Post‑Kirwan Strike-Out and Five‑Year Inactivity: High Court consolidates Order 19 (2023) powers to dismiss dormant mortgage litigation and vacate lis pendens

Introduction

In Cullen v Start Mortgages Ltd & Ors [2025] IEHC 554, Nolan J of the High Court of Ireland dismissed long‑pending borrower proceedings against a lender, its appointed receiver, and a purchaser/loan acquirer, invoking the revised strike‑out jurisdiction codified in Order 19 of the Rules of the Superior Courts (as amended in September 2023) and the Supreme Court’s re‑statement of the law on want of prosecution in Kirwan v Connors & Ors [2025] IESC 21.

The plaintiff, Barry Cullen, issued proceedings in 2016 in respect of a 2006 mortgage over a Dublin investment property, alleging overcharging, breach of European consumer protection law, unlawful securitisation, and multiple torts (trespass, nuisance, breach of privacy, conversion, personal injury), and accusing the receiver of harassment and trespass. A lis pendens was registered to inhibit dealings with the property. The defendants (Start Mortgages Limited, the appointed receiver Kieran Wallace, and, later, MARS Capital Finance Ireland DAC) sought dismissal on two tracks: (i) strike‑out under Order 19, rr. 27–28, on the basis that the claims disclose no reasonable cause of action, are an abuse of process, and are bound to fail; and (ii) dismissal for want of prosecution.

The decision is significant for three reasons. First, it operationalises the 2023 amendments to Order 19, emphasising that the “frivolous and vexatious” vocabulary has been subsumed by a structured rule‑based strike‑out jurisdiction. Second, it applies the Supreme Court’s new Kirwan thresholds for delay (including the robust presumption of dismissal after five years’ total inactivity, absent a pressing exigency of justice). Third, it reiterates settled principles that securitisation and contractual transfers of mortgage interests are lawful and, without more, do not ground a cause of action, and that speculative allegations of fraud are abusive.

Summary of the Judgment

The court accepted the core facts: a €170,000 loan (September 2006) to the plaintiff and his then wife, secured by a charge over 14 Hayworth Terrace, Ongar Park, Clonsilla (Folio 90345L), repayable over 35 years; default in repayment; a formal demand (18 August 2015); and appointment of the receiver in accordance with clause 8.02 of the mortgage (26 May 2016).
The property was found not to be the plaintiff’s principal private residence; it was a rental/investment property. The plaintiff and his ex‑wife resided in Arklow, Co. Wicklow.
On the merits, the court held there was “nothing wrong” with the defendants’ actions, including securitisation/transfer and the receiver’s appointment and sale to the third defendant. Allegations of forgery and fraud were rejected as unfounded; overcharging and tort claims were unparticularised and unsupported. The court concluded the claims disclosed no reasonable cause of action, amounted to an abuse of process, and were bound to fail; there was no viable amendment capable of saving them.
On delay, the plaintiff had taken no steps since June 2018—over five years of complete inactivity by the time of determination—and failed to attend the motion hearing despite proof of service. Applying Kirwan, the court exercised its “generous power” to dismiss for want of prosecution in the absence of any pressing exigency of justice.
Consequentially, the court ordered the lis pendens to be lifted pursuant to section 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009 to allow the defendants to exercise their security.

Analysis

Precedents and Authorities Cited

Revised Order 19 RSC (September 2023): The court stressed that the strike‑out jurisdiction formerly exercised under the court’s inherent powers (often labelled “frivolous and vexatious”) is now explicitly governed by Order 19, rr. 27–28. The amended rules allow striking out where a pleading is unnecessary, abusive, bound to fail, or has no reasonable chance of success, and they expressly permit reliance on affidavit evidence (r. 28(3)).
Kirwan v Connors & Ors [2025] IESC 21: O’Donnell CJ’s reformulation of the delay jurisprudence provides structured thresholds:
- Up to two years’ inactivity: dismissal only for abuse of process or significant prejudice (O Domhnaill v Merrick level).
- After two years’ total inactivity: dismissal may be granted, typically with additional prejudice/factors and/or strict case management if not dismissed.
- After four years’ total inactivity: claims dependent on oral evidence should be dismissed unless the plaintiff shows compelling reasons to proceed.
- After five or more years’ complete inactivity: the court has a “generous power” to dismiss unless a pressing exigency of justice requires trial (with examples of exceptional cases listed).
Kirwan also clarifies that defendants are not generally obliged to advance a plaintiff’s case; they may simply respond and be ready to defend if and when the plaintiff prosecutes (endorsing Campbell v Geraghty [2022] IEHC 241).
Wellstead v Judge White & Featherstone [2011] IEHC 438: Cited to confirm that securitisation is a commonplace liquidity tool, not illegal, and—by itself—does not give rise to a cause of action by the borrower.
Howley v McLean & Anor [2025] IECA 77: Adopted for the proposition (per O’Moore J) that speculative allegations of fraud are inherently abusive, cause serious reputational harm, and waste court resources. The High Court applied this to reject the plaintiff’s unparticularised assertions of forgery and fraud in the execution of the charge and statutory declaration.

Legal Reasoning

The court’s reasoning proceeds on two independent, reinforcing tracks: a merits‑based strike‑out under Order 19 and dismissal for want of prosecution under Kirwan.

1) Strike‑out under Order 19, rr. 27–28

Contractual foundation and default: The loan documents established the borrower’s obligations; the charge was executed and registered; default occurred; a valid demand issued; and the mortgage terms (clauses 3.02, 9.01, and 8.02) expressly authorised the appointment of a receiver and exercise of statutory powers including possession and sale.
Securitisation and transfers: Clause 5 of the loan agreement permitted transfer of the lender’s legal or equitable interest to third parties. In line with Wellstead, securitisation is lawful and not a cause of action. The court treated complaints about securitisation and subsequent sale as legally baseless where the contract authorises such steps.
Nature of the property: The dwelling was not the plaintiff’s family home or principal private residence. That undercut any suggestion that family‑home specific protections could invalidate the security or appointments. The plaintiff’s only concrete contention—that a Family Home Statutory Declaration might be incorrectly dated—was immaterial because the property was not a family home.
Unparticularised tort and statutory claims: Allegations of breach of privacy, nuisance, conversion, personal injury, overcharging, and criminal breaches were neither particularised nor supported by evidence. Under r. 28(1)(i),(iii),(iv), such claims were found to disclose no reasonable cause of action, to be bound to fail, and to have no reasonable chance of succeeding. The judge expressly found that no amendment could rescue the pleading and that discovery would not transform speculation into a viable claim.
Speculative fraud allegations: Echoing Howley, the court characterised the plaintiff’s late‑made fraud/forgery claims as inherently abusive and unfounded. Such allegations carry grave reputational consequences and cannot be deployed speculatively to sustain otherwise untenable proceedings.

2) Want of prosecution under Kirwan

Inactivity: The plaintiff took no steps after June 2018—over five years of total inactivity by the time of the motion. He did not attend the hearing despite proof of notice.
Kirwan’s five‑year threshold: The case fit squarely within Kirwan’s fourth tier: over five years of cumulative inactivity. The court was “entitled to feel free to dismiss” absent a pressing exigency of justice. None was shown.
Defendant’s role: Consistent with Kirwan (and Campbell), the defendants had no duty to shepherd the plaintiff’s claim to trial. Indeed, they took active steps (joining the third defendant and bringing the strike‑out motion) while the plaintiff remained inert.

Remedy and Consequence

Having dismissed the proceedings on both grounds, the court ordered the lis pendens to be vacated under section 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009 so that the defendants could realise the security granted in 2006. The judgment underscores that a lis pendens cannot be used indefinitely as a tactical fetter on a mortgagee’s realisation once the underpinning proceedings are dismissed.

Impact

Procedural clarity and efficiency under Order 19: The judgment exemplifies how the 2023 amendments facilitate targeted strike‑outs at an early stage where claims are unparticularised, legally misconceived, or devoid of evidential foundation. Practitioners should frame such applications within Order 19 rather than relying on the older “frivolous and vexatious” rubric.
Stronger deterrent against dormant proceedings: The application of Kirwan’s five‑year “generous power to dismiss” will accelerate the disposal of moribund litigation. Plaintiffs cannot expect the mere existence of proceedings and a lis pendens to immobilise secured assets where they have allowed the action to lie fallow for years.
Mortgage enforcement litigation: The court’s reaffirmation that: (i) securitisation and loan transfers are lawful and contractually permitted; (ii) receivers appointed per the charge may exercise statutory powers; and (iii) unparticularised tort/overcharging claims will be struck out—collectively signals a robust approach to clearing out post‑crash era borrower suits that lack substance.
Fraud pleading standards: Echoing Howley, the court’s intolerance for speculative fraud claims will influence pleading practice. Parties alleging fraud must plead with particularity and adduce cogent evidence at an early stage, failing which the claim risks summary termination.
Case management expectations after two years: While the present case reached the five‑year tier, Kirwan’s architecture also anticipates stricter case management at the two‑year mark and a presumption towards dismissal at four years where oral evidence is central. Courts can be expected to deploy these tools proactively.
Lis pendens practice: The decision reiterates that lis pendens is a procedural flag, not a substantive shield. Once the action fails, section 123(b)(ii) LCLRA allows swift vacatur, limiting its use as a long‑term obstacle to enforcement or sale.

Complex Concepts Simplified

Order 19 strike‑out (Rules of the Superior Courts): A court may remove claims or defences that are unnecessary, abusive, or legally hopeless. Since 2023, the rules explicitly allow the court to consider affidavit evidence and to strike out matters that have “no reasonable chance of succeeding,” not just those that are plainly defective on their face.
“Bound to fail” / “no reasonable cause of action”: If, even taking the pleading at its highest, the legal theory cannot succeed or the essential facts are contradicted by incontrovertible documents, the court can terminate the claim without a trial.
Want of prosecution (Kirwan framework): The Supreme Court has set time‑based thresholds for dismissal due to inactivity. After five years of complete inactivity, dismissal will ordinarily follow unless there is a strong, justice‑based reason to allow the case to proceed.
Securitisation: A lender pools mortgages and issues securities backed by the loan cashflows to obtain liquidity. It does not, by itself, alter a borrower’s obligations; if the contract permits transfer/securitisation, the borrower generally has no cause of action from that fact alone.
Receiver under a charge: When a borrower defaults, a mortgage/charge often authorises the lender to appoint a receiver to take control of the secured property, collect rents, and effect a sale. The receiver’s authority derives from the contract and statute.
Lis pendens: A notice on the land register indicating litigation affecting the property. It warns third parties but does not determine rights. If the underlying proceedings are dismissed, the court can order the lis pendens removed so the property can be dealt with freely.
Family Home Statutory Declaration: A declaration relevant to protections afforded to a family home. Where a property is not the borrower’s family home (e.g., an investment property), alleged irregularities in such a declaration will generally not affect the validity of the mortgage or enforcement steps.
Abuse of process: Using court proceedings for an improper purpose (for example, to delay or obstruct enforcement without a substantive legal basis), or persisting in claims with no reasonable prospect of success.

Conclusion

Cullen v Start Mortgages Ltd & Ors provides a clear template for applying the post‑2023 Order 19 strike‑out jurisdiction alongside Kirwan’s recalibrated delay principles. On the merits, it re‑affirms that standard mortgage enforcement steps—demand, receiver appointment under the charge, securitisation/transfer, and sale—are lawful where permitted by the loan documentation; unparticularised tort and overcharging claims, and speculative fraud allegations, will not survive scrutiny under Order 19. On procedure, the decision shows the High Court’s readiness to deploy Kirwan’s five‑year inactivity threshold to dismiss dormant actions absent a pressing exigency of justice, and to lift any lis pendens consequentially under section 123(b)(ii) LCLRA 2009.

The key takeaways are practical and immediate: defendants facing long‑inactive and legally insubstantial borrower claims now have a clear, rules‑based path to early dismissal and vacatur of lis pendens; plaintiffs must prosecute promptly and plead with precision, particularly where alleging fraud. As a consolidation of recent procedural reforms and appellate guidance, this judgment will likely streamline the disposal of legacy mortgage litigation and reinforce disciplined case management across the civil docket.

Case Snapshot

Court: High Court of Ireland
Judge: Nolan J
Citation: [2025] IEHC 554
Date: 22 October 2025
Parties: Barry Cullen (Plaintiff) v Start Mortgages Ltd (Lender), Kieran Wallace (Receiver), MARS Capital Finance Ireland DAC (Third Defendant joined on 18 Nov 2024 by O’Donnell J)
Outcome: Proceedings dismissed under Order 19 rr. 27–28 and for want of prosecution (Kirwan); lis pendens lifted under s.123(b)(ii) LCLRA 2009.