Strike-Out and Joinder Thresholds in Mortgage Possession Proceedings: Evidence, Proper Procedure, and Costs in Circuit Court Appeals

1. Introduction

Larkin v Start Mortgages Designated Activity Company (Approved) [2026] IEHC 377 is an ex tempore judgment of the High Court (O’Higgins J.) delivered on 16 January 2026, in a Circuit Court appeal from orders of Judge Cormac Quinn (Wexford, 2 April 2025).

The appeal was brought by the applicant (the first-named defendant in the Circuit Court). The respondent was Start Mortgages DAC (“Start”), although the High Court noted that, by a later Circuit Court order (24 October 2025), Mars Capital Finance Ireland DAC (“Mars”) had been substituted as plaintiff following an asserted legal assignment—an issue expressly left for proof at trial if the proceedings continued.

The underlying litigation concerns possession proceedings arising from an alleged default on a 2006 housing loan, originally brought by Bank of Scotland plc and later continued by Start following acquisition of the loan and security. A recurring procedural theme is the defendants’ challenge to an affidavit grounding the original possession claim, sworn by a bank deponent (referred to in the judgment by name; central to the dispute because an order was made permitting cross-examination of that deponent, who was later said to be unlocatable).

The appeal addressed four defendant motions (seeking, among other things, to involve Tailte Éireann, to secure payment of claimed costs/expenses, and to strike out/dismiss the current proceedings). The central issues were:

  • whether the Circuit Court proceedings could be struck out at an interlocutory stage for want of proof/evidence;
  • whether and how Tailte Éireann could be “attached” or joined to the proceedings;
  • whether the applicant could obtain payment of an “invoice” for costs/expenses absent agreement or adjudication;
  • what costs order should follow the unsuccessful appeal, applying section 169 of the Legal Services Regulation Act 2015.

2. Summary of the Judgment

The High Court refused the appeal and declined to interfere with Judge Quinn’s orders on all motions:

  • Motion 1 (10 September 2024): seeking orders effectively “attaching” Tailte Éireann and certain officials and directing alteration/removal of registry entries and referrals to prosecuting authorities—held to be misconceived, procedurally unsupported, and evidentially unsubstantiated.
  • Motion 2 (20 June 2024): seeking payment of a claimed sum for costs/expenses and a stay/adjournment until paid—refused as premature because the sums were neither agreed nor adjudicated/taxed; the applicant also acknowledged that an earlier High Court order did not, in fact, award him costs of that appeal.
  • Motion 3 (29 June 2023): seeking interlocutory relief pending an appeal that had since run its course—treated as no longer live; no interference.
  • Motion 4 (13 March 2024): seeking to strike out/dismiss the current proceedings (and additional reliefs, including an Isaac Wunder order and referrals)—refused because the high threshold for striking out without a merits hearing was not met; the previous proceedings had been discontinued (not dismissed), and earlier appellate determinations contemplated the later proceedings continuing.

On costs, O’Higgins J. held the respondent was “entirely successful” within the meaning of section 169 of the 2015 Act, as explained in Little v. The Chief Appeals Officer [2024] IESC 53, but tailored the order by reserving the respondent’s costs and expenses of the appeal to the trial judge (and extinguishing any entitlement of the applicant to seek costs of the High Court appeal).

3. Analysis

3.1 Precedents Cited

(a) The strike-out jurisdiction: caution and sparing use

The applicant’s strike-out/dismissal application (Motion 4) did not cite a rule. To address the substance, the High Court treated it as analogous to the Superior Courts strike-out jurisdiction in Order 19, rule 28 of the Rules of the Superior Courts (RSC), which permits striking out where a claim (or part) discloses no reasonable cause of action, is an abuse of process, is bound to fail, or has no reasonable chance of succeeding.

O’Higgins J. anchored the approach in the settled principle that the jurisdiction is draconian and must be used sparingly. He cited Cregan J. in Arnaud Gaultier and Sup Pliable Limited v. Mark Reilly and Áine McGuigan [2024] IEHC 226, which in turn relied on: Aer Rianta v. Ryanair Limited [2004] 1 IR 506, where Denham J. emphasised that courts should be slow and should exercise caution in striking out.

The High Court also cited the procedural treatise Delany and McGrath on Civil Procedure, 5th ed. (2023) for the modern understanding of Order 19, rule 28 as consolidating prior strands of strike-out/abuse-of-process and “no reasonable prospect of success” jurisdiction.

(b) Costs after the Legal Services Regulation Act 2015

For the appeal costs, the High Court applied section 169 of the Legal Services Regulation Act 2015, as authoritatively described in Little v. The Chief Appeals Officer [2024] IESC 53 (Murray J.), which frames costs as a “strong default rule” in favour of the entirely successful party, absent reasons (interests of justice) to depart, considering factors including those listed in section 169(1)(a)–(g).

(c) Judicial responses to abusive/defamatory court documents

Although not determinative of the legal outcomes on the motions, O’Higgins J. expressly endorsed judicial warnings about inappropriate, reckless, or defamatory allegations in pleadings/affidavits, referring to:

  • Mars Capital Finance Ireland DAC v. Walshe [2025] IEHC 661 (Heslin J.);
  • Howley v. McClean & Anor [2025] IECA 77 (O’Moore J.);
  • Zapryanova v. Rochford Gibbons Solicitors and Others [2025] IEHC 534 (O’Higgins J.).

These citations positioned the case within a broader judicial trend: maintaining access to justice (including for litigants in person) while enforcing standards of fairness to third parties and protecting the integrity of the process.

3.2 Legal Reasoning

(a) Motion 1: “attaching” Tailte Éireann / attempting joinder through irregular relief

The motion sought sweeping reliefs: to “attach” Tailte Éireann and named officials, compel “authentication” and “full disclosure” regarding a registered charge, remove Start’s entry on the folio, prevent alterations to the folio, and make criminal referrals. The High Court refused to interfere with the Circuit Court’s refusal for three principal reasons:

  • Unsubstantiated allegations and inappropriate pleading tone: the motion alleged collusion and criminality against third parties without an evidential foundation.
  • No procedural basis identified: no rule of court was invoked to justify the reliefs (whether attachment/committal or joinder). The judge indicated that, if intended as attachment and committal, it was not brought correctly; if intended as joinder, it was procedurally flawed.
  • Ordinarily the plaintiff chooses whom to sue: the court emphasised that it is usually for the plaintiff to decide whether to sue Tailte Éireann, and Start had no intention of doing so.

Importantly, the High Court did not treat Tailte Éireann’s involvement as conceptually impossible in every case. It pointed to the Circuit Court’s power under Order 6(4) of the Circuit Court Rules to add a person “whose presence before the Court may be necessary” to adjudicate upon and settle all questions involved. The judge suggested that parties could explore temperate correspondence and, if necessary, a properly framed motion in advance of hearing—while making clear that no such properly evidenced application was before him.

(b) Motion 2: claimed costs/expenses invoice—prematurity and the necessity of adjudication

The applicant sought payment of a specific sum said to arise from earlier High Court decisions and sought to adjourn all matters until paid. The High Court refused because:

  • Costs/expenses had not been agreed or adjudicated: the court treated adjudication/taxation as a prerequisite to judgment for a fixed sum.
  • Misreading of prior costs entitlement: the applicant acknowledged that, on reviewing the earlier High Court order (Jackson J.), he had not been awarded costs of that appeal, so the “invoice” would require amendment at a minimum.
  • Existing order already provided a mechanism: the court referenced Barr J.’s order (10 November 2022), directing that “expenses outlays and any loss of earning” be paid, “to be adjudicated by the Legal Costs Adjudicator in default of agreement.” This reinforced that the proper next step was agreement or adjudication, not immediate judgment for a unilateral invoice.

The applicant also did not press the allegation of bias against the County Registrar; the High Court nonetheless recorded strong criticism of such allegations made “in a lazy and reckless fashion.”

(c) Motion 3: spent interlocutory relief

The third motion sought interim relief pending an appeal process that had since concluded (including the Supreme Court’s refusal of leave on 10 December 2024). The applicant accepted it was no longer live. The High Court therefore did not intervene.

(d) Motion 4: strike out/dismissal for want of proof—threshold not met

The central request was to strike out/dismiss the current Circuit Court proceedings on the basis of alleged lack of proof/evidence and asserted issues concerning Tailte Éireann and the registered charge. Treating the application as akin to Order 19, rule 28 RSC, O’Higgins J. refused because:

  • High threshold for a “no trial” outcome: striking out without a merits hearing requires a strong, cogent evidential basis; fairness requires extreme caution before depriving a party of trial.
  • Procedural history did not support finality: the earlier possession proceedings had been discontinued, not dismissed. Discontinuance does not determine the merits and does not ordinarily bar fresh proceedings.
  • Earlier appellate decisions contemplated continuation: Jackson J.’s High Court decision and the Supreme Court determination expressly envisaged the later proceedings continuing “in the normal way,” and there was no basis to treat the matter as res judicata.
  • Reliefs sought exceeded what the court could grant: even if evidence existed, several forms of relief (including criminal referrals and other declarations) were not framed as reliefs the court could properly grant in this civil procedural posture.

(e) Costs: “entirely successful” party, but reservation to the trial judge

The respondent was “entirely successful” on the appeal, triggering the strong default rule in section 169, as explained in Little v. The Chief Appeals Officer [2024] IESC 53. However, the High Court shaped the costs outcome by:

  • reserving the respondent’s costs and expenses to the trial judge, on the rationale that the trial judge would have a “bird’s eye view” of the long procedural history and could best do overall justice;
  • extinguishing any entitlement of the applicant to seek costs of the High Court appeal;
  • taking conduct into account: appropriate oral conduct and concessions were acknowledged, but the inappropriate affidavit language was treated as a serious factor.

This illustrates a practical calibration: fidelity to section 169’s presumption, coupled with case-management sensitivity in long-running possession disputes.

3.3 Impact

(a) Reaffirmation of the high bar for strike-out in contested possession litigation

The decision reinforces that defendants cannot short-circuit possession proceedings by asserting “lack of proof” in general terms or by bundling allegations of impropriety into an interlocutory strike-out motion. Unless a claim is clearly untenable within Order 19, rule 28-type categories, the default remains adjudication on evidence at trial.

(b) Clarification of the route for third-party participation (including registries)

While rejecting the attempt to “attach” Tailte Éireann through procedurally irregular relief, the judgment highlights the correct conceptual route: the Circuit Court’s joinder power under Order 6(4) where presence is necessary to settle all questions. Practically, this signals that registry-related disputes must be raised through proper procedural mechanisms, evidenced and targeted to issues genuinely necessary for adjudication.

(c) Costs/expenses discipline: invoices are not judgments

The judgment underscores a recurrent procedural point in Irish civil litigation: even where an entitlement to costs/expenses exists, a party generally must secure agreement or formal adjudication (as contemplated by a prior order) before seeking judgment for a fixed amount and procedural sanctions (such as adjournment/stay) for non-payment.

(d) Firm judicial stance on defamatory or reckless allegations in court documents

By endorsing Mars Capital Finance Ireland DAC v. Walshe [2025] IEHC 661 and Howley v. McClean & Anor [2025] IECA 77, the decision contributes to an emerging body of authority discouraging abusive filings, especially where they target third parties (including court officials). This has implications for case management (including potential costs consequences) and for the permissible boundaries of litigant-in-person advocacy.

4. Complex Concepts Simplified

  • Discontinuance vs dismissal: Discontinuance ends the particular set of proceedings without deciding who is right on the merits; it does not automatically prevent fresh proceedings. Dismissal is a court determination ending the claim, often with stronger implications for finality.
  • Strike-out (Order 19, rule 28 type): A procedure allowing a court to terminate a claim without trial only where it is clearly defective (e.g., no legal basis, abusive, bound to fail). Courts use this power sparingly because it deprives a party of a full hearing.
  • Joinder / adding parties (Circuit Court Order 6(4)): The court may add a person as a plaintiff/defendant if their presence is necessary to decide all issues. It is not a free-standing mechanism to launch collateral accusations or to compel public bodies to act absent proper pleading and evidence.
  • Adjudication of costs/expenses: If parties cannot agree costs or court-ordered expenses, a Legal Costs Adjudicator may determine what is payable. A unilateral “invoice” does not itself create an enforceable judgment debt.
  • Isaac Wunder order: A form of order used to restrain a party from bringing further proceedings without permission, typically where there is persistent, vexatious litigation. Courts are cautious with such orders because they restrict access to the courts.
  • Section 169 (Legal Services Regulation Act 2015): Establishes a presumption that the entirely successful party gets costs, unless the interests of justice justify a different outcome, assessed by statutory factors (including conduct).

5. Conclusion

[2026] IEHC 377 is a procedural judgment with practical consequences in possession litigation and Circuit appeals. It confirms:

  • the exceptional nature of strike-out relief and the need for cogent evidence before depriving a party of a merits hearing;
  • that attempts to involve third parties (including Tailte Éireann) must proceed through proper joinder mechanisms, not irregular “attachment” requests;
  • that claims for costs/expenses require agreement or adjudication, not unilateral invoices;
  • that courts will take a dim view of reckless, defamatory allegations in litigation documents, even where oral advocacy is measured;
  • that the section 169 costs regime remains a strong default rule, but may be managed in complex cases by reserving costs to the trial judge while protecting the successful party’s position.