Connaughton v Start Mortgages Designated Activity Company

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 18 March 2026
• Neutral Citation: [2026] IEHC 164
• Docket Number: Record No: 2024/2629 P

Between:

Denis Connaughton

Plaintiff

and

Start Mortgages Designated Activity Company

Defendant

[2026] IEHC 164

Record No: 2024/2629 P

THE HIGH COURT

Strike out – Bound to fail – Abuse of process – Defendant seeking an order striking out the proceedings – Whether the proceedings were bound to fail

Facts: The defendant, Start Mortgages DAC (Start), on 17 February 2023, was granted an order for possession in Circuit Court proceedings (the possession proceedings), over property comprised in a Limerick registered folio (the Property) of which the plaintiff, Mr Connaughton, was registered as full owner. Mr Connaughton had granted a charge over the Property to Bank of Scotland (Ireland) Ltd (the Bank) to secure a loan to him and his wife. The Bank’s interests in the charge and loan were transferred and assigned to Bank of Scotland plc who in turn transferred and assigned them to Start. Mr Connaughton appealed the decision of the Circuit Court to the High Court. His appeal was dismissed in a comprehensive ex tempore judgment of the High Court (Heslin J) which the judge caused to be published ([2023] IEHC 364). The court also dismissed an application for discovery by Mr Connaughton. Though no appeal lay to the Court of Appeal from the High Court, Mr Connaughton sought leave to appeal to the Supreme Court. That application was refused ([2023] IESCDET 135). Mr Connaughton had thus exhausted his entitlements to appeal, as he was entitled to do. What a litigant is not entitled to do, save in exceptional circumstances, is to issue further proceedings for the purpose of challenging the outcome of earlier proceedings or of re-litigating issues which were the subject of those earlier proceedings. That was what Mr Connaughton had done in issuing these proceedings. Mr Connaughton believed that because the possession proceedings were decided summarily, he remained entitled to a plenary hearing regarding Start’s entitlement to possession. In the circumstances, Start applied to the High Court to have the proceedings dismissed pursuant to Order 19, Rule 28(1) of the Rules of the Superior Courts (the Rules).

Held by Mulcahy J that, in circumstances where Start had transferred and assigned the charge and loan to Mars Capital Finance DAC (Mars), and Mars had been substituted in the proceedings in its place, Start no longer has an interest in the order for possession which the plaintiff sought to attack; since the plaintiff’s proceedings were directed to the validity of an order for possession in which Start no longer had an interest, much of the plaintiff’s claim against Start was bound to fail on that ground alone. Mulcahy J held that the fact that the earlier proceedings were disposed of on a summary basis, because the plaintiff had not raised an arguable defence, did not entitle him to institute plenary proceedings to pursue arguments he did not, or was not given leave to, pursue in those earlier proceedings. Mulcahy J held that the proceedings had no prospect of success and, as Dignam J put it in Beades v KBC Mortgage Finance Company [2025] IEHC 363, they “cannot succeed”. More particularly, Mulcahy J found that the proceedings were an impermissible attempt to re-try issues which had already been finally determined and were, therefore, an abuse of process. In addition, Mulcahy J found that the proceedings were barred by the doctrine of res judicata or, in the alternative, the rule in Henderson v Henderson.

Mulcahy J struck out the proceedings pursuant to Order 19, Rule 28(1) of the Rules.

Application granted.

JUDGMENT of Mr Justice Rory Mulcahy delivered on 18 March 2026

Introduction

1 . On 17 February 2023, the defendant in these proceedings (“ Start”) was granted an order for possession in Circuit Court proceedings, Record No.: 2018/0090 (“ the possession proceedings”), over property comprised in a Limerick registered folio (“ the Property”) of which the plaintiff in these proceedings (“ Mr Connaughton”) was registered as full owner. Mr Connaughton had granted a charge over the property to Bank of Scotland (Ireland) Limited (“ the Bank”) to secure a loan to him and his wife. The Bank's interests in the charge and loan were transferred and assigned to Bank of Scotland plc who in turn transferred and assigned them to Start.

2 . Mr Connaughton appealed the decision of the Circuit Court to the High Court (Record No.: 2023/2CA). His appeal was dismissed in a comprehensive ex tempore judgment of this court (Heslin J) which, fortunately, the learned judge caused to be published ( [2023] IEHC 364). The court also dismissed an application for discovery by Mr Connaughton.

3 . Though no appeal lay to the Court of Appeal from the High Court, Mr Connaughton sought leave to appeal to the Supreme Court. That application was refused ( [2023] IESCDET 135).

4 . Mr Connaughton had thus exhausted his entitlements to appeal, as he was entitled to do, and the Supreme Court's determination should have brought an end to any dispute between Mr Connaughton and Start regarding Start's entitlement to possession of the Property.

5 . What a litigant is not entitled to do, save in exceptional circumstances, is to issue further proceedings for the purpose of challenging the outcome of earlier proceedings or of re-litigating issues which were the subject of those earlier proceedings. That, regrettably, is what Mr Connaughton has done in issuing the within proceedings. It appears that Mr Connaughton believes that because the possession proceedings were decided summarily, he remains entitled to a plenary hearing regarding Start's entitlement to possession. In this he is mistaken.

6 . In the circumstances, Start has brought an application to have the proceedings dismissed pursuant to Order 19, Rule 28(1) of the Rules of the Superior Courts (“ the Rules”). For the reasons set out below, that is an application which must succeed, and the proceedings will, therefore, be dismissed as bound to fail and/or as an abuse of process.

The plaintiff's claim

7 . The plenary summons issued on 22 May 2024. It expressly pleads that the plaintiff's claim is for “ a set aside of the entire Circuit matter”, being the possession proceedings referred to above. Further reliefs are sought at the conclusion of the summons, including an order staying any further proceedings in the Circuit Court, an order setting aside the default notification of 28 February 2018 and stating that the demand notice of that date be deemed unlawful and withdrawn, and that the order for possession be set aside for being a claim “ unlawfully granted; for the void conditions and warranties.

8 . Nine different grounds for the relief seeking the set aside of the Circuit Court proceedings are included in the plenary summons. These include:

• • Contributory negligence on the part of the Bank, for failing to comply with EU supervisory and company law regulations, resulting in the Bank suffering losses which it sought to impose on the plaintiff;

• • Incorrect application of interest rates “ which the defendant has been made aware of in prior proceedings”;

• • Pleading regarding the mortgage deed be re-opened in light of the judgment in Mars Capital Finance v Temple [2023] IEHC 94;

• • Clause 5.3 of the mortgage did not give the lender the right to resign from its obligations and it should be present for cross-examination;

• • Inconsistent information and dates unknown on documents relied on by Start;

• • The Bank may have lost the right to its legal interest due to securitisation;

• • A possible unfair contractual term whereby the borrower lost the right to bid for the loan at a discount;

• • The disputed conditions and warranties in the contract between the parties are inconsistent with the demand made by Start.

9 . The plaintiff's statement of claim, delivered in April 2025, is a lengthy document, but seeks the same relief as sought in the plenary summons, together with aggravated and exemplary damages for having exposed him to the possession proceedings, and security for costs.

10 . In addition to elaborating on the grounds summarised above from the plenary summons, the statement of claim pleads that Start did not succeed to the Bank's interest in the loan and charge and suggests that discovery is required in relation to this claim. It is pleaded that despite the purported transfer to Start, the plaintiff is still negotiating with the Bank regarding tracker mortgage redress. It claims that Start is merely a credit servicing firm and not entitled to enforce consumer contracts. There is a plea that Start has acted in breach of its authorisation from the Central Bank. There is reference to Start's published accounts.

11 . The statement of claim includes complaints about the manner in which the possession proceedings were commenced and inconsistencies in affidavits sworn in the Circuit Court. It claims that the original mortgage deed was not available or relied on in the possession proceedings. It is pleaded that there was lack of evidence of an absolute assignment of the debt to Start and that the proofs set out in the leading case of Bank of Ireland v Cody [2021] 2 IR 382, [2021] IESC 26 were not met. The plaintiff pleads that there was no notice given to him of any such assignment. He raises GDPR concerns.

12 . The pleadings query the right and entitlement of Start to continue in the court litigation process since it has sold its portfolio (to Mars Capital Finance Designated Activity Company (“ Mars”)).

13 . The plaintiff pleads that there was a failure by the Circuit Court to comply with the mandatory obligation under the Unfair Contract Terms Directive.

Motion to strike out

14 . The defendant issued a motion on 11 August 2025 seeking to strike out the plaintiff's claim on the basis, in substance, that the plaintiff was seeking to look behind the final orders made in the possession proceedings.

15 . In addition, Start's...