The High Court has dismissed Simon Kavanagh’s second application to reopen litigation over a possession order made in 2016, ruling that his arguments did not justify setting aside an earlier judgment.
Mr Justice Garrett Simons said on 27 July 2023 that the court’s power to set aside its own judgment is exceptional and cannot be used to repeat arguments already rejected. The application before him sought to set aside his judgment of 30 January 2023, which had refused Mr Kavanagh’s first attempt to set aside the 18 July 2016 possession order.
Mr Kavanagh had also appealed the January judgment to the Court of Appeal. That appeal was listed for hearing on 9 October 2023. Simons J said an appeal was the proper route for a party dissatisfied with a High Court decision.
In his submissions, Mr Kavanagh argued that Start Mortgages DAC was not entitled to enforce the credit agreement and had misled the court in obtaining the possession order. The judge rejected the argument, finding that at the time of the 2016 order the company was authorised as a retail credit firm, which could carry out credit-servicing functions and enforce an agreement where it held legal title. He also said the 2015 legislation excluded enforcement steps by a legal-title holder from the activities requiring credit-servicing authorisation. The judgment addressed the rules in force in 2016 and noted that later amendments changed the authorisation requirements.
The judge also rejected Mr Kavanagh’s renewed reliance on section 58 of the Asset Covered Securities Act 2001. He said it did not apply to the private transaction under which the beneficial interest in the loan and mortgage was transferred to Lansdowne Mortgage Securities No. 1 plc, while Start Mortgages retained legal title. Other complaints, including allegations of an unfair hearing and objections to remote hearings, were also dismissed.
The 27 July ruling refused the reliefs sought in Mr Kavanagh’s 6 March 2023 motion. It did not decide the pending appeal against the January judgment. Simons J gave a provisional view that Start Mortgages should receive the costs of the motion, with the parties to be heard if either sought a different costs order. The case was listed for final orders on 31 July 2023.