High Court Decision: Connaughton v Start Mortgages

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  Connaughton v Start Mortgages Designated Activity Company (Approved) [2026] IEHC 164 (18 March 2026)

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APPROVED? ????????????????????????????????????????????????????????????????????????????????????????? [2026] IEHC 164???????

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THE HIGH COURT

Record No: 2024/2629 P

Between:

DENIS CONNAUGHTON

Plaintiff

-AND-

START MORTGAGES DESIGNATED ACTIVITY COMPANY

Defendant

JUDGMENT of Mr Justice Rory Mulcahy delivered on 18 March 2026

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Introduction

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1. On 17 February 2023, the defendant in these proceedings (" Start ") was granted an order for possession in Circuit Court proceedings, Record No.: 2018/0090 (" the possession proceedings "), over property comprised in a Limerick registered folio (" the Property ") of which the plaintiff in these proceedings (" Mr Connaughton") was registered as full owner. Mr Connaughton had granted a charge over the property to Bank of Scotland (Ireland) Limited (" the Bank ") **** to secure a loan to him and his wife. The Bank's interests in the charge and loan were transferred and assigned to Bank of Scotland plc who in turn transferred and assigned them to Start.

2. Mr Connaughton appealed the decision of the Circuit Court to the High Court (Record No.: 2023/2CA). His appeal was dismissed in a comprehensive ex tempore judgment of this court (Heslin J) which, fortunately, the learned judge caused to be published ([2023] IEHC 364). The court also dismissed an application for discovery by Mr Connaughton.

3. Though no appeal lay to the Court of Appeal from the High Court, Mr Connaughton sought leave to appeal to the Supreme Court. That application was refused ([2023] IESCDET 135). ****

4. Mr Connaughton had thus exhausted his entitlements to appeal, as he was entitled to do, and the Supreme Court's determination should have brought an end to any dispute between Mr Connaughton and Start regarding Start's entitlement to possession of the Property.

5. What a litigant is not entitled to do, save in exceptional circumstances, is to issue further proceedings for the purpose of challenging the outcome of earlier proceedings or of re-litigating issues which were the subject of those earlier proceedings. That, regrettably, is what Mr Connaughton has done in issuing the within proceedings. It appears that Mr Connaughton believes that because the possession proceedings were decided summarily, he remains entitled to a plenary hearing regarding Start's entitlement to possession. In this he is mistaken.

6. In the circumstances, Start has brought an application to have the proceedings dismissed pursuant to Order 19, Rule 28(1) of the Rules of the Superior Courts (" the Rules "). For the reasons set out below, that is an application which must succeed, and the proceedings will, therefore, be dismissed as bound to fail and/or as an abuse of process.

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The plaintiff's claim

7. The plenary summons issued on 22 May 2024. It expressly pleads that the plaintiff's claim is for " a set aside of the entire Circuit matter ", being the possession proceedings referred to above. Further reliefs are sought at the conclusion of the summons, including an order staying any further proceedings in the Circuit Court, an order setting aside the default notification of 28 February 2018 and stating that the demand notice of that date be deemed unlawful and withdrawn, and that the order for possession be set aside for being a claim " unlawfully granted; for the void conditions and warranties.

8. Nine different grounds for the relief seeking the set aside of the Circuit Court proceedings are included in the plenary summons. These include:

? Contributory negligence on the part of the Bank, for failing to comply with EU supervisory and company law regulations, resulting in the Bank suffering losses which it sought to impose on the plaintiff;

? Incorrect application of interest rates " which the defendant has been made aware of in prior proceedings ";

? Pleading regarding the mortgage deed be re-opened in light of the judgment in Mars Capital Finance v Temple [2023] IEHC 94;

? Clause 5.3 of the mortgage did not give the lender the right to resign from its obligations and it should be present for cross-examination;

? Inconsistent information and dates unknown on documents relied on by Start;

? The Bank may have lost the right to its legal interest due to securitisation;

? A possible unfair contractual term whereby the borrower lost the right to bid for the loan at a discount;

? The disputed conditions and warranties in the contract between the parties are inconsistent with the demand made by Start.

9. The plaintiff's statement of claim, delivered in April 2025, is a lengthy document, but seeks the same relief as sought in the plenary summons, together with aggravated and exemplary damages for having exposed him to the possession proceedings, and security for costs.

10. In addition to elaborating on the grounds summarised above from the plenary summons, the statement of claim pleads that Start did not succeed to the Bank's interest in the loan and charge and suggests that discovery is required in relation to this claim. It is pleaded that despite the purported transfer to Start, the plaintiff is still negotiating with the Bank regarding tracker mortgage redress. It claims that Start is merely a credit servicing firm and not entitled to enforce consumer contracts. There is a plea that Start has acted in breach of its authorisation from the Central Bank. There is reference to Start's published accounts.

11. The statement of claim includes complaints about the manner in which the possession proceedings were commenced and inconsistencies in affidavits sworn in the Circuit Court. It claims that the original mortgage deed was not available or relied on in the possession proceedings. It is pleaded that there was lack of evidence of an absolute assignment of the debt to Start and that the proofs set out in the leading case of Bank of Ireland v Cody [2021] 2 IR 382, [2021] IESC 26 were not met. The plaintiff pleads that there was no notice given to him of any such assignment. He raises GDPR concerns.

12. The pleadings query the right and entitlement of Start to continue in the court litigation process since it has sold its portfolio (to Mars Capital Finance Designated Activity Company (" Mars ")).

**

13. The plaintiff pleads that there was a failure by the Circuit Court to comply with the mandatory obligation under the Unfair Contract Terms Directive.

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Motion to strike out

?

14. The defendant issued a motion on 11 August 2025 seeking to strike out the plaintiff's claim on the basis, in substance, that the plaintiff was seeking to look behind the final orders made in the possession proceedings.

15. In addition, Start's affidavit grounding its motion, sworn by Ms Elaine Dyke, confirms what is alluded to in the statement of claim, that Start has transferred and assigned all rights, title and interest to the loan and charge the subject of these proceedings to Mars, and that an application was made in the possession proceedings seeking to have Mars substituted for Start and for an order granting leave to issue execution. Ms Dyke confirms that an order in those terms was made on 3 June 2025 and served on the plaintiff on 20 June 2025. She avers that the proceedings are, therefore, not maintainable against Start.

16. The plaintiff filed two replying affidavits, the first of these denies that the claim is frivolous and vexatious and bound to fail and rehearses the issues which he wants addressed in these proceedings which he contends raise " serious, complex and substantial issues of fact and law."

17. In his second affidavit, he sets out the history of the Circuit Court proceedings, noting his failed appeal and the refusal of leave to appeal by the Supreme Court. He then identifies the " Purpose of this Plenary Action ":

" The Plaintiff brings this action to establish the true state of all the assignments purportedly relied on by the Defendants. Specifically, the Plaintiff seeks to verify:

(a) Whether any valid legal or equitable transfer of the underlying debt occurred;

(b) Whether The instruments of assignment relied on by the defendants, being redacted and referring only to ledger or batch numbers rather than identifying the original borrow or loan documentation, are insufficient in law to establish privity of contract or lawful title to enforce possession vis a vie Chain of Privity of the Originating contract and the Rights & Obligations contractually held between the originating parties;

(c) Whether the defendants have complied with the notice requirements under Section 28(6) of the Supreme Court of Judicature (Ireland) Act 1877;

(d) Whether any substituted plaintiff can demonstrate clear and unbroken chain of title and most particularly, the Chain of Privity: concerning the relevant principal money due by a valid contractual demand. "

18. Mr Connaughton also relied on an affidavit from Mr Eric Rochford, a practicing accountant, which purports to identify issues with the transfer from Start to Mars. However, as Mars is not a party to these proceedings, and was not a party to the possession proceedings which he seeks to challenge, it is difficult to see what relevance that information has to the reliefs sought here.

19. Both parties filed written submission. Start's submissions refer to some of the many authorities which address the circumstances in which proceedings can be dismissed as an abuse of process. In his written submissions, Mr Connaughton sought to distinguish the case law relied on by the defendant to the effect that it is not permissible to re-litigate issues already determined in earlier proceedings. He argues that " the claims in this case arise from separate factual and legal bases ". He also contends that the " obvious defences were there but ignored " by the Circuit Court. In seeking to distinguish the decision in Farley v Ireland [2000] IESC 59, he argues that " the Circuit Court possession proceedings, being summary in nature, did not adjudicate the underlying ownership of the loan or compliance with EU consumer law."

20. At the hearing of the defendant's motion, the plaintiff elaborated on his contention that the issues he had raised required to be addressed in a plenary action. He denied that his proceedings were an attempt to re-litigate matters finally determined in those earlier proceedings. He produced a report, dated 23 June 2023, from Pierre Griejmans of PMJ Audits Europe, in which Mr Griejmans calculates that Mr Connaughton had been overcharged such that at the time of the demand letter of 22 March 2018 which preceded the possession proceedings, Mr Connaughton was not in arrears.

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The High Court judgment

21. The written record of the ex tempore judgment delivered by Heslin J identified the principles applicable to summary applications for possession, by reference, inter alia, to the decision in Bank of Ireland v Cody, referred to in Mr Connaughton's pleadings.

22. He concluded on the evidence that Start was the registered owner of the charge and that, by operation of section 31 of the Registration of Title Act 1964, he was satisfied that this was conclusive evidence of its ownership of the charge. He also concluded that the loan monies had been secured by the charge and that there had been default in repaying the loan monies such that Start was entitled to enforce the security.

23. As appears from the judgment, Mr Connaughton sought discovery on the basis, as the learned judge put it, of " the proposition that something untoward is at play, which discovery is required to uncover or illustrate ". The court was satisfied that discovery was not appropriate or required.

24. At paragraph 105 of the judgment, the court summarised some of the arguments advanced by Mr Connaughton in the High Court which had not been advanced in the Circuit Court:

" 105. It is in that context that I allowed the First-Named Defendant's 1 st of June 2023 affidavit to be opened in full de bene ** esse . The key propositions which are articulated in that affidavit can fairly be summarised as follows. The First-Named Defendant claims that there is a lack of jurisdiction. He asserts that the case should go to plenary hearing. He contends that the summary process was wrongly chosen by the Plaintiff. He asserts that the Circuit Court Judge was misled into believing that the Plaintiff had a valid entitlement to possession in a summary manner. He asserts that the Plaintiff is not the holder of his mortgage. He contends that the Plaintiff is hiding the true position. He submits that if the Plaintiff is confident of its claim, then discovery should not trouble the Plaintiff. He contends that a course of dealings as between himself and Bank of Scotland with respect to the tracker mortgage issue, in effect, means that the Plaintiff is not the true mortgagee. He contends, with reference to Central Bank principles of doing no further harm, that it was not appropriate for the Plaintiff to proceed against him, and the gravamen of his submission is that Central Bank principles have been breached. I pause to observe that it is for the Central Bank to determine whether any principle which it has jurisdiction over has been breached. That is not an issue in the present case. A key theme in the affidavit of the 1 st of June is that the Plaintiff has created an account with a number to which the first Defendant is a stranger. He asserts that he gave no permission for this. He asserts that a sham device has been created. Reliance was placed on what the First-Named Defendant describes as the "alleged mortgage", being signed on the 1 st of September 2005, and it undoubtedly was, but stating that it was made on the 11 th of September 2005. " ** ?

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25. The court dealt carefully with each of these arguments in turn and rejected them on the basis that Mr Connaughton had not made out any arguable defence. In addition, he dealt with a complaint by Mr Connaughton regarding the failure by the Circuit Court to comply with its own motion obligation in relation to unfair contract terms. He noted, by reference to the decisions in Start Mortgages DAC v Ryan [2021] IEHC 719 and Permanent TSB plc v Davis [2019] IEHC 184 that Article 4(2) of the Directive provides that the assessment of terms excludes consideration of the core terms of the contract insofar as these are in plain intelligible language. He concluded that there was nothing other than core terms at issue in the claim.

26. The Supreme Court Determination on Mr Connaughton's application for leave to appeal concludes as follows:

"10. The judgment of the High Court deals with standard principles. Heslin J applied nothing more and was clearly familiar with the principles to be applied. The tri-partite test as to when such an order should be made was carefully considered. There is no dispute but that this was the right test. Further, while the test for summary judgment is not disputed, it is claimed that there was a mis-application of that test. It cannot be suggested the test is wrong. Bare assertions are not sufficient to turn a summary application into one where there is contested oral evidence. There has to be a credible basis. That was lacking here. Insofar as the Defendants say that the trial Judge erred when addressing the effect of the registration of the plaintiff as a Designated Activity Company by referring to s. 63(12), rather than s. 480(7) of the Companies Act 2014, this does not bring this application within the constitutional criteria : no basis has been suggested on which it could be concluded that s. 63(12) means anything other than what it says, and that registration as a DAC does not affect any rights or obligations of the company."

Applicable Principles

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27. Order 19, Rule 28(1) provides as follows (substituted by SI 456/2023):

28. (1) The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

(i) discloses no reasonable cause of action, or

(ii) amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.

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28. As noted by Simons J in O'Malley v National Standards Authority of Ireland [2024] IEHC 500:

"The amendment to Order 19, rule 28 has the practical effect of eroding the previous distinction between the jurisdiction to strike out and/or to dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Courts, and (ii) the court's inherent jurisdiction."

29. In Beades v KBC Mortgage Finance Company [2025] IEHC 363, the High Court (Dignam J) observed as follows in relation to the jurisdiction to dismiss:

" 53.???? The principles governing the exercise of the Court's jurisdiction to strike out a claim under the previous version of Order 19 Rule 28 or under the Court's inherent jurisdiction are well-established (see, for example, Barry v Buckley [1981] IR 306, Salthill Properties Limited v Royal Bank of Scotland plc [2009] IEHC 207, Lopes v Minister for Justice, Equality and Law Reform [2014] IESC 21, Keohane v Hynes [2014] IESC 66, Clarington Developments Limited v HCC International Insurance Company plc [2019] IEHC 630, Kearney v Bank of Scotland [2020] IECA 92). The principles, particularly in relation to the exercise of the Court's inherent jurisdiction, have recently been stated by the Court of Appeal in Scotchstone Capital Fund Ltd & anor v Ireland & anor [2022] IECA 23, and in McAndrew v Launceston Property Finance DAC & anor [2023] IECA 43.

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54. In summary, the jurisdiction, whether under Order 19 Rule 28 or the Court's inherent jurisdiction, is subject to a number of overarching principles: first, the default position is that proceedings should go to trial and that a person should only be deprived of a trial when it is clear that there is no real risk of injustice; second, it is a jurisdiction to be exercised sparingly, given that it relates to the constitutional right of access to the courts; third, the onus is on the moving party to establish that the pleadings do not disclose a reasonable cause of action or that the case is frivolous or vexatious or bound to fail or that it is an abuse of process, and the threshold to be met is a high one; fourth, the Court must take the plaintiff's claim at its highwater mark; fifth, the Court must be satisfied not just that the plaintiff will not succeed but cannot succeed; and sixth, the Court must be satisfied that the plaintiff's case would not be improved by an appropriate amendment to the pleadings or through the utilisation of pre-trial procedures such as discovery or by the evidence at trial. "

30. In Mullaney v Ireland [2023] IECA 195, the Court of Appeal (Costello J) noted that it is impermissible to bring proceedings for the purpose of challenging final orders made in earlier proceedings (at para. 8):

"It is an abuse of process to bring proceedings whose purpose and effect is to launch impermissible collateral attacks on valid, final, un-appealed Orders of the High Court. The Bank is entitled to the benefit of those final Orders."

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31. This principle has been applied in a host of recent judgments in light of the unfortunate proliferation of this form of litigation, proceedings challenging the outcome of earlier proceedings (see, by way of example only, Scanlan v Danske Bank [2023] IECA 102, Tucker v Tailte ?ireann [2025] IECA 80, Masterson v Pepper Finance [2024] IEHC 547, Hogan v Tanager [2024] IEHC 739, KBC Bank v Smith [2025] IEHC 481, and Beades v KBC Mortgage Bank, cited above).

32. An issue which has been finally determined in previous proceedings is, of course, res judicata, and cannot be reanimated in subsequent proceedings. Nor can a party issue separate proceedings to pursue arguments which could have been, but were not, pursued in earlier proceedings which have been finally determined. Such is the consequence of the well-established rule in Henderson v Henderson. In Munnelly v Hassett and Ors [2023] IESC 29, the Supreme Court (O'Donnell CJ) considered the applicable principles when applying the rule in Henderson v Henderson. The Chief Justice referred to the decision in AA v Medical Council [2003] IESC 70, [2003] 4 IR 302 as the " most authoritative statement of the principle in Irish law ", emphasising the passages in that judgment which made clear that the rule was a flexible one which should not be applied in a dogmatic way. He also referred with approval to the formulation of the test proposed by McDonald J in a recent High Court decision (at para. 21):

"A useful statement of the rule is contained in the judgment of McDonald J. in the High Court, in George and George v. AVA Trade (EU) Ltd. [2019] IEHC 187. At paragraph 152 of the judgment, he suggested that:-

"While the Irish cases have accepted that a broad approach should be taken and that the rule should not be applied in an automatic or unconsidered fashion, the Irish courts, in practice, have usually addressed the rule in Henderson v. Henderson by means of a two stage test:- (a) asking, in the first instance, whether an issue could and should have been raised in previous proceedings; and (b) secondly, if the issue could and should have been raised in previous proceedings, whether this is excused or justified by special circumstances".

In the course of submissions, this approach has been usefully described as a "could and should" test: could the issue have been raised in the earlier proceedings, and if so, should it have been so raised? If so, is there any reason why this second set of proceedings raising the issue should not be dismissed. "

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Discussion

33. In circumstances where Start has transferred and assigned the charge and loan to Mars, and Mars have been substituted in the proceedings in its place, Start no longer has an interest in the order for possession which the plaintiff seeks to attack. Since the plaintiff's proceedings are directed to the validity of an order for possession in which Start no longer has an interest, much of the plaintiff's claim against Start is bound to fail on that ground alone, though it is conceivable that if Mr Connaughton otherwise had an entitlement to challenge that order, there may be some residual relief which he could obtain against Start. In any event, as the named defendant, Start is clearly entitled to bring an application to strike out the proceedings.

34. This should not be understood as an invitation to issue fresh proceedings against Mars, as the party with an entitlement to issue execution of the possession order, or to apply to amend these proceedings by joining Mars as a co-defendant. It is abundantly clear that any claim by the plaintiff directed to the validity of the possession order must be regarded as an abuse of process. Though the plaintiff contended otherwise in oral submissions, he identified no basis upon which these proceedings could be considered anything other than a direct challenge to final orders made in other proceedings. That is the express claim pleaded. His affidavits sworn in this motion frankly acknowledge that this is his purpose. Although the plaintiff contends that he has identified different legal and factual arguments than those previously determined, the " purpose and effect " of those arguments is to upset the possession order. As in Mullaney, it is clear that the plaintiff's intention in bringing the proceedings is to mount a challenge to the validity of the order for possession made in the earlier proceedings. This is simply impermissible.

35. The plaintiff seems to perceive that these proceedings are not an attempt to re-litigate the earlier proceedings because he seeks a plenary hearing and an opportunity to advance either more fully arguments rejected in the earlier proceedings, or develop new arguments (though it is far from clear that there is any such new argument advanced). This is not correct. The fact that the earlier proceedings were disposed of on a summary basis, because the plaintiff had not raised an arguable defence, does not entitle him to institute plenary proceedings to pursue arguments he did not, or was not given leave to, pursue in those earlier proceedings.

36.?Even if the proceedings were not, in terms, a direct challenge to the decision in the earlier Circuit Court appeal, and thus an abuse of process, it is clear that, insofar as the plaintiff wishes to challenge Start's entitlement to possession of the Property, that is an issue which has already been decided in the earlier proceedings and would, in any event, be regarded as res judicata and, therefore, bound to fail. Most of the arguments which the plaintiff has identified as a basis to challenge the possession order are arguments raised and rejected in the possession proceedings. In this regard, it is clear from the High Court judgment that issues regarding compliance with Central Bank codes, the validity of the transfer to Start, the Unfair Contract Terms Directive, and the question of whether there had been a default on the loan were all addressed in those proceedings.

37. The plaintiff may have identified new arguments, or at least variations of existing arguments which he wishes to pursue. There is, for instance, no reference to an overcharging claim, or the requirements of section 28(6) of the Supreme Court of Judicature (Ireland) Act 1877, which requires notice of assignment of a loan to be given, in the ex tempore judgment of the High Court, though the judgment does record that there was February 2015 correspondence to this effect, and the judge dealt more generally with the evidence of the assignment to Start. The judgment also records the undisputed evidence that there was no payment by the plaintiff in respect of the loan after April 2015. Demand for repayment was made on 22 March 2018. The court expressly concluded that it was satisfied " without doubt " that the loan monies had become due.

38. Even if the specific issues on which Mr Connaughton now focusses were not raised or expressly addressed in the course of the possession proceedings, it is very clear that they could have and should have been raised. No explanation has been provided of why they were not. Nor has the plaintiff identified any special circumstances justifying or excusing a failure to do so, and accordingly, any pursuit of these 'new' arguments is barred by a straightforward application of the rule in Henderson v Henderson. It will be recalled that the earlier proceedings were disposed of on a summary basis, the plaintiff having failed to identify even an arguable defence to the claim. He cannot now issue plenary proceedings, seeking discovery, for the purpose of belatedly identifying some basis on which Start was not entitled to the order it obtained.

39. There is a suggestion by Mr Connaughton that, for unspecified reasons, securitisation of his loan may have had a bearing on the entitlement of either the Bank to demand payment or Start to obtain the order for possession. This, of course, is an argument which has been rejected in multiple proceedings, commencing with Wellstead v Judge White & Ors [2011] IEHC 438. Accordingly, the assertion that it may affect the lender's rights in this instance is of no substance and would be rejected even if it were not, as it is, also barred by Henderson v Henderson. Similarly, it is impossible to see how any GDPR complaint could have a bearing on the validity of the order for possession.

40. Finally, Mr Connaughton's written and oral submissions also contend that the transfer of Start's interest to Mars subsequent to the finalisation of the possession proceedings is something which he is entitled to pursue in plenary proceedings. The only reliefs sought in these proceedings relate to the possession proceedings. A subsequent substitution could not be relevant to those issues. If Mr Connaughton has any issue regarding the substitution order and grant of leave to issue execution made by the Circuit Court in 2025, his remedy lies elsewhere, i.e. in an appeal of that order.

41. In circumstances where Mr Connaughton has impermissibly sought an order setting aside final orders, it is not appropriate for me to engage with the merits of his arguments. The Supreme Court has already observed that the High Court decision was made in accordance with well-established principles.

42. I will, accordingly, make an order striking out the proceedings pursuant to Order 19, Rule 28(1) of the Rules. The proceedings have no prospect of success and, as Dignam J put it in Beades, they " cannot succeed ". More particularly, the proceedings are an impermissible attempt to re-try issues which have already been finally determined and are, therefore, an abuse of process. In addition, the proceedings are barred by the doctrine of res judicata or, in the alternative, the rule in Henderson v Henderson.

43. I will list the matter on 15 April 2026 at 10.30 am to deal with any ancillary matters and costs.

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