Pepper Finance Corporation (Ireland) Dac v Jerry Beades

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms Justice Máire Whelan
• Judgment Date: 17 February 2021
• Neutral Citation: [2021] IECA 40
• Date: 17 February 2021
• Docket Number: Court of Appeal Record No. 2019/458

Between/

Pepper Finance Corporation (Ireland) DAC

Plaintiff

and

Jerry Beades

Appellant

[2021] IECA 40

Whelan J.

Noonan J.

Haughton J.

Court of Appeal Record No. 2019/458

High Court Record No. 2006/623 SP

THE COURT OF APPEAL

Jurisdiction – Substitution – Costs – Appellant appealing against an order naming Beltany Property Finance DAC as the sole plaintiff in the proceedings – Whether the trial judge erred in principle in accepting jurisdiction to make an order substituting the plaintiff in circumstances where the Court of Appeal was seised of appeals in connection with the same case

Facts: The appellant, Mr Beades, appealed to the Court of Appeal against the ex tempore judgment and order of Reynolds J made in the High Court on 14 October 2019 wherein the following orders were made: (1) an order pursuant to O. 17, r. 4 of the Rules of the Superior Courts (RSC) and/or pursuant to the inherent jurisdiction of the High Court naming Beltany Property Finance DAC (Beltany) as the sole plaintiff in the proceedings; (2) an order pursuant to O. 42, r. 24(a) RSC and/or pursuant to the inherent jurisdiction of the High Court granting the applicant, Beltany, liberty to issue execution on foot of an order for possession made by Dunne J on 23 June 2008; and (3) an order pursuant to O. 28, r. 12 RSC amending the possession order so as to name the applicant, Beltany, in place of “KBC Bank Ireland plc” as the plaintiff in the title thereof. The notice of appeal was lodged on 12 November 2019, the sole ground of appeal being that the trial judge erred in principle in accepting jurisdiction to make an order substituting the plaintiff in circumstances where the Court of Appeal was seised of appeals in connection with the same case.

Held by Whelan J that, in light of the facts of this case and in particular the fact that Beltany only acquired an interest in the mortgaged properties in late 2018 and following the conclusion of the High Court motion under appeal to the court, no exceptional circumstance or basis had been identified which warranted Beltany initiating the motion in the court seeking the reliefs as it did. Whelan J held that the jurisdiction of the court as provided by the Constitution and statute is exclusively appellate in nature and in general it is prudent that the court refrain from entering into a determination of issues or procedural matters which have not been the subject of a trial and determination by the High Court in the first instance. Accordingly, Whelan J held that she would dismiss the appeal.

Whelan J held that, with regard to costs, as Beltany had been entirely successful in opposing the appeal, her provisional view was that Beltany was entitled to its costs of the appeal; since the appellant was wholly unsuccessful in the appeal and having regard to O. 99 (recast) and ss. 168 and 169 of the Legal Services Regulation Act 2015, costs follow the event.

Appeal dismissed. Costs awarded to plaintiff.

JUDGMENT of Ms Justice Máire Whelan delivered on the 17th day of February 2021

1 This is an appeal against the ex tempore judgment and order of Reynolds J. made in the High Court on 14 October 2019 wherein the following orders were made:

The said order on its face records that it was made “by consent” however I infer that that is erroneous.

• 1. an order pursuant to O. 17, r. 4 of the Rules of the Superior Courts (“RSC”) and/or pursuant to the inherent jurisdiction of the High Court naming Beltany Property Finance DAC (“Beltany”) as the sole plaintiff in the proceedings;

• 2. an order pursuant to O. 42, r. 24(a) RSC and/or pursuant to the inherent jurisdiction of the High Court granting the applicant, Beltany, liberty to issue execution on foot of an order for possession made by Dunne J. on 23 June 2008; and,

• 3. an order pursuant to O. 28, r. 12 RSC amending the possession order so as to name the applicant, Beltany, in place of “KBC Bank Ireland plc” as the plaintiff in the title thereof.

2 The title page of this judgment reflects the most up-to-date details of the parties in the underlying High Court proceedings as recorded by the Central Office of the High Court. This should not be taken as a pre-judgment of the issues discussed herein or of any potential future appeals brought by the appellant.

The ex tempore judgment

3 A note was furnished of the proceedings before the trial judge. It notes that at first calling of the application on 14 October 2019 in the Chancery No. 1 Motion List before the High Court, the judge was informed by counsel on behalf of Beltany that the application could be dealt with by consent in circumstances where the solicitor acting for the appellant had indicated that this was the position by means of an email sent on 11 October 2019 at 5.22pm. Subsequent to counsel having departed the courtroom the appellant's solicitor and counsel attended before the High Court, in the absence of the solicitor and counsel for Beltany, and informed the trial judge that the appellant had changed his position in regard to the application and was no longer willing to consent to the relief being sought. Prior to the said attendance an email was sent to solicitors for Beltany stating that the consent above referred to furnished on 11 October 2019 had been provided in error and that the matter would be re-mentioned before Reynolds J.

4 At the resumed hearing of the motion counsel on behalf of the appellant submitted that the application ought to have been brought before the Court of Appeal and not before the High Court in circumstances where the appeal bearing record no. 2018/378 was already pending. It was asserted that the Court of Appeal had seisin of the proceedings in those circumstances.

5 Beltany argued that the appeal pending was from an order made by Costello J. dated 25 July 2018 and it was incorrect to suggest that the Court of Appeal had seisin of the substantive proceedings save and except the appeal pending in the separate procedural matter aforesaid. It was further argued that O. 17, r. 4 and O. 42, r. 24 RSC clearly envisage that the relief at issue be sought from the High Court in the first instance. In a ruling Reynolds J. noted the nature of the 2018 appeal and the terms of O. 17, r. 4 and O. 42, r. 24 RSC. She further noted that no authority had been opened to the High Court to support a proposition that an application such as that at issue could be dealt with by the Court of Appeal. Thereupon she proceeded to grant the orders in terms of paras. (a) to (c) inclusive of the notice of motion and made an order reserving the costs of the application. The note of the judgment acknowledges that the perfected order, albeit suggesting that the reliefs were granted by consent, is incorrect in the circumstances outlined above.

Notice of appeal

6 The notice of appeal was lodged on 12 November 2019; the sole ground of appeal being that the trial judge erred in principle in accepting jurisdiction to make an order substituting the plaintiff in circumstances where the Court of Appeal was seised of appeals in connection with the same case.

Submissions of appellant

7 In written submissions the appellant identified the key facts as being that on 23 June 2008 IIB Homeloans Limited obtained an order for possession of two premises, 31 Richmond Avenue and 21 Little Mary Street in Dublin pursuant to O. 54, r. 3 RSC, the said order made on foot of a mortgage dated 12 June 2003 and made between the parties aforesaid. The appellant appealed the said order for possession and judgment was delivered on 12 November 2014 dismissing the said appeal and affirming the order for possession made in the High Court by Dunne J. on 23 June 2008. By special resolution of 2 October 2008, IIB Homeloans changed its name to KBC Mortgage Bank. In 2009 KBC Mortgage Bank entered into a scheme of transfer with KBC Bank Ireland plc for the purposes of the Central Bank Act 1971. By virtue of S.I. No. 125 of 2009 the Minister for Finance of the time being approved the said scheme of transfer of the banking undertaking of KBC Mortgage Bank to KBC Bank Ireland plc pursuant to s. 33 of the...