Mars Capital Finance Ireland DAC v Kane & Anor
[2025] IEHC 379
High Court confirms: (1) business-record evidence under the 2020 Act is admissible through a transferee’s deponent, and (2) a lender may simultaneously pursue High Court monetary relief and Circuit Court possession.

1. Introduction

Mars Capital Finance Ireland DAC (“Mars”) sought summary judgment in the High Court against Gary Kane and Andrea Kane for €665,830.74 arising from a 2010 mortgage loan originally advanced by AIB Mortgage Bank. While separate Circuit Court proceedings for possession of the mortgaged property (5 Glenair Manor, Delgany, Co. Wicklow) are on foot, the present case concerns only the liquidated monetary claim. The defendants, acting in person, raised a series of technical objections, principally: alleged non-service, insufficient particulars, inadmissibility of evidence, doubts over the assignment of the loan, “title issues”, and—belatedly—unfair-term arguments. Mr Justice Mark Heslin refused an adjournment, applied the established summary-judgment tests, and granted final judgment to Mars. The decision is noteworthy for its detailed treatment of (a) the Civil Law & Criminal Law (Miscellaneous Provisions) Act 2020 on business records, and (b) the permissibility of parallel possession/monetary actions.

2. Summary of the Judgment

• Prima facie debt proved: Mars produced the loan offer, transfer deeds, demand letters, and complete account statements. These documents, supported by the affidavit of its manager Mr Hopkins, constituted prima facie evidence of the debt.
• No credible defence: Applying Bank of Ireland Mortgage Bank v O’Malley and the twelve Harrisrange principles, the Court found that the defendants’ objections were mere assertions, unsubstantiated and internally inconsistent.
• Business-record admissibility affirmed: The Court held that documents from AIB and Mars were admissible under ss 13–15 of the 2020 Act, even though the deponent was an officer of the transferee and not the originating bank.
• Parallel proceedings permitted: Relying on Ulster Bank v Lyons (2003) and Everyday Finance DAC v O’Shea (2025), the Judge confirmed that a mortgagee may concurrently seek possession in the Circuit Court and a money judgment in the High Court.
• Order: Liberty to enter final judgment; plaintiff to update the exact balance to credit post-issue payments; costs awarded to the plaintiff unless submissions dictate otherwise.

3. Analysis

3.1 Precedents Cited

1. Bank of Ireland Mortgage Bank v O’Malley [2019] IESC 84 – Sets the two-stage test: (i) plaintiff must adduce prima facie evidence of debt; (ii) defendant must then show a credible defence. Also clarifies particulars required in the special indorsement of claim.
2. Harrisrange Ltd v Duncan [2003] 4 IR 1 – McKechnie J.’s 12-point guidance on summary judgment, emphasising “discernible caution” and the “very clear no defence” threshold.
3. Aer Rianta v Ryanair (2001) & Ulster Bank v Lyons [2003] 4 IR 28 – Support the “very clear” test and legitimise separate possession and debt actions.
4. Ulster Bank v O’Brien [2015] IESC 96 – Confirms that an affidavit may be sworn by a person “who can swear positively to the facts”, and that failure to seek cross-examination may leave such evidence unchallenged.
5. Mars Capital v Gallagher [2025] IEHC 210 – Mulcahy J.’s interpretation of the 2020 Act on business records, heavily relied on here.
6. Everyday Finance DAC v O’Shea [2025] IEHC 75 – Re-applied Ulster Bank v Lyons to contemporary parallel proceedings.

3.2 Legal Reasoning

• Stage 1 – Prima facie debt: The plaintiff’s affidavit exhibited (a) the 2010 loan offer executed by the defendants; (b) the 2021 mortgage-sale agreement and deed of transfer; (c) notices of assignment (statutory demand letters); and (d) complete statements up to August 2023. Together they satisfied O’Malley.
• Stage 2 – Credible defence? The Court analysed each defence:
  • Service objections disproved by sworn evidence of personal service and by the defendants’ own entry of appearances.
  • Particularisation compliant: statements were incorporated by reference in the indorsement, as envisaged in O’Malley.
  • Parallel proceedings lawful (Lyons).
  • Title defects irrelevant to a pure debt claim.
  • Transfer-date “discrepancy” explained by a normal two-month “transition period”.
  • Unfair-term allegation undeveloped; “core” repayment terms exempt under Directive 93/13/EEC.
• Business-record evidence: Accepting Mulcahy J.’s reading in Mars v Gallagher, Heslin J. held that:
  “Section 14 is concerned with the nature of the information, not the identity of the person supplying the document.”
  Accordingly, Mars’s manager could validly exhibit AIB’s records; no AIB employee was required.
• Costs: Applying O.99 RSC and s 169 LSRA 2015, full costs follow the event.

3.3 Impact of the Decision

1. Business-records jurisprudence strengthened. The judgment cements a practical pathway for loan purchasers (vulture funds, securitisations) to prove debts without calling former bank staff. Expect wider reliance on ss 13–15 of the 2020 Act in summary-debt litigation.
2. Clarifies “transition period” argument. Borrowers routinely point to post-sale statements issued by the original bank to challenge assignment; the Court’s acceptance of a transitional administrative phase closes that avenue.
3. Endorses dual-forum strategy. By reaffirming Ulster Bank v Lyons, the Court confirms that lenders can (and often should) sue for money in the High Court while pursuing possession in the Circuit Court, especially where the loan balance exceeds Circuit Court monetary jurisdiction.
4. Guidance for self-represented defendants. The detailed dismantling of “template” defences (service, title, standing, unfair terms) signals that unsubstantiated technical points will not delay judgment.

4. Complex Concepts Simplified

• Summary judgment: A fast-track procedure where the plaintiff says the defendant has “no real defence”. If the Court agrees, it grants judgment without a full trial.
• Prima facie evidence: Evidence good enough on its face to prove a fact unless disproved.
• Business records (2020 Act): Documents (statements, ledgers, correspondence) made in the ordinary course of a business are presumed truthful if procedural notice is given, meaning they can be admitted without calling each author.
• Assignment/transfer of loans: A lender may sell its rights under a loan to another entity. Once assigned, the new owner can sue on the loan even if the old bank still administers it for a short period.
• Parallel proceedings: A lender can bring (i) possession proceedings (to recover the secured asset) and (ii) a debt claim for the outstanding balance in different courts at the same time.
• Unfair-terms “core exemption”: Under EU consumer law, terms that set the price or main object of the contract (e.g., obligation to repay principal + interest) are not assessable for fairness if they are in plain, intelligible language.

5. Conclusion

Mars Capital v Kane re-states well-settled summary-judgment doctrine but contributes two clarifications of practical importance: (1) A loan transferee’s officer can prove predecessor bank documents under the 2020 Act without calling bank staff; and (2) Mortgagees are entitled to maintain simultaneous possession and monetary proceedings, irrespective of overlapping facts. The decision should streamline future mortgage-debt litigation, curtailing technical defences that often delay inevitable outcomes, and offers a clear roadmap for courts, practitioners, and self-represented parties alike. In sum, once the creditor’s paper trail is intact, and procedural notices under the 2020 Act are served, summary judgment will issue unless the borrower can present a substantive—rather than merely tactical— defence.