Promontoria (Oyster) DAC v Mc Cool (Approved)

Factual and Procedural Background

This judgment arises from an appeal to the High Court against a substitution order made by the Circuit Court, which substituted Company B as plaintiff in place of Company A in possession proceedings. The underlying proceedings relate to an application for an order for possession pursuant to section 62(7) of the Registration of Title Act 1964, instituted before the Circuit Court. The substitution application was made on the basis that interests in the registered charge and underlying debt had been transferred from Company A to Company B.

The substitution application had been before the Circuit Court on multiple occasions. Initially, the defendant objected to service at an incorrect address, leading the court to direct service at a new address. At a hearing in November 2023, the Circuit Court expressed dissatisfaction with the adequacy of notice letters ("hello" and "goodbye" letters) required under section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877, particularly due to erroneous references to a third-party credit servicing firm rather than the original creditor. The court adjourned the substitution application to allow the deficiencies to be remedied, clarifying that the application was not dismissed but adjourned, and that the substantive proceedings were similarly adjourned.

Confusion arose because Company B filed an appeal to the High Court against a supposed refusal of the substitution application, which was later withdrawn. Subsequently, on 14 May 2024, the Circuit Court made an order substituting Company B as plaintiff and directed service of this order on the defendant, who then appealed this substitution order to the High Court. The appeal hearing was listed, and after procedural steps including the taking up of transcripts and applications to adduce further evidence, judgment was reserved and delivered on 14 January 2025.

Legal Issues Presented

1. Whether the Circuit Court erred in law by purportedly revisiting and setting aside a previous refusal of the substitution application.
2. Whether the statutory notice requirements under section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 were complied with, specifically regarding the validity of the "hello" and "goodbye" letters.
3. Whether the application to adduce further evidence on appeal should be permitted.
4. Whether the substitution application met the legal test under Order 22, rule 4 of the Circuit Court Rules.

Arguments of the Parties

Appellant's Arguments

• The Circuit Court had previously refused the substitution application and erred by revisiting that refusal.
• There was a failure to serve valid statutory notices ("hello" and "goodbye" letters) as required by section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877.
• The substitution order should be set aside on these grounds.

Appellee's Arguments

• No substantive order refusing the substitution application had been made; the application was adjourned to allow deficiencies to be remedied.
• There was prima facie evidence of the valid transfer of the registered charge and underlying debt.
• There was prima facie compliance with statutory notice requirements, either through a solicitor’s letter dated 24 January 2024 or the papers grounding the substitution application.
• The application to adduce further evidence of a letter dated 12 December 2022 should be refused due to lack of reasonable diligence in producing it earlier.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first clarified that the Circuit Court had not refused the substitution application on 15 November 2023 but had adjourned it to allow the moving party to remedy deficiencies in statutory notice. The Circuit Court’s characterization of the deficiency as technical and capable of rapid remedy indicated no final refusal had been made. The appeal to the High Court was therefore properly determined by applying established principles governing substitution of parties under Order 22, rule 4 of the Circuit Court Rules.

The court examined the legal test for substitution applications, which requires prima facie evidence of a valid transfer of the underlying debt and charge, and compliance with the statutory notice requirement under section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877. The court found that the moving party had provided prima facie evidence of ownership of the registered charge, supported by the Land Registry folio, and had exhibited a deed of transfer covering the relevant loan, meeting the evidentiary threshold.

Regarding notice, the court noted that although earlier correspondence was deficient—sent to an incorrect address and containing inaccurate references—the moving party had subsequently served a solicitor’s letter dated 24 January 2024 and had grounded the substitution application on papers arguably constituting express notice in writing. The defendant’s objections were considered less compelling given no payments had been made since 2009, and there was no dispute about the debtor’s confusion over to whom payments should be made.

The court addressed the moving party’s application to adduce further evidence of a letter dated 12 December 2022, which had not been produced earlier despite the adjournment to remedy deficiencies. Applying the test from Murphy v. Minister for Defence, the court refused the application on grounds of lack of reasonable diligence, potential prejudice, and the need to avoid protracted litigation.

Holding and Implications

The court DISMISSED the appeal against the substitution order made by the Circuit Court on 14 May 2024, thereby affirming the substitution of Company B as plaintiff in the possession proceedings.

The application to adduce further evidence on appeal was refused. The proceedings will return to the Circuit Court for substantive hearing, where the defendant may contest the validity of the transfer and notice. The court did not make a definitive ruling on the validity of the assignment or notice but held that the prima facie evidentiary threshold for substitution was met.

Regarding costs, the court provisionally proposed that no order for costs be made, reflecting the moving party’s prior conduct in pursuing and withdrawing an earlier appeal and the reopening of the appeal due to the belated evidence application. The defendant was provisionally entitled to recover transcript expenses from the moving party. The parties may address costs further at a subsequent listing.