The High Court has dismissed Michael Macken’s application to strike out a possession case brought by Pepper Finance Corporation (Ireland) DAC, while leaving the merits of Pepper’s claim undecided.
In a judgment delivered on 26 July 2022, Mr Justice Mark Sanfey said the application did not establish that Pepper’s proceedings were bound to fail. The case seeks possession of Sorrento, a property in Creagh, Beal Na Mulla, Athlone, County Roscommon, under a mortgage or charge dated 21 March 2007 and registered in December 2009.
The second named defendant, Patricia Watson, took no part in the strike-out application. The proceedings originally named Danske Bank A/S as plaintiff; an order substituting Pepper was made in 2018 and upheld on appeal.
Macken argued that Pepper could not rely on section 62(7) of the Registration of Title Act 1964, which was repealed in 2009, and that later legislation could not preserve or restore the relevant rights. He also argued that the Land and Conveyancing Law Reform Act 2013 was invalid because an Irish-language version was unavailable, and raised constitutional objections concerning possession of a dwelling.
The judge said a constitutional challenge to legislation had to follow the court rules, including giving the State an opportunity to respond. The absence of an Irish translation did not, by itself, invalidate the 2013 Act. He also found that the 2013 Act’s relevant provisions took effect on enactment and that the Interpretation Act did not prevent express retrospective provisions.
The judgment noted that the court had no evidence showing when the mortgage debt became due or whether Pepper had acquired an accrued right before the 2009 repeal. That information could matter to Pepper’s eventual claim. Sanfey J therefore made no finding on whether Pepper was entitled to possession or whether the 2013 Act was necessary to its case.
A separate part of Macken’s motion alleged that Pepper had provided no documents for inspection. The court said inspection facilities had in fact been provided in March 2021, so that request had been overtaken by events; it made no order on it.
The judge said his preliminary view was that Pepper should receive its costs of the unsuccessful application, subject to the parties’ opportunity to make brief written submissions within seven days. The judgment did not record a final costs order.