Stand by Me – substitution or joinder of a Plaintiff in an appeal to the High Court of a Circuit Court Order for Possession?

In the recent decision of Pepper v O’Reilly[1], delivered on 8 July 2025, the Court of Appeal considered the correct procedural steps in an appeal of a Circuit Court Order for Possession to the High Court where there has been an assignment of an interest in the registered charge the subject of the appeal proceedings (and the underlying debt) subsequent to the making of an Order for Possession by the Circuit Court, but prior to the hearing of an appeal of that Order to the High Court. 

In particular, the Court of Appeal was asked to determine, by way of case stated of Mr. Justice Simons from the High Court, whether it is appropriate in that scenario to substitute the transferee/assignee as Plaintiff in lieu of the original Plaintiff or alternatively, whether the transferee/assignee should be joined to the appeal proceedings as Co-Plaintiff.  An analysis of the decision of Mr. Justice Simons to state a case to the Court of Appeal on this issue can be found here.

Background

The original Plaintiff in these proceedings, KBC Bank Ireland (“KBC”), obtained an Order for Possession (“OFP”) in the Dublin Circuit Court on 16 January 2019. The Defendant appealed the OFP to the High Court, however before the appeal could be heard, the interest in the loan and the underlying security was transferred to Pepper Finance Corporation (Ireland) DAC (“Pepper”).  Pepper subsequently obtained an ex parte Order in the High Court substituting it as Plaintiff in the appeal proceedings pursuant to Order 17, Rule 4 of the Rules of the Superior Courts.

Having considered the authorities, Ms. Justice Costello of the Court of Appeal ultimately answered the case stated that, in general, the substitution of the assignee as Plaintiff in lieu of the original Plaintiff, rather than the addition of the assignee as Co-Plaintiff, is the appropriate order. The rationale behind that decision is detailed below.

Decision

Ms. Justice Costello first considered whether the judgment in IBRC v Halpin[2] should apply to Circuit appeals. She found that it was clear in Halpin that the Court of Appeal did not determine that it did not have jurisdiction to substitute a party, but rather it had exercised its discretion to refuse the application for substitution on the facts of the case. The Court refused the application in circumstances where the judgments obtained by IBRC in the High Court in October 2012 and November 2013 were as a result of it having established factual evidence to the satisfaction of the High Court that it was entitled to those judgments. Those judgments were appealed to the Court of Appeal and thereafter, Kenmare Property Finance Ltd (“Kenmare”) acquired the interest in the facilities the subject matter of the proceedings in which the judgments were obtained. In those circumstances, If the Court of Appeal were to make the order of substitution in favour of Kenmare, then the effect would be to permit Kenmare as Plaintiff (subject to the outcome of the appeals) to be considered as entitled to have been granted judgment as against Mr. Halpin on the respective dates in the High Court, when it had no such entitlement and it did not contend otherwise.

Ms. Justice Costello went on to distinguish an appeal from the High Court to the Court of Appeal or the Supreme Court from an appeal from the Circuit Court to the High Court (such as in this case), on the basis that the latter is a de novo hearing.  Appeals from the High Court to the Court of appeal are appeals against error. Conversely, the High Court on a de novo appeal considers matters afresh and makes its decision based on the evidence adduced before the Circuit Court. It is not concerned with whether the Circuit Court erred in its decision. Rather, it must consider whether, at the time of the application before it, the party who seeks to be substituted as Plaintiff is entitled to judgment against the Defendant. On that logic, Pepper in this case would have to prove its entitlement to an OFP and that it is the assignee of the underlying loan and security.

The Court departed from Halpin and found that the assignee becomes entitled to the benefit of any judgment obtained in respect of the secured loan. The Court cited the decision of Mr. Justice Finnegan in Dellway[3] and his concise statement of the well-established position regarding the transfer of a mortgage. In effect, the assignee stands into the shoes of the assignor such that there is a complete identity of interests. The assignor’s interest in the mortgage comes to an end and the assignee is entitled to that interest in the mortgage. The Court further noted that in practice, when the assignor remains party to the proceedings, one legal team usually represents both the assignor and the assignee, and the assignor does not participate in the proceedings. Ms. Justice Costello commented that the continued presence of the assignor in the proceedings “is superfluous and potentially merely adds an unnecessary layer of legal costs”[4].

The Court concluded that in general, in circumstances where there has been an assignment of an interest in a registered charge and the underlying debt subsequent to the making of an OFP by the Circuit Court, but prior to the hearing of an appeal to the High Court, it is appropriate to substitute the transferee/assignee as Plaintiff in lieu of the original Plaintiff. The Court noted that there will be some cases where it will be appropriate to retain the assignor as a party to the proceedings, for example if there is a counterclaim against the original Plaintiff and liability in respect of that counterclaim could not have been assigned.

Conclusion

The decision provides welcome clarity for financial institutions that are parties to an appeal of an OFP but where they have formed an intention to effect, or have already effected, a transfer of their interest in the underlying security and loan(s) the subject of the appeal. This scenario is commonplace in repossessions litigation. In general, depending on the facts of the particular case, it appears that any such transfer will now generally result in a “clean break” for the original lender, and that they will not continue to incur legal costs in appeal proceedings in which they rarely take any active involvement subsequent to a transfer.

[1] Pepper Finance Corporation (Ireland) DAC -v- Tracey (Otherwise Tracy) O’Reilly [2025] IECA 140

[2] Irish Bank Resolution Corporation Ltd v Halpin [2014] IECA 3

[3] Dellway Investment Ltd v National Asset Management Agency [2011] IESC 14

[4] Para 43