The High Court has dismissed Gary Mc Cool’s appeal against an order allowing Everyday Finance DAC to replace Promontoria (Oyster) DAC as plaintiff in possession proceedings. The case will return to the Circuit Court for a substantive hearing on the application for possession; the High Court made no final determination on the validity of the asserted transfer of the loan.
The appeal concerned a Circuit Court substitution order made on 14 May 2024. Mc Cool argued that the Circuit Court had already refused the substitution in November 2023 and could not revisit that decision. He also challenged whether valid written notice of the assignment had been given under section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877.
Justice Garrett Simons concluded that the Circuit Court had adjourned, rather than dismissed, the substitution application in November 2023. The court had identified a defect in a “goodbye” letter, which incorrectly referred to BCM Global ASI Ltd as having held rights under the loan agreement. Everyday Finance’s counsel accepted that BCM Global was, at most, a credit servicing firm and had no interest in the loan. The Circuit Court allowed time for the notice issue to be addressed.
Everyday Finance also applied to introduce a letter dated 12 December 2022, addressed to Mc Cool at an incorrect Derry address. The High Court refused that application. Justice Simons said the lender had been given an opportunity in the Circuit Court to remedy gaps in its evidence but had not adequately explained why the letter was not produced then. The refusal applies to the substitution application; the Circuit Court may decide whether the letter can be used at the substantive hearing.
For the substitution application, the High Court found prima facie evidence that Everyday Finance owned the registered charge and that the underlying debt had been transferred. The court also found enough evidence to meet the preliminary threshold on notice. It said the transfer letter and the papers served with the substitution motion gave rise to respectable arguments that written notice had been provided, but it did not make a definitive finding on either argument. Mc Cool remains entitled to contest the transfer’s validity at the possession hearing.
The High Court’s provisional view was that there should be no order as to appeal costs, while Mc Cool should be repaid any expense incurred in obtaining hearing transcripts. The parties could make submissions on costs when the case returned to the High Court on 28 January 2025.