Pepper Finance Corporation [Ireland] Designated Activity Company v Conway and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 20 February 2025
• Neutral Citation: [2025] IEHC 98
• Docket Number: Record No. 2019 131 CA

Between

Pepper Finance Corporation [Ireland] Designated Activity Company

and

Richard Conway and Rose (Otherwise) Rosaline Conway

[2025] IEHC 98

Record No. 2019 131 CA

THE HIGH COURT

Order for possession – Set aside application – Joinder – Defendants seeking to set aside an order for possession – Whether the High Court had jurisdiction to entertain an application to set aside a final judgment and order of the High Court in respect of which leave to appeal to the Supreme Court was refused by determination of the Supreme Court

Facts: The defendants, Mr and Ms Conway, applied to the High Court pursuant to Order 124 of the Rules of the Superior Courts 1986 to set aside an order for possession made by a judge of the High Court following the delivery of judgment on a Circuit Court appeal in January 2020. By reason of the intervening purported transfer of the interest of the plaintiff, Pepper Finance Corporation (Ireland) DAC, in the legal charge on foot of which the order for possession was granted in the intervening period, a related application was made on behalf of Mars Capital Finance Ireland DAC (Mars) to be substituted in the proceedings as plaintiff for the purpose of being heard as legitimus contradictor on the defendants’ set aside application. A preliminary issue arose in relation to the right of audience of Mars as legitimus contradictor in respect of the defendants’ various applications. The issues for Phelan J’s determination on the defendants’ set aside application were, firstly, whether she had jurisdiction to entertain an application to set aside a final judgment and order of the High Court made on 31 January 2020 (in respect of which leave to appeal to the Supreme Court was refused by determination of that Court) in favour of the plaintiff and secondly, if she had jurisdiction, whether she ought properly to exercise it in all the circumstances arising in the proceedings.

Held by Phelan J that the application in this case was an ill-concealed attempt to re-run arguments already comprehensively addressed by both the Circuit and High Courts and in respect of which the Supreme Court had declined to entertain an appeal. She was satisfied that entertaining an application to set aside the final order of the High Court made in January 2020 on the basis contended for would constitute a breach of rights to finality protected under the Constitution; it would also transgress the constitutional order, comity of and hierarchy of the Courts where matters had proceeded to final determination in the High Court and leave to appeal had been refused by the Supreme Court. Accordingly, she held that any attempt to invoke a jurisdiction to set aside proceedings on grounds of bias could not be pursued before her in these proceedings where final orders had already been made by the High Court and the Supreme Court had refused leave to appeal. She held that if such a jurisdiction exists at all, it falls to be exercised by the Supreme Court on application to it or potentially in appropriately constituted proceedings seeking as primary relief the set aside of the order made. Even if she was incorrect in this, she was quite satisfied that no proper basis had been established for the exercise of an exceptional jurisdiction of the type identified in the Re Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514 line of authorities on the facts and circumstances of this case.

Phelan J ordered the joinder of Mars as co-plaintiff and having done so, determined that the application to set aside should be refused.

Application refused.

JUDGMENT of Ms. Justice Siobhán Phelan, the 20 ^th day of February, 2025.

INTRODUCTION

1 . This matter comes before me on foot of a series of related motions. Only the first two motions proceeded to hearing as my decisions on these two applications were understood to be potentially determinative of all issues raised.

2 . The first motion in time is the application of the Defendants pursuant to Order 124 of the Rules of the Superior Courts, 1986 (as amended) to set aside the Order for Possession made by a judge of the High Court following the delivery of judgment on a Circuit Court appeal in January, 2020 – now five years ago.

3 . By reason of the intervening purported transfer of the Plaintiff's interest in the legal charge on foot of which the Order for Possession was granted in the intervening period, a related application is made on behalf of Mars Capital Finance Ireland DAC (hereinafter “Mars”) to be substituted in these proceedings as Plaintiff for the purpose of being heard as legitimus contradictor on the Defendants' set aside application.

4 . A preliminary issue arises in relation to the right of audience of Mars as legitimus contradictor in respect of the Defendants' various applications. The issues I must determine on the Defendants' set aside application is, firstly, whether I have jurisdiction to entertain an application to set aside a final judgment and order of the High Court made on the 31 ^st of January, 2020 (in respect of which leave to appeal to the Supreme Court was refused by determination of that Court) in favour of the Plaintiff and secondly, if I have jurisdiction, whether I ought properly to exercise it in all the circumstances arising in these proceedings.

5 . The Defendants have represented themselves at all material times. The first named Defendant is an accountant by profession.

BACKGROUND

6 . It is common case that the Defendants borrowed money from GE Capital Woodchester Home Loans Limited on foot of a loan agreement in 2007. They continued making mortgage repayments up to the year 2015, when they ceased making repayments. The Defendants have not denied liabilities under the said loan agreement and I do not understand them to have disputed that they defaulted on payments on foot of the loan agreement entered into. Rather, they dispute any liability to the Plaintiff or Mars as successor in title to the Plaintiff.

7 . In reliance of a transfer of the charge to the Plaintiff, a Civil Bill issued in October, 2015, in which the Plaintiff sought an order for possession of property described in the schedule thereto as being:- “ All that and those the premises known as 33 Highfield Downs, Swords, Co. Dublin, more particularly described in Folio 74990F, Co. Dublin” (hereinafter “the Property”).

8 . An application for a possession order was duly heard by the Circuit Court on the 24 ^th of November, 2017, 6 ^th of July, 2018, and 9 ^th of July, 2018, on foot of a motion for summary judgment. In the ordinary way on an application for summary judgment, the question for the judge to decide in the Circuit Court was whether the Defendants could show a bona fide defence.

9 . The Defendants raised many points before the Circuit Court. These included a contention that the Plaintiff was not entitled to seek possession as it was not the lawful successor in title to the original mortgagees. Other contentions included, inter alia, the bona fides and veracity of the Plaintiff's deponents on affidavit. The Defendants' arguments were all to the effect that the Plaintiff was not entitled to seek possession of the Property.

10 . These various contentions were set out in the detailed written judgment of the Circuit Court delivered on the 20 ^th of March, 2019. The Circuit Court held, following very extensive consideration, that the Plaintiff had legal standing to bring the application for summary possession. Following a thorough review of the Defendants' submissions and having considered authorities such as Pepper Finance v. Hanlon (Unreported, High Court, Ní Raifeartaigh J, 11 ^th of January, 2018) and Pepper Finance v. Jenkins [2018] IEHC 485, the Circuit Court found that no bona fide defence had been disclosed and that the Plaintiff was entitled to an order for possession of the Property, refusing the reliefs sought by the Defendants for reasons carefully elaborated upon in its written ruling which ran to some 36 Pages.

11 . I note that in arriving at his decision, the Circuit Court Judge accepted many of the factual assertions advanced by the Defendants for the purposes of determining whether the basis for a bona fide defence had been disclosed before determining that the existence of incorrect or erroneous statements (assuming the existence of errors to be established) in statutory declaration or a mortgage deed sale, as contended for by the Defendants, did not of themselves serve to provide a credible defence.

12 . On any reading of his decision, the Circuit Court judge was very fair to the Defendants. He applied the benefit of any doubt in favour of the assertions made by the Defendants before determining that even if these assertions were correct, they did not avail the Defendants in defending the application for an order for possession, principally because they did not have the legal significance contended for by the Defendants.

13 . It was further observed by the Learned Circuit Court Judge, however, that the deception alleged by the Defendants, even if established, did not alter the legal position of the Defendants. He noted that while the matters alleged, if proven, could be very serious matters, he could not see how they would have any impact on the rights of the Plaintiff against the Defendants (at para. 99 of the Circuit Court judgment). He concluded that the low threshold set for a referral of a matter to plenary hearing had not been met (at para. 100 of the Circuit Court judgment) before proceeding to make an order for possession subject to a stay of nine months, or in the event of an appeal being lodged, the stay continuing until the determination of the appeal (at paras. 103 and 104 of the Circuit Court Judgment).

14 . The Defendants appealed against the Order for Possession. The matter came before the High Court in December, 2019, on appeal. The judge assigned to hear the case was newly appointed and had been a...