The High Court has deferred a decision on Permanent TSB Finance Limited’s request to substitute Consumer Auto Receivables Finance Limited as the applicant in an appeal concerning a hire-purchase debt.
In a judgment delivered on 10 February 2016, Mr Justice Max Barrett directed Permanent TSB to provide a further affidavit explaining how the agreement with Paul Breheny was included in a portfolio of receivables sold to Consumer Auto. The court said it would order the substitution if the affidavit was satisfactory.
The appeal arose after the Circuit Court refused, on 7 July 2015, an application to substitute Consumer Auto for Permanent TSB. Permanent TSB appealed that refusal. The underlying Circuit Court proceedings, begun in March 2010, sought recovery of just over €15,000 plus interest and costs in connection with a Ford Transit van hire-purchase agreement.
The judgment recounts that Permanent TSB and another entity entered into a Receivables Sales Agreement with, among others, Consumer Auto in November 2012. Breheny was later advised that rights and benefits under his facility had been transferred to Consumer Auto. But the agreement defined the assets sold by reference to data tapes and folders that the court had not been given access to. The judge said the court could not be certain from the material before it that Breheny’s agreement was included.
The further affidavit must trace the definitions from Breheny’s agreement through to the sale, identify precisely what was sold, and explain how the data tapes led to the specific sale of his loan. It should also confirm whether all parties executed the agreement and when, and whether the sale completed.
Breheny’s counsel raised six objections. The judge considered objections concerning the power of attorney and the Bankers’ Books Evidence Acts irrelevant or unsupported in the context of the substitution application. He also found that the cited House of Lords decision in *Trendtex Trading Corporation v Credit Suisse* did not support the argument that the assignment could not be recognised for substitution. The court said concerns about redactions could be addressed by the trial court if necessary, and accepted an undertaking that documents requiring stamps would be stamped if that had not already happened.
The court did not order substitution at this stage. It made substitution conditional on receiving a satisfactory further affidavit; the judgment does not determine the underlying debt dispute.