The High Court has adjourned Permanent TSB plc and Start Mortgages Designated Activity Company’s application for possession of two properties to a plenary hearing, limiting the defendant’s defence to six specified issues.
In a judgment delivered on 3 December 2024, Mr Justice Rory Mulcahy said the proceedings, begun in 2015, had already involved three High Court decisions and an appeal to the Court of Appeal. The possession application was brought under section 62(7) of the Registration of Title Act 1964, as amended.
The court’s July 2024 judgment had concluded that some of Brian Donohoe’s asserted defences were not arguable, while other issues required resolution at a plenary hearing. The parties disagreed over how narrowly the resulting order should define the issues for trial. The judge said the permitted issues should be framed broadly enough to include arguments raised under them, except where those arguments had been expressly rejected.
The six issues are whether a valid demand letter was required and served; the enforceability of Special Condition No. 6 under the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995; the admissibility of the plaintiffs’ documentary evidence; whether the second plaintiff purchased the first plaintiff’s rights and entitlements; compliance with contractual requirements for notifying interest-rate changes and the end of the fixed-rate period; and the second plaintiff’s compliance with section 28 of the Central Bank Act 1997, as amended.
The judge said the permitted defence could not include matters not previously advanced without further leave. He also said the defendant could not reopen arguments already rejected, including arguments concerning an earlier loan sale to Fastnet 7 and the first plaintiff’s buyback. Allegations of misleading advertising and other new misrepresentation claims were not included among the grounds sent to plenary hearing. The judge said the issue of alleged misrepresentation by the mortgage broker had been raised previously.
The court struck out the defendant’s motions dated 3 May 2018 and 8 March 2024. The 2018 motion’s issues were treated as overlapping with the defences; the judge said striking it out did not restrict the defences beyond the six listed issues. The 8 March 2024 motion had been agreed to stand refused.
The plaintiffs were directed to deliver a statement of claim within four weeks, with the defendant to deliver a defence within four weeks after that. The court made the costs of the proceedings to date, except matters already subject to a costs order, costs in the cause. It stayed the timetable for delivering pleadings for 28 days from perfection of the order and, if there is an appeal, pending its determination. The judge declined to grant a broader stay at this stage.