Substitution of Plaintiffs in Dormant Proceedings: Everyday Finance DAC v O'Shea [2025] IEHC 75

1. Introduction

The High Court Judgment in Everyday Finance DAC v O'Shea ([2025] IEHC 75) addresses the issue of whether the substitution of a new plaintiff in longstanding, dormant proceedings both (a) ensures continuity in those proceedings and (b) obviates the need for a subsequent application to re-enter those proceedings. These proceedings, initially filed by Allied Irish Banks Plc (“AIB”), were effectively “asleep” for nearly fourteen years. Meanwhile, the plaintiff (AIB, and later Everyday Finance DAC) commenced possession proceedings against the same defendant in the Circuit Court.

This commentary will further examine the interplay between summary judgment proceedings in the High Court and possession proceedings in the Circuit Court under the same underlying loan facilities. It will also discuss the legal test for substituting a party ex parte, the requirements for establishing an abuse of process, and the principles by which courts govern inordinate and inexcusable delay.

The key parties in this dispute are: Everyday Finance DAC (the current plaintiff, having been substituted for AIB), and Mr. Jeremiah O’Shea (the defendant). The defendant, after an ex parte order substituted Everyday Finance DAC for AIB, sought to strike out the proceedings on several grounds, including that the parallel maintenance of High Court and Circuit Court proceedings constituted an abuse of process and that the proceedings had been delayed inexcusably.

2. Summary of the Judgment

Mr. Justice Conor Dignam refused the defendant’s application to set aside the ex parte order substituting Everyday Finance DAC for AIB and also refused the application to strike out the proceedings for abuse of process or delay. While acknowledging that the proceedings had lain dormant for a substantial period and that there were separate Circuit Court proceedings for possession, the High Court held that:

• Proceedings for summary judgment (debt collection) and proceedings for possession do not necessarily amount to a single cause of action and may be simultaneously maintained.
• The ex parte substitution of a new plaintiff in dormant proceedings does not automatically “re-enter” or “reinvigorate” the proceedings. A separate re-entry application remains necessary if the new plaintiff wishes to continue the case.
• Even if there was non-disclosure of certain background facts (e.g., Circuit Court proceedings, long delay, or parallel motion), such non-disclosure did not warrant overturning the substitution order, especially where it was not deliberate or highly material to the question of whether there was prima facie evidence of a valid transfer of the loan from AIB to Everyday Finance DAC.
• Although the High Court recognized that the delay was inordinate and inexcusable, the defendant failed to demonstrate that the prejudice caused by this delay was of such magnitude as to justify dismissing the claim entirely.

3. Analysis

(a) Precedents Cited

The court referred extensively to the following important precedents and authorities:

• Permanent TSB v Doheny [2019] IEHC 414: Discussed in relation to the usual practice of ex parte substitution where there is prima facie evidence that the original plaintiff’s interest was transferred to a new party.
• IBRC v Comer [2014] IEHC 671: Provided a legal basis for allowing substitution in ex parte applications where there is evidence of an assignment or a transfer of interest.
• Ulster Bank Ltd v Lyons [2003] 4 IR 28: Clarified that a mortgagee may bring separate proceedings for possession (via special summons) and for a liquidated debt (via summary summons). This case strongly influenced the High Court’s decision that maintaining parallel actions is not, in itself, an abuse of process.
• Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459: Laid down the well-established three-part test for dismissing proceedings on the grounds of want of prosecution (inordinate delay, inexcusable delay, and whether the balance of justice favors dismissal). The judge applied these principles in deciding whether to strike out the case for delay.
• Bambrick v Cobley [2005] IEHC 43 and RJG (Holdings) Limited v The Financial Services Ombudsman [2012] IEHC 452: Both cases reaffirmed the golden rule that an ex parte applicant must fully disclose all relevant matters. Nonetheless, judges also have discretion not to set aside an ex parte order if the non-disclosure is not deliberate or only of minor materiality.
• Other notable references included Comcast International Holdings Inc v Minister for Public Enterprise [2012] IESC 50 and Gibbons v N6 (Construction) Limited & Galway County Council [2022] IECA 112, illustrating the contemporary emphasis on ensuring litigation is progressed in a timely manner.

(b) Legal Reasoning

The court began by examining the nature of parallel proceedings: a High Court action on foot of an alleged contractual debt and a Circuit Court application for possession based on mortgage security. Relying primarily on Ulster Bank Ltd v Lyons, the judge held that the mere coexistence of these two separate actions does not constitute an automatic abuse of process. Because each claim—one for the sum due, the other for possession—is grounded in distinct reliefs, the bank (or its assignee) was entitled to keep both streams of litigation open.

Next, the judge addressed the ex parte substitution order. Under Order 17 Rule 4 of the Rules of the Superior Courts, the substitution of a new plaintiff can be brought ex parte, provided that there is “prima facie evidence” of a transfer of interest. Here, the supporting affidavit (grounded in Permanent TSB v Doheny) demonstrated such a transfer from AIB to Everyday Finance DAC.

The defendant challenged this ex parte procedure on grounds of non-disclosure of delay, other parallel proceedings, and an earlier substitution application in the Circuit Court. The court reiterated the universal duty of uberrima fides (complete candor) in making ex parte applications, but it found that any omission regarding these historical or concurrent facts did not rise to the level of deliberate or decisive non-disclosure. Unrefuted evidence showed that AIB’s interest had been assigned to Everyday Finance DAC, so the judge ultimately concluded that disclosure of the dormant nature of the claim or the ongoing Circuit Court matter would not have materially altered the ex parte ruling.

Finally, on the dilemma of inordinate and inexcusable delay, the court acknowledged that, from 2010 until 2024, the High Court proceedings had stood virtually still. Although the judge agreed that the delay was indeed both inordinate and inexcusable, the defendant did not establish how this delay prejudiced him to such an extent that continuing the proceedings would be unjust. The judge emphasized that while courts now reject “endless indulgence” of delays, striking out a claim is always a last resort. In this instance, the defendant did not demonstrate any “real and tangible injustice” relating to the ability to proceed or prove his defense.

(c) Impact

This Judgment clarifies two main points for future practice:

1. Parallel Debt and Possession Proceedings: A financial institution or its successor in title may legitimately maintain two separate actions where different forms of relief are claimed. An argument that such proceedings inherently amount to an abuse of process will not succeed so long as each claim follows distinct legal grounds.
2. Substitution Versus Re-Entry: Substituting a new plaintiff does not automatically reinvigorate dormant litigation. A separate motion to re-enter is still required. Therefore, transferees of an interest should recognize that they must take a two-step approach: (1) apply for substitution, and (2) move separately to re-enter proceedings adjourned generally if they wish to progress them.

This ruling will likely influence how counsel approach older litigation in which the original plaintiff’s interest has devolved to another party, especially in circumstances where parallel proceedings in multiple courts exist. It sets significant procedural guardrails ensuring that a defendant’s rights—particularly in resisting the re-entry of dormant matters—remain uncurtailed by substitution orders.

4. Complex Concepts Simplified

1. Ex Parte Applications: These are applications made to the court without notifying the other side in advance. Although the opposing party is not present, they will generally have an opportunity later to challenge the resulting order (for instance, by applying to set it aside). To safeguard fairness, the moving party must disclose all facts material to the matters at issue.

2. Summary Summons vs. Special Summons: In Ireland, a summary summons is commonly used to pursue liquidated sums believed to be due and owing (such as an unpaid loan). A special summons (or a Circuit Court possession proceeding) seeks an order for possession of mortgaged property. Because these are two distinct types of relief, the same loan default can give rise to both suits.

3. Inordinate and Inexcusable Delay: Under Irish law, even when there is an established delay that is both inordinate (excessive) and inexcusable (unexplained or unjustified), the defaulting party is not inevitably penalized by a strike-out. Courts apply a balancing test set down in Primor—they consider whether the delay has caused such serious prejudice to the defendant that justice favors dismissal.

4. Prima Facie Evidence of Transfer: When substituting a new plaintiff under Order 17 Rule 4, the court is satisfied if there is straightforward and apparently credible proof that the original plaintiff’s interest has passed to the new plaintiff (such as through legally executed instruments of transfer or assignment).

5. Balancing of Justice: The courts weigh the hardship of dismissing a claim outright (which may prevent a rightful claim from ever being heard) against the prejudice to a defendant if forced to defend lengthy or duplicative litigation. Ultimately, only if real prejudice to the defendant clearly outweighs the plaintiff’s interest in pursuing a legitimate claim will the courts dismiss.

5. Conclusion

In Everyday Finance DAC v O'Shea, the High Court confirms that an ex parte substitution order is a procedural mechanism enabling the correct party to replace the original plaintiff once the interest in the underlying debt has been validly transferred. Yet, that order alone does not “revive” dormant proceedings if they were previously adjourned generally; a discrete application to re-enter remains essential. Moreover, parallel debt and possession proceedings do not, in principle, amount to an abuse of process merely because a single loan facility underpins both claims.

In the context of inordinate and inexcusable delay, the High Court signaled yet again that striking out a claim is an extreme remedy. Courts will not lightly deprive a plaintiff of the chance to pursue a legal claim if the defendant has not demonstrated significant prejudice arising directly from the delay. This judgment, therefore, affirms a two-step approach for substituted plaintiffs and solidifies the principle that each type of legal relief (debt recovery versus possession) warrants its own litigation track.

The legacy of this ruling is likely to guide practitioners handling multi-forum litigation where novel procedural or delay issues arise. By clarifying the court’s view on ex parte applications, parallel proceedings, and rejuvenating old claims, it offers a blueprint for ensuring that rightful claims can proceed and that defendants’ rights to challenge or resist them remain intact.