Citation Codes
Equivalent Citations
citation codes
See more information ...
Click here to read the full judgment
Pepper Finance Corporation (Ireland) DAC v O'Donnell & Anor (Approved)
Smart Summary
Factual and Procedural Background
The appeal concerned a Circuit Court order that substituted the Plaintiff for Company B and granted leave to execute an earlier possession order over a property in The County. [Para 11][Para 15][Para 46] The Defendants had borrowed €170,000 in 2004 secured by a mortgage on the property, had made no repayments since 2014, and by the time of the hearing the arrears and total balance stood at €189,000 and €260,000 respectively; the possession order had been made in 2017 and the stay on it expired in April 2018. [Para 12][Para 13] The loan and mortgage were transferred from Bank A to Bank B and then to Company B, and later transferred from Company B to the Plaintiff by deed of transfer in 2019, with notice letters sent to the Defendants. [Para 28][Para 30][Para 32][Para 34][Para 40][Para 41] The Plaintiff moved in April 2025 to be substituted and to obtain leave to execute, and the Circuit Court granted both orders on 30 July 2025; the First Defendant appealed. [Para 15][Para 16][Para 44][Para 46]
Legal Issues Presented
- Whether the Plaintiff had shown on the balance of probabilities that it held legal title to the loan and mortgage so as to justify substitution as plaintiff. [Para 17][Para 18][Para 55][Para 57][Para 81][Para 82]
- Whether leave should be granted to execute the possession order despite the lapse of time since the 2017 order. [Para 19][Para 85][Para 93][Para 100]
Arguments of the Parties
Plaintiff/Respondent's Arguments
- The Deed of Transfer and supporting documents showed that title to the loan and mortgage had passed to the Plaintiff. [Para 55][Para 56]
- The folio was said to be conclusive as to the charge, and the evidence as a whole was said to prove ownership on the balance of probabilities. [Para 57]
- There was said to be a good explanation for delay, relying on the 2019 execution order, the Covid moratorium, and letters attempting to engage the Defendants between 2021 and 2025. [Para 52][Para 80][Para 82][Para 85][Para 87][Para 88]
- The Plaintiff argued that there was no relevant countervailing prejudice and that the Defendants could not benefit from their own non-compliance. [Para 88]
Defendants/Appellants' Arguments
- The Defendants said the Plaintiff had adduced insufficient evidence to prove transfer of the loan and mortgage or to establish title. [Para 53][Para 58]
- They argued that the Plaintiff had taken no effective steps for years and that the delay was inordinate and inexcusable. [Para 53]
- They also relied on asserted prejudice, the alleged failure to notify them of the execution order, and consumer-law arguments including Primor and Kirwan. [Para 89][Para 198][Para 222]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Bank of Scotland v McDermott [2019] IECA 142 |
Substitution after judgment is procedural; the applicable proof standard is the balance of probabilities. |
The court used it to confirm that the substitution motion was procedural and that the Plaintiff had to prove transmission of title on the balance of probabilities. [Para 63][Para 64][Para 65][Para 66] |
| Tanager DAC v. Kane [2018] IECA 352, [2019] 1 IR 385 |
The register is conclusive as to ownership of the charge. |
The court treated this as the starting point on title to the charge, but did not rely on it alone to resolve the wider loan-transfer issue. [Para 67][Para 68][Para 69][Para 81] |
| Pepper Finance Corporation (Ireland) DAC v. Maloney [2023] IECA 161 |
Registration of the charge matters for enforcement, but the same-entity facts in that case were critical. |
The court distinguished it, holding that it did not establish that registration of the charge alone was enough where title to the loan had moved between different legal entities. [Para 70][Para 71][Para 74][Para 75][Para 76][Para 78][Para 79] |
| Permanent TSB plc v. Donohoe [2025] IECA 222 |
The register does not conclusively determine succession to the debt. |
The court relied on it to support the view that legal title to the loan had to be shown, not merely registration of the charge. [Para 79][Para 80] |
| Smyth v. Tunney [2004] 1 IR 512 |
Leave to execute out of time requires some explanation for delay; prejudice must also be considered if that threshold is met. |
The court treated it as the foundational authority on late execution and the need for a reasonable explanation, not a special or exceptional one. [Para 105][Para 107][Para 108][Para 149] |
| Ulster Bank Limited v. Quirke [2022] IECA 283 |
The applicant must explain the whole lapse of time, including the initial six-year period. |
The court used it to reject any suggestion that only the post-stay period mattered and to confirm that the entire delay must be explained. [Para 111][Para 113][Para 144][Para 146] |
| Cabot Financial (Ireland) Limited v. Joyce [2023] IECA 281 |
The explanation must be reasonable; the court must assess its nature and quality; marketability of debts is not the object of the rule. |
The court applied it to reject a box-ticking approach to delay and to dismiss the marketability argument as irrelevant. [Para 113][Para 124][Para 126][Para 132][Para 140][Para 153][Para 154] |
| Hayde v H & T Contractors Ltd. [2021] IEHC 103 |
There is a public interest in encouraging engagement between creditors and debtors and some expedition in enforcement. |
The court used it as part of the policy backdrop for late-execution applications. [Para 124] |
| Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 |
Delay in the dismissal-of-proceedings context is different from delay in execution. |
The court held it was misconceived to rely on Primor in this execution application. [Para 149][Para 150][Para 151] |
| Mars Capital Ireland DAC v. Hunter [2022] IEHC 353 |
Order 36 of the Circuit Court Rules is to be read by analogy with Order 42; constructive engagement may justify delay. |
The court used it both for the analogy between the rules and as a comparator on what counts as constructive engagement. [Para 101][Para 102][Para 172][Para 175][Para 176] |
| Irish Nationwide Building Society v. Heagney [2022] IEHC 12 |
Execution-delay analysis is not the same as Primor delay analysis. |
The court relied on it, via Hunter, to reject the Defendants’ attempt to import Primor-style delay principles. [Para 151] |
| Kirwan v. Connors [2025] IESC 21 |
Also concerned a different form of delay from execution applications. |
The court held it had no relevant application to this motion. [Para 151] |
| Start Mortgages DAC v. Hendrick [2023] IEHC 11 |
Attempts to resolve the debt and engage the debtor can amount to a reasonable explanation for delay. |
The court distinguished it as involving specific resolution efforts, unlike the generic correspondence here. [Para 156][Para 157][Para 158][Para 159][Para 170][Para 171] |
| Start Mortgages DAC v. Gawley [2023] IEHC 37 |
Regular contact, a pending appeal, and the Covid moratorium can explain delay. |
The court used it as a comparator and noted the much more sustained communication there than in the present case. [Para 160][Para 161][Para 162][Para 163][Para 164][Para 171][Para 212] |
| Start Mortgages DAC v. McInerney [2023] IEHC 155 |
Continued repayments, engagement, and pandemic-related disruption may justify delay. |
The court distinguished it because the Defendants here had made no repayments since 2014 and there was no similar engagement. [Para 165][Para 166][Para 170][Para 215] |
| Start Mortgages DAC v. Hanley [2023] IEHC 387 |
Engagement efforts, pending appeal, and Covid-related enforcement disruption can explain delay. |
The court treated it as another comparator showing the kind of activity that was absent here. [Para 167][Para 168][Para 169][Para 170] |
| Start v. Gawley [2020] IECA 335 |
The appellate approach accepted focusing on the later period after an earlier grant of leave. |
The court referred to it when explaining why later-stage applications may focus on the period after an earlier leave order. [Para 171] |
Court's Reasoning and Analysis
On substitution, Judge Cahill treated the application as a procedural one and applied the balance-of-probabilities standard. [Para 62][Para 63][Para 64][Para 65][Para 66] She accepted that the register was conclusive as to the charge, but she was not persuaded that registration of the charge alone proved entitlement to substitute where the issue was whether the loan and mortgage had been transferred between different legal entities. [Para 67][Para 68][Para 69][Para 78][Para 79] She therefore examined the Deed of Transfer, the Form 56, the folio, and the transfer letters, and found that the Plaintiff had shown on the balance of probabilities that it was the transferee and owner of the loan and mortgage. [Para 55][Para 56][Para 81][Para 82]
On leave to execute, the court applied Smyth, Quirke, and Cabot to hold that the applicant had to explain the whole lapse of time, including the initial six-year period, with a reasonable explanation of substance. [Para 105][Para 107][Para 108][Para 113][Para 124][Para 126][Para 130][Para 143][Para 144][Para 146] Judge Cahill rejected the submission that the court only had to ask whether some explanation existed, because Cabot requires an assessment of the nature and quality of the reason given. [Para 200][Para 201][Para 202][Para 203][Para 204] She accepted that the nine-month stay and the Covid moratorium explained limited periods, and she treated the 2019 execution order as evidence of an intention to enforce, but noted that it was never served and led to no further steps. [Para 93][Para 94][Para 206] The four letters sent between September 2021 and February 2024 were too sparse and generic to amount to a reasonable explanation for the prolonged inactivity, especially the unexplained gaps of twenty months and then fourteen months. [Para 210][Para 211][Para 213][Para 215] She distinguished the comparator cases because they involved sustained engagement, specific proposals, or continued repayments, none of which were present here. [Para 156][Para 159][Para 170][Para 175][Para 176][Para 185][Para 215]
The court also rejected reliance on Primor and Kirwan, holding that they concerned a different species of delay and were not relevant to an application for leave to execute an existing possession order. [Para 149][Para 150][Para 151] It further held that the marketability-of-debts argument, and the related statute-barred concern, could not assist the Plaintiff because the threshold requirement of a reasonable explanation had not been met. [Para 220] The consumer-law point was treated as an impermissible collateral attack on the unappealed possession order. [Para 222]
Holding and Implications
PARTLY ALLOWED AND PARTLY DISMISSED: the appeal against substitution was refused, and the substitution of the Plaintiff as plaintiff was confirmed, but the appeal against leave to issue execution of the possession order was allowed. [Para 224] The immediate consequence is that the Plaintiff remains in the proceedings, but cannot execute the 2017 possession order on the basis of this application. [Para 224] The judgment also reinforces that out-of-time execution requires a real, fact-specific explanation for the entire delay; generic or infrequent letters, without meaningful engagement, may be insufficient. [Para 200][Para 204][Para 215][Para 220] The court made no immediate costs order and invited written submissions on costs. [Para 225]
Click here to read the full judgment