Start Mortgages Designed Activity Company v Kavanagh & Anor (Approved)

Factual and Procedural Background

This judgment concerns an application by the Defendant to set aside an earlier unappealed High Court order dated 18 July 2016, which granted an order for possession in favour of the Plaintiff. This is the Defendant's second attempt to set aside that possession order. The first application was refused by the court in a judgment delivered on 30 January 2023 ("the principal judgment"). The Defendant has appealed the principal judgment to the Court of Appeal, with the appeal scheduled for hearing on 9 October 2023.

In parallel with the appeal, the Defendant brought a motion before the High Court seeking to set aside the principal judgment itself. The Defendant's motion seeks to have the High Court overturn its own prior judgment, which the court notes is an exceptional remedy reserved for extraordinary circumstances. The procedural history includes multiple affidavits filed by the Defendant and a hearing conducted remotely over several days, with some adjournments due to logistical and technical difficulties. The Plaintiff filed submissions at the court’s direction, and the Defendant was permitted to file further submissions post-hearing.

Legal Issues Presented

1. Whether the High Court should set aside its own judgment of 30 January 2023 refusing the Defendant’s first application to set aside the possession order dated 18 July 2016.
2. Whether the Defendant’s renewed application to set aside the possession order is permissible given the procedural history and applicable legal principles.
3. The scope and application of the regulatory framework concerning credit servicing firms and whether the Plaintiff was authorised to enforce the credit agreement.
4. The jurisdictional question as to whether one High Court judge may set aside the order of another High Court judge.

Arguments of the Parties

Defendant's Arguments

• The Defendant contends that the Plaintiff qualifies as a "credit servicing firm" under the Central Bank Act 1997 and the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015, and thus was legally precluded from enforcing the credit agreement, rendering the possession order invalid.
• The Defendant alleges that the Plaintiff intentionally deceived the court to obtain the possession order.
• The Defendant argues that the Plaintiff, as a credit servicing firm, lacks equitable or possessory rights to enforce the credit agreement and cannot issue enforcement actions in its own name.
• The Defendant asserts that the transfer of beneficial interest under the Asset Covered Securities Act 2001 means the Plaintiff no longer holds rights or obligations under the loan agreement.
• The Defendant claims procedural unfairness at the hearing on 16 January 2023 and objects to the remote hearing format, alleging it adversely affects public access.
• The Defendant relies on the case Cafferkey v. Director of Public Prosecutions to argue that one High Court judge can overturn another’s order.
• The Defendant complains that post-hearing submissions were not considered by the court.

Plaintiff's Arguments

• The Plaintiff submits it was authorised as a "credit retail firm" at the time of the possession order, which encompasses the functions of a credit servicing firm and includes the right to enforce credit agreements.
• The Plaintiff argues that even if it were only a credit servicing firm, enforcement of credit agreements by the legal title holder is excluded from the requirement for authorisation under the relevant legislation.
• The Plaintiff contends that the Asset Covered Securities Act 2001 does not apply to the transfer of beneficial interest in this case, which was a private law transaction with the Plaintiff retaining legal title.
• The Plaintiff denies any procedural unfairness, noting no appeal was taken against the refusal to permit cross-examination and that objections to jurisdictional arguments raised by the Plaintiff were unfounded.
• The Plaintiff maintains that the Defendant’s reliance on Cafferkey v. Director of Public Prosecutions is misplaced, as that case does not support the proposition that one High Court judge can set aside another’s order.
• The Plaintiff asserts that remote hearings do not impede public access, as proceedings are relayed to a courtroom accessible to the public and judgments are published online.

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasised that the jurisdiction to set aside its own judgment is exceptional and cannot be used to reargue matters already decided. The Defendant’s application largely rehashed previously rejected arguments and failed to demonstrate exceptional circumstances warranting the setting aside of the principal judgment.

Regarding the regulatory framework, the court analysed the Plaintiff’s status as a "credit retail firm" authorised to enforce credit agreements, which includes the functions of a "credit servicing firm." The court rejected the Defendant’s contention that the Plaintiff was precluded from enforcing the credit agreement, noting that enforcement by the legal title holder is excluded from the requirement for Central Bank authorisation under the relevant legislation in force at the time of the possession order.

The court also dismissed the Defendant’s argument based on Section 58 of the Asset Covered Securities Act 2001, clarifying that it applies only to statutory transfers involving designated credit institutions and not to private law transactions such as the one in this case.

On procedural objections, the court found no basis to overturn earlier findings that the Defendant was not ambushed at the hearing and that no appeal was taken against procedural rulings. The court rejected the Defendant’s claim that one High Court judge can set aside another’s order, explaining the procedural history of the cited case Cafferkey and distinguishing it from the present matter.

The objection to remote hearings was dismissed as unfounded since remote hearings were conducted at the Defendant’s request, public access was maintained through relayed proceedings, and judgments were published online.

Holding and Implications

The court DISMISSED the Defendant’s application to set aside the judgment of 30 January 2023 and refused all relief sought in the motion dated 6 March 2023.

The court confirmed that the proper remedy for the Defendant’s dissatisfaction with the principal judgment is to pursue the pending appeal before the Court of Appeal, scheduled for 9 October 2023.

As to costs, the court provisionally awarded costs in favour of the Plaintiff, who was entirely successful in resisting the application, with an opportunity for the parties to argue otherwise at the next listing. No new precedent was established by this decision; it reinforces the principle that High Court judgments are not to be set aside lightly and that appeals, rather than repetitive applications, are the appropriate recourse for challenging such judgments.