Permanent TSB PLC v Burns & Anor [2020] IEHC 24 (27 January 2020)

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JUDGMENT of Mr. Justice Garrett Simons delivered on 27 January 2020

1. This judgment is delivered in respect of two procedural applications made in connection

with the enforcement of orders for possession. The orders for possession relate to three

parcels of land which are owned by the Defendants (“Mr & Mrs Burns”). The title to one

of the parcels is registered under the Registration of Title Act 1964; the title to the other

2. The orders for possession had been made on the basis of an indenture of mortgage and

charge (“the Mortgage”) which had been entered into between the Plaintiff, Permanent

TSB plc (“PTSB”), as mortgagee, and Mr & Mrs Burns, as mortgagors. The ownership of

the mortgagee’s interest in the Mortgage (and in the underlying loan facility) has since

been transferred from PTSB to Start Mortgages DAC (“Start Mortgages”).

3. Start Mortgages has applied for the following two orders in consequence of this transfer of

ownership. First, an order is sought pursuant to Order 17, rule 4 of the Rules of the

Superior Courts to the effect that the within proceedings should be carried on as between

Start Mortgages and Mr & Mrs Burns. Secondly, an order is sought pursuant to Order 42,

rule 24 granting Start Mortgages liberty to issue execution in respect of the orders for

4. These applications have been made on notice to Mr & Mrs Burns. This is so

notwithstanding that Order 17, rule 4 appears to envisage that such an application be

made on an ex parte basis. The two applications were heard together on Monday 16

December 2019, and judgment reserved until today’s date. Mr & Mrs Burns represented

themselves at the hearing in December. The applications were opposed by them

primarily on the grounds (i) that the deponent on behalf of Start Mortgages “cannot claim

to have first hand knowledge of any of the events” and that his evidence is hearsay; and

(ii) that they never consented to the transfer of the Mortgage to Start Mortgages DAC and

that the clause which allowed such an assignment is an “unfair term”.

5. For the reasons set out in this judgment, I have concluded that Start Mortgages has

discharged the onus of proof upon it, and that it is entitled to the orders sought by it in all

6. The within proceedings were instituted by way of Special Summons on 2 July 2015. The

Special Summons had been amended subsequently by order of the High Court dated 14

March 2016, to correct an error in the spelling of the Defendants’ address (“Killeshranda”

7. The proceedings relate to three parcels of lands in Leitrim and Cavan, respectively. Title

to one of the parcels is registered under the Registration of Title Act 1964, and an order

for possession was sought pursuant to section 62(7) of the 1964 Act in respect of that

8. The application for orders for possession had been grounded on the affidavit of Jacqueline

O’Brien sworn herein on 8 July 2015. Ms O’Brien identified herself as a manager with

PTSB, and averred that she made her affidavit on behalf of and with the authority of PTSB

and from an examination of the books, records and accounts of PTSB, and, in particular,

the accounts held by the Defendants. The affidavit exhibited inter alia the indenture of

mortgage and charge in favour of PTSB entered into by Mr & Mrs Burns on 23 September

9. The High Court (Ní Raifeartaigh J.) made orders for possession in respect of the three

mortgaged properties on 16 January 2017. Mr & Mrs Burns, as is their right, brought an

appeal against the High Court order to the Court of Appeal. That appeal was dismissed

by the Court of Appeal (Irvine, Whelan and Baker JJ.) on 28 November 2018. Thereafter,

Mr & Mrs Burns applied to the Supreme Court for leave to appeal to that court. Leave to

appeal was refused by Determination dated 6 June 2019 (Permanent TSB v. Burns

10. Given the nature of the arguments which have been relied upon by Mr & Mrs Burns in

opposition to Start Mortgages’ applications, it is to be noted that one of the grounds upon

which leave to appeal had been sought is the alleged failure of PTSB to have produced the

original loan offer letter signed by Mr & Mrs Burns. This argument had been rejected by

11. In summary, therefore, these proceedings have thus reached the stage where all rights of

appeal as against the substantive orders, i.e. the orders for possession, have been

exhausted. The only issue which remains outstanding is the enforcement of the orders.

12. The application to make Start Mortgages a party to the proceedings has been made

pursuant to Order 17, rule 4 of the Rules of the Superior Courts. The Order reads as

4. Where by reason of death, or any other event* occurring after the commencement

of a cause or matter and causing a change or transmission of interest or liability,*

or by reason of any person interested coming into existence after the

commencement of the cause or matter, it becomes necessary or desirable that any

person not already a party should be made a party, or that any person already a

party should be made a party in another capacity, an order that the proceedings

shall be carried on between the continuing parties, and such new party or parties,

may be obtained ex parte on application to the Court upon an allegation of such

change, or transmission of interest or liability, or of such person interested having

13. The interpretation of Order 17, rule 4 has been considered in a number of recent

judgments. The Court of Appeal addressed two aspects of the wording of the Order as

follows in Stapleford Finance Ltd. v. Lavelle [2016] IECA 104. First, it was held that the

phrase “any other event”, in the opening sentence of the Order, included events such as

the assignment of loans and a chose in action. An “event” was not confined to an

extraneous event (such as death or bankruptcy), but also embraced an event such as a

14. Secondly, it was held that the phrase “change … of interest” was not confined to an

interest in land, but embraced an assignment of a chose in action. It was further held

that there was no distinction in this regard between the assignment of a chose in action

and the assignment of an existing cause of action. The Court of Appeal held that the

legislative intent of the Supreme Court of Judicature Act (Ireland) 1877 would be

defeated if it were not possible to substitute the assignee as a party.

“Since the Supreme Court of Judicature Act (Ireland) 1877 it has been possible

legally to assign a chose in action. The intent of the statute is to do away with the

formal necessity of joining the assignor in any proceedings brought by the assignee

to enforce the chose in action. The legislative intent is defeated if the rules of court

do not provide for of the substitution of the assignee of the chose in action as

15. At a later point in the judgment, the Court of Appeal observed that a requirement for an

assignee to have to commence new proceedings (as opposed to its being made a party to

existing proceedings taken by the assignor) could lead to very considerable wasted time,

effort and expense. It could also present difficulties in respect of the Statute of

16. The question of whether Order 17, rule 4 can be invoked in proceedings seeking the

recovery of lands by way of an order for possession has been expressly considered in

Danske Bank v. Macken [2018] IEHC 356 and Permanent TSB v. Doheny [2019] IEHC 414.

In each instance, the High Court accepted that it is open to the transferee under a

deed of transfer to apply to be made a party to possession proceedings which had

17. Mr & Mrs Burns did not appear to dispute this interpretation of the Order. Rather, the

disagreement between the parties to the present case centres on the separate question of

the nature and extent of the evidence which must be adduced in support of an application

under Order 17, rule 4. This question has also been addressed in the case law. Before

turning to consider that case law, however, it should be emphasised that the application

in the present case has been made at a more advanced stage of the proceedings than had

been the position in the cases opened to me. More specifically, the application has been

made subsequent to the substantive hearing, and subsequent to the making of the orders

for possession. A further point of distinction is that much of the case law relied upon

involved proceedings by way of Summary Summons, rather than proceedings seeking to

18. The leading judgment remains that of the High Court (Kelly J.) in Irish Bank Resolution

Corporation v. Comer [2014] IEHC 671. The judgment was delivered in respect of an

application by the purchaser under the sale of a bank’s loan book to be substituted as

plaintiff in existing proceedings. The sale was characterised as an assignment of a chose

in action for the purposes of section 28 of the Supreme Court of Judicature Act (Ireland)

1877. Crucially, the application had been made prior to the substantive hearing of the

proceedings. The High Court held that the legal test for such an interlocutory application

is whether there is prima facie evidence that there has been (i) a valid sale of the

underlying assets; (ii) a valid assignment of the chose in action; and (iii) a valid notice

given. It was not necessary for the court to adjudicate, at that juncture of the

proceedings, on the efficacy or validity of the assignment or the efficacy or validity of the

notice. Those were matters to be determined at the substantive hearing.

19. The standard of proof to be met on an application to substitute a party which is made

subsequent to the substantive hearing will be higher. This is because there will, by

definition, be no further hearing at which these matters can be ventilated. Put shortly,

the efficacy or validity of the assignment will have to be considered on the joinder

20. This distinction is explained as follows by the Court of Appeal in McDermott v. Ennis

“37. Where, as in the present case a substitution application is made after judgment has

been granted, and where therefore there is no opportunity at trial to raise any

issues in relation to the proofs adduced in support of the application, it seems to

me that the prima facie test referred to by Kelly J. in IBRC v. Comer is not the

correct test. In such cases the correct test is that applicable in civil proceedings

generally, namely on the balance of probabilities. The evidence will nonetheless be

adduced in the normal way in such applications by affidavit, and if necessary any

deponent may be cross-examined on their affidavit as provided for by the Rules of

the Superior Courts. But such applications remain purely procedural in nature, and

there can be no question of such an application becoming in the nature of a mini-

21. This is the approach to be applied in the present case, where, of course, the application is

being made subsequent to the making of the orders for possession (16 January 2017).

22. The two applications presently before the court are grounded on an affidavit sworn by Mr

Justin Nevin on behalf of Start Mortgages DAC dated 29 July 2019. Mr Nevin identifies

himself as the “litigation manager” for Start Mortgages DAC, but goes on to explain that

he is employed by Start Mortgages Holding Ltd., which he describes as the parent

company and sole shareholder of Start Mortgages DAC. As discussed presently, Mr & Mrs

Burns attach significance to the fact that Mr Nevin is not directly employed by Start

“1. I am the Litigation Manager for Start Mortgages Designated Activity Company (the

‘Applicant’) and employed by Start Mortgages Holding Limited (‘SMHL’) which is the

parent company and sole shareholder of Start Mortgages Designated Activity

Company. SMHL manages and services all loans held by the Applicant. I make this

affidavit on the Applicant’s behalf and with its authority, from facts within my own

knowledge and from a diligent perusal of its books and records, save where

otherwise appears and where so otherwise appearing I believe the same to be

24. In his supplemental affidavit of 2 December 2019, Mr Nevin states as follows.

“4. As previously averred to in the Grounding Affidavit I am employed by Start

Mortgages Holding Limited (‘SMHL’) which is the parent company and sole

shareholder of Start Mortgages Designated Activity Company the Applicant herein.

SMHL manages and services all loans held by the Applicant. All employees of SMHL

have been authorised by the Applicant to access its books and records. In those

circumstances, I am giving evidence on behalf of the Applicant from facts which are

within my own direct knowledge of the books and records of the Applicant. This is

first-hand evidence contrary to what is contended by the First Named Defendant.

5. Accordingly, I say and believe that I am an appropriate and correct person in which

25. Mr Nevin has exhibited, as part of his first affidavit, a deed entitled “Irish Law Global

Deed of Transfer, Conveyance and Assignment (Excluding Property)”. This deed is dated

1 February 2019, and has been entered into by Permanent TSB plc, as the seller, and

26. Mr Nevin avers that the loan facility and indenture of mortgage and charge the subject

matter of the proceedings have been transferred to Start Mortgages under this deed of

“13. On the 1st February 2019, the Bank executed a Deed of Transfer (the ‘Transfer

Deed’) whereby the Bank transferred all its right, title, interest, estate, benefit and

entitlement (past and present) in and under the Underlying Loans and each of the

Finance Documents (as each of the capitalised terms is defined in the Transfer

Deed) which includes the Facility and the Indenture of Mortgage and Charge in the

within proceedings to the Applicant (the ‘Transfer’). I beg to refer to a copy of the

Transfer Deed and the relevant extracts from Schedule 1 to the Transfer Deed

confirming the inclusion of the Defendants’ mortgage loan account, the Facility and

the Indenture of Mortgage and Charge upon which, and marked with the letters and

number ‘JN2’, I have signed my name prior to the swearing hereof.

14. At Schedule 1 to the Deed of Transfer as exhibited at ‘JN2’ above, there are a

number of headings and entries which remain unredacted. The account number

column in Schedule 1 identifies the loans which are the subject of the Transfer. As

part of Schedule 1, the Defendants account number – 90028733 – appears in the

27. The affidavit goes on to explain that information relating to borrowers who are not parties

to the proceedings has been removed or redacted entirely for reasons related to

commercial sensitivity, restrictions imposed by the Data Protection Acts 1988 to 2018 and

28. The affidavit also exhibits a deed entitled “Irish Law Deed of Conveyance & Assignment

(Unregistered Property)”. Extracts from the schedule are then exhibited which purport to

show that the ownership of the two parcels of unregistered land has been transferred to

29. Insofar as the third parcel of land is concerned, i.e. the parcel of land in respect of which

title is registered, a copy of the relevant folio has been exhibited. The folio indicates that

Start Mortgages has been registered as the owner of the charge. (Folio 16003F, County

30. The affidavit also establishes that notice of the assignment, for the purposes of section 28

of the Supreme Court of Judicature Act (Ireland) 1877, has been given to Mr & Mrs Burns.

The relevant letters have been exhibited at “JN7” and “JN8” of Mr Nevin’s first affidavit.

31. As noted above, Mr Nevin has sworn a supplemental affidavit dated 2 December 2019.

As part of this affidavit, he refers to Clause 6.7 of PTSB’s 2002 mortgage conditions

(which had been exhibited in the verifying affidavit of Jacqueline O’Brien sworn herein on

8 July 2015). This clause provides that Permanent TSB may at any time (without the

consent of the mortgagor) transfer the benefit of the mortgage to any person.

32. Mr Burns has sworn an affidavit dated 11 November 2019. The principal point made in

the affidavit is that Mr Justin Nevin is not directly employed by Start Mortgages DAC. The

affidavit makes a submission to the effect that the evidence in Mr Nevin’s affidavit is

hearsay in nature. It is further submitted that Start Mortgages cannot rely on the

Bankers’ Books Evidence Act 1879. The judgment of the Supreme Court in Criminal

33. At paragraphs 9 and 10 of his affidavit, Mr Burns criticises what is said to have been a

failure on the part of the company secretaries of Start Mortgages and PTSB to exhibit

34. Mr Burns has filed a supplemental affidavit dated 16 December 2019. This affidavit

largely repeats the objection that the evidence put forward by Start Mortgages is hearsay

35. For ease of exposition, I propose to address the position in respect of the registered land

first, before moving on to consider the two parcels of unregistered land.

36. The change of ownership of the charge has been formally recorded on the Register of

Title. More specifically, the change of ownership is recorded under Folio 16003F, County

Charge for present and future advances repayable with interest. IRISH LIFE &

Note: The ownership of this charge has been transferred. See Entry No. 4.

START MORTGAGES DESIGNATED ACTIVITY COMPANY is owner of the charge

37. The Court of Appeal in Tanager DAC v. Kane [2018] IECA 352 held that the correctness of

the Register of Title cannot be challenged in possession proceedings. See paragraphs

“A plaintiff seeking an order for possession must adduce proof, inter alia, that he or

she is the registered owner of the charge. It is registration that triggers the

entitlement to seek possession. In those proceedings, the court may not be asked

to go behind the Register and consider whether the registration is, in some manner,

defective. In the possession proceedings, the court must accept the correctness of

the particulars of registration as they appear on the folio, because the statutory

basis for the action for possession is registration. This is one consequence of the

statutory conclusiveness of the Register, and of the statutory limits to rectification.

The challenge to registration is brought by other types of proceedings inter partes,

or where the PRA is respondent, and in the manner I have described.”

38. Leave to appeal to the Supreme Court was refused by Determination dated 12 April 2019,

39. The uncontroverted evidence before the court establishes, therefore, that Start Mortgages

has succeeded to PTSB’s interest in the registered charge. Start Mortgages have

established to the requisite standard that they have succeeded to PTSB’s interest as

mortgagee in the land and, accordingly, there has been a “change or transmission of

interest” such as to justify the making of an order pursuant to Order 17, rule 4. As the

owner of the registered charge, Start Mortgages is entitled to the benefit of the order for

possession. They are a proper party to be joined to the proceedings.

40. Turning now to the two parcels of unregistered land, there is, of course, no equivalent

statutory register which objectively establishes the transfer of the ownership of the

mortgagee’s interest in those lands from PTSB to Start Mortgages. Rather, Start

Mortgages has sought to establish the transfer of ownership (and of the benefit of the

proceedings) by way of affidavit evidence and the documentation exhibited thereto.

41. The principal objection made by Mr & Mrs Burns is that the affidavits and exhibits

represent inadmissible hearsay evidence. It is suggested that, save in the limited

circumstances provided for under the Bankers’ Books Evidence Act 1879, a financial

institution is not entitled to rely on hearsay evidence. The 1879 Act was said not to apply

in circumstances where the deponent, Mr Nevin, was not an “officer” of Start Mortgages

42. It may be useful to pause here to recall what precisely it is that Start Mortgages is

required to establish, namely that there has been a change or transmission of interest to

Start Mortgages. To this end, a copy of the relevant deed of transfer and the deed of

conveyance have been exhibited. These documents have been put before the court by a

deponent who expressly avers that he is authorised by Start Mortgages to access its

43. The commercial transaction at issue is very different from the type of transaction which

typically arises in the context of debt collection proceedings. In most such cases, the

dispute is concerned primarily with transactions as between the creditor and debtor, i.e.

between the bank and an individual customer. The dispute will normally relate to details

of the repayments made in respect of a loan, and the calculation of arrears and interest.

It is in such a context that a financial institution may wish to consider invoking the

Bankers’ Books Evidence Act 1879. This affords a financial institution a method of

proving entries in a banker’s book (as defined and updated by the Central Bank Act

4. A copy of an entry in a banker’s book shall not be received in evidence under this

Act unless it be first proved that the book was at the time of the making of the

entry one of the ordinary books of the bank, and that the entry was made in the

usual and ordinary course of business, and that the book is in the custody or

Such proof may be given by a partner or officer of the bank, and may be given

orally or by an affidavit sworn before any commissioner or person authorised to

44. As appears, the legislation is directed to entries made “in the usual and ordinary course of

business”. It may be doubtful as to whether the legislation extends to the sale of a loan

book. At all events, as elaborated upon below, Start Mortgages have not sought to rely

45. The objection made by reference to the Bankers’ Books Evidence Act 1879 appears to

misunderstand the approach taken by Start Mortgages. Start Mortgages have not sought

to rely on the 1879 Act. Rather, Start Mortgages have put before the court copies of the

relevant contractual documentation by which the transfer of the mortgage and underlying

loan facilities is said to have been effected. This documentation has been exhibited by a

deponent who expressly states he has made his affidavit on behalf of Start Mortgages

DAC and with its authority, and from a diligent perusal of its books and records. The

contractual documentation exhibited is documentation to which Start Mortgages DAC is a

46. Mr & Mrs Burns have not sought to query the authenticity of the contractual

documentation, nor to suggest that the commercial transactions described in Mr Nevin’s

affidavit did not occur. They have not sought to cross-examine Mr Nevin.

47. The circumstances of the case are somewhat similar to those considered by the Supreme

Court in Ulster Bank Ireland Ltd v. O’Brien [2015] IESC 96; [2015] 2 IR 656. That

judgment concerned an application for a summary judgment pursuant to Order 37 of the

Rules of the Superior Courts. The bank had sought to prove the debt by filing an affidavit

from a bank employee and exhibiting the relevant loan documentation. The Supreme

Court held that the swearing of an affidavit and its service in court proceedings which

make allegations that a sum is due, can be accepted, in the absence of denial, where the

form and the content of what is deposed to and the exhibits supporting it carry sufficient

48. The uncontroverted evidence before the court in the present case establishes that Start

Mortgages has succeeded to PTSB’s interest in those lands. Mr Nevin has exhibited the

global deed of transfer and the subsequent deed of conveyance. In each instance, there

is an express reference to the underlying loan facilities and the mortgage. Mr & Mrs

Burns have not sought to challenge the validity of these 2019 deeds, nor to suggest that

they do not apply to the relevant lands. Rather, the concern expressed in Mr Burns’ two

affidavits appears to be addressed principally to an earlier point in time, namely the

entering into of the Mortgage on 23 September 2007. With respect, any challenge to the

validity of the underlying mortgage was a matter which fell to be determined in the

context of the application for orders for possession. This application was determined by

the High Court in January 2017, and the subsequent appeal against those orders was

dismissed by the Court of Appeal on 28 November 2018. It is not open to Mr & Mrs Burns

to seek to re-agitate these issues in the context of a narrow procedural application to, in

effect, substitute Start Mortgages as plaintiff in the proceedings.

49. Start Mortgages have put sufficient material before the court by way of affidavit evidence

and exhibits to establish a “change or transmission of interest” from PSTB to Start

Mortgages in 2019. None of this evidence has been challenged by Mr & Mrs Burns. Nor

have Mr & Mrs Burns sought to cross-examine the deponent on behalf of Start Mortgages.

50. Finally, it is clear from the copy of the Mortgage which has been exhibited in the affidavit

of Jacqueline O’Brien sworn herein on 8 July 2015 that Permanent TSB may at any time

(without the consent of the mortgagor) transfer the benefit of the mortgage to any

person. This does not represent an “unfair term” for the purposes of the Unfair Contract

Terms Directive (93/13/EEC) or the European Communities (Unfair Terms in Consumer

Contracts) Regulations 1995 (as amended), for the reasons set out in AIB Mortgage Bank

v. Cosgrove [2017] IEHC 803 and the case law cited, in particular, at paragraph [54]

51. A party who has the benefit of an order is generally required to execute same within a

period of six years. If this is not done, then it is necessary to make an application for

leave to issue execution pursuant to Order 42, rule 24. That rule provides as follows.

(a) where six years have elapsed since the judgment or order, or any change has

taken place by death or otherwise in the parties entitled or liable to

(b) where a party is entitled to execution upon a judgment of assets in futuro;

company upon a judgment recorded against such company, or against a

the party alleging himself to be entitled to execution may apply to the Court for

The Court may, if satisfied that the party so applying is entitled to issue execution,

make an order to that effect, or may order that any issue or question necessary to

determine the rights of the parties shall be tried in any of the ways in which any

question in an action may be tried: and in either case the Court may impose such

terms as to costs or otherwise as shall be just. Provided always that in case of

default of payment of any sum of money at the time appointed for payment thereof

by any judgment or order made in a matrimonial cause or matter, an order of fieri

facias may be issued as of course upon an affidavit of service of the judgment or

52. The grant of leave to issue execution under Order 42, rule 24 is discretionary. The

criteria governing the exercise of this discretion have been set out in Smyth v. Tunney

[2004] IESC 24; [2004] 1 IR 512. The Supreme Court held that it is not necessary to

give some unusual, exceptional or very special reasons for obtaining permission to

execute out of time provided that there is some explanation at least for the lapse of time.

Even if a good reason is given, the court must consider counterbalancing allegations of

53. On the facts of the present case, the necessity for an application under Order 42, rule 24

arises as a result of a change in the parties entitled to execute. For the reasons set out in

detail under the previous heading, I am satisfied that Start Mortgages has succeeded to

PTSB’s interest as mortgagee and/or charge holder in respect of the three parcels of

lands. The proceedings have also been assigned to it. As a consequence, it is entitled to

the benefit of the orders for possession made in January 2017. The grant of an order of

leave to execute is necessary so as to allow Start Mortgages to enforce the orders for

possession. This formal order is necessary to reflect the underlying reality that they are

54. Start Mortgages has succeeded to PTSB’s interest as mortgagee and/or charge holder in

respect of the three parcels of lands. The proceedings have also been assigned to it. As

a consequence, it is entitled to the benefit of the order for possession made in January

2017. Start Mortgages is, accordingly, entitled to the procedural orders sought in its

55. An order is made pursuant to Order 17, rule 4 making Start Mortgages DAC a party to the

proceedings and providing that the proceedings shall be carried on between the

Defendants, as continuing parties, and Start Mortgages DAC, as a new party in

56. An order is made amending the title of the Plaintiff in the within proceedings to Start

Mortgages DAC in lieu of Permanent TSB plc, the title hereof to be duly entered in the

57. An order pursuant to Order 42, rule 24 granting Start Mortgages DAC liberty to issue

execution in respect of the orders for possession made by the High Court on 16 January

58. I will hear the parties on the question of costs.

Result: Transferee entitled to be substituted as party in possession proceedings.

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