The High Court has allowed Pepper Finance Corporation (Ireland) DAC to replace ACC Bank plc as plaintiff in proceedings against Brendan Touhy and granted it liberty to execute on a €1,350,409.30 judgment, plus costs, entered in 2011.
In a judgment delivered on 27 July 2023, Mr Justice Barr said the orders would take effect from that date. The court directed the parties to make written submissions within four weeks on the wording of the final order, costs and any other matters. The case was listed for mention on 4 October 2023 to make final orders.
The original judgment was entered on 22 August 2011, after the Master of the High Court had given ACC Bank liberty to enter judgment. Pepper Finance applied in November 2022 to be substituted as plaintiff and to obtain leave to execute on that judgment. It said it had acquired the relevant loan rights through transfers involving ACC Loan Management Limited, Rabobank and Otterham Property Finance DAC, and acted as Otterham’s nominee.
Touhy opposed the application on nine grounds. Among other objections, he challenged whether Pepper Finance needed a banking licence, whether he had been notified of the loan assignments, the execution of transfer documents, redactions and access to originals, the delay in seeking enforcement, and the admissibility of the documents. He also alleged that his signature on a mortgage was forged and said enforcement after more than 12 years would disrupt his life and work on the land.
The court rejected the objections to the relief sought. It found that the affidavits and documents established prima facie that assignment notices had been given, and that the loan terms deemed notice received 24 hours after dispatch by post. It was satisfied that the transfer documents complied with the relevant 2009 Act requirements, including execution under the law of the Netherlands, and that the redactions caused no prejudice in this application.
The judge held that the Master’s March 2011 order was not itself a judgment: judgment was entered in August 2011, so the application was not out of time on the basis argued. He accepted the explanations for delay, including attempts by predecessors to realise secured properties, portfolio due diligence, Covid-related disruption and forbearance during the pandemic. The alleged mortgage forgery, he said, was not relevant to this application and could arise if the applicant later sought to enforce the mortgage.
The ruling grants liberty to execute on the existing judgment. It does not determine any later dispute about enforcement of the mortgage. The court made no final order on costs in this judgment.