The High Court has ordered Start Mortgages Designated Activity Company to replace Permanent TSB plc as plaintiff in proceedings involving Frank Spillane and Annette Spillane. Mr Justice Dignam delivered the ruling on 16 November 2023 under Order 17, rule 4 of the Rules of the Superior Courts.
The proceedings began in 2013. Permanent TSB’s pleadings allege that it advanced €2.575 million to Mr Spillane in 2007 to refinance a Bank of Ireland loan, secured by a charge over property known as 1–8 Mallabraka Cottages, County Cork. The bank says the loan was not repaid and that it obtained judgment against him in 2012 for €2,684,687.29 plus costs.
The pleadings also allege that Mr Spillane misrepresented the ownership of the existing loan and property. Permanent TSB claims its funds repaid a loan held by both defendants, leaving Mrs Spillane’s interest in the property free of the Bank of Ireland charge, and advances claims including unjust enrichment. Those allegations were not decided on this application.
Start said Permanent TSB transferred the loan, mortgage security and related claims to it by deed dated 1 February 2019. The court considered the deed, letters notifying Mr Spillane of the transfer, and correspondence sent by Start’s solicitors to the defendants’ solicitors. The property folio recorded Start as owner of the charge in March 2019.
The defendants opposed substitution on several grounds, including that the registered charge applied only to Mr Spillane’s interest, that Mrs Spillane had not received valid notice, and that Mr Spillane’s death in April 2022 meant the charge had expired and the case needed to be reconstituted in the name of his estate.
Justice Dignam held that the evidence established a prima facie case of a sale, assignment of the cause of action and notice to both defendants. He said the transfer did not enlarge the charge: it remained limited to Mr Spillane’s interest as recorded on the folio. He found that the 2019 letter to the defendants’ solicitors was sufficient, at this stage, to establish notice to Mrs Spillane. The ruling leaves the defendants able to contest the validity of the assignment at trial.
The judge did not determine whether the charge is enforceable, resolve the substantive disputes, or decide the final effect of Mr Spillane’s death. He said any issue about reconstituting the proceedings could be raised by the defendants if not properly addressed. The court granted the substitution sought in Start’s motion.