The High Court has rejected Cathal Mallon’s appeal against a decision allowing Pepper Finance Corporation (Ireland) DAC’s possession proceedings over his Sandymount home to continue. The substantive claim remains for hearing in the Circuit Court; the High Court did not decide whether the lender is entitled to possession or determine Mallon’s defence.
Ms Justice Denise Brett, in a judgment delivered on 26 August 2024, affirmed the Circuit Court order of 17 April 2024. That order refused Mallon’s application to set aside a County Registrar’s decision declining to strike out the claim for want of prosecution. The appeal concerned delay and whether the passage of time made it unfair to require Mallon to defend the case.
The lender’s claim was brought in 2017, alleging ongoing failure to make mortgage instalments. The judgment records that the loan originated in 2005 and that the account showed arrears exceeding €110,000 by January 2017. A separate possession case had been started in 2012 and discontinued in 2015. Mallon said an agreement reached in 2012 required the proceeds from sales of investment properties to settle his indebtedness and release the security over his home. The judgment noted that he had not exhibited documentation of that agreement in the affidavits before the High Court.
Mallon argued that delay had weakened his ability to give oral evidence about the alleged agreement. He also relied on litigation stress and continuing effects of two strokes. The judge considered the appeal under the O’Domhnaill principles, which required Mallon to establish a real or substantial risk of an unfair trial or unjust result. The parties had agreed to proceed on that basis; the judge said the appeal was not argued as a complaint of culpable delay in prosecuting the 2017 proceedings.
The judge found that Mallon’s affidavits showed detailed recollection of events and did not establish that his memory had been materially impaired. She also noted that the alleged agreement was described in general terms and was not referred to in his 2018 affidavit, which instead discussed efforts to resolve ongoing indebtedness. No medical evidence linking his health difficulties to the litigation was presented. The judge said the claimed increase in interest could be addressed at the substantive hearing, if relevant.
The High Court dismissed the appeal and directed that the substantive proceedings be brought on for hearing with urgent expedition before the Circuit Court. It proposed awarding the costs of the appeal to the lender, subject to taxation if not agreed and stayed pending conclusion of the proceedings. Either party may file written submissions on that proposed costs order by 23 September 2024.