IEHC 56 — IEHC 56 — High Court

THE HIGH COURT

CIRCUIT APPEAL

[2025 No.75 CA]

[2026] IEHC 56

BETWEEN: START MORTGAGES DAC AND MARS CAPITAL FINANCE DAC PLAINTIFFS / RESPONDENTS AND

ROBERT CORR AND SUSAN O’LOUGHLIN

DEFENDANTS / APPELLANTS

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 12th day of February,

2026

1. Introduction

1.1 This is an appeal of Orders of the Circuit Court substituting the second named

Plaintiff (the Respondent) in this action and giving it leave to execute an order for

possession of a property at Rush, County Dublin (Folio 62152L DN) (“the Property”).

The case came before Simons J. who expressed reservations about the redactions made

in documents exhibited by the Respondent. The Respondent seeks leave to exhibit

copies of documents which are, in part, now unredacted and where redactions remain,

they are explained. It is submitted that this information confirms that the Respondent

has valid title to the loan and the consequent right to execute the order for possession. 1.2 The Appellant appeared as a litigant in person. He continues to reside at the

Property. The original order for possession was in respect of two properties, one at

Rush and another in Balbriggan. However, since the order of possession was

originally granted, the property in Balbriggan was sold by a receiver and therefore

leave to execute was only granted in respect of the Property in Rush. The second

named Defendant has not participated in these proceedings.

1.3 The original order for possession was granted on 20th February, 2015 in favour of

Permanent TSB (PTSB). PTSB was given leave to execute the original order for

possession on 5th November, 2018, after an unsuccessful appeal to the High Court by

this Appellant. The loan and underlying mortgages were then sold by PTSB to Start

Mortgages DAC (“Start”).

1.4 Start was substituted as plaintiff on 19th December 2019. This order was appealed

to the High Court by the Appellant. On 2nd March, 2020 Hyland J. allowed Start to

execute the order for possession in respect of Balbriggan and adjourned the matter in

relation to the Rush Property as the Appellant wanted to explore a personal insolvency

arrangement. Unfortunately, this arrangement failed and, on 24th February, 2023, the

balance of the appeal was dismissed. Start was granted leave to execute the order for

possession in respect of the Rush property. Start issued a motion for leave to execute

in the Circuit Court in circumstances where more than six years had passed since the

making of the original order for possession. On 20th February, 2024 His Honour Judge

O’Connor granted that order for leave to execute. This is notable as the Appellant

maintains that the original order for possession was not renewed: it was.

1.5 The Respondent’s case is that Start then transferred its business, including this

loan, to the Respondent. On 3rd March, 2025 Judge O’Connor made an order

substituting Mars Finance Ireland DAC (“Mars”) as plaintiff and granting it, the

Respondent in this case, leave to execute the original order for possession. These

orders are the subject matter of this appeal. The Appellant noted in submissions that he did not appear at the Circuit Court hearing for reasons relating to his mental health.

As an appeal from the Circuit Court, this is a hearing de novo and the Respondent must

prove its title and, in light of the directions of Simons J., must also obtain leave to

adduce new evidence.

2. The Test for Summary Possession Proceedings

2.1 The Respondent must establish that it is entitled to leave to execute the order for

possession. The relevant Circuit Court Rules envisage a summary application on

affidavit evidence alone but the Circuit Court and, in turn, the High Court, is given a

discretion in terms of directing a full plenary hearing, requiring additional evidence

or granting the order sought. If, therefore, there is a matter which has not been

established on the evidence or if a defence has been raised, this is a case in which a

further affidavit or a further hearing can be directed in order to consider the matter in

more detail and to hear witness evidence, if that is required. As noted above, this has

already been done by Simons J. who directed that further information be provided in

respect of the purported transfer of the loans to this Respondent. It is this information

which forms the basis for the application for leave to adduce new evidence.

2.2 The test to be applied in determining a right to an order for possession was set out

in Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26, [2021] 2 I.R. 381 by Baker J.,

who explained that there are many cases which fall between the situation in which a

plaintiff establishes its right to possession and that in which a defendant can establish

a defence, noting: “Many applications for summary judgment would fall between these two

extremes and will involve the proffering of evidence or argument by a defendant … which is

not sufficient to rebut the evidence of the plaintiff to enable the judge to make a positive finding

against the plaintiff, but which offers enough doubt as to the truth or completeness of the

plaintiff’s evidence, or credibly presents reasonable arguments or evidence that a defendant has

a basis of defence which merits further scrutiny, evidence or argument. In that instance the

trial judge is constrained by the inability to decide between contested affidavit evidence of fact, or resolve complex questions of law, the action cannot therefore be disposed of summarily and

will be adjourned to plenary hearing.”

3. Appellant’s case

3.1 The Appellant submits that the Respondent has not proven that it is entitled to

repossess the property as it has not proven a successful transfer of the loan to this

Respondent. He points to the remaining redactions and submits that he still does not

accept that these exhibits prove that the Respondent is entitled to the orders sought.

3.2 He also notes that the name PTSB still appears on the folio. This is not

determinative in that this Respondent is named in the folio as the current owner of the

charge on the property. The name of Start has been struck through but that of PTSB

has not. However, it is clear from the entries themselves, and their dates, that PTSB is

no longer the owner. Further, the evidence in this case put that issue beyond doubt.

3.3 Further, The Appellant has submitted that the original order was never renewed.

This is not factually correct as Judge O’Connor did exactly that, on 24th February 2024.

4. Substitution of Plaintiffs and execution orders

4.1 Under Order 22 rule 4 of the Circuit Court Rules (CCR), the Court may make an

order that a new party may be added to a case after a transmission of interest to that

new party, if it is necessary or desirable that they be joined. The application for such

an order is made ex parte, where one side only is represented.

4.2 Order 36 rule 9 of the CCR provides that an execution order based on a decree or

judgment of the Court may be issued within 6 years from the date of the decree or

judgment. After 6 years, leave of the Court must be sought in order to issue an

execution order. Order 36 rule 10 permits the Court to grant leave to issue execution

to a party who has become entitled to issue execution by reason of an assignment. 4.3 The formal proofs in this case were not seriously contested. At page 76 of the

pleadings, the folio confirms that a charge was registered on the land, transferred to

Start and then to this Respondent on 7th August, 2024.

4.4 Goodbye and Hello letters are exhibited and the Respondent’s letter to the

Applicant makes it clear that he was required to continue to make mortgage

repayments in respect of the Property in Rush. The last payment made was 83 euro,

which was paid in 2017. There was no suggestion of any later payment to any person

or institution.

5. Redactions, Reasons and Peruvian Guano

5.1 The main issue in this case is the extent of the redactions in the relevant documents

and whether the transfer of the loan has been satisfactorily proven despite the new

evidence in that regard. Given the central importance of this issue and the directions

of Simons J., this is clearly a case in which it is fair to allow the new evidence, which

relates to the contents of the redacted documents, to be adduced and considered. It

would be unfair and disproportionate, in the circumstances, to prohibit the

Respondent from attempting to address the very issues raised by the Appellant. The

Respondent’s failure to clearly identify or explain relevant parts of these documents

to date is a matter more appropriately addressed by way of a ruling in respect of costs,

rather than by refusing them leave to adduce the evidence at all.

5.2 The deponent for the Respondent is Ms. Eva McCarthy. A Global Deed of Transfer

has been exhibited to explain how the Respondent became entitled to possession of

the loan and, thereby, to possession of the property. This Deed was the primary

mechanism by which the transfer and assignment of the loan and security was

transferred from Start to this Respondent and is unredacted save for the names of

other borrowers. This Appellant and the former Defendant are named on page 17 of

the exhibit and their loan account number is set out. Ms. McCarthy avers that the

redactions in the schedule to this deed were made to protect the confidentiality of borrowers’ details which are unrelated to these proceedings and, from the

surrounding pages and the heading at the top of the relevant section of the document,

this appears to be the case. The Appellant accepted that this was information which

he was not entitled to see and there was no suggestion that the sworn evidence of Ms.

McCarthy in this respect was incorrect.

5.3 The Global Deed of Transfer refers to a Transfer Agreement and an amended Deed.

These agreements were significantly redacted. The Respondent explained that these

were exhibited to assist the Court in interpreting the Global Deed of Transfer and that

the majority of the aspects of these transactions are not relevant to the transfer and

assignment of the defendant’s facility and security. Under the Transfer Agreement the

entire business of Start was transferred to the Respondent and the redactions in this

Deed relate to contractual relations irrelevant to this application. In relation to the

Deed of Amendment, the Respondent’s affidavit explains that this Deed also

principally concerns the transfer of employees and other property from Start to Mars.

Again, the explanations which were set out in the affidavits of Ms. McCarthy, were

not challenged in any serious way nor is there a suggestion that they were misleading.

Insofar as one can tell, they are also consistent with page headings and the general

sequencing of the documents.

5.4 The Appellant argues, nonetheless, that as a consequence of the redactions, the

Court cannot understand or meaningfully examine the exhibits. The same issues were

considered by Mulcahy J. in Start Mortgages DAC v McDaid [2025] IEHC 634. There,

Mulcahy J. considered the effect of a substitution order in respect of the same two

parties concerned in this case, Start and this Respondent. He held that the relevant

standard of proof was proof on the balance of probabilities. This is in line with the

approach of the Court of Appeal in Bank of Scotland v. McDermott [2019] IECA 142. For

the reasons set out by Mulcahy J., that is the basis on which I will consider the

evidence, rather than on the lower standard of establishing a prima facie case. As this

case is almost identical to McDaid, in that the relief sought will determine the right of the Respondent to issue execution, the standard of proof that the Respondent must

meet should be the higher standard of proof on the balance of probabilities.

5.5 As in McDaid, the Respondent’s evidence is sufficient to prove that the Appellant’s

loan was transferred by Start to the Respondent, the Appellant was notified of this

fact, and the Respondent is entitled to execute the order for possession. Unlike the

case of Start Mortgages DAC v. Ramseyer [2024] IEHC 329, the redactions are no longer

extensive, have been explained and the operative parts of the relevant deeds are not

redacted. As in McDaid, the subsequent affidavit of Ms. McCarthy explains the

remaining redactions and confirms that they are either irrelevant or commercially

sensitive and, in either event, have no effect on the arguments made by the Appellant.

5.6 As in McDaid, the Appellant has not engaged further with the redacted portions,

nor has he pointed to any reason to doubt that Start transferred its interest in the

Appellant’s loan and mortgage to the Respondent. There is no reason to refuse the

substitution application.

5.7 The Appellant relies on Pepper Finance Corporation (Ireland) DAC v O’Reilly [2026]

IEHC 16 to argue that this is a case in which the redactions do not permit him to

understand the documents and, therefore, that this Court cannot be satisfied as to their

effect. While the O’Reilly case may indeed appear to favour the Appellant’s argument,

he has not engaged with the actual contents of the documents exhibited, nor has he

addressed the explanations given. His primary argument can be summarised by

quoting his submission that there is “too much black”. This does not take into account

evidence from the affidavit of Ms. McCarthy as to the provisions regarding employees

and other borrowers. These issues did not arise in O’Reilly.

5.8 In O’Reilly, the global deed of transfer was “heavily” and extensively redacted, in

the words of Simons J. He held that the Court could not determine the legal effect of

the deed, confirm whether the underlying debt had been transferred, or link the deed

to the specific loan account at issue given the extent of the redactions. Simons J. emphasised that while it is appropriate to redact other borrower’s data, it is not

normally appropriate to redact the core operative clauses. These comments cannot be

made of the documents exhibited here. The core operative clauses are apparent, and

the loan account is identifiable and can be linked to the transfer.

5.9 As I have noted before, these judgments may be said to boil down to Peruvian

Guano: does the material relate to the matter in question and would it assist one party

to either make her case or to damage her opponent’s case? This refers to the seminal

case on relevance and discovery, Compagnie Financiere et Commerciale du Pacifique v.

Peruvian Guano (1882) 11 Q.B.D. 55. That case has been applied in this context by the

English Court of Appeal in GE Capital Corporate Finance Group Limited v. Bankers Trust

Co. [1995] 1 WLR 172 and adopted here in numerous Superior Court decisions,

including by the Court of Appeal in Farrell v Everyday Finance DAC [2024] IECA 16.

5.10 In GE Capital, Leggatt L.J. commented:

“The plaintiffs are obliged to disclose the relevant parts of documents, but not the irrelevant.

There can be no argument that in doing so they were in some way waiving any rights not to

disclose each of the documents as a whole…The court will not ordinarily disregard the oath of

the party that the parts concealed do not relate to the matters in question.” This conclusion

was quoted with approval by Whelan J. delivering the judgment of the Court of

Appeal in Farrell. Both Whelan J. in Farrell, and Haughton J. in Courtney v. OCM Emru

Debtco DAC [2019] IEHC 160, deprecated the excessive use of redactions in these cases.

5.11 Whelan J. pointed out that if there is evidence that redactions are made and

subsequently prove to be misleading, the Court is likely to require full documents to

be exhibited to restore trust between the parties, save for redactions to protect third

parties. She noted that the documents could only be used for the purposes of the

litigation, not for any other purpose, per Murphy J. in Gormley v. Ireland [1993] 2 IR 75.

In Courtney, Haughton J. concluded: “…there is no reason why the other side should not be asked to identify with precision the basis

of the redaction – not merely whether it is on grounds of privilege, but explaining whether it

is referring to legal advice or some other basis.”

“In GE Capital the Court of Appeal said that it was incumbent on the legal adviser to examine

the communications in question critically to see whether there are any non—privileged parts

which should be disclosed to the other side. At present, however, the right to redact is being

regularly abused, and the courts should be vigilant to stop this.”

5.12 Here, there is no evidence of misleading redactions or excessive redactions such

that further explanations are necessary. There is nothing on the face of the deeds, as

exhibited with the redactions explained, which prevents the transfer of the loan and

mortgage in this case having effect. This Respondent appears, on the balance of

probabilities, to have succeeded to Start’s interest in the Appellant’s loan and should

be substituted as the Plaintiff to the proceedings under Order 17 rule 4 of the Rules of

the Superior Courts which is in the same terms as the relevant Circuit Court rule,

Order 36 rule 10. The transfer from PTSB to Start has already been held as effective by

the High Court in 2023.

6. Delay

6.1 While there has been some delay since the original order, the history of the case as

set out above, explains that delay in very large part. The Appellant did not make any

argument in this regard, but I will consider the issue nonetheless. The Supreme Court

has set the relevant test, in Smyth v. Tunney [2004] IESC 24. It is not necessary to show

exceptional reasons to justify delay, but to explain the delay and then determine

whether relief should be denied on that basis, balancing the rights of the parties and

considering any prejudice which may arise. Most of the delay in the case is explained

by unsuccessful appeals and the exploration of a personal insolvency arrangement for

the Appellant. While the orders made by this Court will lead to him losing his

residence, it remains the case that the original order for possession was made in 2015 and, over ten years later and without any repayment since 2017, the Appellant remains

in possession of the Property. The Respondent, which body has purchased that loan

and mortgage from Start, is entitled to execute the order for possession. The delay in

the case has not been challenged by the Appellant in any serious way, perhaps

understandably as forbearance has been shown to him in his efforts to resolve the case.

7. Conclusion

7.1 This is an extremely sad case in which a businessman, through illness (which

account has not been disputed) became unable to tend to his financial affairs. He had

invested in a second property. He lost his business and that second property. He asks

me to make an order which ensures that he is not put out of his house until he is re-

housed. The law does not permit me to do so as the Respondent is entitled to execute

the order for possession and, while one can only have sympathy for the Appellant, my

obligation is to uphold the law which dictates the outcome of the proceedings.

7.2 The appeal is dismissed and the order for substitution is affirmed, together with

the order that the Respondent is entitled to execute the order for possession.

7.3 Having heard the parties on the issue of a stay and on the issue of costs, I make no

order as to the costs of the appeal. While the Respondent has been successful, the

proceedings would have been more efficient if there had been more transparent

disclosure from the outset. The property in question is the principal private residence

of the Appellant who has suffered from poor health for a decade or more. In those

circumstances, the execution of the judgment will be stayed for a period of six months

from the date of final judgment, namely, 12th February 2026.

7.4 The final orders are to dismiss the appeal, to affirm the order of the Dublin Circuit

Court, to extend the stay on execution of the possession order for a period 6 months

from today’s date and to make no order as to the costs of the appeal.