3) Analysis
3.1 Statutory and procedural framework
(a) Substitution in the Circuit Court
Substitution was sought under Order 22, rule 4 of the Circuit Court Rules, permitting a new party to be added where, after commencement, there is an event causing a “change or transmission”
of interest such that it is necessary or desirable that the proceedings continue in the name of the successor.
(b) Execution out of time in the Circuit Court
The execution issue turned on Order 36, rules 9 and 10 of the Circuit Court Rules (as substituted by the Circuit Court Rules (Order 36) 2024). In essence:
- Execution may issue “as of course” within six years from the decree/judgment.
- After six years, execution requires leave of the court, sought by motion on notice.
- If there has been a change in the party entitled to execution (e.g., assignment), the successor must seek leave and the judgment may be amended to give effect to the order.
The Court treated the well-developed Superior Court jurisprudence on Order 42, rules 23–24 RSC as applicable by analogy, consistent with
Mars Capital Ireland DAC v. Hunter [2022] IEHC 353.
(c) Registered land and charges
The decision repeatedly engaged the distinction between:
- Title to the charge over registered land (where the register is conclusive: section 31, Registration of Title Act 1964); and
- Succession to the debt/loan (which may require separate proof, and is not conclusively established by charge registration: Permanent TSB plc v. Donohoe [2025] IECA 222).
3.2 Precedents cited and how they shaped the decision
(A) Substitution and proof of transfer after judgment
Bank of Scotland v McDermott [2019] IECA 142 was the central substitution authority. The Court adopted Peart J.’s framing that substitution is “purely procedural”
and should not become a “mini-trial,” but when substitution is sought after judgment the correct standard is the ordinary civil standard: balance of probabilities
(distinguishing the prima facie approach mentioned in IBRC v. Comer).
Cahill J. applied that approach: Pepper exhibited an unredacted deed of transfer (with only third-party schedule data appropriately redacted), prior transfer documentation to Shoreline,
Land Registry folio evidence showing Pepper registered as charge owner, and “hello/goodbye” letters matching the loan account details. On that evidence, and in the absence of any credible
contrary basis, the Court held the transfer of the loan and mortgage to Pepper was proved on the balance of probabilities.
(B) Conclusiveness of the register: charge title vs debt succession
Tanager DAC v. Kane [2018] IECA 352, [2019] 1 IR 385 was cited for the proposition that, in possession proceedings concerning registered land, the court cannot entertain
a challenge to the correctness or conclusiveness of the register as to ownership of the charge.
Pepper relied on Pepper Finance Corporation (Ireland) DAC v. Maloney [2023] IECA 161 and section 64(4) of the Registration of Title Act 1964
(transferee of a registered charge has the same powers as if originally created in its favour) to argue that registration alone was sufficient.
Cahill J. carefully confined Maloney to its facts. In Maloney, the entity that obtained the possession order and the entity later seeking execution were found to be the same legal person
(a corporate identity/succession point addressed under the Companies Act 2014, not an assignment between different entities). The judgment in Maloney therefore did not decide whether
a transferee relying on an assignment between different entities could dispense with proving succession to the loan.
The Court then aligned its approach with Permanent TSB plc v. Donohoe [2025] IECA 222, where the Court of Appeal confirmed that the register does not conclusively determine
succession to the debt; in a possession context the court must consider whether legal title to the loan, as well as the charge, passed. In this case, Pepper ultimately succeeded because it
did adduce evidence of the loan transfer, rather than relying on registration alone.
(C) Late execution: Smyth v Tunney and the Quirke/Cabot clarifications
The governing test for execution after six years remained Smyth v. Tunney [2004] 1 IR 512, but the judgment treated the modern controlling elaborations as those in
Ulster Bank Limited v. Quirke [2022] IECA 283 and Cabot Financial (Ireland) Limited v. Joyce [2023] IECA 281.
Cahill J. extracted and applied a structured set of propositions from Quirke and Cabot, including:
- Threshold first: a court’s discretion to grant leave arises only if the creditor first provides a reasonable explanation for the delay (Cabot endorsing Quirke).
- Entire period must be explained: the explanation must cover the whole lapse from judgment date to application date, including the initial six years (Quirke).
- Not a box-ticking exercise: the court must assess the nature and quality of the explanation; it is not enough that “some reason” is asserted (Cabot).
- Engagement policy balanced with expedition: there is a public interest in encouraging negotiations, but also an interest in expedition in enforcing judgments (citing Hayde v H & T Contractors Ltd. [2021] IEHC 103 as endorsed in both Quirke and Cabot).
- Marketability of debts not an objective of the rule: the Court adopted Cabot in rejecting arguments based on protecting debt marketability as irrelevant to Order 42/Order 36 rationale.
(D) Comparator repossession execution cases: Start Mortgages line and Hunter
Pepper relied on a series of High Court decisions granting leave to execute possession orders, notably:
Start Mortgages DAC v. Hendrick [2023] IEHC 11,
Start Mortgages DAC v. Gawley [2023] IEHC 37,
Start Mortgages DAC v. McInerney [2023] IEHC 155, and
Start Mortgages DAC v. Hanley [2023] IEHC 387.
Cahill J. distinguished these comparators on their factual texture: they involved (i) prior grants of leave (so the focus was shorter subsequent periods), (ii) appeal-related delays,
(iii) more sustained and documented engagement, and (iv) in some instances repayments or specific solution pathways (mortgage-to-rent, personal insolvency). The Court treated
Mars Capital Ireland DAC v. Hunter [2022] IEHC 353 as illustrating that the court looks to whether enforcement steps/communications were such that a debtor
would not be “lulled” into thinking the order had been abandoned.
(E) Authorities rejected as misapplied in this procedural posture
The borrowers invoked delay jurisprudence associated with strike-out for want of prosecution, including Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 and
Kirwan v. Connors [2025] IESC 21. Cahill J. rejected this as misconceived: an application for leave to execute in concluded proceedings is distinct from dismissal for delay
in ongoing litigation, echoing Cabot and Hunter.
3.3 Legal reasoning and application to the facts
(A) Substitution
Applying Bank of Scotland v McDermott, the Court treated substitution as procedural but requiring proof of transmission of interest on the balance of probabilities.
Pepper’s evidence (transfer deeds, folio registration, and matching account correspondence) was sufficient. The borrowers did not raise a substantive or credible basis to rebut
the documentary chain. Accordingly, substitution was confirmed.
Importantly, the Court did not finally determine whether charge registration alone is always sufficient to justify substitution. Instead, it proceeded on the basis that Pepper
accepted the burden to show title to the loan and mortgage and had done so.
(B) Leave to execute (the dispositive issue on appeal)
The possession order dated from July 2017; the motion seeking leave issued in April 2025 (about 7 years and 9 months later). The Court rejected an attempt to reframe the calculation
as running only from the expiry of the stay: the six-year period runs from the date of the order, although the stay provided an obvious explanation for early non-enforcement.
Pepper advanced three explanations: (1) an execution order obtained in March 2019; (2) Covid-related moratorium and “pandemic” conditions; and (3) contact/engagement letters from 2021–2024.
Cahill J. accepted that the March 2019 execution order showed some intention to enforce, and accepted that the Covid moratorium (from March to September 2020) reasonably explained
non-enforcement during that period, with some additional allowance for pandemic-related conditions thereafter.
However, the core deficiency was the period from roughly March 2021 to April 2025. The evidence of engagement consisted of four letters over four years, with significant gaps
(including an unexplained 20-month period and then a further 14-month period before the motion). The letters were described as relatively generic and not showing individualised, solution-focused,
ongoing engagement of the type seen in the comparator cases. There was also no engagement from the borrowers and no repayments since 2014.
Applying Cabot and Quirke, the Court held this did not amount to a reasonable explanation covering the entire lapse of time.
Because the threshold was not met, no discretion arose to consider prejudice, “marketability of debts,” or the risk of the order becoming statute-barred.
Leave to execute was therefore refused.
(C) Collateral challenges to the underlying possession order
The borrowers attempted to invoke Council Directive 93/13/EEC (unfair terms). The Court treated this as an impermissible collateral attack on an unappealed, existing possession order,
and in any event not an issue that could be raised on an application to execute that order.
3.4 Impact and significance
(A) Practical impact for lenders and loan purchasers
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Document the entire enforcement narrative: a creditor seeking late execution must be able to evidence a reasonable explanation for the whole period post-order.
Sporadic, generic communications are unlikely to suffice, especially where there is no debtor engagement and no payments.
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Pandemic reliance is time-limited: Covid moratoria may explain discrete windows of inactivity, but do not, without more, rationalise multi-year gaps with minimal activity.
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Threshold discipline: arguments about prejudice, fairness, market impact, or limitation consequences will not be reached unless the creditor first crosses the reasonable-explanation threshold.
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Substitution still demands a transfer proof: even with charge registration, prudent practice is to exhibit the transfer instruments and supporting linkage (account identification, chain of title),
consistent with the Court’s reading of Permanent TSB plc v. Donohoe.
(B) Impact for borrowers
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A procedural but real protection: Order 36’s six-year rule operates as more than a formality; creditors must justify late enforcement with a reasoned, evidence-based account.
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But not a re-litigation avenue: execution proceedings are not a forum for re-opening the merits of the possession order (including consumer-contract arguments that could have been raised earlier).
(C) Doctrinal significance
The judgment is a clear High Court application of the Court of Appeal’s modern approach in Quirke and Cabot to the Circuit Court context, confirming that:
(i) Order 36 applications are governed by the same threshold logic as Order 42,
(ii) the court must evaluate the adequacy (not merely existence) of reasons, and
(iii) the “reasonable explanation” requirement has operational bite in repossession enforcement.