Summary of Judgment by Judge Cahill

Factual and Procedural Background

This is an application by the Plaintiff for an order for possession of a mixed-use property (residential and licensed public house) located in The City and registered on Folio [Folio Number] ("the Property"). The Property is occupied partly as a private residence and partly as a licensed premises that trades commercially.

The Plaintiff relies on an indenture of mortgage executed on 29 July 2009 (registered as a burden on 21 June 2011) and a demand history set out in written demands dated 19 March 2015, 26 May 2016 and 2 March 2021. A special summons for possession was issued on 3 October 2022 and amended the same day to correct the named deponent of the grounding affidavit.

The Defendant (Company A) opposes the application. The Director of Company A delivered a replying affidavit opposing possession and outlining a number of defences, including (a) an asserted right of set-off arising from alleged losses related to an investment product promoted by the Plaintiff ("the Belfry Investment"), (b) a contention that the Plaintiff has not correctly invoked the statutory jurisdiction underpinning the summary possession process, and (c) that the Code of Conduct on Mortgage Arrears (CCMA) and the SME lending code may apply and have not been complied with. The Plaintiff also has separate debt recovery proceedings pending against Company A and its Director (pursuant to a personal guarantee).

Judge Cahill concluded that, while she did not consider the Defendant's defences likely to all succeed, there were credible factual and legal challenges—in particular the Belfry Defence and the Jurisdiction Defence—that required further evidence and submissions. The matter was therefore remitted to plenary hearing.

Legal Issues Presented

1. Whether, on the affidavits before the Court, the Plaintiff is entitled to summary possession of the Property or whether the matter should be remitted to plenary hearing.
2. Whether the allegations relating to the Belfry Investment amount to a credible basis for set-off or otherwise raise a defence that makes summary disposal inappropriate.
3. Whether the Plaintiff properly invoked the statutory jurisdiction for summary possession (including whether the Registration of Title Act 1964, section 62(7), or some other statutory provision, was the appropriate basis) and whether any failure to identify the statutory basis is fatal or sufficient to warrant remittal.
4. Whether the CCMA (Code of Conduct on Mortgage Arrears) applies to the circumstances of this case (including whether the Director qualifies as a "borrower" or whether the loan was commercial), and if so whether any alleged breaches affect the entitlement to possession.
5. Whether other regulatory or contractual codes (including the SME Code and alleged absence of the general terms and conditions) raise credible defences that require plenary determination.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff relies on the registered mortgage and the asserted power of sale having arisen; the special summons and grounding affidavit evidence the default and sums due.
• The Plaintiff submitted that the defect in the special summons (failure initially to cite the correct statutory basis) was a pleading point capable of correction and not a substantive defence; counsel identified section 62(7) of the Registration of Title Act 1964 as the correct provision being invoked.
• The Plaintiff contended that the Belfry-related assertions were theoretical, unclear as to who was the claimant (the Director personally or Company A) and did not disclose a valid set-off in a possession summary application.
• On the CCMA point the Plaintiff argued the loan was commercial in character and/or not a home mortgage account and therefore the CCMA did not apply; it also contended a guarantor is not automatically a borrower for CCMA purposes.
• The Plaintiff disputed that lack of particularisation of the debt was a valid defence to an application for possession where account statements were exhibited and the debtor had sufficient information regarding the sums claimed.

Defendant's (Company A) Arguments

• The Defendant asserted a right of set-off/claim in damages arising from the Belfry Investment which, it says, was recommended or promoted by the Plaintiff and caused loss; that history must be examined and may affect the Plaintiff's claim to possession.
• The Defendant argued there was no clear jurisdictional basis pleaded in the special summons (the initiating document), pointing to an incorrect reliance in written submissions on provisions of a statute that post-dated the mortgage; this lack of clarity as to the statutory basis of summary jurisdiction was said to warrant remittal.
• The Defendant contended that the CCMA applied because the Director resides in the Property as his primary residence and that the Director, now sued on a guarantee, should be treated as a borrower for CCMA purposes; if MARP applied, procedural protections and moratoria may have been breached.
• The Defendant relied on the SME Code as applying to the business lending and alleged failures in compliance; it also complained of incomplete documentation (absence of the general terms and conditions) and apparent inconsistencies in particularisation of sums in demands.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ulster Bank Ireland Limited v. Beades [2019] IESC 83	Summary procedures are a truncated process; they can be compatible with fair trial rights if properly invoked and applied; courts must weigh competing rights.	Used to underscore that summary proceedings must be properly invoked and that their truncated nature demands clarity as to statutory basis.
Bank of Ireland Mortgage Bank v. Cody [2021] 2 I.R. 381	Analysis of section 62(7) Registration of Title Act 1964; spectrum of outcomes on summary possession applications; remittal appropriate where credible defence raised.	Applied as authority for remittal where affidavits disclose credible, non-frivolous defences and for the low threshold to require plenary hearing in such circumstances.
Aer Rianta cpt v Ryanair [2001] 4 IR 607	Test for remitting summary applications to plenary: whether it is "very clear" the defendant has no case; whether defendant's affidavits disclose even an arguable defence.	Adopted to frame the remittal test and confirm the low threshold for defendants to require plenary trial.
Walker v. Hicks (1877) 3 Q.B.D. 8	Historical authority for the requirement that a defendant have sufficient particulars in summons to decide whether to pay or resist.	Referred to in the context of the obligation to provide sufficient particulars and linked to modern jurisprudence (as discussed in O'Malley).
Bank of Ireland Mortgage Bank v. O'Malley [2022] 2 IR 487	Onus on plaintiff in summary proceedings to provide sufficient particulars; framework of prima facie debt and then whether defendant has credible defence.	Relied upon in assessing whether the special summons provided adequate particulars and whether that deficiency should warrant remittal (court held particularisation issues may not themselves justify remittal in this context).
Fennell v. Creedon [2015] IEHC 711	Consideration of whether CCMA applies where residence commenced after the loan/mortgage; informs when CCMA may not apply.	Distinguished: court noted factual differences (here the Director's residence predated the mortgage) making the Fennell reasoning less directly applicable.
Tyrrell v. Wright [2018] IECA 295	Consideration of CCMA/MARP engagement; addressed commercial character of loans and consequences of breaches.	Referenced by the Plaintiff to argue CCMA inapplicable; Court noted that Tyrrell did not resolve the exact factual/legal questions in this case and that the issue required further evidence.
Irish Life and Permanent plc v. Dunne [2015] IESC 46	Authority relevant to the impact of CCMA issues on possession proceedings.	Mentioned as relevant to assessing the consequences of CCMA non-compliance but not opened at the summary hearing; Court noted further submissions would be needed.
Mars Capital Finance Ireland DAC v. Temple [2023] IEHC 24	Consideration of required documentary proofs and the consequences of absence/redaction of material relevant to title or enforcement.	Company A relied on Temple to argue lack of general terms and conditions was fatal; Court distinguished Temple's facts and did not find the point persuasive on these facts.
Seniors Money Mortgages Ireland DAC v. Fingleton [2024] IEHC 423	Holds that incorrect figures in letters of demand do not automatically defeat enforcement where debtor has sufficient information.	Used to counter the Defendant's complaint about inconsistent figures in earlier demand letters; Court treated this authority as limiting the force of that complaint.

Court's Reasoning and Analysis

Judge Cahill set out the governing legal test for remitting a summary possession application to plenary hearing by reference to the Supreme Court authorities and the classic Aer Rianta formulation. The judge emphasised that summary procedures are a "truncated process" which are permissible only when the relevant statutory regime has been properly invoked and applied and where fairness is respected.

Applying that framework, the Court considered the array of defences raised by Company A. The judge focused on three principal strands that warranted further inquiry:

1. The Belfry Defence (set-off / claim in damages): the Director's affidavit detailed events in which the Plaintiff's representatives reportedly recommended that sums be directed into a high-risk, illiquid investment product (the Belfry Investment) instead of discharging an existing indebtedness. The Director's account included specific factual allegations about branch-level advice and the nature of the investment, and the Plaintiff chose not to challenge those factual averments by way of contradictory affidavit evidence or an application for cross-examination. Given that the Plaintiff did not dispute those facts on affidavit and did not seek to test the Director's veracity, the judge found the averments sufficiently credible to raise a question which could affect entitlement to possession and which could not fairly be resolved summarily.
2. The Jurisdiction Defence (failure to plead correct statutory basis): the special summons did not identify with sufficient clarity the statutory provision relied upon to justify the summary process. The Plaintiff had at one point relied in written submissions on provisions of the 2009 Act, but conceded at the hearing that that statute did not apply because it post-dated execution of the mortgage. Counsel for the Plaintiff then identified section 62(7) of the Registration of Title Act 1964 as the correct provision. The judge reasoned that a summary procedure must be premised on a clear statutory footing so that a defendant can decide whether to accept the abridged process or contest it; the absence of that clarity was more than a mere pleading point and weighed in favour of remittal to plenary hearing (though not alone decisive).
3. The CCMA/SME Code issues: on the CCMA, the Director asserted that he occupied the residential portion of the Property as his primary residence and that he was being sued on a personal guarantee, potentially bringing him within the ambit of the CCMA. The Plaintiff argued the loan was commercial and that the CCMA did not apply; the Court observed that facts in this case (occupation prior to the mortgage and lack of challenge to those occupation assertions on affidavit) meant the CCMA point could not be resolved summarily. The judge also observed that questions remained whether a guarantor in the Director's position should be treated as a "borrower" for CCMA purposes (a question unresolved by the material before the Court). As to the SME Code and the absence of general terms and conditions, the judge considered those points might have some force but that the material was limited and that these issues were not decisive on the summary application.

The judge weighed these matters in light of the low threshold for remittal established in the authorities: where a defendant raises more than an implausible or vague denial, discloses even an arguable defence, or casts some not unreasonable level of doubt on the plaintiff's evidence, remittal is appropriate. The combination of (a) credible factual averments concerning the Belfry Investment that were unanswered on affidavit, (b) a lack of clarity as to the statutory basis for the summary relief sought, and (c) unresolved and potentially significant questions about the application of the CCMA led the judge to conclude further evidence and fuller submissions were required.

The Court also considered the Company's complaints regarding particularisation of the debt and the absence of the general terms and conditions. While the judge recorded these complaints and addressed them against recent authorities, she found they did not, on their own, satisfy the remittal threshold in the circumstances of this case.

Holding and Implications

REMITTED TO PLENARY HEARING

Holding: The Judge concluded that credible defences (notably the Belfry Defence, the Jurisdiction Defence and a plausible CCMA-based defence) have been raised such that the summary application for possession cannot be fairly determined on the affidavits alone and should be remitted to plenary hearing for fuller evidence and submissions.

Direct consequences:

• The Plaintiff's summary application for possession is not granted at this stage and the matter is remitted to plenary hearing.
• The Judge expressed a provisional view that the costs of the summary application should be awarded to Company A (the Defendant). The parties were invited to make written submissions of up to 1,000 words on costs by 4 November 2025.
• The matter was listed to be before Judge Cahill at 10.30am on 7 November 2025 for further directions or hearing (as applicable).

Broader implications: The judgment emphasises the need for precision when invoking summary statutory jurisdictions, confirms the low threshold for remittal where credible defences are identified on affidavit, and illustrates that factual averments about third-party investment losses or lender conduct may, if not answered on affidavit, be sufficient to require a plenary process. The Court did not seek to establish any new legal principle; rather, it applied established tests from the authorities cited to the specific facts before it.