The Court of Appeal has allowed Pepper Finance Corporation (Ireland) DAC to seek execution of a 2010 High Court possession order over a dwellinghouse in Tuam, County Galway. The appeal concerned whether Pepper had shown it was entitled to enforce the order after more than six years had passed.
The original possession order was made on 11 October 2010 after the borrower’s loan fell into arrears. The borrower did not attend that hearing. Pepper later sought leave to issue execution under Order 42, rule 24 of the Rules of the Superior Courts. The High Court refused the application in January 2022, finding insufficient evidence that Pepper was entitled to execute, though the judge said she would have granted leave in the exercise of her discretion if entitlement had been established.
The borrower’s son, Oliver Maloney, had opposed the application in the High Court. He argued that a 2012 transaction involving Windmill Funding Limited transferred both legal and beneficial interests in the loan and security, leaving Pepper without the right to execute. Pepper maintained that the transaction transferred only the beneficial interest, while it retained legal title and remained the registered owner of the charge. The Court of Appeal noted that the transaction documents themselves had not been put before the High Court.
Writing for the Court of Appeal, Mr Justice Allen said the High Court had erred by allowing a challenge to the register in the execution application. He held that the same principle applied as in possession proceedings: a court must accept the registration particulars on the folio and cannot be asked in those proceedings to examine whether the registration is defective. Pepper had shown that it was the same legal entity as the former registered owner named on the folio and remained registered as owner of the charge.
The court allowed the appeal and granted Pepper liberty to issue execution on the 2010 possession order. This was permission to pursue execution; the judgment does not say that the order was executed or that possession was taken.
On costs, the court’s view was provisional. It proposed that Pepper recover its appeal costs and two thirds of its High Court application costs, and gave each side 14 days in sequence to make short written submissions before a final costs order.