The Court of Appeal has ruled that Pepper Finance Corporation (Ireland) DAC can generally replace, rather than merely join, the original lender as plaintiff in a High Court appeal from a Circuit Court possession order after a mortgage loan has been assigned.
The ruling arose from possession proceedings against Tracey O’Reilly. KBC Bank Ireland plc obtained a Circuit Court possession order in January 2019 over a property which was not O’Reilly’s primary residence. She appealed to the High Court.
Before that appeal was heard, KBC’s interest in the debt and registered charge was allegedly transferred through KBC Bank NV to Pepper. In March 2023, the High Court ordered Pepper substituted for KBC as plaintiff.
When the possession appeal came before Mr Justice Simons in December 2024, he questioned whether Pepper should instead have been joined as an additional plaintiff because of the Court of Appeal’s 2014 ruling in IBRC v Halpin. He stated a case to the Court of Appeal to resolve the issue.
Ms Justice Costello, with Whelan and Binchy JJ agreeing, held that Halpin did not govern appeals from the Circuit Court in the same way. A Circuit Court appeal to the High Court is a de novo hearing: the case is heard afresh and the High Court decides whether the plaintiff before it is entitled to possession on the evidence presented there.
Pepper must therefore prove its alleged assignment of the loan and security and establish its entitlement to possession. It cannot simply rely on the earlier Circuit Court order.
The court went further and departed from Halpin generally. It held that an assignee steps into the shoes of the assignor and may be substituted even after judgment and pending appeal, unless the original party remains independently necessary, for example because of a counterclaim.
The substantive possession appeal itself remains to be decided by the High Court.