Pepper Finance v O’Reilly – The High Court Clarifies the Evidential Threshold and Discovery Limits in s.62(7) Possession Actions

1. Introduction

Pepper Finance Corporation (Ireland) DAC (“Pepper”) sought an order for possession of a residential property in Cavan under s.62(7) of the Registration of Title Act 1964 (“1964 Act”). The defendant, Mr Martin O’Reilly, appealed de novo from a Circuit Court order granting possession. He represented himself and raised wide-ranging objections focused on title, assignment, alleged discovery rights and procedural fairness.

The High Court (Heslin J) delivered a lengthy judgment ([2025] IEHC 333, 5 June 2025) that consolidates and clarifies a series of earlier authorities. Most significantly, the Court:

Restated the restricted evidential burden on a charge-holder in “summary” s.62(7) possession applications;
Confirmed that a partially redacted “global deed of transfer” suffices provided the operative clauses and schedules establishing the particular borrower’s debt are visible;
Re-affirmed that discovery is not available before the Court determines whether a credible defence exists; and
Emphasised that challenges to Land Registry entries are barred absent allegations (and evidence) of fraud or mistake.

2. Summary of the Judgment

Applying the three-question test he formulated in Start Mortgages v Connaughton [2023] IEHC 364, the judge found:

Ownership of the charge: Folio 858L conclusively shows Pepper as registered owner (s.31, 1964 Act).
Default / monies due: The borrower admitted no payments since 2011 and arrears exceeding €150,000.
Bona fide application: Possession was required to realise the security and sell the property.

None of the 13 lines of defence advanced by Mr O’Reilly disclosed an arguable or credible defence. The Court granted an order for possession with a three-month stay and indicated that costs would follow the event.

3. Detailed Analysis

3.1 Precedents Cited

Tanager DAC v Kane [2018] IECA 352 – conclusiveness of the Land Registry and inability to challenge title in possession proceedings.
Bank of Ireland Mortgage Bank v Cody [2021] IESC 26 – nature of s.62(7) jurisdiction and rejection of “sympathetic factors”.
Irish Life & Permanent v Dunne [2015] IESC 46 – necessity to verify that monies are secured and due.
Start Mortgages v Ryan [2021] IEHC 719 – “proofs” required (title + right to possession).
Start Mortgages v Connaughton [2023] IEHC 364 – three-question framework adopted in this judgment.
ACC Loan Management v Kelly [2017] IEHC 304 & Irish Life & Permanent v Hanrahan [2015] IECA 125 – discovery inappropriate at summary stage.
Distinguished authorities: Start Mortgages v Ramseyer [2024] IEHC 329; Fannon v Ulster Bank [2024] IECA 51; Pepper v Moynihan [2024] IEHC 625.

These cases guided the Court on (i) the weight of registry evidence; (ii) the minimal proofs required; (iii) when redactions impede or do not impede proof of title; and (iv) the procedural sequencing of discovery.

3.2 Legal Reasoning

Conclusive register (s.31). Production of Folio 858L with Pepper’s entry is “conclusive evidence”. The defendant cannot litigate “chain of title” complaints in possession proceedings.
Absolute assignment proven. Unlike Ramseyer and Moynihan, the operative provisions and schedules of the Global Deed of Transfer were unredacted as far as Mr O’Reilly’s loan is concerned. That satisfied Thompson [2017] IEHC 515 requirements for validity under s.28(6) of the 1877 Act (writing; absolute; under hand of assignor; express notice). “Hello” and “Good-bye” letters constituted notice.
No discovery at summary stage. Relying on Kelly and Hanrahan, the Court held discovery becomes relevant only after a credible defence is shown, because relevance depends on pleadings that do not yet exist.
Hearsay objection rejected. Affidavit evidence from charge-holder employees is expressly contemplated in s.62(7) (“summary manner”) and further admissible via s.14 of the Civil Law & Criminal Law (Misc. Prov.) Act 2020.
Statutory and contractual consent to transfer. Mortgage clause 11(iii) gave the lender power to transfer without further borrower consent; therefore objections grounded on lack of permission failed.
Irrelevance of quantum dispute. Following Blanc [2020] IEHC 18, the only issue is whether any default exists; the precise figure can be wrong without defeating a possession claim.

3.3 Impact of the Judgment

While none of the legal propositions are entirely new, Pepper Finance v O’Reilly synthesises recent case-law into a coherent, practical checklist for future s.62(7) claims:

So long as the operative parts of an assignment deed and schedules relating to the borrower are exhibited unredacted, the Court will not insist on production of the entire deed.
Defendants cannot obtain discovery as a “fishing expedition” before pleading a credible defence.
Arguments premised on re-litigating the Land Register, securitisation suspicions, or alleged data-protection gaps are unlikely to survive unless backed by evidence of fraud or mistake.
Banks/servicers should nevertheless ensure unredacted schedules identifying the particular loan are exhibited to avoid the pitfalls encountered in Ramseyer and Moynihan.

4. Complex Concepts Simplified

4.1 s.62(7) Registration of Title Act 1964

This provision allows a charge-holder to apply “in a summary manner” (i.e. by motion on affidavit, not a full plenary action) for possession once the principal money has become due. If possession is granted, the lender becomes a “mortgagee in possession” and can sell the property.

4.2 Conclusive Nature of the Land Register (s.31)

The Irish Land Registry is designed to provide certainty. Once a party is registered as owner of a charge, that fact cannot be challenged in later possession proceedings unless the borrower alleges (and proves) fraud or clerical mistake.

4.3 Absolute v. Equitable Assignment

An “absolute assignment” under s.28(6) of the Supreme Court of Judicature (Ireland) Act 1877 is a complete transfer of the legal title in a debt. Four conditions must be met: it must be (1) of a debt/chose in action; (2) absolute & not by way of charge; (3) in writing under the assignor’s hand; and (4) notified in writing to the debtor. Once these conditions are met, the assignee can sue in its own name.

4.4 Discovery in Civil Litigation

Discovery is the pre-trial exchange of relevant documents. In summary possession proceedings there is, strictly, no “trial” unless a credible defence is shown. Therefore discovery is irrelevant unless and until the Court directs that the matter proceed by plenary hearing with pleadings.

5. Conclusion

Pepper Finance v O’Reilly consolidates recent jurisprudence on possession proceedings and sets out a pragmatic roadmap for both lenders and defendants. The Court reaffirmed that:

Title proved by an unrebutted land registry entry and a minimally redacted transfer deed is sufficient;
Borrowers must advance a fact-backed, legally plausible defence before engaging plenary procedures such as discovery;
“No-chain-of-title”, hearsay, or securitisation allegations—without evidence of fraud—will not derail a summary application;
The procedural economy envisaged by s.62(7) continues to govern Irish mortgage possession litigation.

Practitioners can expect courts to scrutinise assignment evidence for operative precision rather than complete transparency. Borrowers, conversely, should recognise that failures to repay, coupled with speculative challenges to title, are unlikely to stave off possession orders.