The High Court has adjourned an appeal against a Circuit Court possession order while a preliminary question about Pepper Finance’s status as plaintiff is addressed by the Court of Appeal.
In a judgment delivered ex tempore on 6 December 2024, Mr Justice Garrett Simons said the appeal arose from proceedings under section 62 of the Registration of Title Act 1964, as applied by the Land and Conveyancing Law Reform Act 2013. The Circuit Court had made a possession order in respect of a charge on registered land. Tracey O’Reilly appealed that order to the High Court.
Before the appeal hearing, Pepper Finance Corporation (Ireland) DAC applied to be substituted for the original plaintiff, KBC Bank Ireland plc, on the basis of an alleged transfer of the charge and underlying debt. The High Court granted that application ex parte in March 2023, with safeguards allowing Ms O’Reilly to seek to set the order aside and contest the transfer.
The issue before Mr Justice Simons was whether substitution was the proper procedure, or whether Pepper Finance should have been joined as an additional plaintiff while KBC Bank Ireland remained a party. Pepper Finance’s counsel argued that the answer could differ because an appeal from the Circuit Court to the High Court is heard de novo, unlike an appeal to the Court of Appeal, which ordinarily reviews the record for error in principle.
The judge said that argument had “some attractiveness” but was difficult to reconcile with the Court of Appeal’s reasoning in Irish Bank Resolution Corporation v Halpin. That decision raised concern that substitution during an appeal could appear to give a transferee retrospective judgment. Mr Justice Simons said the law was not clear-cut and noted practical considerations that could arise where an original plaintiff no longer existed or had no practical interest in the appeal.
He decided that the significant legal question should be stated to the Court of Appeal under section 38 of the Courts of Justice Act 1936. The High Court appeal was adjourned so that the preliminary issue could be determined first. The judge said that if substitution was improper and Pepper Finance should instead have been joined, it might lack standing to pursue the appeal in its sole name.
The judgment did not determine the merits of Ms O’Reilly’s appeal or finally decide whether the substitution was valid. Those matters await resolution of the preliminary issue.