages, the order had achieved its purpose and was legally “spent”.
• The defendants’ later re‑entry did not resurrect or “re‑open” the order; it simply rendered them trespassers.
• The applications launched in July 2024 sought, in effect, to undo an already executed order – something for which no authority was cited and which the logic of Carlisle Mortgages “fatally undermines”.

On this basis alone, the High Court holds the appeals must fail: there is simply no jurisdiction to reverse the execution of a spent order.

4.2.2 Failure to satisfy the exceptional set‑aside jurisdiction

Even if the Court were wrong on the “spent order” analysis, Heslin J considers the applications through the lens of the exceptional Greendale/Student Transport jurisdiction:

• The defendants must establish:
  • a fundamental denial of justice going to the very root of fair administration of justice;
  • that the possession order should be considered a nullity, not merely arguably wrong; and
  • that the circumstances arose through no fault of their own.
• On the facts:
  • The defendants were fully aware of the proceedings from 2017 onwards.
  • They consciously chose not to:
    • appear or file affidavits in the Circuit Court;
    • contest the substitution order (2019);
    • attend the possession hearing (2021);
    • appeal the possession order; or
    • seek an extension of time to appeal.
  • Instead they pursued a unilateral “private process” (notarial statements, letters, declarations) which the Court describes as a “sham”, “kangaroo court”, and an “affront” to Article 34.1.

The Court concludes that any alleged injustice arises entirely from the defendants’ own choices; there is no constitutional wrong demanding the extraordinary remedy of setting aside a final judgment.

4.2.3 Res judicata and Henderson: no second bite at the cherry

The defendants’ motions essentially try to achieve, years later, what should have been attempted in 2017–2021:

• contest of jurisdiction and market value;
• challenge to the assignment and substitution of Start Mortgages;
• claims that the property had been sold into a trust in 2018;
• arguments about the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 and alleged incapacity of Start Mortgages to sue; and
• allegations of misrepresentation in affidavits.

Under res judicata and Henderson v Henderson, such rear‑guard attempts to mount a defence after final judgment are barred, save in “special cases” (e.g. fraud) – which are absent here.

4.2.4 Refusal to admit fresh evidence (the Rochford affidavit)

Heslin J’s reasons for rejecting the application to adduce new evidence are twofold:

1. Procedural / diligence grounds:
   • The only explanation offered is that the defendants were unaware of the particular accountant until after the Circuit Court hearing.
   • No evidence is given of any earlier attempt to obtain similar expertise. The Court is given no “complete picture” of when or why the idea arose, contrary to Ulster Bank v McDonagh.
   • Publicly available accounts were always accessible, and the defendants had already themselves relied on such accounts in affidavits.
   • Thus, the Murphy requirement of reasonable diligence is not satisfied.
2. Substantive / relevance grounds:
   • The Rochford affidavit is an accountant’s opinion on how assets are presented in financial statements, not a legal analysis of ownership, legal title or locus standi.
   • From a legal perspective, accounting treatment does not determine whether an entity holds legal or beneficial title to a mortgage or can sue.
   • Even if admitted, the evidence could not “probably have an important influence” on the outcome. It is essentially a re‑packaging of arguments already made by Mr Sullivan.

The Court therefore refuses special leave under s.37 and Order 61 rule 8 and emphasises the potential prejudice to a respondent forced to meet new evidence for the first and only time on an unappealable High Court appeal.

4.2.5 Rejection of the “sale to trust” defence

The defendants repeatedly argued that they had sold the property in 2018 to a foreign‑domiciled trust company and that, therefore, the possession order had been made against persons with no interest in the property.

Heslin J makes several important points:

• Even if the argument ever had merit, it was one that should have been placed before the Circuit Court; it is not a basis to reopen a final order years later.
• Under typical mortgage terms, mortgagors contract not to dispose of their interest without the lender’s consent. Any such purported transfer is not, as a matter of course, a defence to enforcement proceedings.
• No third party (such as the alleged trust company) appeared to assert any competing rights in the property.

Accordingly, the “sale to trust” narrative cannot justify the extraordinary relief sought.

4.2.6 Standing of Start Mortgages to oppose the motions

The defendants contended that Start Mortgages had no standing to oppose their motions because, by mid‑2024, it had allegedly:

• divested itself of its interest in the relevant loans; and
• surrendered its Central Bank authorisation as a retail credit firm.

The Court rejects this on several grounds:

• The motions themselves were expressly directed “against” Start Mortgages, named it as respondent, and invited it to file opposing affidavits.
• The relief sought concerns a final order made in Start Mortgages’ favour in December 2021. Its standing to defend that order is not retrospectively destroyed by subsequent commercial or regulatory developments.
• It would be the opposite of justice to permit the defendants first to hale Start Mortgages into court and then deny it the right to defend its position.

4.2.7 Condemnation of the “private process” and baseless allegations

A distinctive feature of this judgment is the explicit and forceful criticism of the defendants’ “private process” and their deployment of scandalous allegations.

Heslin J finds that:

• The defendants’ “process” – notarised “statements of truth”, unilateral deadlines, “default equals admission” clauses, and threats of vast personal liability – is:
  • “unofficial, unfair, illegitimate”;
  • a “sham” and “kangaroo court” process; and
  • “offensive to justice” and “an affront to every citizen”, as it disregards Article 34.1’s requirement that justice be administered in courts, in public.
• The notion that their private declaration “stands stare decisis res judicata as absolute law” is simply wrong in law.
• The insistence that non‑response by a bank or the Central Bank Governor constitutes binding admission of serious wrongdoing is fundamentally unfair.

As to the allegations against Start Mortgages’ staff, their solicitors and others, the Court notes:

• The defendants have accused them of perjury, fraud, deception, withholding evidence, criminality, and “home invasion”.
• No evidence supports these claims; they are “scandalous” and made apparently to cause embarrassment, delay and leverage.
• The defendants went so far as to lodge a Garda complaint, thereby wasting scarce public resources.
• They never retracted or apologised for any of these allegations.

The Court unequivocally deprecates this conduct, drawing support from Howley v McClean as to the enduring reputational damage wrought by unfounded fraud allegations.

4.3 Impact and Likely Future Significance

4.3.1 Mortgage enforcement and finality

This judgment will be a useful authority in future mortgage enforcement disputes on several fronts:

• Finality of executed possession orders: It reinforces Carlisle Mortgages and extends the principle clearly into the context of Circuit Court repossession proceedings:
  • once a possession order is executed, it is legally spent; and
  • later re‑entry cannot re‑open the order or obligate the lender to seek a new order.
• Re‑entry equals trespass: Borrowers who re‑enter after execution are not exercising any residual right but are trespassing, and can be restrained by injunction and/or sued.
• Comfort to lenders: Financial institutions can have greater confidence that, if they properly obtain and execute a possession order, they will not face protracted, collateral attacks years later premised on arguments that could and should have been made earlier.

4.3.2 Containing “sovereign citizen”/“freeman on the land” tactics

The judgment will likely be cited in future to deal with:

• Notarised “affidavits of truth” that purport to bind counterparties by default if not rebutted.
• Assertions that unilateral declarations are “res judicata” or “stare decisis”.
• Attempts to convert silence into conclusive evidence of fraud or lack of jurisdiction.
• Claims that the courts are “without jurisdiction” because parties have opted into a “private” process.

Heslin J’s strong language – “kangaroo court”, “sham”, “travesty of justice”, “meaningless and valueless paper” – provides a clear doctrinal and rhetorical basis for courts to dismiss such defences summarily and, where appropriate, to award costs or consider further sanctions.

4.3.3 Appellate practice and fresh evidence

For appellate practice, especially under s.37 of the 1936 Act:

• The judgment reiterates that the High Court’s admission of fresh evidence is strictly limited:
  • special leave is required;
  • the Murphy test must be met; and
  • late applications are disfavoured and must be fully justified.
• It underscores that new “expert” evidence built on pre‑existing, public information will rarely (if ever) satisfy the diligence limb of Murphy.
• It confirms that litigants – even in person – are expected to exercise reasonable diligence in marshalling evidence before the first‑instance court.

4.3.4 Standards of advocacy and responsibility of litigants in person

The judgment also has a broader normative function:

• It sends a message that lack of legal representation is not a licence to:
  • ignore court proceedings;
  • set up private quasi‑judicial processes; or
  • make grave allegations without evidential foundation.
• Courts will take into account the pressures on litigants in person, but will not tolerate abuse of process, harassment of opponents, or contempt for the constitutional system of justice.
• It is also a warning that alleging fraud, perjury or criminal conduct against named individuals demands a clear, evidence‑based foundation. Absent that, such allegations are themselves abusive.

5. Complex Concepts Simplified

5.1 “Spent” or executed order for possession

A possession order authorises the sheriff or county registrar to take possession of property and deliver it to the lender. Once this is done:

• the order has done its job;
• no further action can or needs to be taken “on foot” of it; and
• the order is said to be spent or executed.

If the former owner then breaks back in, they are not re‑activating the original court order; they are simply trespassing on someone else’s property.

5.2 Finality of litigation, res judicata and Henderson v Henderson

• Finality means that when a case is decided – and any appeal time has passed – the decision is conclusive. Parties are entitled to rely on it.
• Res judicata literally means “a matter judged”:
  • you cannot start new proceedings to contest something already decided; and
  • you cannot re‑argue the same issue under a different label.
• The rule in Henderson v Henderson goes further:
  • you must bring all your points and defences the first time; and
  • you cannot hold arguments “in reserve” and then start fresh litigation later based on them.

Both doctrines prevent cases from being endlessly reopened and protect the integrity and efficiency of the judicial system.

5.3 Exceptional jurisdiction to set aside final judgments

Courts do have a very narrow power to revisit final judgments, but only where:

• not doing so would itself be a serious breach of constitutional justice; and
• the problem was not caused by the losing party’s own choices or failures.

Examples might include:

• where the court was deliberately deceived by one party (proven fraud going to the root of the decision); or
• where a party was denied a fair hearing through no fault of their own (for example, not being given notice at all).

It is not available simply because:

• someone later changes their mind;
• a new legal argument is discovered; or
• a later case casts doubt on an earlier practice.

5.4 Fresh evidence on appeal

Generally, appeals are decided on the evidence that was before the first‑instance court. Fresh evidence may only be admitted where:

1. it could not, with reasonable effort, have been obtained for the first hearing;
2. it would probably influence the result; and
3. it appears credible.

Publicly available documents (like company accounts) are usually not “fresh” in this sense: if they existed, they could have been obtained earlier with diligence.

5.5 Legal vs beneficial ownership and accounting treatment

• Legal ownership/title is the name on the legal documents – the entity entitled, at law, to sue, to be registered as owner, to enforce the mortgage.
• Beneficial ownership refers to who economically enjoys the asset, profits from it, or bears its risks.
• Accounting treatment in financial statements records assets in line with accounting standards, not necessarily in a way that mirrors legal title.

An accountant’s view that a mortgage does or does not appear as an “asset” in a company’s balance sheet does not decide who is legally entitled to enforce that mortgage. That is a matter of law, usually governed by:

• the terms of the loan and mortgage deed; and
• any deeds of assignment or transfer.

5.6 “Private process” and why it has no legal effect

The defendants’ documents followed a pattern seen in some “freeman on the land”/“sovereign citizen” materials:

• self‑authored “affidavits of truth” or declarations;
• lists of questions and demands for documents;
• short deadlines; and
• provisions that silence or non‑compliance equals legal admission of liability or fraud.

Such processes have no binding legal effect because:

• they are unilateral – only one side writes them and sets the rules;
• there is no statutory or contractual obligation on the other party to respond; and
• only courts, not private individuals, have the constitutional authority to finally determine disputes and impose binding outcomes.

Article 34.1 of the Constitution states that justice is to be administered in courts established by law, in public. Private “kangaroo courts” cannot substitute for that.

6. Conclusion

Start Mortgages DAC v Sullivan & Anor is an important High Court restatement of core procedural principles in the context of mortgage enforcement:

• A duly executed possession order is final and spent; the court has no function in “un‑executing” it simply because the borrower later regrets inaction or re‑enters the property.
• The jurisdiction to reopen final judgments is truly exceptional and requires a fundamental, non‑self‑inflicted denial of justice. It cannot be used as a disguised appeal years out of time.
• Res judicata and Henderson v Henderson bar second attempts to litigate what could have been raised in the original proceedings.
• Fresh evidence on appeal is tightly controlled; public information that could have been obtained earlier will rarely satisfy the Murphy test.
• Unilateral “private processes” purporting to bind others by default are a sham, legally meaningless and incompatible with Article 34.1.
• Baseless allegations of fraud, perjury and criminality represent a serious abuse of process, particularly when directed at named individuals and accompanied by Garda complaints.

The judgment offers clear guidance both to lenders and to borrowers. Lenders are reassured that properly obtained and executed possession orders will not be lightly disturbed. Borrowers – and litigants in person more generally – are reminded that the courtroom, not self‑styled “notarial” processes, is the proper forum for resolving disputes, and that serious allegations must be grounded in evidence.

In the broader legal landscape, this decision will likely become a significant citation in future cases involving:

• attempts to revisit long‑concluded possession proceedings;
• “freeman” or “sovereign citizen”‑type documentation and tactics; and
• applications to adduce late‑discovered “expert” evidence on appeal.

By firmly applying existing principles of finality, jurisdiction and procedural fairness – and by explicitly condemning abusive litigation conduct – the High Court reinforces the integrity of the judicial process in mortgage litigation and beyond.