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Start Mortgages Designated Activity Company v Clarke and Anor (Approved)
Factual and Procedural Background
This is an appeal by the Second Defendant (the Appellant), a litigant in person, from a Circuit Court order dated 23 May 2025 which substituted Company B as plaintiff and gave it leave to issue execution on foot of a Circuit Court Order for Possession dated 21 November 2023. That possession order had been obtained originally in favour of Company A and was affirmed on the Appellant's appeal to the High Court by Judge [Last Name] in a written judgment ([2024] IEHC 310). The Appellant's subsequent application for leave to appeal to the Supreme Court was refused ([2024] IESCDET 112). Company B applied by motion dated 24 February 2025 for (i) substitution as plaintiff pursuant to Order 22 Rule 4 of the Circuit Court Rules and (ii) leave to issue execution pursuant to Order 36 Rule 10 of the Circuit Court Rules. The underlying loan was advanced in April 2007, secured by a charge over the property (Folio 170L), and the last payment was made on 12 May 2016.
Legal Issues Presented
- Whether Company B has proven, on the balance of probabilities, that the Appellant's loan, associated security and chose in action were validly transferred to Company B such as to entitle Company B to be substituted as plaintiff under Order 22 Rule 4 and to seek execution under Order 36 Rule 10.
- Whether the statutory requirements of section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 were satisfied by express written notice to the debtor, such as to render the assignment effective at law.
- Whether objections to standing, hearsay/means of knowledge of the deponent, admissibility under stamp duty legislation, and redactions in transfer documentation defeat Company B's application.
Arguments of the Parties
Company B's Arguments
- Company B purchased Company A's business and assets, including the Appellant's loan, security and ancillary rights, evidenced by a Global Deed of Transfer, a Transfer Agreement and a Deed of Amendment.
- The Global Deed of Transfer (unredacted except for other borrowers' identifiers) and ancillary documents show an absolute and unconditional transfer of the loan, charge and chose in action to Company B.
- Company B provided documentary proof of the transfer on the Folio (Form 56) and provided notification letters to the borrower ("goodbye" and "hello" letters), satisfying section 28(6) notice requirements.
- Redactions were for commercial sensitivity and data-protection reasons and do not prevent the Court from determining the transfer in respect of the Appellant's loan.
- Affidavit evidence given by a litigation manager of Company B is based on personal knowledge and business records and is admissible.
Appellant's Arguments
- Company A lacks standing because it is not on the Central Bank Register for retail credit firms.
- The affidavit of Company B's deponent is hearsay or lacks requisite means of knowledge because of corporate employment arrangements.
- The Global Deed of Transfer is not stamped for stamp duty and is therefore inadmissible under section 127 of the Stamp Duties Consolidation Act 1999.
- Extensive redactions prevent a fair ability to test what was transferred; reliance was placed on recent authorities where redactions led to refusal of possession orders.
- An unfiled expert affidavit purportedly casts doubt on the existence of a substantive transfer.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Judgment [2024] IEHC 310 | Affirmed entitlement to possession; assessment of delay and conduct in refusing a stay. | Cited as background: the High Court had affirmed the possession order and found no credible defence. |
| Determination [2024] IESCDET 112 | Refusal of leave to appeal to the Supreme Court. | Noted that the Appellant's application for leave to appeal was refused. |
| Case G v Case O [2026] IECA 48 | Use of artificial intelligence in preparing submissions: must be responsible and disclosed. | Applied: Court observed the Appellant used AI without early disclosure but accepted she did not intend to mislead. |
| Case P v Case M [2024] IEHC 625 | Extensive/unexplained redactions can prevent proof of transfer and lead to adjournment/refusal. | Distinguished: Court held redactions here were limited and did not prevent determination of the transfer as to the Appellant's loan. |
| Company A v Case R [2024] IEHC 329 | Redactions affecting capacity to show transfer of interest in debt. | Distinguished on similar grounds as above; Court found necessary operative clauses and definitions available. |
| Case F v Case O & Ors [2024] IECA 51 | Failure to provide the deed of transfer prevented reliance on s.28(6) for absolute assignment. | Distinguished: in present case a copy of the Global Deed of Transfer (with limited redactions) was put before the Court. |
| Case S v Case L [2016] IECA 104 | Order wording: "any other event" includes assignment; "change of interest" includes assignment of a chose in action. | Relied upon to construe Order 22 Rule 4 as permitting substitution following assignment. |
| Case PTSB v Case D [2019] IEHC 414 | Transferee under deed of transfer may apply to be made a party to possession proceedings. | Applied in support of allowing a transferee to be substituted as party in possession proceedings. |
| Case INBS v Case H [2022] IEHC 12 | Application by assignee to issue execution: different evidential approach depending on time since order; need to explain delay if >6 years. | Used to frame the approach to Order 36 Rule 10 equivalently; Court considered delay and required proof depending on timing. |
| Case Promontoria v Case McCool & Case Everyday [2025] IEHC 9 | Explanation of s.28(6): effect of express notice in writing; assignee entitled to pursue remedies and receive payments safely. | Applied: Court relied on the statutory effect of notice under s.28(6) when assessing Company B's proofs of notice. |
| Case AIB v Case T [2018] 3 IR 172 | Content and formal sufficiency of notice under s.28(6): must identify assignee and contain sufficient information to let debtor know to whom payment may be made. | Applied: Court assessed notices (including transfer forms and letters) against the standards in this authority and found them sufficient. |
| Case M v Case Ennis [2019] IECA 142 | Distinction between substitution before substantive hearing (prima facie) and after final judgment (balance of probabilities). | Applied: Court adopted the balance of probabilities standard because substitution was sought after final judgment. |
Court's Reasoning and Analysis
The Court framed the application as a de novo hearing under Order 22 Rule 4 (substitution) and Order 36 Rule 10 (leave to issue execution). It identified the sole material dispute as whether Company B had proven that the Appellant's loan, security and chose in action were validly transferred to Company B and whether sufficient notice under s.28(6) had been given to the debtor.
The Court applied authority construing the relevant procedural rules (including the interpretation that assignments fall within "any other event" and "change of interest") and adopted the balance of probabilities standard because the substitution was sought after final judgment. It examined the evidence put forward by Company B: the Global Deed of Transfer (unredacted as to the Appellant's loan), the Transfer Agreement and Deed of Amendment (redacted but containing relevant definitions and operative clause), the executed Deed of Transfer - Form 56, the Folio showing Company B as registered owner of the charge, and the transfer notification letters to the Appellant.
On means of knowledge, the Court accepted the affidavit of Company B's litigation manager as based on personal knowledge and business records prepared in the ordinary course of business and therefore admissible. On stamp duty, the Court concluded that, given legislative amendments, the type of transfer agreements in issue were not chargeable to stamp duty and thus admissible. As to redactions, the Court compared this case with authorities where unexplained extensive redactions prevented proof; it found here that redactions were limited (other borrowers' identities/account numbers) and did not prevent the Court from determining that the Appellant's loan and security were transferred.
The Court also rejected the unfiled expert affidavit as unpersuasive, finding it to be conjecture that did not overcome the documentary evidence. Overall the Court found that Company B established, on the balance of probabilities, an absolute and unconditional transfer of the Appellant's loan, charge and ancillary rights and that express notice for the purposes of s.28(6) had been given.
Holding and Implications
DISPOSITION: The appeal is refused. The Court ordered that Company B be substituted as Plaintiff pursuant to Order 22 Rule 4 of the Circuit Court Rules and granted Company B leave pursuant to Order 36 Rule 10 to issue execution of the Order for Possession obtained on 21 November 2023.
Implications: The direct effect is that Company B is entitled to enforce the previously obtained possession order and to proceed to execution. The Court did not purport to set a new legal precedent beyond applying established principles (statutory assignment effect under s.28(6), procedural rules on substitution and leave to execute, admissibility of business records and approach to redactions). No broader novel legal principle was announced.
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