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Connaughton v Start Mortgages Designated Activity Company (Approved)
Factual and Procedural Background
The Plaintiff was registered as owner of a property recorded in a folio in The City. The Plaintiff had granted a charge over the property to Company A to secure a loan. Company A's interests were transferred ultimately to the Defendant. On 17 February 2023 the Defendant obtained an order for possession in the Circuit Court (Record No.: 2018/0090). The Plaintiff appealed to the High Court (Record No.: 2023/2CA) and the appeal was dismissed by Judge Heslin in an ex tempore judgment ([2023] IEHC 364). An application for discovery was dismissed. The Plaintiff sought leave to appeal to the Supreme Court; leave was refused. After exhausting appeals, the Plaintiff issued plenary proceedings seeking to set aside the Circuit Court possession proceedings and related orders. The Defendant moved to strike out the plenary proceedings under Order 19, Rule 28(1) of the Rules of the Superior Courts. The High Court (Judge Mulcahy) heard the strike-out application and delivered judgment on 18 March 2026.
Legal Issues Presented
- Whether the Plaintiff's plenary claim discloses a reasonable cause of action or is an abuse of process because it seeks effectively to re-litigate and set aside final orders made in earlier proceedings.
- Whether the proceedings are bound to fail by reason of res judicata or the rule in Henderson v Henderson.
- Whether the Defendant remains a proper party in light of the transfer and assignment of rights to Company B and the substitution of Company B in the underlying possession proceedings.
- Whether any asserted new grounds (including alleged overcharging, securitisation, assignment notice requirements, GDPR complaints, and alleged breaches of Central Bank or EU consumer protections) justify permitting the plenary proceedings to proceed.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff seeks to set aside the entire Circuit Court possession matter and related notices and orders.
- The Plaintiff contends the summary possession process did not adjudicate the underlying ownership of the loan, compliance with EU consumer law, or substantive factual issues, and thus a plenary hearing is required.
- The Plaintiff alleges multiple grounds (nine pleaded), including contributory negligence by Company A, incorrect application of interest, issues arising from Mars Capital Finance v Temple, defects in the mortgage clause, inconsistencies in documents, loss of legal interest by securitisation, unfair contractual terms, and inconsistent conditions and warranties.
- The Plaintiff contends discovery is required to verify transfers/assignments and chain of title and raises GDPR and Central Bank authorisation concerns.
Defendant's Arguments
- The Defendant submits the plenary proceedings impermissibly seek to challenge final orders and therefore disclose no reasonable cause of action, are abusive, and/or are bound to fail.
- The Defendant states it transferred its rights in the loan and charge to Company B and that Company B has been substituted in the underlying possession proceedings, such that the proceedings against the Defendant are not maintainable.
- The Defendant relies on authorities addressing the threshold for strike out/dismissal and the impermissibility of collateral attacks on final orders.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mars Capital Finance v Temple [2023] IEHC 94 | Re-opening or re-examination of mortgage deed argued by Plaintiff. | The Plaintiff relied on this decision as a basis to re-open the mortgage deed; the pleading referenced it but the Court treated it as among the matters already addressed or that could have been raised earlier. |
| Bank of Ireland v Cody [2021] IESC 26 | Principles applicable to summary applications for possession. | The High Court's ex tempore judgment applied these principles in concluding the Defendant was registered owner of the charge and entitled to enforce the security. |
| Start Mortgages DAC v Ryan [2021] IEHC 719 | Interpretation of Article 4(2) of the Unfair Contract Terms Directive (exclusion of core terms from assessment). | The Court referenced the decision in assessing that only core terms were at issue and that the Directive did not require further intervention on that basis. |
| Permanent TSB plc v Davis [2019] IEHC 184 | Principles relating to assessment under the Unfair Contract Terms Directive. | Used alongside Start Mortgages DAC v Ryan to support the Court's conclusion that the Directive did not assist the Plaintiff. |
| O'Malley v National Standards Authority of Ireland [2024] IEHC 500 | Effect of amendment to Order 19, Rule 28 and relationship between strike-out jurisdiction and inherent jurisdiction. | The Court cited Simons J's observation that the amendment erodes the previous distinction between strike out and inherent jurisdiction. |
| Beades v KBC Mortgage Finance Company [2025] IEHC 363 | Summary of principles governing strike-out/dismissal under Order 19, Rule 28 and inherent jurisdiction. | The Court relied on Dignam J's summary of principles (thresholds, sparing exercise, taking claim at high-water mark) and the characterization that certain such claims "cannot succeed". |
| Barry v Buckley [1981] IR 306 | Foundational authorities on strike-out principles cited by Beades. | Referenced as part of the established authorities summarised in Beades for the Court's approach to strike-out jurisdiction. |
| Salthill Properties Limited v Royal Bank of Scotland plc [2009] IEHC 207 | Illustrative precedent on strike-out principles. | Listed among authorities underpinning the well-established principles for dismissal of claims. |
| Lopes v Minister for Justice, Equality and Law Reform [2014] IESC 21 | Illustrative authority on Court's jurisdiction to dismiss. | Included among cited authorities to describe the legal context for strike-out relief. |
| Keohane v Hynes [2014] IESC 66 | Illustrative authority on dismissal principles. | Referenced as part of the pedigree of authorities governing strike-out jurisdiction. |
| Clarington Developments Limited v HCC International Insurance Company plc [2019] IEHC 630 | Illustrative authority on strike-out/dismissal principles. | Referenced within the Beades summary of authorities. |
| Kearney v Bank of Scotland [2020] IECA 92 | Illustrative authority concerning strike-out jurisdiction and appeals. | Cited as an example of the established body of case law on this topic. |
| Scotchstone Capital Fund Ltd & anor v Ireland & anor [2022] IECA 23 | Recent statement of principles governing exercise of inherent jurisdiction. | Noted by the Court as part of recent appellate authority on the inherent jurisdiction to dismiss proceedings. |
| McAndrew v Launceston Property Finance DAC & anor [2023] IECA 43 | Recent appellate statement on inherent jurisdiction principles. | Referenced as confirming appellate guidance on the jurisdiction to dismiss or strike out. |
| Mullaney v Ireland [2023] IECA 195 | Principle that it is abuse of process to mount collateral attacks on final, un-appealed orders. | The Court applied this principle to conclude the Plaintiff's proceedings constituted an impermissible collateral attack. |
| Scanlan v Danske Bank [2023] IECA 102 | Example of recent application of principle barring challenges to earlier final orders. | Listed among recent cases demonstrating the consistent application of the prohibition on re-litigation. |
| Tucker v Tailte Éireann [2025] IECA 80 | Recent example of the rule against re-litigation. | Included as one of multiple recent authorities applying the principle. |
| Masterson v Pepper Finance [2024] IEHC 547 | Illustrative recent authority on challenges to earlier proceedings. | Cited as part of the recent jurisprudence in which such challenges were rejected. |
| Hogan v Tanager [2024] IEHC 739 | Illustrative recent authority on re-litigation and abuse of process. | Referenced among cases showing the prohibition on re-opening finally determined matters. |
| KBC Bank v Smith [2025] IEHC 481 | Illustrative recent authority on related issues. | Listed as an example reinforcing the established approach to such claims. |
| Henderson v Henderson | Rule preventing a party from issuing fresh proceedings to pursue matters which could and should have been raised earlier. | The Court applied the Henderson v Henderson rule to bar the Plaintiff's attempt to re-litigate issues; the two-stage "could and should" test informed the decision. |
| Munnelly v Hassett and Ors [2023] IESC 29 | Supreme Court consideration of the Henderson rule and applicable approach. | The Court relied on the Supreme Court's guidance that the rule is flexible and on its exposition of applicable principles. |
| AA v Medical Council [2003] IESC 70 | Described as the most authoritative statement of the principle in Irish law regarding re-litigation. | Quoted in support of the flexible application of the Henderson rule and the overarching approach to re-litigation. |
| George and George v. AVA Trade (EU) Ltd. [2019] IEHC 187 | Formulation of the two-stage "could and should" test for Henderson v Henderson. | The Court adopted the two-stage test (could the issue have been raised earlier; if so, should it have been) when applying Henderson. |
| Wellstead v Judge White & Ors [2011] IEHC 438 | Authority rejecting securitisation as affecting a lender's entitlement to enforce. | The Court cited Wellstead to reject the Plaintiff's securitisation argument as without substance. |
Court's Reasoning and Analysis
Judge Mulcahy analysed the matter under Order 19, Rule 28(1) (as substituted) and the established principles governing strike-out and the exercise of the court's inherent jurisdiction. The Court emphasised the high threshold for depriving a party of a trial and the requirement to take the plaintiff's case at its high-water mark. The Court noted the Defendant's contention and affidavit evidence that all rights in the loan and charge had been transferred to Company B and that Company B had been substituted in the possession proceedings; consequently, much of the claim against the Defendant was not maintainable.
The Court reviewed the earlier Circuit Court and High Court determinations, including the High Court's application of the principles for summary possession (citing Bank of Ireland v Cody), and observed that the High Court had concluded the Defendant was the registered owner of the charge, the charge secured the loan monies, and there had been default. The Court held that the Plaintiff's stated purpose—to set aside the possession order—amounted to an impermissible attempt to challenge final orders: a collateral attack barred by the principle articulated in Mullaney v Ireland and the rule in Henderson v Henderson. The two-stage "could and should" test from George and George was applied: the Court found the issues now advanced could and should have been raised in earlier proceedings and that no special circumstances justified their belated pursuit.
The Court addressed specific categories of the Plaintiff's arguments (Central Bank compliance, validity of assignment, Unfair Contract Terms Directive, securitisation, GDPR) and found that these issues had either been considered and rejected in earlier proceedings or were matters that could and should have been raised earlier. The Court noted there was no explanation for the failure to raise them and no special circumstances to excuse that failure. Given these conclusions, the Court determined the pleadings disclosed no reasonable cause of action against the Defendant, were bound to fail, and constituted an abuse of process.
Holding and Implications
STRUCK OUT
Holding: The Court ordered the plenary proceedings struck out pursuant to Order 19, Rule 28(1) on the grounds that the proceedings have no prospect of success, amount to an abuse of process, and are barred by res judicata and/or the rule in Henderson v Henderson.
Implications: The direct effect is the dismissal of the Plaintiff's proceedings against the Defendant. The decision prevents the Plaintiff from re-litigating matters finally determined in the possession proceedings. The Court did not purport to establish new, general precedent beyond applying established authorities. The matter was listed for further ancillary matters and costs on 15 April 2026 at 10:30 am.
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