O'Callaghan v Pepper Finance - Mortgage Dispute Interlocutory Ruling

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  O'Callaghan v Pepper Finance Corporation [Ireland] Designated Activity Company and Anor (Approved) [2026] IEHC 189 (27 March 2026)

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?THE HIGH COURT

BETWEEN

[2026] IEHC 189

? Record No. 2024/7362P

PAULINE O'CALLAGHAN

PLAINTIFF

AND

PEPPER FINANCE CORPORATION (IRELAND) DESIGNATED ACTIVITY COMPANY and JAMES ANDERSON

DEFENDANTS

JUDGMENT of Mr Justice Liam Kennedy delivered on 27 March 2026.

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1. This judgment concerns the plaintiff's application for an interlocutory injunction to restrain the defendants ("Pepper" and "the Receiver") from selling or marketing two properties ("the Spencer Dock Property", "the Castleknock Property" or "the Properties") originally mortgaged to Bank of Scotland Ireland ("BOSI"). Pepper claims to be the owner of the loans and charges but the plaintiff takes issue with its title. I am refusing the application as I am not satisfied that the plaintiff has established a fair case for trial. Nor would the balance of justice justify the order sought in view of the plaintiff's delay and acquiescence. Damages would be an adequate remedy in any event.

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The Proceedings

2. The 17 December 2024 notice of motion sought to restrain the defendants from selling or marketing the Properties and to require the defendant to surrender possession. The plenary summons also sought additional reliefs, including; (a) declarations and injunctions, contending that the assignment to Pepper and its attempted enforcement of the security was unlawful, it was not the ** charges' "substantive owner" and thus not entitled to possession or sale or to issue demands or to appoint a Receiver; (b) rectification of the register; (c) declarations that any arrears or defaults on the mortgages were due to Pepper's defaults and that any liability was limited to the price paid by Pepper for the plaintiff's mortgages.

3. The plaintiff's affidavits canvass issues which are irrelevant, factually or legally misconceived, resolved in the course of the exchange of affidavits, or which were scarcely, if at all, pressed in oral and successive written submissions [1].  Given such points' evident lack of substance, this judgment will not explore them in detail. Suffice to say that I have considered all points raised in the plaintiff's submissions and affidavits and am satisfied that such points do not constitute fair questions to be tried. This judgment will focus on the major issues. It is common ground that:

a. in March 2008 the plaintiff borrowed ?426,000 from BOSI in two loans secured against her two Properties (to fund the acquisition of the second property). Both properties were leased. BOSI's title as charge holder was uncontroversially acquired by Bank of Scotland plc ("BoS"); this Judgment will generally not need to distinguish between them as no issue arises in that regard.

b. In the course of 2018, BoS transferred the beneficial ownership of a portfolio including the plaintiff's loans and mortgages to Erimon Home Loans Limited ("Erimon"). In a further transaction in September 2018 BoS purported [2] to transfer legal title to the portfolio, including the plaintiff's loans and mortgages, to Pepper pursuant to a Global Deed of Assignment ("GDA") while, simultaneously, Erimon divided the beneficial interest between five entities ("the Securities Entities"). The particular recipient of the beneficial interest in the plaintiff's loans has not been confirmed [3] so I will refer to it as the Beneficial Owner. (Its identity is less material than the fact that Pepper is not the beneficial owner).

c. Having been notified in October 2018 of the transfer of legal title to Pepper (on trust), the plaintiff made payments to Pepper until around August 2023 after which the loans fell into arrears and Pepper appointed the Receiver.

d. After the loan fell into arrears, Pepper took steps to appoint the Receiver and realise its security; the plaintiff now disputes the validity of the assignment to Pepper and its entitlement to enforce the mortgages.

The mortgage conditions confirmed the plaintiff's consent to the lender assigning or transferring the mortgages and/or the benefit of the mortgages and/or any collateral or ancillary security to any third party (as part of a securitisation scheme or otherwise).

The Evidence

4. Although six affidavits were exchanged, canvassing many issues, the essential issue emerging from the plaintiff's oral and written submissions concerned Pepper's right to enforce the charges, by issuing demands, appointing a receiver and proceeding to sell the Properties. Accordingly, I will focus on the plaintiff's key averments, namely that; (a) she met her payment obligations, save for a six-month consensual payment plan; (b) Pepper does not own her loans or charges because BoS transferred the beneficial interest to Erimon Home Loans Limited ("Erimon"), which then transferred it to the Beneficial Owner; (c) she disputed Pepper's claim to legal title to the loans and charges but also its entitlement to enforce the mortgages if it did have legal title; (d) at most, Pepper is an asset servicer which neither owns the loans and mortgages, nor their substantive rights which vest in the Beneficial Owner; if it held the legal title on "trust" that would not give it substantive rights in respect of the mortgages; (e) the plaintiff should not be regarded as being in arrears because in March 2024 Pepper wrongfully failed to deposit two cheques, totalling ?10,000, to reduce the then arrears of ?25,000 and subsequently, in July 2024, she offered to pay the balance (?16,368.15) to clear the arrears but the Receiver unreasonably rejected her proposal; (f) Pepper initially accepted her two cheques in March 2024, but did not deposit them, preferring to appoint the Receiver in April 2024; (g) The Castleknock Property has sentimental value having been her home from 1995 until 2007. She lived there with her daughter and partner, with her partner dying and leaving her a single parent, dependent on the Properties' rental income. She also carried out extensive refurbishment over the years, spending circa ?25,000 in 2003; (h) The Spencer Dock Property was bought as a future home for her daughter and she had given notice to the tenants to vacate to allow her to move in, but this was overtaken by the receivership; (i) the sale would breach her property rights and damages would not be an adequate remedy if it is found at trial that the defendants unlawfully sold the Properties; (j) damages would be an adequate remedy for the defendants as their interest is financial. They would not be prejudiced by an injunction as the Properties are in positive equity, and the Receiver is receiving the rents. The Properties are worth considerably more than the debt; (k) she offered the usual undertaking as to damages; (l) she explained her delay in seeking relief on the basis that she tried to deal in good faith with Pepper up until August 2023 but only learnt in April 2024 that it was not the true owner of the Loans and Mortgages. She was left with no option but to pursue legal action and she should not be criticised for the delay, especially as it was unclear how it prejudiced the defendants.

5. Because the primary issue concerns Pepper's entitlement to enforce the loans and charges, it is important to focus on the plaintiff's averments as to the legal and beneficial ownership of the charges. In brief, she avers that:

a. since 28 September 2018 it was always represented to her that BoS had transferred the ownership and the substantive rights to the loans and mortgages to Pepper, but her investigations suggested that Pepper did not actually own the substantive rights to them. She had ascertained that they were the subject of two "true sales", the first, ** in or about 17 May 2018 [4],? involved their sale to Erimon Home Loans Ltd ("Erimon") in what she characterised as a "true sale mechanism". She exhibited newspaper reports and company filings suggesting that; (i) Erimon was a Barclays subsidiary, formed to hold mortgages acquired from Lloyds Banking Group; (ii) it acquired BOSI's underlying mortgage portfolio for ?4.7 billion and simultaneously sold it, for the same amount, to the Securitisation Entities on or about 28 September 2018. She exhibited some of the Securitisation Entities' statutory accounts which suggest that there are master servicing agreements in place between Erimon, Pepper and Citicorp Trustee Ltd and each entity in relation to their share of the portfolio and that each of them appointed Pepper as their asset servicer in respect of their share of the portfolio. Accordingly, Pepper does not own the plaintiff's loans or have substantive rights to possession or sale and/or to issue demands or appoint receivers; such rights rest with the Securitisation Entities. This is because the securitisation "involved an absolute equitable assignment of all of the rights held by Erimon" to those parties. Pepper did not own her charge or mortgages. At best, it holds the legal title, but even that was disputed.

b. Since the Securitisation Entities' purchase of the loans occurred on the same date as BoS's transfer of legal title to Pepper, the plaintiff queries how the parties could represent to the Land Registry that BoS transferred "all" of its interest in the loans and mortgages to Pepper on that date, since its beneficial interest had passed, first to Erimon and then to the Securitisation Entities. Their annual returns confirmed that Erimon's sale of the beneficial interest to them completed on 28 September 2018, the same day as BoS's purported transfer of the legal interest to Pepper.

c. She accepted that the schedule to the GDA referred to her loan account numbers but queried the balances shown in the schedule.

d. She disputes the validity of the Pepper's 14 March 2024 demands on the basis that they stated that BoS had transferred all of its interest and benefit in the loans and any security. She argued that that statement was incorrect and misleading since the equitable interest had transferred to other parties.

6. As noted above, the plaintiff also raised other issues which were resolved in the course of the exchange of affidavits or which were entirely unsubstantiated assertions but she has not established that such criticisms (even if there was any substance to them) would give rise to a fair question to be tried in respect of a cause of action which would entitle the plaintiff to the interlocutory support which she now seeks. For example, no cogent evidence was adduced to support the plaintiff's denial of having defaulted on her loans or Pepper's entitlement to enforce (save for the title issue considered below).

7. Two affidavits sworn by Mr O'Dwyer on the defendants' behalf averred, inter alia that; (a) Pursuant to the Mortgage Conditions the plaintiff consented to the transfer of the benefit of the mortgages to any third party, as part of a securitisation scheme or otherwise. Pepper is the registered owner as a result of such a transfer, and the folios are conclusive as to title; the legal interest, still held by Pepper on trust, was the "only matter relevant to these proceedings". Mr O'Dwyer exhibited (redacted) documentation evidencing Pepper's title, noting the disclosure of the position to the Plaintiff in 2018 and confirming that the transactions between Erimon and the Securitisation Entities (including the transfer of the beneficial interest in the loans and charges) did not affect legal title, which remained with Pepper; (b) damages were an adequate remedy for the plaintiff in any event as the Properties were investment properties and any loss could be financially compensated; (c) however, damages would not adequately compensate the defendants as the plaintiff was impecunious and could not meet a damages award in their favour; (d) the plaintiff's unexplained delay in bringing her application weighed against her. Pepper acquired the loans in 2018, the Receiver was appointed in April 2024 but the application was only brought in December 2024; (e) contrary to the plaintiff's averment, there were arrears (?14,233.35 on the Spencer Dock loans and ?7,615.47 on the Castleknock loans); (f) the defendants did try to lodge the two cheques which the plaintiff accused them of not depositing but the plaintiff's bank returned them unpaid; (f) the plaintiff was in default on both facilities since November 2023; prior to her 14 March 2024 letter she had not made any payment since 27 August 2023; (g) an injunction would prejudice Pepper if it delayed the sale of the properties and their values were to decrease.

8. Mr O'Dwyer's affidavits did not engage with the detail proffered by the plaintiff in respect of the transactions between BoS and Erimon or between Erimon and the Securitisation Entities. Nor did he exhibit documents relating to those transactions. He neither accepted nor refuted the plaintiff's characterisation of those transactions. His answer to the claim that BoS sold the mortgages to Erimon was that the documents he exhibited showed that "the legal title to the loan facilities and mortgages was, in fact, acquired by Pepper who held that legal title on trust for Erimon or its nominee. This was disclosed the plaintiff in correspondence dating back 2018". Pepper adopts the same position in respect of the transaction between Erimon and the Securitisation Entities, stating that "the securitisation transaction did not effect any change in the legal title to the Loan Facilities and the Mortgages which, at all times, has remained with Pepper". Pepper maintains that such transactions in respect of the beneficial ownership are irrelevant and that the legal interest is the only matter relevant to the proceedings.

9. Mr O'Dwyer's second affidavit also notes that the assignment was expressly stated to be "subject to the terms of the mortgage sale deed", making clear that BoS' interest was to be transferred to Pepper as the legal title holder. It also states that Erimon never held the legal interest to the loan facilities or mortgages; accordingly, the transaction with the Securitisation Entities "did not affect any change in the legal title in the loan facilities or mortgages which remained with Pepper".

10. Mr O'Dwyer exhibited emails, which suggested that Bank of Ireland informed Pepper that the plaintiff's two cheques were returned unpaid when Pepper sought to lodge them, with the explanation "Payment Stopped", in response to which ** the plaintiff exhibited a bank statement which suggested that she had placed her account in funds to clear the cheques.

The Annual Returns of Erimon and the Securitisation Entities

11. Erimon's annual return for the period ending 31 December 2018 noted its incorporation on 27 June 2018, stating that during the reporting period the company acquired a mortgage portfolio from BOSI for ?4.7billion and simultaneously sold it, for the same amount, to warehousing and securitisation vehicles. The plaintiff also exhibited annual returns of several Securitisation Entities. Each: (i) stated that they were incorporated in July 2018 for the purpose of purchasing residential mortgage loans and security from Erimon, noting that the loans had been sold by BoS to Erimon on 17 May 2018; (ii) identified Pepper as the "Servicer" and Citicorp as their "Trustee" and noted Pepper's appointment as the portfolio's asset servicer.

The Correspondence

12. It is important to compare the parties' averments and their current submissions to contemporaneous correspondence. In particular:

a. On 1 & 4 October 2018 BOS and Pepper each wrote to the Plaintiff following the loan sale asspecified in the loan sale transaction documents. The letters were in similar terms. BoS's "goodbye" letter informed the plaintiff that it had transferred the plaintiff's mortgage loan agreements to Pepper with effect from 28 September 2018 with Pepper holding the legal title on trust for Erimon, a Barclays subsidiary, or its nominee, (the "beneficiary"). Pepper's "hello" letter referred to the " goodbye " letter and reiterated its contents. It noted that Pepper had been servicing the mortgage since April 2016 and would continue to do so and that it was now the "new lender of record". It explained that the plaintiff's obligations in respect of her mortgage were owed to Pepper and the mortgage terms and conditions were unaffected.

b. On 14 March 2024, after the plaintiff had defaulted on payments due under the agreements, Pepper made formal demands for repayment, noting that, absent repayment within 3 days, it reserved the right, inter alia, to appoint a receiver and in relation to the power of sale.

c. On 19 March 2024 [5] a letter to Pepper from the plaintiff's representative, Mr Gilroy, stated that his sole objective was to facilitate an amicable resolution regarding the mortgage accounts and that the plaintiff had secured an investor who was prepared to provide funds to redeem "the alleged mortgages". He sought clarification of the nature of Pepper's interest and asked it to furnish title documents and to confirm whether it was "acting solely as a credit servicer" in which case he sought disclosure of the identity of the actual owner of the mortgages.

d. By letter dated 3 April 2024, the plaintiff was notified of the Receiver's appointment. The letter stated that her interest in the Properties had ceased and that the Receiver was entitled to possession so the properties could be sold.

e. On 6 April 2024, the plaintiff replied, objecting to the receivership. She objected that Pepper was a credit servicing firm not the beneficial owner and that the receivership was unlawful, threatening legal action while also calling for an amicable resolution.

f. The defendants' solicitors responded to Mr Gilroy by letter dated 10 April 2024 (which was not exhibited by the plaintiff) providing copies of title documentation evidencing the transfer to Pepper and confirming that any other title documents were available for inspection.

g. The plaintiff's then solicitors' letter dated 17 April 2024 objected to the receivership in view of "fundamental difficulties and inadequacies with the charge registered", (incorrectly) ** asserting ** that the defendants had refused to provide title documents, threatening immediate proceedings and demanding a response by 19 April 2024.

h. The defendants' solicitors' 19 April 2024 letter referred to their correspondence with Mr Gilroy, observing that, other than an acknowledgement, they had not heard from him since providing copies of title documents and offering others for inspection. The exchange with Mr Gilroy was copied to the plaintiff at the time. The letter noted that i t was wrong to say that the plaintiff's request for copies of title documentation had been denied, the receivership was valid and would continue .

i. In an exchange of letters on 22 April 2024, Mr Gilroy acknowledged the invitation to inspect but requested a schedule of title documents before inspection took place. The defendants' solicitors' response noted that he had already been furnished with copies of all title documents created since the date of the mortgage, namely the folios and the deeds of transfer.

j. The plaintiffs, then solicitors' 29 April 2024 letter accepted that Mr Gilroy had received title documents but, ignoring the defendants' solicitors' 22 April 2024 letter, noted Mr Gilroy's belief that "more documents" might be relevant his request for ** a schedule of the documents. ** The letter denied that Pepper was the mortgages' legal owner and requested that the defendants refrain from selling or advertising the Properties, reserving the right to immediately seek injunctive relief, while reiterating the wish to resolve matters amicably.

k. On 26 July 2024, the plaintiff's then solicitors wrote to Pepper, stating that "as the arrears are not a considerable amount", their client had put them in funds in the sum of ?16,368.152 to clear them (apparently assuming that the two March 2024 cheques had been duly credited against the arrears). They furnished her calculation of the arrears, noting that rent should also be deducted and threatened that unless Pepper accepted the proposal within 21 days, the plaintiff would seek injunctions to prevent the properties' sale and compel the production of evidence that Pepper owned the charge and that the Receiver had been validly appointed.

l. Pepper's solicitors' 20 August 2024 response declined the 26 July 2024 offer, stating that the facilities had been breached and the debt was due. It stated that the amounts due as at the date of demand, 14 March 2024, were ?147,032.38 and ?274,587.16 and agreed that rents would be set off against the debt. It noted that title documentation had been furnished and noted the Receiver's powers, including the power of sale.

m. By letter dated 6 September 2024, the plaintiff's solicitors acknowledged the documentation sent to Mr Gilroy in April 2024 but asserted that it did not provide "conclusive proof". It referred to Pepper's statement in its "hello" letter that it held the legal title on trust for Erimon and would continue to service the mortgages, stating that

"From this, we infer that Pepper is merely acting as service agents. We therefore request confirmation that Erimon Home Loans Limited is the actual owner of the mortgage"

The letter reiterated the desire for an amicable resolution, failing which it threatened legal proceedings, demanding a response within 10 days.

n. The plaintiff's solicitors' 14 November 2024 pre-action letter requested details of rents collected, asserting that they would be sufficient to discharge monthly repayments and that Pepper's rejection of the plaintiff's proposal (to repay the arrears) was unreasonable and unlawful given their modest amount. It invited the defendants to reconsider and also demanded a copy of the mortgage and the assignment, while asserting that there was no lawful basis to sell either Property since the plaintiff was prepared to discharge the arrears and the monthly rents would cover monthly repayments. It also denied that Pepper held the "substantive ownership of the mortgages over the Properties" referring to the transfers of beneficial ownership. It threatened legal proceedings for trespass and/or slander of title and/or unlawful interference with the plaintiff's property rights unless within 7 days the defendants confirmed that they would take no steps to sell or market the properties pending determination of the issues.

Plaintiff's Submissions

13. The plaintiff's submissions argued that:

a. There was an issue to be tried as to Pepper's right to enforce the mortgages. English decisions such as Bexhill UK Limited v Razzaq [2012] EWCA Civ 1376 established that assignees cannot rely on legal title to enforce loans and mortgages without the beneficial owner's express authority and in Permanent TSB v Donohoe [2024] IEHC 467 (" Donohoe") the High Court adjourned an action for possession for plenary hearing on the basis, inter alia, that the legal titleholder did not beneficially own the loan and was " at most, a bare trustee ".

b. As in Pepper Finance Corporation (Ireland) DAC v Meredith [2025] IEHC 48, Pepper had not engaged with the issue as to its entitlement to enforce the mortgages. At para. 31 of his judgment in Meredith, O'Donnell J held that such a failure gave rise to a " reasonable inference " against it.

c. It was not clear that Pepper even held legal title to the loans and mortgages (citing Moynihan) where Simons J concluded that, in view of the excessive redactions, it was unclear whether Pepper necessarily retained legal ownership.

d. The Deeds of Transfer filed with the Land Registry to register Pepper as the owner of the charges wrongly suggested that it was both beneficial and legal owner and were also misleading because; (i) they did not refer to Barclay's Bank plc ("Barclay"), defined as the Buyer in key transaction documents or to Erimon, its subsidiary; (ii) the reference to payment of "consideration" by Pepper ** was misleading as Erimon, not Pepper, provided the consideration; (iii) BoS's transfer of "all its rights, title interest, benefit and obligations" in the charges wrongly implied a transfer of beneficial as well as legal ownership to Pepper.

e. Damages are not an adequate remedy for the plaintiff as interests in land are different from chattels and a mortgagor can " always obtain an injunction to restrain a mortgagee from wrongfully exercising his rights " (Dellway Investments Ltd. v NAMA [2011] IESC 4). Furthermore, the Castleknock Property had sentimental value to the plaintiff, and the Spencer Dock Property was to be used to house her daughter. By contrast, damages would be an adequate remedy for the defendants.

f. The balance of justice favoured the injunction because: (i) refusal would amount to summary judgment, as was decried by Clarke CJ in Charleton v Scriven [2019] IESC 28; (ii) the defendants had failed to demonstrate prejudice as the injunction would only involve a temporary suspension of their rights, whereas the plaintiff would be prejudiced since the Properties are worth approximately double the alleged debt; (iii) the arrears were modest, and the plaintiff made payments up to August 2023 and had offered to pay ?16,368.15 towards the arrears in July 2024, but this was refused by the defendants; (iv) if the balance of justice was finally balanced then the Court should maintain the status quo, citing B&S Ltd v Irish Auto Trader Ltd [1995] 2 IR 142; (v) in response to the defendants' reliance on O'Reilly & Anor v Promontoria (Finn) Ltd & Ors [2023] IECA 250 ("O'Reilly"), the plaintiff emphasised that the Properties were not pure investment properties since she had lived in the Castleknock Property. Furthermore, there was substantial equity in the Properties.

Defendants' Submissions

14. The defendants submitted that:

a. Pepper is entitled to rely on the Deed of Transfer to establish its ownership of the debt, and on s.31 of the Registration of Title Act 1964, which provides that the register is conclusive evidence of title. The plaintiff has neither challenged nor sought to rectify the registration. Therefore, as appears from Tanager DAC v Kane [2018] IECA 352; [2019] 1 IR 385, she cannot ventilate that argument in these proceedings.

b. There was no fair issue to be tried. The judgment of Bolger J in Pepper Finance Corporation v Egan [2025] IEHC 31 ("Egan") ** resolved the plaintiff's main point.

c. Donohoe was distinguishable - in that case the assignee relied on s.31 without addressing claims that it was not the owner of the loan and mortgage. While in this case Pepper relies on the register to prove its interest in the charge, it also relies on the Global Deed of Assignment to establish its ownership of the debt. Accordingly, there is no fair issue to be tried, and such a finding would be re-litigating the issue conclusively determined in Egan.

d. Pepper accepted that there is equity in the Properties but submitted that damages would clearly be an adequate remedy for the plaintiff. Her submissions as to sentimental value attached to the properties should be disregarded on the basis outlined in O'Reilly & Anor v Promontoria (Finn) Ltd & Ors [2023] IECA 250 (" O'Reilly "). As in O'Reilly the Properties were investment properties.

e. The plaintiff is also guilty of inordinate delay in seeking the injunction on 17 December 2024. The 1 October 2018 "Hello" and "Goodbye" letters disclosed the transfer to Pepper of legal ownership on trust for Erimon or its nominee. Accordingly, the plaintiff knew the material details since 2018 and acquiesced by making payments until 2023. Furthermore, correspondence in March 2024 from Ben Gilroy, a representative of the plaintiff, referred to the issue as to the ownership of the mortgages, as did correspondence from her solicitors in April 2024 inviting Pepper to reverse the Receiver's appointment failing which it would face an injunction application. It was only in December 2024 that the plaintiff issued the proceedings. Even then, it didn't seek an interim order or short service.

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Authorities cited

15. Although it is not necessary to prolong this judgment by traversing them all in detail, I have considered all authorities cited by the parties, including:

? Campus Oil v Minister for Industry & Energy (No. 2) [1983] 1 IR 88

? Merck Sharp & Dohme Corporation v Clonmel Healthcare Ltd [2019] IESC 65; [2020] 2 IR 1

? Allied Irish Banks plc v Diamond [2012] 3 IR 549

? Dunne v Dun Laoghaire Rathdown County Council [2003] 1 IR 567

? Permanent TSB v Donohoe [2024] IEHC 467 (Mulcahy J)

? Pepper Finance Corporation (Ireland) DAC v Macken [2021] IECA 15

? Pepper Finance Corporation (Ireland) DAC v Meredith [2025] IEHC 48

? Bexhill UK Limited v Razzaq [2012] EWCA Civ 1376

? Pepper Finance Corporation (Ireland) DAC v Jenkins [2018] IEHC 485

? Pepper Finance (Ireland) DAC v Moynihan [2024] IEHC 625

? Silven Properties Ltd v Royal Bank of Scotland plc [2005] EWCA Civ 1409

? Ryan v Danske Bank [2014] IEHC 236

? Dellway Investments Ltd. v NAMA [2011] IESC 4

? Charleton v Scriven [2019] IESC 28

? B&S Ltd v Irish Auto Trader Ltd [1995] 2 IR 142

? Pepper Finance Corporation v Egan [2025] IEHC 31

? Tanager DAC v Kane [2018] IECA 352; [2019] 1 IR 385

? O'Reilly & Anor v Promontoria (Finn) Ltd & Ors [2023] IECA 250

In addition, the Court offered the parties the opportunity to file additional written submissions in response to two Court of Appeal decisions which became available following the hearing of the current application, Mars v Phelan [2025] IECA 117 and Permanent TSB v Donohoe [2025] IECA 222, as well as the decision of the High Court in Pepper Finance DAC v Hayes [2025] IEHC 692 .

To the extent it is necessary to refer to the authorities, they will be dealt with in the context of the discussion of the issues to which they particularly relate.

Analysis

16. The issues are: (a) has the plaintiff established a fair question to be tried as to whether? Pepper owns the legal interest in the loans and charges or as to whether, if it is the legal but not the beneficial owner, Pepper would be entitled to enforce them; (b) in any event is she precluded from seeking interlocutory relief due to her delay and acquiescence; (c) the balance of justice, including the adequacy of damages. There are also subsidiary issues, including as to whether the accounts were in arrears and the fate of the two cheques.

17. There was no controversy as to the principles governing interlocutory relief. As the plaintiff seeks to restrain the sale or marketing of the properties, the appropriate standard would be a fair question to be tried. Insofar as she seeks mandatory relief (such as return of the properties by the Receiver) the standard would be a strong case likely to succeed at trial (but prohibitory relief was the focus of the hearing).? Neither standard is met so I will focus on the lower standard.

18. I have not identified any factual dispute which is material for present purposes save for two related points, the extent of the arrears and whether the defendants deliberately failed to deposit the two cheques.? I will address those points after dealing with Pepper's right to enforce the charges. However, before doing so, I should note that while these matters have not proven determinative on this occasion, the credibility of the plaintiff's application was not enhanced by some positions adopted and advanced by her in correspondence and in her affidavits in the course of the motions. Various assertions, such as in respect of the interest rate or the withholding of documents, were not well founded. The plaintiff's affidavits also deny her default under the mortgages in blanket terms without satisfactorily explaining her position. A more transparent approach to the issue as to the extent to which she had met her obligations might have been appropriate. For example, she accused the defendants of not exhibiting all relevant documents to substantiate their contention as to the arrears, but she was the moving party with the burden of proof. The defendants were entitled to respond to her assertions (for example, as to her arrears) and to furnish documents which she failed to exhibit. They did so comprehensively, exhibiting an appropriate array of account statements. I do not agree with her response that statements were required for the entire lifetime of the loans. However, if that was the case she was the party responsible for exhibiting them in the first place. In any event, they have now been exhibiting, addressing a point of little substance in any event.

Redactions

19. I initially had concerns about an aspect of the defendants' evidence, namely redactions to one of the transaction documents on which they relied. Pepper's (legal) title was based on a loan sale transaction between BoS, Barclays and Pepper. It relied on BoS's assignment of the plaintiff's loans and mortgages pursuant to transaction documents which comprised the GDA, a Mortgage Sale Agreement ("the MSD") and two (Form 56) Deeds of Transfer. The defendants initially exhibited a heavily redacted copy of the MSD, noting that the (unredacted) GDA was the mechanism by which Pepper acquired its interest and that they only relied on the MSD to interpret terms in the GDA (but it should be noted that the GDA and Deeds of Transfer were both expressed to be subject to the terms of the MSD). The plaintiff objected to the redactions. Mr O'Dwyer's first replying affidavit blandly stated that exhibits had been redacted for commercial sensitivity and relevance. The plaintiff objected to the lack of an affidavit from a solicitor supervising the process, setting out the basis for the redactions and the procedure followed. Mr O'Dwyer's second affidavit claimed that the redactions were for commercial sensitivity and relevance and that if the plaintiff wished to challenge specific redactions, it was incumbent on her to identify the wrongfully redacted passages and say why they are relevant.

20. I disagreed with Pepper's dismissive response and shared the plaintiff's frustration at the unnecessary redactions. The defendants' affidavits defended unnecessarily extensive redactions without satisfactory explanations. The failure to disclose complete details of loan sale transactions in the context of applications for orders for possession has been criticised in recent High Court judgments such as Moynihan [6] and Hayes, and by the Court of Appeal in Macken. Parties exhibiting redacted documents must keep them to the minimum and, as the High Court has noted in recent cases (involving Pepper), should furnish an explanation on affidavit from the individual who carried out the redactions. Such an affidavit should be comprehensive, and the deponent should be an experienced lawyer qualified to practise in Ireland, confirming the basis for the redactions, providing sufficient detail to enable other parties and the Court to understand what has been redacted and why.

21. In practice, the initial redactions obscured much of the MSD save for clauses which Pepper relied on to prove title, omitting virtually everything else on the grounds of commercial sensitivity and relevance. This went too far. Entirely irrelevant matters may properly be redacted particularly for privacy or confidentiality concerns (such as details of other loans/customers). The Court might also permit redaction of limited and specific information (such as the price or its computation) or other irrelevant parts of the transaction documents on grounds of commercial sensitivity where their disclosure was not necessary in order to determine the issues between the parties. However, parties cannot gratuitously made wholesale redactions and should err on the side of inclusion.

22. The MSD in particular was unnecessarily redacted and the defendants failed to satisfactorily explain the redactions to the plaintiff (and the Court), detailing the procedure and the justification for the required redactions. The plaintiff rightly observed that "commercial sensitivity and relevance are matters for the court to determine". Although the force of her objection was diminished by her reluctance to avail of my offer to review unredacted copies to determine whether the redactions were appropriate, I endorse her original criticism as to the extent of the redactions and the inadequate explanations. The Court of Appeal warned in Macken that partial disclosure of details of loan transactions relied upon to show title was insufficient in the context of an application for an order for possession. When a document is exhibited, it should normally be exhibited in its entirety - redactions must be limited, explained justified and supervised by lawyers. The Court may disregard redacted exhibits and make adverse costs orders if such requirements are flouted.

23. I considered excluding the redacted MSD in its entirety (and may do so in the hopefully unlikely event of such situations recurring), but on this occasion I deemed it sufficient to direct the defendants to file further copies, removing unnecessary redactions. I granted the plaintiff leave to file further submissions in response to the additional filings, which she fully availed of (in fact, the submissions went beyond the refiled exhibits and raised additional points). As appears from the decision O'Donnell J Hayes (paras 38 and 41) the submission of revised versions of exhibits omitting any superfluous redactions can cure the evidential deficit which might otherwise have arisen on the basis of the original reductions.

24. Having reviewed the refiled MSD, I confirmed that the defendants adopted an appropriate approach in response to my direction. The revised filings satisfied me of two points. Firstly, some of the original redactions should not have been made. Secondly and significantly, the unnecessary redactions did not prejudice the plaintiff in any way. They did not change the factual position; to the contrary; their removal enhanced Pepper's claim to legal title. That said, it is regrettable that Pepper should have persisted in an inappropriate approach until my intervention. I expect that it will adopt a more considered approach in future, failing which it may find Courts unforgiving (and exhibits inadmissible).

**

Pepper's Title

25. The plaintiff's key argument was that Pepper is not the true owner of the loans and charges and cannot enforce them as it is not the beneficial (or perhaps even the legal) owner. Pepper has never claimed to be the beneficial owner. The plaintiff has known since September/October 2018 that Pepper claimed to have acquired the legal ownership and to hold it on trust for the beneficial owner. Nothing has changed in that regard. While the plaintiff's affidavits satisfy me that the beneficial ownership of her loans and the associated charges passed to the Beneficial Owner (via Erimon) and never vested in Pepper, the issue is whether she has demonstrated a fair issue to the effect that Pepper is not even the legal owner or that, even if it is, such status as a legal owner, a bare trustee, would not suffice to allow it to appoint a Receiver and sell the properties. I need not recount the transactions with Erimon and the Securitisation Entities. It suffices to note that Pepper is not the Beneficial owner.

26. Accordingly, the first issue is whether legal title alone would enable Pepper to enforce the loans and charges. At the outset, the plaintiff's main objection appeared to be that, even if Pepper held legal title, it was a pure nominee, a bare trustee or servicing agent with no beneficial interest in the loans or securities. The issue is whether, as the plaintiff contends, the Beneficial Owner is the only party with "substantive rights" to enforce the mortgages. The plaintiff contended that, not being a credit institution or retail credit firm owning the loans and security, Pepper had no substantive enforcement rights. However, Irish law, has long recognised and distinguished between legal and beneficial ownership.

27. Macken does not assist the plaintiff. It must be seen in the light of its particular facts. The need for a plenary hearing arose in the context of criticism of Pepper for only partially (and inaccurately) disclosing transaction details, including the beneficial owner's identity. The Court gave short shrift to the suggestion that legal ownership (once established) was insufficient to enforce loans and charges. Murray J dismissed the submission that Pepper was only a bare trustee as "neither here nor there" observing that even if it was a bare trustee,

"there was at the very least a prima facie case that that is a sufficient estate will enable it to proceed to be joined in the case and proceed seek relief the relief claimed in this action."

28. While the plaintiff cited the High Court decision in Donohoe, the Court of Appeal decision is now available, confirming Pepper's entitlement to enforce the loans and mortgages on the basis of its current proofs, relying on the register to prove its interest in the charge and on the GDA to establish its ownership of the underlying debt.

29. In Egan, Bolger J considered the issue which arises in this case (in the context of the very same GDA and MSD) - Pepper's rights as legal titleholder when it is not the beneficial owner. Her judgment is just one of a succession of Irish Court of Appeal or High Court decisions, including Pepper Finance v Jenkins ** [2018] IEHC 485, Farrelly v Pepper Finance [2023] IEHC 92 , Hayes, Phelan and Donohoe, which show that, contrary to the approach adopted by some English decisions [7], Pepper would be entitled to enforce the loans and charges if it is the legal owner of the charges. The plaintiff's submissions that it was not the beneficial owner, a credit servicing firm or a bare trustee, with no substantive rights would be irrelevant.

30. In Egan, as in this case, Pepper acquired legal title to the loans and charges from BoS without obtaining beneficial ownership. The land was unregistered and BoS entered a deed of conveyance and assignment ("the Deed"), assigning to Pepper the legal interest ** including the right to demand or sue for the debt . Bolger J rejected the submission that, being only the legal owner, Pepper lacked standing and could not seek possession. She noted that the defendant relied on authorities which concerned shortcomings in the proofs relied on by the institution seeking possession of a mortgaged property, none of which applied in Egan (nor, as appears below, have I identified such shortcomings here). ** She concluded that the MSD and the Deed transferred the mortgage and debt from BoS to Pepper, rendering it the legal owner and "that gave it rights, including the right to seek possession if the mortgage fell into arrears". She dismissed ** the argument that a mortgage may only be enforced by the beneficial owner, noting that the Courts repeatedly rejection of such arguments, holding that legal title sufficed once necessary proofs were satisfied. She concluded that:

" 16. ... the deed of transfer on which this plaintiff relies clearly identifies both the property and the loan account number of the mortgage which matches the account number on the defendant's original mortgage loan offer letter from Bank of Scotland. There was no such clarity in the cases on which the defendant sought to rely. ...  For the reasons set out above, no such difficulties arise for this Court and the necessary proofs have been established ..."

31. Of course, a party enforcing a loan or charge must still establish legal title in an action for possession or summary judgment, but the plaintiff has not established a fair question in respect of her challenge to Pepper's entitlement to appoint the Receiver or the latter's right to sell the Properties. For the reasons set out below, I am not persuaded by her submissions (including lengthy submissions in response to the re-filed MSD, further submissions in response to the recent Court of Appeal decisions and additional submissions filed without leave in response to the defendants' supplemental submissions). Pepper's title was based on the BoS loan sale. Mr O'Dwyer's first affidavit; (a) noted that the GDA provided that BoS assigned to Pepper all of its title and interest in the scheduled Mortgage Assets, including the plaintiff's loan facilities; (b) emphasised that the GDA was the mechanism by which Pepper acquired its interest but noted Pepper's reliance on the MSD for the sole purposes of interpreting MSD defined terms which were used in the GDA, later adding that Pepper's acquisition was subject to the MSD; (c) noted that, pursuant to the two (form 56) Deeds of Transfer, BoS transferred to Pepper its rights, title, benefit and obligations in the two Properties. While accepting that the schedule to the deed of assignment correctly identified her loan accounts' numbers, the plaintiff queried whether the balances were correctly stated. There was no evidence of any material inaccuracy, and no authority was advanced for the proposition that such a detail would invalidate the assignment. Nor was the point was pressed in submissions. N otwithstanding submissions to the contrary (in the plaintiff's submissions in response to the refiled exhibits, which were difficult to reconcile to her previous submissions), the plaintiff has not established a fair question as to whether the transaction included her loan facilities.

32. The transaction documents contained the provisions customary in such contexts and described Pepper as the "Legal Title Holder". The MSD was entered into on 17 May 2018 by BoS (as Seller), Barclays (as Buyer) and Pepper (as Legal Title Holder), before Erimon was incorporated, and recited that BoS was the lender in respect of the Mortgage Assets which it had agreed to sell (and Barclays to buy).? It defines the following:

"Borrowers" as, inter alia, the borrowers in relation to scheduled Facilities (which encompassed the plaintiff's loans)

"Facilities" as

"the outstanding loans linked to the Borrowers' primary accounts and related subaccounts to be purchased by the Buyer pursuant to this deed and "Facility" means any one of them, as the context requires".

"Mortgages" as the Mortgages relating to each facility and "mortgage" as any one of them"

"Mortgage Assets" as

"(a) the Security, including... the Mortgages;

(b) the Facilities forming part of the Closing Portfolio;

(c) to (e) ...."

"Security" as meaning "any Security Interest granted to secure any Facility.

"transaction documents" as including the MSD itself, the transfer documents and any other document entered into pursuant to or in connection with the deed and any other document in agreed form designated by the parties as such.

"Transfer documents" as "with respect to the Mortgage Assets, transfer deeds in substantially the agreed form" appended to the MSD.

33. In brief, the MSD provided, inter alia, that:

a. BoS agreed to sell (and Barclays to buy) the Mortgage Assets (which included the plaintiff's loans and charges) (clause 2.1) and that the Facilities and Loan Documents would be transferred "as a secondary objective to the transfer of the Mortgages and the Security" (clause 2.2).

b. Barclays could nominate an Associated Undertaking as the "Nominated buyer" to assume its obligations as Buyer (clause 2.3) and BoS and Barclays would negotiate a structure to transfer beneficial title to the Portfolio to such nominated entities (Beneficial Title Holders). Absent such agreement, both legal title and beneficial title to the Mortgage Assets would transfer on the Closing Date in accordance with Clause 6 (clause 2.5).

c. Clause 6.4 provided that on the seller's receipt of payment from Barclays,

"all such rights, title and interest as the seller may have in and to the mortgage assets shall transfer under the relevant transfer documents to the Legal Title holder and, for the avoidance of doubt, transfer of the Mortgage Assets shall be deemed to have occurred upon the receipt" of the specified provisional payment. **

d. The transfer of title remained subject to the equity of redemption. (clause 64.4)

e. Pepper was entering into the MSD as the Legal Title Holder and was only a party to it " for the purpose of acquiring the legal title to the Mortgage Assets and being bound by " clause 11 of the MSD (clause 11.1)

f. Pepper would be bound by references to the Buyer in certain specified clauses of the MSD as if they were references to Pepper (clause 11.2).

g. For the despatch of "hello" and "goodbye" letters to individual borrowers and for their contents (clauses 13.2 (a) and 13.3(a)).

h. The Legal Title Holder could assign or transfer its rights or obligations under the deed or its legal interest in any Mortgage Assets (clause 26.6).

i. BoS's warranties as to the portfolio included confirmation - subject to the Disclosure Schedule - that it was the legal and beneficial owner of the Mortgage Assets and that it had not entered into any prior sale, transfer, sub participation or created a trust interest in respect of any Facility (clause 11 and clause 12).

j. The template "goodbye" and "hello" letters annexed to the MSD were in different terms to the versions actually sent to the plaintiff following the completion of the transaction. The template "goodbye" letter provided, in effect, for BoS to advise borrowers that it had assigned its entire interest in their mortgage and the associated loans and security and that its duties and obligations under the mortgage had been assumed by the assignee, whereas ?the letter actually sent to the plaintiff (and presumably other borrowers) made clear that that while BoS's interest had been transferred to Pepper, it held such interests on trust. The same dichotomy applied to Pepper's "hello" letter.

34. The (largely unredacted) GDA between BoS (as assignor) and Pepper (as assignee) p rovided that certain defined terms should bear meanings specified in the MSD and that the GDA should be construed in accordance with clause 1.2 of the MSD (which provided how specific terms should be interpreted unless the contrary interpretation appeared).? In particular, the provision defined whether the term "Buyer" would mean Barclays, or other parties ("Nominated " or "On-Sale" Buyers). It also defined the MSD as the:

"mortgage sale deed in relation to mortgages securing a portfolio of loan facilities made between the Assignor and the Assignee on 17 May 2018 whereby the Assignor agreed to sell and the Assignee agreed to buy, inter alia, all right, title, interest benefit and obligation (both present and future) of the Assignee in the Mortgage Assets for the consideration therein mentioned."

35. The GDA also recited BoS's agreement to sell and Pepper's agreement to buy the Mortgage Assets on the terms and conditions set out in the MSD and the fact that, in consideration of the Parties accepting their rights and obligations under the MSD, BoS and Pepper had agreed to enter into the GDA pursuant to the MSD's terms and conditions. It confirmed, subject to the terms of the MSD and clause 2.3, BoS's assignment to Pepper of all such rights, title and interest which BoS

"may have in and to the Mortgage Assets in the Closing Portfolio (subject to and with the benefit in each case of the related Finance Agreement".

Clause 2.3 recorded that the Mortgage Assets which were Property Collateral governed by Irish law secured on real property assets would transfer pursuant to the Irish transfer deeds.

36. The (Land Registry Form 56) Deeds of Transfer dated 28 September 2018 confirmed BoS's transfer to Pepper of "all its right, title, interest, benefit and obligations" over, inter alia, the charges over the Properties in consideration of the mutual agreements in the MSD.

37. The terms of the hello and goodbye letters, and the fact that they were sent by the parties to the loan sale in accordance with the MSD but with significant changes (presumably agreed as between the parties in accordance with clause 2.5, a provision which itself evidences the parties' intentions as to legal and beneficial ownership) confirm that legal ownership transferred to Pepper with the intention that it should manage and enforce the loans as lender of record. The structure was disclosed to the plaintiff in 2018, and she raised no objection then, accepting Pepper as the "new lender of record", knowing that it was not the beneficial owner.

38. The structure of the transaction emerges clearly from the documents exhibited and they and the affidavits confirm that legal title transferred to Pepper. While the plaintiff's final submissions speculate that the position may have changed, for example, pursuant to clause 26.6 of the MSD, there is no evidence to suggest that that has happened. The hello and goodbye letters suggest the contrary and para. 19 of Mr O'Dwyer's affidavit confirms that the GDM " unconditionally, irrevocably and absolutely assigned to Pepper all ... title and interest in the Mortgage Assets ". I have not identified any countervailing evidence that offers a plausible basis to doubt his averments. His affidavits, coupled with the GDA, the Deeds of Transfer, the hello and goodbye letters and the (refiled) MSD support Pepper's position that it became the Legal Titleholder and remains such to this day. The plaintiff has not made out a fair issue to the contrary. While she may continue to litigate that issue, she has not met the threshold test for relief pending trial.

39. Pepper is entitled to invoke s.31 of the Registration of Title Act 1964 - the register is conclusive evidence of title to the charges. Its legal title to the loans is confirmed by; (a) the transaction documents; (b) the hello and goodbye correspondence; (c) Mr O'Dwyer's affidavits which establish that legal title to the plaintiff's loans and charges were vested and remain vested in Pepper. Pepper has thus established a strong case that the legal title to the loans and mortgages vested in it in September 2018 have remained with it since then. Conversely, the plaintiff has not established a fair question to be tried to impugn that title or to suggest that the transfers of beneficial ownership affected Pepper's legal title. While the plaintiff may litigate such issues at trial she has not, as yet, established a fair question to be tried.

40. The plaintiff has submitted that the folio is inconclusive, noting the jurisdiction for it to be rectified. However, she has not established a fair question to be tried as to any basis for rectification. Nor, despite the years that have elapsed, has she issued proceedings against Tailte?ireann to seek such relief.

41. The plaintiff has also raised speculative objections, particularly in her final submissions, which seemed to ignore O'Donnell J's observation at para. 32 in Meredith that borrowers cannot simply speculate that certain matters may have transpired and thereby suggest that the assignee has not discharged its burden of proof (on an application for orders for possession). To borrow his phrase, Pepper need not prove a series of negatives in the absence of an evidential foundation requiring it to do so. For example, clause 26.6 permitted the Legal Title Holder to assign or transfer its rights or obligations under the deed and its legal interest in any Mortgage Assets (and, of course, such an assignment or transfer could happen with the consent of all relevant parties even in the absence of such a clause),but there is no suggestion that clause 26.6 was ever invoked and Mr O'Dwyer's evidence suggests otherwise. Such provisions do not give rise to a fair question to be tried unless there is reason to suspect that the clause may have been invoked. There is no such basis here - to the contrary Mr O'Dwyer confirmed that legal title remains with Pepper - there is no countervailing evidence.

42. The plaintiff claimed that Pepper's title is not "sufficiently evidenced". While I am not convinced of that proposition, the issue I need to determine is whether the plaintiff has established a fair question to be tried, rather than the outcome of an application for possession on these proofs (in which scenario Pepper would bear the onus). I am not satisfied that the plaintiff has established a fair question to be tried.

**

**

Authorities Cited by the Plaintiff

43. The plaintiff relied, inter alia, on cases in which applications for possession by parties such as Pepper, which claimed to be assignees of the legal interest in loans and charges following? loan sales and securitisations, were remitted for plenary hearing because the assignee had not established its legal title or where there were concerns about the evidence adduced (or not adduced) by the assignee. For example, in Moynihan, Simons J concluded that it was not apparent from extraordinarily redacted documents that Pepper retained legal title. The redactions rendered it impossible for the court to interpret the deed or to determine its effect. Other High Court decisions such as Meredith have been superseded by the Court of Appeal's decisions in Phelan and Donohoe which are binding authorities as to such issues.

44. In any event, the decisions relied upon by the plaintiff concerned lenders' attempts to secure orders for possession, generally in the context of Circuit Court appeals, where the plaintiff retained legal but not beneficial ownership following a loan sale (as opposed to a borrower's application for an injunction, in which she must establish a fair issue to be tried). As Bolger J noted in Egan, summary possession was refused in several cases because, even though it was the registered owner of the charges, the assignee had failed to also prove legal ownership of the loans. In some cases, it failed to engage at all with issues raised by the defendant; in others it exhibited excessively redacted documents (or no documents at all), rendering the Court unable to reach a conclusion as to legal ownership. Indeed, in Macken the lender had provided incorrect or incomplete information. In such circumstances, the various courts were not satisfied that the assignee had sufficiently established legal title to the loans (as opposed to the charges) and such cases were remitted to plenary hearing. Those authorities each reflect particular facts and the need for plenary hearings followed the plaintiff's failure to engage adequately or at all with issues raised, as when redactions were so extreme as to prevent the Court reaching any decision as to title, averments as to ownership were actually incorrect, or other complications necessitated a plenary hearing. I would not compare the current circumstances to those cases, particularly since Pepper submitted an appropriately redacted copy of the MSD at my request. Even on the basis of the overly redacted MSD I doubted that the plaintiff had established a fair issue to be tried as to Pepper's legal title. Her case appears untenable in the light of the refiled exhibits. I was also unconvinced by the submissions filed by the plaintiff in response to the refiled exhibits, which did not advance matters.

45. The plaintiff made additional submissions without leave on 16 March 2026 citing the recent decision High Court decision Pepper Finance v O'Reilly [2026] IEHC 16 in which Simons J held that

" 25. If a party to litigation wishes to rely on a deed as establishing a particular proposition (here, that the ownership of the debt said to be secured by the registered charge has been transferred to Pepper Finance), then it is necessary for that party to exhibit the deed, and any supporting documents, in a form which is meaningful. Save insofar as it is necessary to protect the privacy of other borrowers who are not involved in the litigation, it will not normally be appropriate to redact any parts of a deed."

That decision does not advance matters because, as noted above, Pepper provided an appropriately redacted copy upon the Court's request. Accordingly, it has addressed the issue which otherwise would have arisen. In Pepper Finance v O'Reilly, the chargeholder's failure to do so was fatal, whereas the elimination of the unnecessary redactions in this case, as in Hayes (and in another recent judgment of Gearty J, Start Mortgages DAC & Anor v Corr & Anor [2026] IEHC 56) meant the Court could be satisfied that the assignee had shown good title.

Did Pepper's documents misrepresent the position?

46. I do not agree that the Deed of Transfer or GDA misrepresented the position by suggesting that BoS had transferred all of its interests to Pepper (whereas in fact it had transferred the beneficial interest to Erimon). The plaintiff was not a party to the loan sale and there is no basis to suggest that any actual parties, including Erimon and the Securitisation Entities, were misled. Nor is there evidence that Tailte ?ireann was misled. The submission that it was incorrect for Deeds of Transfer to suggest that BoS transferred its entire interest to Pepper ignores the fact that, on the plaintiff's own case as outlined in her grounding affidavit [8], BoS transferred its beneficial interest to Erimon before its September 2018 transfer of legal title to Pepper. This is consistent with the May 2018 MSD (including clauses 6 & 11). It follows that, in September 2018 BoS transferred its residual (legal) title to Pepper.? No issue arose - the statements that BoS transferred its title and interest to Pepper were correct. The choreography in such transactions is presumably carefully executed. There is no basis to suggest that BoS retained the beneficial interest when it transferred the legal interest to Pepper (in that unlikely scenario Pepper would have received an enormous windfall, but it would not have changed the plaintiff's position). In the absence of any countervailing evidence, I expect that BoS's transfer of legal title followed BoS's transfer of the beneficial interest in accordance with the parties' evident intention as appearing from the transaction documents.

47. The form 56 deeds of transfer and the demands did not deal with the beneficial ownership of the loans. Nor has any authority been adduced to satisfy me that they needed to do so. The plaintiff has not established a fair question to be tried to the effect that the deeds of transfer misrepresented Pepper's interest or that they needed to reference the Beneficial Owner, Erimon or Barclays.

Consideration

48. The plaintiff's objections in respect of consideration are flawed for several reasons. Firstly, consideration is an issue between the contracting parties, rather than the plaintiff; in any event the document acknowledges receipt of consideration. In Mars Capital Finance v Phelan, the High Court and Court of Appeal both dismissed a suggestion that the transfer of legal title on a loan sale was invalidated because consideration was provided by a party other than the recipient of the legal title. Barr J concluded, as noted in the Court of Appeal judgement para. 16, that the fact that the consideration for the transfer was provided by another company was immaterial; the deed of transfer made very clear what was being assigned and to whom and that it included the loans that constituted the subject matter the proceedings between the relevant parties. The Court of Appeal agreed, Binchy J concluding at para. 28 that:

"The Deed of Transfer itself makes it plain that the assignee of the appellant's loans is the respondent, and not Panelview. The fact that the purchase monies may have been provided by another entity is, as the High Court judge found, immaterial. At the very most, it may be the case that the respondent holds the assets assigned to it under the Deed of Transfer on trust for Panelview, in which case it is the legal owner of those assets, while Panelview may be the beneficial owner. Even if that is the case however, the appropriate party for the purpose of the proceedings would be the trustee, and not the beneficiary of the assets. For these reasons, I am satisfied that the Deed of Transfer, on the balance of probabilities, is effective to transfer the original plaintiff's title in the appellant's loans to the respondent."

49. Furthermore, even assuming that consideration was required given that the documents were deeds under seal, the specified consideration was not - and did not need to be - the financial payment to BoS in the context of the loan sale. The Deeds of Transfer referred to the consideration as being the "mutual agreements" in the MSD - such a provision, as opposed to a monetary payment, was clearly capable of satisfying any consideration requirement. The issue was dealt with in similar terms in the GDA. No issue arises.

Conclusion as to title

50. In summary, I am satisfied that; (a) the transaction documents show the BoS transferred legal title to Pepper on 28 September 2018; (b) there is no evidence of any change in that position; and (c) the plaintiff has not advanced a fair question to be tried as to whether legal title vested or remains vested in Pepper. Her arguments to the contrary (including successive additional submissions one of which I allowed her to submit in response to the refiled exhibits, and another in response to the Court of Appeal decisions together with a further set (submitted without leave) are matters of speculation and unsubstantiated or erroneous assertions. I should add that many of the plaintiff's submissions appeared to be cut and pasted from other sources and to be more directed towards resisting an application a summary application for possession rather than to supporting the plaintiff's own application for injunctive relief. Accordingly, many points raised were inapplicable.

51. While her submissions seemed to be putting Pepper to proof, the onus was on the plaintiff for this application. She needed to establish a fair question to be tried (or a higher standard insofar as she was seeking mandatory reliefs). She has not done so. Although not obliged to do so, Pepper has satisfied me that it is the legal owner of the loans and charges on the following basis:

a. Pepper is the registered owner of the charges on the relevant Land Registry Folios.

b. Mr O'Dwyer's First Replying Affidavit confirms that:

i. BoS (successor to BOSI) transferred the Loans and Charges to Pepper pursuant to a Global Deed of Transfer and Form 56.

ii. Pepper holds the legal title on trust for Erimon or its nominee. (Although not a matter for affidavit evidence I agree with his observation that only the legal interest is relevant to these proceedings).

iii.?No further transfer of the legal interest has taken place and all enforcement rights under the Loan Facilities and the Mortgages remain with Pepper.

Those averments coupled with the documents exhibited satisfy me that Pepper has established a strong case likely to succeed at trial that it is the owner of the loans and charges (although as a defendant it was not obliged to establish such a strong case).

Plaintiff's delay and acquiescence

52. Even if I was satisfied that the plaintiff had met the applicable threshold test interlocutory relief would be inappropriate in view of her delay and acquiescence and her tactical approach (as demonstrated by the repeated deadlines and threats of litigation in the correspondence [9]). In summary,

a. in 2018, after the loan sale to Pepper and in compliance with the transaction documents, BoS and Pepper respectively sent "goodbye" and "hello" letters to the plaintiff, informing her that her loan facilities and mortgages had transferred to Pepper which would hold legal title to them on trust for Erimon Ltd or its nominee. She did not object and paid her mortgage to Pepper for have years that followed until her defaults in 2023.

b. The plaintiff acknowledges that the goodbye and hello letters refer to Pepper holding the assets on trust, but her affidavits argued that such terminology was inconsistent with the assignment of the benefits of the mortgages. I do not understand the basis for this suggestion. The letters were clear.

c. Para. 43 of the plaintiff's first affidavit notes that after she was informed of the assignment of legal ownership to Pepper (on trust for the Erimon or its successor as beneficial owner) in 2018, she continued to make the monthly repayments to Pepper until approximately August 2023. This clearly implies that she had no objection to the assignment at the time. The averment also confirms that the plaintiff fell into arrears in August 2023, but she has not explained how that occurred or the steps she took to resolve the issue.

53. The plaintiff's assertion that she only recently learnt of the issue is inconsistent with correspondence stretching back to the October 2018 "hello" and "goodbye" letters, her response to the same (monthly payments to Pepper over the years) and the correspondence following her default in 2023. Her claim that it was represented to her since September 2018 that "BoS had transferred ownership and the substantive rights to the loans and mortgages" to Pepper ignores the terms of the hello and goodbye letters. Her solicitor's 26 September 2024 letter draws the obvious inference from those letters (that Pepper was not the beneficial owner), begging the question as to why the plaintiff did not take the point when she received the letters in 2018. She has failed to satisfactorily explain her delay in issuing these proceedings and seeking injunctive relief.

54. Pepper acquired the loans in 2018 and the Receiver was appointed in April 2024 but the injunction application was only brought in December 2024. The plaintiff has known since 2018 of the transfer of legal ownership to Pepper and beneficial ownership to another entity. Her payments imply acceptance of those arrangements. She has not satisfactorily explained her delay between 2018 and the issuing of the proceedings in December 2024 - she was on notice since 2018. If she had doubts, she should have investigated the matter or sought advice, and the issue could have been resolved then. However, she did not litigate the issue until December 2024, evidently because she hoped to cut a deal. Even then, her failure to join Tailte ?ireann, seems more consistent with a wish to delay the sale of the Properties than to preserve the status quo pending trial. The plaintiff's delay is, of itself, fatal to the application.

55. The plaintiff explanations for her delay do not withstand scrutiny. Her hopes of a negotiated outcome would not justify prolonged inertia, particularly in the absence of active engagement on both sides in circumstances which suggested an imminent resolution was likely, which was not the case.

56. It would be inequitable to allow the plaintiff to acquiesce in respect of the assignment of the legal title for six years (and subsequently in respect of the receivership) and then to belatedly object and seek injunctive relief. In order to invoke the Court's equitable jurisdiction to preserve the status quo pending trial any such application should have been made in 2018.?

57. Although the defendants need not establish prejudice as a result of delay and acquiescence, such prejudice is evident here. If the plaintiff had raised the issue at the appropriate time, it would have been resolved long before now, clearing the way for the enforcement of the loan either in proceedings as presently constituted or in proceedings involving additional or alternative parties as appropriate. Enforcement proceedings would not have been affected. Instead, the issue was kept in reserve as the plaintiff sought to negotiate. She only objected to Pepper's title and the validity of the receivership as a last ditch throw of the dice to prevent the sale. This is impermissible. Having failed to pursue the issue at the appropriate time, she cannot invoke the Court's equitable jurisdiction now.

58. The logic of the dicta of the O'Donnell CJ and of other members of the Supreme Court in Kirwan v Connors [2025] IESC 21 ** (in the context of an application to dismiss for want of prosecution) and of O'Donnell CJ in Tweedswood Ltd & Anor v Power [2025] IESC 18 , where the Court lifted an interlocutory order on the basis of the receiver's failure to progress the underlying litigation, would equally apply here. It would be unacceptable for the plaintiff to have commenced these proceedings in 2018 obtaining interlocutory relief and to have failed to prosecute them. It is equally unacceptable to commence the proceedings years after the event and to seek such relief.

---

The arrears

59. The plaintiff's affidavits deny the arrears or, in the alternative, assert that they arose due to Pepper's unreasonable conduct on the basis of its alleged failure to bank two cheques in March 2024 or its rejection of the plaintiff's offer to pay the arrears after the Receiver's appointment. She has not established a fair question in that regard:

a. her bare assertions as to the arrears are not supported by her own correspondence. The plaintiff herself, her representative Mr Gilroy and lawyers successively instructed by her corresponded with the defendants following the Receiver's April 2024 appointment. However, such letters did not contest the fact or quantum of the arrears or the fact of the plaintiff's default. Nor did they blame Pepper for the arrears. In particular:

i. her 6 April 2024 letter to the defendants did not dispute the arrears, nor did Mr Gilroy's letter of 19 March 2024 or her then solicitor's letter dated 17 April 2024.

ii. Her then solicitors' 26 July 2024 letter did not dispute the amount of the arrears, which it characterised as " not a considerable amount " confirming that their client had put them in funds in the sum of ?16,368.152 to clear the arrears. They furnished a breakdown of her calculation of the arrears, noting that rent should also be deducted.

iii. Para. 44 of the plaintiff's first affidavit noted that she sent the two cheques totalling ?10,000 in March 2024 "when it became apparent that Pepper was considering appointing a receiver, " to reduce the arrears, "alleged to be circa ?25,000 at that time". This averment, as well as impliedly acknowledging the arrears, also reveals the plaintiff's financial difficulty. Even leaving aside the controversy about the cheques, she only sought to reduce mounting arrears to ward off the receivership. Even then she did not pay the full arrears.

Mr O'Dwyer's replying affidavit challenged the plaintiff's denial of arrears at the time of the Receiver's appointment, noting arrears of ?14,233.35 and ?7,615.47 on the two facilities. Statements were exhibited and, in the absence of contravening evidence from the plaintiff (beyond mere assertions), she has not made at a fair issue in that regard. As noted above, she responded to the defendant's comprehensive evidence by suggesting that the documents furnished were incomplete, an unsatisfactory response because she, as ?the applicant, should herself have exhibited all documents required support her position; she failed to do so, even after the defendants' replying affidavit, preferring to criticise the defendants for supposed omissions. In any event the defendants exhibited the remaining statements although, in my view, they were unnecessary. The plaintiff has not established a fair question to be tried in respect of her contention that she was not in arrears at the material time.

---

Rent

60. Although the plaintiff's solicitors' 14 November 2024 letter sought details of rents collected, asserting that rents were more than sufficient to discharge the monthly repayments, that claim was not satisfactorily substantiated on affidavit but in any event would not address the issue that acts of default had occurred and the debts had already fallen due. Likewise, although the same letter asserted that Pepper's rejection of the plaintiff's proposal was unreasonable and unlawful, this point was not vigorously pursued in submissions.?

61. The defendants agreed that rent collected would be credited against the debt. The evidence does not suggest that such rent would extinguish the arrears; if it would, then the arrears would presumably not have arisen in the first place. In any event, the plaintiff having defaulted, Pepper was entitled to enforce its rights under the mortgage, and the receipt of rent does not change the position.

The Cheques

62. It is common ground that the plaintiff sent two cheques in or about 28 March 2024 "to reduce the arrears on the two loan accounts ". Accordingly, even on the plaintiff's evidence, the payments were less than the arrears - the accounts would still have been "in the red". The plaintiff asserts that the defendants deliberately refrained from banking the cheques so as to be able to enforce the security. T his does not make sense since, with or without the cheques, the accounts remained in arrears. In any event, the correspondence with Bank of Ireland provides objective, independent corroboration of the defendants' testimony that the plaintiff attempted to bank the cheques, but they were returned unpaid by the plaintiff's bank.

63. The plaintiff claims that her account was in funds and asserts that her bank has informed her that the cheques were never presented. Although she has not exhibited documentary confirmation from PTSB of any such communication, she did exhibit bank statements which confirm that she transferred funds to the account sufficient to cover the payment. Of course, a credit balance in an account immediately following a deposit or a transfer from another account, does not necessarily mean that the full credit balance represents available cleared funds.? In any event, while the possibility of a misunderstanding or time lag while the transfer cleared cannot be excluded,? there was no suggestion that the Bank of Ireland correspondence exhibited by Pepper was forged, and the plaintiff's hearsay assertions as to comments from an unidentified PTSB representative do not establish a fair question to be tried in respect of the suggestion that Pepper deliberately failed to present the cheques to keep the loans in default.?

64. Nothing t urns on the cheques. The plaintiff was in default either way and Pepper was entitled to insist on payment of the full amount outstanding. Being in default of her obligations under the mortgages, the plaintiff had subjected herself to the contractual consequences of her defaults. The loan documents (which she exhibited) explained that the property was at risk if she did not keep up payments.

Failure to produce documents

65. While the plaintiff asserted a need for discovery and complained that she has not received copies of all title documentation, these generalised pleas do not satisfactorily or fairly address the documentation actually provided or offered. She has not established a fair question to the effect that she has been prejudiced by any failure by the defendants to produce documentation to which she is entitled. In particular I do not see the need for disclosure of the documentation relating to the transactions with Erimon or between it and the beneficial owner since there is no relevant issue as to beneficial ownership.

Balance of Justice

66. Even leaving aside the fact that the plaintiff must pass the threshold test of establishing an arguable case before balance of justice questions would arise, the balance of justice would not justify the relief sought, damages would be an adequate remedy as the Properties must now be regarded as investment properties. Any loss could be financially compensated.

67. I have considered the plaintiff's reliance on the dicta of Finnegan J in Dellway and Stewart J in Whelan v Promontoria (Finn) Ltd [2017] IEHC 739, but I also note the observations of Murray J in Ryan v Dengrove Dac [2021] IECA 38, that in a

"purely financial dispute... where the parties' interests are exclusively financial, the law adopts the position that they are best left to their respective remedies in damages".

Murray J also noted at para.1 that receiver-injunction applications "in the context of commercial loans secured by commercial assets" are "often refused" and that " damages will generally be an adequate remedy, and the appointing institution and or/ receiver will frequently be good for any award made against them".

68. Furthermore, I note the observations of Faherty J at para. 115 of her judgment of in O'Reilly & Anor v Promontoria (Finn) Ltd & Ors [2023] IECA 250 (" O'Reilly"):

"The contention that the properties are overlaid with the plaintiffs' sentimental attachment does not hold weight and, in my view, has all the hallmarks of a mere assertion devoid of any factual evidence such as might underscore the plaintiffs' claimed emotional attachment. The plaintiffs themselves acknowledge that the properties were purchased as investments of a commercial nature. The fact that these commercial investments may not be on the scale of the investment properties in issue in Ryan v. Dengrove does not, in my view, detract from their commercial nature. To my mind, the plaintiffs' properties are not being held "to a particular or personal end" in the sense contemplated in Ryan v. Dengrove (at para. 84)."

At para. 116., Faherty J cited the fifth principle of Merck ("in commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy") concluding that damages would be an adequate remedy in that case. **

69. I note the sentimental attachment to the Castleknock Property as the plaintiff's past family home, the scene of emotional events. However, having been charged and rented out, it can no longer be treated as a family home, and its history is outweighed by the plaintiff's commercial choice. The Castleknock Property is no longer the plaintiff's family home and has not been for many years. Having pledged it as security to acquire an investment buy to let property and having ceased to reside in it some considerable time ago, it must now be treated like other commercial security. That was the deal struck by the plaintiff. Nor is there any basis to consider the Spencer Dock Property as anything other than a financial asset, notwithstanding that the plaintiff's plan to endow her daughter. It was and is commercial security with all that that entails. In any event, if the plaintiff was to succeed in her claim, then an alternative property could presumably be obtained for her daughter.

70. The evidence suggests that damages would be an adequate remedy for either side. The plaintiff's best balance of convenience point is her reference to the equity in the properties. That could have been important (if the threshold test for injunctive relief had been met) but is outweighed by her delay and acquiescence. The plaintiff's delay and acquiescence would tip the scales against interlocutory relief in the circumstances of this case even if the plaintiff had established a fair issue to be tried.

71. For completeness, I should make clear that I do not accept the submission that the refusal of the injunction would amount to summary judgment, an outcome decried by Clarke CJ in Charleton v Scriven [2019] IESC 28. In that case, Clarke CJ was criticising the granting of interlocutory orders at the behest of receivers, when such orders were sought as an end in themselves, with no commitment to pursue the underlying claim to trial, thus effectively constituting summary judgment. The same logic does not apply to the converse position - the refusal of interlocutory relief does not equate to granting summary judgment. The plaintiff remains free to pursue her claims against the defendants irrespective of the outcome of this application, which is solely determining arrangements pending trial. In fact, the plaintiff has been free to pursue such claims since she was notified of the assignment in 2018; there is no basis now for interlocutory relief to enable her to do so.

Conclusion

72. The plaintiff has not met the threshold test of establishing a fair issue to be tried:

a. as noted above, many points made by her, such as her offers or the price paid on the loan transfer do not affect the legal position or establish a fair question to be tried which could justify interlocutory relief.

b. She has not established a fair question in respect of the reason for the non-crediting of the cheques. The documents exhibited by the defendants and Mr O'Dwyer's affidavits confirm bona fide attempts to bank the cheques. I have no basis to doubt the authenticity of those documents or the truth of their contents or the averments. The plaintiff's hearsay reference to the view apparently expressed by an unidentified PTSB representative is not sufficient to counteract such cogent evidence. Nor is it clear whether the balance in the account relied upon by the plaintiff represented cleared funds.

c. Even if, as the plaintiff asserts, the Receiver had been incentivising tenants to vacate (presumably with a view to selling the properties, she has not established that this would of itself justify interlocutory relief.

d. Although receivers must be validly appointed and must act in good faith, the plaintiff has not yet established a fair question to be tried. Her objections in respect of the Receiver's appointment and actions are speculative but any claim in that regard would be readily compensable in damages in any event.

73. In the circumstances, I will dismiss the application. The defendants appear presumptively entitled to their costs, but I will list the matter on 21 April 2026 at 10.30a.m. to deal with that issue and with any other issue arising from the application.

Appearances

Brendan Donelon, instructed by Wright Solicitors, for the plaintiff who now represents herself as a litigant in person

Niall ?'hUiginn, instructed by AMOSS LLP, for the defendants.

[1] These included the plaintiff's unhappiness about BoS's or Pepper's alleged treatment of her including their failure to accept various offers, her contention that BoS should have let her redeem her loan for the figure it later secured in the loan sale or that Pepper's recovery was limited to that figure,? her suggestion that Pepper applied the wrong interest rate, her? criticism of the Receiver's appointment due to a query as to a power of attorney which was resolved in the affidavits,? the defendants' alleged failure to produce documents many of which had in fact been furnished to her representatives and issues raised by he as to the mortgage terms which were addressed by the Defendants' affidavits.

[2] I say "purported" because the plaintiff does not accept that the legal title transferred to Pepper.

[3] According to the Plaintiff's 6 April 2024 letter, Dublin Bay Securities 2018-1 DAC (Dublin Bay) is the relevant entity, but her solicitors' subsequent preaction letter suggests that it could be one of the otherer entities. Nothing turns on it.

[4] Although the agreement was dated 17 May 2018, Erimon was only incorporated on 27 June 2018; in any event it appears to be common ground that beneficial ownership passed from BoS to Erimon in the first instance, in advance of the September 2018 transactions referenced below. Although the plaintiff's original affidavit averred that the sale to Erimon occurred in May 2018 and its sale to the Securitisation Entities occurred in September 2018, her supplemental affidavit suggested that Erimon sold them to the Securitisation Entities on the same date as they were sold to it. The precise timing may be less material than the fact - which appears to be common ground - that BoS transferred the beneficial ownership to Erimon (which then transferred it to the Securitisation Entities) before "purportedly" transferring legal ownership to Pepper.

[5] The letter was incorrectly dated 19 March 2023.

[6] Simons J observed in Moynihan, if a litigant wishes to rely on a deed, it must exhibit it in a meaningful form - "It is not appropriate to exhibit a deed with more than three quarters of its contents obliterated. Nor is it appropriate to attempt to summarise in a few lines of an affidavit what is undoubtedly a complex commercial transaction". Simons J observed that where the defendant challenged the plaintiff's title and, in reply, the plaintiff, exhibited a specific deed in support, it should not be so heavily redacted as to make it meaningless.

[7] Such as Bexhill UK Limited v Razzaq [2012] EWCA Civ 1376, Three Rivers District Council and Others v. Governor and Company of the Bank of England (1995) 4 All E.R. 312 and [1996] Q.B. 292, and Kapoor v. National Westminster Bank Plc & Anor [2012) 1 All ER 1201)

[8] Although the initial transfer of beneficial ownership to Erimon must have happened later than the plaintiff thought, it appears to be common ground that it preceded the 27 September 2018 transactions involving Pepper.

[9] ** See for example, the plaintiff's letter of 6 April 2024, and her solicitors' letters of 17 April 2024, 29 April 2024, 26 July 2024, 6 September 2024 and 14 November 2024 (the "pre-action" letter).

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