Permanent TSB PLC formerly Irish Life and Permanent PLC & Anor v Donohoe (Approved)

Factual and Procedural Background

This judgment concerns an application by the second plaintiff for possession of two properties pursuant to section 62(7) of the Registration of Title Act 1964, as amended. The first plaintiff advanced the defendant a loan of €543,450 in 2007, secured by a mortgage over the properties. The defendant has not made any payments on the loan since July 2010. The defendant contests the claim on multiple grounds, including requests for dismissal, referral of questions to higher courts, or adjournment to plenary hearing. The proceedings commenced in 2015 by special summons and have been subject to prior High Court judgments and an appeal which was dismissed in 2020. The first plaintiff sold its interest in the loan to the second plaintiff in 2019, who is now the registered owner of the charge over the properties and the only party with a material interest in the proceedings.

Legal Issues Presented

1. Whether the plaintiffs have established the right to possession under section 62(7) of the Registration of Title Act 1964.
2. Whether a prior demand for repayment was necessary and, if so, whether such demand was made and proven.
3. Whether the interest provisions of the loan breach the Unfair Contract Terms Directive 93/13/EEC and the consequences for entitlement to possession.
4. Whether issues arising from securitisation and subsequent sale of the loan affect the plaintiffs' entitlement to possession.
5. Whether the special summons procedure is appropriate or whether the matter should be adjourned to plenary hearing due to factual disputes and complexity.

Arguments of the Parties

Plaintiffs' Arguments

• The plaintiffs rely on section 62(7) of the Registration of Title Act 1964, which allows summary possession where the registered owner of the charge proves ownership and that the right to possession has arisen.
• They assert that the defendant defaulted on payments since July 2010, missing more than two monthly repayments, triggering the right to possession under the mortgage conditions.
• The plaintiffs have made a prior demand for repayment via a solicitors’ letter dated 7 January 2014.
• The plaintiffs contend the loan interest provisions are not unfair contract terms as they are expressed in plain intelligible language and consistent with applicable law and directives.
• They maintain that securitisation and loan sale processes do not affect their entitlement to possession, supported by affidavits and documentation evidencing that the first plaintiff retained legal title and enforcement rights, and that the second plaintiff is the registered owner of the charge.
• The plaintiffs argue the documents relied upon are admissible business records under the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.

Defendant's Arguments

• The defendant contends that the claim should be dismissed or adjourned due to numerous issues including the necessity of a prior demand for repayment, which he says was never validly made or received.
• He alleges breaches of the Unfair Contract Terms Directive, claiming the interest provisions are unfair and therefore void, affecting the entitlement to possession.
• The defendant disputes the validity and reliability of the plaintiffs’ evidence regarding securitisation and loan sales, asserting that these processes created gaps and inconsistencies in proofs, and that the second plaintiff may only be a bare trustee rather than the true beneficial owner.
• He argues the plaintiffs have failed to comply with procedural and evidential requirements, including under the Bankers Book Evidence Act and the 2020 Act.
• The defendant raises alleged breaches of contract such as failure to provide written notice of rate changes and failure to notify him of options after the fixed rate period.
• He contends that prescribed contraventions under the Central Bank Act 1997 have been committed by the plaintiffs.
• The defendant asserts that some of the affidavits contain errors, omissions, and alleged deceptions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming the plaintiffs’ entitlement to seek possession under section 62(7) of the Registration of Title Act 1964, relying on the conclusiveness of the Register and the fact that the defendant had defaulted on payments since 2010. The court acknowledged the defendant’s contention that a prior demand for repayment was necessary but found that the evidence as to whether the demand letter of 7 January 2014 was sent was insufficiently established. This issue, along with the question of necessity of a demand, requires plenary hearing.

The court examined the defendant’s claim that the interest provisions breached the Unfair Contract Terms Directive. It noted that the terms appear to fall within the main subject matter or adequacy of price and remuneration, which are exempt from fairness assessment if expressed in plain intelligible language. The court found a factual dispute about whether the defendant was adequately informed about the margin applied to the tracker rate, and whether representations by the mortgage broker were accurate. These issues warrant further scrutiny at plenary hearing.

Regarding securitisation and loan sales, the court reviewed affidavits and documents concerning the transfer of beneficial interest to a securitisation vehicle and subsequent reversal. It found that the first plaintiff retained legal title and enforcement rights, and the second plaintiff is registered as owner of the charge. The defendant’s allegations of “positive deceptions” and unreliability of documents were rejected as insufficient to establish an arguable defence. However, the defendant’s challenge to the second plaintiff’s beneficial ownership raises factual issues that require cross-examination and plenary hearing.

The court considered other alleged breaches of contract and prescribed contraventions raised by the defendant but found them unlikely to negate the plaintiffs’ entitlement to possession. Due to multiple factual disputes and complexity of issues, the court concluded that summary disposal was inappropriate and adjournment to plenary hearing was warranted.

Holding and Implications

The court ORDERS the proceedings to be adjourned to plenary hearing pursuant to Order 38, rule 9 of the Rules of the Superior Courts. The case is listed for directions on 9 October 2024. The parties are invited to agree directions in advance.

The direct effect of this decision is that the plaintiffs’ application for possession is not granted summarily, and the defendant’s factual and legal defences will be fully examined at trial. No new precedent is established by this order; rather, the court applies established principles regarding summary possession proceedings, evidential sufficiency, and procedural discretion to adjourn complex matters to plenary hearing.