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Permanent TSB plc formerly Irish Life and Permanent plc v Doheny
Factual and Procedural Background
The application before the Court involves a financial institution seeking possession of two properties secured by a mortgage and charge granted by the Defendant in 2007. On 1 February 2019, the loan secured by this mortgage was transferred to Company B pursuant to a deed of transfer. Company B applied to be substituted as the plaintiff in place of the original financial institution. This application was made ex parte and supported by an affidavit from a litigation manager at Company B. The Court was asked to consider several procedural issues arising from this substitution application.
Legal Issues Presented
- Whether the application to substitute the plaintiff can be brought on an ex parte basis pursuant to Order 17, rule 4 of the Rules of the Superior Courts 1986, as amended ("RSC");
- The nature and sufficiency of the proofs required for such an application;
- Whether the application can proceed while the registration of the transfer is pending with the Property Registration Authority;
- What procedural safeguards should be implemented to protect the interests of the Defendant if the substitution order is granted.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| IBRC v. Comer [2014] IEHC 671 | Clarification of the standard of proof required to substitute a party under O. 17, r. 4 RSC, requiring prima facie evidence of a valid sale, assignment, and notice. | The Court relied on this precedent to establish that prima facie evidence must be shown to justify substitution of the plaintiff. |
| Stapleford Finance Limited v. Lavelle and Others [2016] IECA 104 | Confirmation that O. 17, r. 4 RSC applies to changes in interest such as assignment of a mortgage loan. | The Court accepted that the assignment constituted a change of interest permitting substitution under the rule. |
Court's Reasoning and Analysis
The Court examined the procedural nature of the application to substitute the plaintiff following the transfer of the loan. It confirmed that Order 17, rule 4 RSC allows for substitution of parties upon a change or transmission of interest occurring after the commencement of proceedings. The Court emphasized that the application may be made ex parte, but must be supported by prima facie evidence of a valid assignment and notice to the Defendant. The affidavit submitted by Company B included a heavily redacted deed of transfer, a notice letter from the original plaintiff to the Defendant, a letter from Company B to the Defendant confirming the transfer, and the relevant registration form lodged with the Property Registration Authority. The Court found this evidence sufficient at the procedural stage, even though registration was still pending. To protect the Defendant’s rights, the Court mandated service of the substitution order and a written notice informing the Defendant of the availability of the affidavit, the right to apply to set aside the order, and the right to contest the transfer during the hearing of the action.
Holding and Implications
The Court granted an order pursuant to Order 17, rule 4 RSC substituting Company B as the plaintiff in place of the original financial institution. The application for substitution was allowed on an ex parte basis. The order included directions to serve the Defendant with the order and a notice safeguarding the Defendant’s procedural rights. The decision is procedural in nature and does not prejudice the Defendant’s entitlement to challenge the transfer or the substitution at a later stage. No new legal precedent was established; rather, the ruling applied established principles to the facts of the case.
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