High Court of Ireland Decisions

APPROVED                                                                                               [2025] IEHC 210

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THE HIGH COURT

Record No.: 2023/285 SP

BETWEEN:

 

MARS CAPITAL FINANCE IRELAND DAC and HILARY LARKIN

                                                                                                            Plaintiffs

 

-and-

 

LEONIE GALLAGHER and MICHELLE GALLAGHER

                                                                                                            Defendants

 

JUDGMENT of Mr Justice Rory Mulcahy delivered on 10 April 2025

 

Introduction

 

1.         In these proceedings, the plaintiffs seek an order for possession pursuant to section 62(7) of the Registration of Title Act 1964, as amended ("the 1964 Act") of a residential investment property in Dun Laoghaire ("the Property"), together with other related reliefs. The defendants are sued as joint administrators of the estate of Robert Gallagher, who remains the registered owner of the Property. Mr Gallagher ("the deceased") died on 10 December 2014. 

 

2.         The defendants resist the application for possession on the basis that the claim is statute barred. They rely on the limitation period contained in section 9(2) of the Civil Liability Act 1961. The defendants contend that the present cause of action arose while the deceased was still alive and, accordingly, the proceedings are not maintainable because they were not commenced within two years of his death. They also contend that the first plaintiff has not established that it is the party entitled to seek possession of the Property. The plaintiffs argue that, for various reasons, their cause of action only arose after the deceased's death. In addition, they contend that they have provided sufficient evidence that the first plaintiff is the party entitled to seek possession.  

 

3.         For the reasons set out below, I am satisfied that the defendants have made out an arguable defence to the plaintiffs' claim and that it would not be appropriate to grant the plaintiffs relief in summary proceedings. I propose, therefore, adjourning these proceedings to plenary hearing and providing directions for the exchange of pleadings.

 

Background

 

4.         By letter dated 6 December 2007, Irish Life & Permanent plc ("ILP") offered the deceased a loan facility ("the Facility") in the amount of €428,820.00 for the purpose of assisting in the purchase of the Property. The Facility was to be secured by a first legal charge over the Property. On 12 December 2007, the deceased accepted the loan offer. He drew down the Facility on 18 December 2007. On 20 December 2007, he executed an indenture of mortgage and charged the Property with the repayment to ILP of all sums which were or might become payable in respect of the Facility ("the Mortgage"). On or about 29 June 2012, ILP changed its name to Permanent TSB plc. None of the foregoing is disputed.

 

5.         It is also agreed between the parties that on or about 16 September 2011 defaulted in the making of payments due under the Facility and continued to default thereafter. It is further agreed that as a consequence, the entitlement of ILP to seek possession of the Property under the Mortgage was triggered without the necessity for any prior demand by ILP, i.e. the lender's cause of action first arose while the deceased was alive.

 

6.         However, the plaintiffs contend that in or about July 2013, the deceased agreed with Permanent TSB plc to vary the terms of the loan, by which agreement arrears were capitalised and new instalments agreed. This, they argue, nullified the cause of action then existing. They further contend that the deceased abided by the terms of this new arrangement until the date of his death, and that it wasn't until after his death that there was default in this new arrangement. On the plaintiffs' case, therefore, there was no cause of action subsisting at the date of the deceased's death. The defendants contend that the plaintiffs haven't proved the alleged agreement to vary the loan, or that, if there was such an agreement, that there was no default by the deceased, and that the plaintiffs have not, therefore, established that there was no cause of action existing at the date of the deceased's death.

 

7.         On or about 26 January 2015, the second defendant wrote to the Permanent TSB, Deceased Mortgages Department. The letter referred to the account number for the Facility and to the Property. It was in the following terms:

 

"Dear Ms ...,

Further to our telephone conversation this morning, I am writing to confirm that my father Robert Gallagher passed away suddenly on the 10^th December 2014. You might kindly update your systems to reflect same.

I can further confirm that he died intestate and that I am acting on behalf of the estate until such a time that Administrators are appointed and Probate is granted. As you are aware we require details of all outstanding loans and liabilities to progress to this point. You might please forward these in due course..."

 

8.         The plaintiffs contend that this letter constituted an acknowledgement of the deceased's debt for the purpose of the Statute of Limitations 1957, as amended ("the Statute") and, accordingly, that their cause of action arose on that date. In her first affidavit, the second defendant denies that this was an acknowledgement of the debt the subject of these proceedings. She avers:

 

"I did not know what debts my late father had. I had ascertained that he held a number of bank accounts with different financial institutions and I set about writing to each such institution to notify them of his death, and to inquire what assets or liabilities (as the case may be) he had with each. In the case of Permanent TSB, I was aware that there was a loan account in my late father's name. As stated in the letter, I needed to ascertain what liabilities he might have in order to apply for a grant of letters of administration."

 

9.         On or about 7 February 2020, Permanent TSB plc transferred and assigned to Start Mortgages DAC ("Start") its interest in the Facility and the Mortgage.

 

10.     On 24 March 2022, Start appointed the second plaintiff as receiver over the Property. The plaintiffs allege that the defendants have interfered with the receivership and seek certain orders in respect of that alleged interference.

 

11.     As of 25 September 2023, the plaintiffs allege that there is €469,652.38 due and owing on foot of the Facility.

 

12.     On 24 February 2025, the High Court (Cregan J) made an order ex parte substituting the first plaintiff, Mars Capital Finance Ireland Designated Activity Company, as first named plaintiff for Start on the basis that Start's interest in the Facility and Mortgage had been transferred to the first plaintiff. Such an ex parte order is open to challenge in substantive proceedings, and the defendants contend that the evidence of a purported transfer of interest from Start to the first plaintiff does not support final orders being made in favour of the first plaintiff.

 

The issues

 

13.     The defendants contend that they have established an arguable defence to these proceedings such that summary judgment is inappropriate. They rely on the judgment of the Supreme Court (Baker J) in Bank of Ireland Mortgage Bank v Cody [2021] IESC 26; [2021] 2 IR 381, at pp. 400 - 402:

 

"[73] Before analysing the factual matters in contention in the present appeal it is useful to examine the range of responses available to a court in an action for summary judgment with a view to positioning the facts and arguments in the present case within that range.

 

[74] On one end of the range are cases where a plaintiff establishes its claim on the affidavit evidence, as the defendant is not able to persuade the judge either that the evidence is incomplete or that there is a basis on which a credible defence exists. That approach to both the law and the facts is established in the authorities and a court hearing a claim for summary judgment, whether that be for summary judgment for debt or for summary possession, must be satisfied that the plaintiff has established its claim and that the defendant has not put forward a basis for a credible defence either on the facts or on the law.

...

 

[78] At the other end of the range of possible results are cases where a defendant either positively establishes a defence either at law or on the merits, or persuades the judge that the plaintiff has not established its proofs. The claim will then fail. Most of the examples are cases where the defendant has advanced an unanswerable legal defence, as for example in the judgment of Dunne J. in Start Mortgages v. Gunn where the repeal of s. 62(7) of the Act of 1964 by s. 8 of the Land and Conveyancing Law Reform Act 2009 meant that there was no legal basis in some of the claims there under consideration on which the court could grant possession. 

...

 

[80] Many applications for summary judgment would fall between these two extremes and will involve the proffering of evidence or argument by a defendant by way of defence which is not sufficient to rebut the evidence of the plaintiff to enable the judge to make a positive finding against the plaintiff, but which offers enough doubt as to the truth or completeness of the plaintiff's evidence, or credibly presents reasonable arguments or evidence that a defendant has a basis of defence which merits further scrutiny, evidence or argument. In that instance the trial judge is constrained by the inability to decide between contested affidavit evidence of fact, or resolve complex questions of law, the action cannot therefore be disposed of summarily and will be adjourned to plenary hearing."

 

14.     The defendants contend that the plaintiffs have not established their proofs, or at least, that the defendants have proffered sufficient evidence of a credible defence which merits further scrutiny in plenary proceedings. In this regard, they assert three bases for a finding against the plaintiffs or, in the alternative, an order remitting these proceedings to plenary hearing, two of which are referenced above.

 

15.     First, they contend that the plaintiffs have not produced admissible evidence of the transfer of the interest in the Facility from Start to the first plaintiff. In this regard, the first plaintiff's evidence is contained in an affidavit of a solicitor for the plaintiffs. The plaintiffs rely on the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 ("the 2020 Act") for the admissibility of the documents exhibited in that affidavit purporting to evidence the transfer. However, the defendants contend that the plaintiffs have not complied with the requirements of that Act and, in particular, the requirements of section 14(1) of the 2020 Act and, therefore, the documents are inadmissible. As a result, they say, the plaintiffs have failed in their proofs, and the claim should be dismissed, or in the alternative, adjourned to plenary hearing.

 

16.      Second, they contend that the claim is statute barred. They argue that the plaintiffs' cause of action, i.e. its entitlement to seek possession, subsisted at the date of Mr Gallagher's death and therefore the proceedings were required to be commenced within two years of that date, 10 December 2016. They were not instituted until 2023 and are therefore long out of time.

 

17.     Third, they claim that the proceedings should be dismissed for delay. In this regard, they rely on the plaintiffs' pre-commencement delay in issuing the proceedings rather than any delay following their institution.  

 

18.     By way of reply to those purported defences, the plaintiffs contend that they have met the requirements of the 2020 Act and have thus proved the transfer of Start's interest in the Facility to the first plaintiff. The plaintiffs do not dispute that the cause of action would be statute barred if it subsisted at the date of the deceased's death and was not subsequently acknowledged. However, as indicated above, they contend that there was no cause of action existing at that date, owing to the agreement to restructure the deceased's loan. In any event, they argue, the subsequent acknowledgement of the deceased's debt by the second defendant means that time commenced running from the date of acknowledgement and that, accordingly, the plaintiffs had twelve years from that date to commence their action. Although they acknowledge that the second defendant was not authorised to act for the deceased's estate at the time of the purported acknowledgement, they rely on the doctrine of "relation back" to argue that her subsequent appointment as administrator renders her prior acknowledgement binding on the estate.

 

19.     They argue that there has been no delay such as to prejudice a fair trial.

 

20.     In response to the plaintiffs' reliance on an agreement to restructure the loan, the defendants contend that the existence of such an agreement has not been established, and that, insofar as the plaintiffs rely on the 2020 Act to admit documents evidencing the agreement, the plaintiffs have again failed to comply with the provisions of section 14(1) of the 2020 Act. In addition, they argue that, per the terms of the Mortgage, any such agreement, if it existed, constituted a concession which was rendered void by the subsequent default. They argue that the plaintiffs' cause of action must, therefore, be deemed to have arisen on the date of first default and, accordingly, subsisted at the time of the deceased's death.

 

21.     The issues to be addressed in this application, therefore, are the following:

 

                                i.            Are the plaintiffs entitled to rely on the documentation exhibited in their solicitors affidavit as evidence of the transfer of the interest in the Facility from Start to the first plaintiff?

                              ii.            If so, did the first plaintiff, or its predecessors in title, have a subsisting cause of action at the date of the deceased's death?

                            iii.            If so, was there a subsequent acknowledgement of that cause of action such that it should be deemed to have accrued on the date of that acknowledgement?

                            iv.            Should the plaintiffs claim be barred for delay?

 

22.     Although certain reliefs regarding the receiver were also sought in the special summons, no real argument or evidence was advanced in relation to those claims. I am not satisfied that they could be appropriate for determination in summary proceedings in any event.

 

Admissibility of evidence

 

23.     The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 creates a presumption that documents prepared in the ordinary course of business are admissible as truth of their contents in civil proceedings:

 

13.       Subject to this Chapter, in civil proceedings any record in document form compiled in the ordinary course of business shall be presumed to be admissible as evidence of the truth of the fact or facts asserted in such a document where such a document complies with the requirements of this Chapter.

 

24.     The documents relied on by the plaintiffs to prove the transfer of the interest in the Facility from Start to the first plaintiff consist of a global deed of transfer dated 31 May 2024, a transfer agreement dated 31 October 2023, and a deed of amendment to transfer agreement dated 28 May 2024. The plaintiffs expressly rely on the provisions of the 2020 Act for the purpose of having these documents admitted as evidence. These are the documents challenged by the defendants.

 

25.     The plaintiffs also exhibit an Irish law deed of transfer - Form 56, dated 31 May 2024, and the updated folio to prove the transfer of the interest in the charge. However, these are not contested by the defendants who accept that the folio, showing the registration of the first plaintiff as owner of the charge, is conclusive evidence of that ownership.

 

26.     The defendants do not contend that any of the challenged documents is not a document compiled in the ordinary course of business within the meaning of the 2020 Act. Their objection to their admissibility, rather, is based on the provisions of section 14(1)(b) of the 2020 Act:

 

14.    (1) Subject to this Chapter, information contained in a document shall be admissible in any civil proceedings as evidence of any fact in the document of which direct oral evidence would be admissible if the information—

(a) was compiled in the ordinary course of a business,

(b) was supplied by a person (whether or not he or she so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and ...

 

27.     The defendants contend that, in order for the document to be admissible, section 14(1)(b) requires that it be supplied by a person who might reasonably be supposed to have had personal knowledge of the matters dealt with. In this regard, they rely on the judgment of the High Court (McDonald J) in Nolan v Dildar Limited [2024] IEHC 4, in which the 2020 Act was addressed. Paragraphs 245 - 268 of the judgment address an application made to admit particular documentary evidence which had been dealt with during the course of a lengthy civil trial. It is apparent from the judgment that the court ruled that the evidence at issue in that application could not be admitted because it had not been authenticated in accordance with the requirements of section 18(1) of the 2020 Act. However, the defendants refer to the court's subsequent obiter comments the court made in relation to the application. In particular, they refer to the last sentence in the following passage (at para. 267):

 

"In contrast, I indicated that, as far as documents have been executed or purported to have been executed by CVSSA, I have no direct evidence at all about its business and I had not, as of that time, been provided with any tangible basis upon which I could conclude that the statutory requirement that the information contained in documents executed by it was compiled in the ordinary course of business. I suggested that, in those circumstances, a significant issue arises in relation to whether it could be said that any documents executed solely by CVSSA could be said to be executed in the course of its business. I also observed that, in the case of the extract from the Handels Registeramt mentioned in para. 239(c) above, no indication has been given as to the origin of that document and I therefore could not be satisfied that the requirement set out in s. 14(1)(b) of the 2020 Act had been satisfied."

 

28.     In addition to the above, the defendants refer to the decision in Cabot v Duffy [2021] IEHC 360. In that case, the court found that an affidavit of a director of the plaintiff company purporting to evidence the transfer of the defendants' loans from Ulster Bank to the plaintiff was hearsay as it failed to comply with the requirements of the 2020 Act:

 

"9.       There is nothing in the admissible evidence before the court to show that the director of Cabot who swore up the affidavit of 15th June 2018 "had or may reasonably be supposed to have had, personal knowledge of the matters dealt with" in that affidavit, including the loan and ancillary rights transfer effected between the Ulster Bank Group and Cabot in January 2016 and, in particular, of the transfer of the AMT loan and any rights available to Ulster Bank under the guarantee of 21st December 2007."  

 

29.     In that case, having regard to the perceived deficit in the plaintiff's proofs, the court adjourned the application for summary judgment to plenary hearing.

 

30.     The plaintiffs, in reply to this reliance, point to the contrasting decision in Cabot v Hamill [2023] IEHC 405, in which an objection to the admission of similar evidence was rejected:

 

"30. The evidence before the court allows for a finding that the Plaintiff has reproduced, on the Plaintiff's headed paper, a statement of account reflecting the record of the transactional history of the facility supplied to the Plaintiff by its predecessor in title, Rabo Bank. There is no evidence of a failure to comply with the 2020 Act and I can identify no issue of fact or law arising from the 2020 Act which might possibly give rise to a bona fide defence."

 

31.     In my view, the defendants' apparent contention that for documentary evidence to be admissible under the 2020 Act, it must be proved by a person who might reasonably be expected to have personal knowledge of the matters contained within the documents, reflects a misunderstanding the scope of section 14 and, moreover, is plainly at odds with the literal wording of that section. Section 14 is concerned with the nature of the information contained in business records which is capable of being admitted as evidence of the content of those records, not with the identity of the person who compiled the document or information contained within it, still less the person who supplied the documents.

 

32.     Section 14(1) describes the type of information contained in documents which is admissible as evidence. It is information which would be admissible from an individual if that person were giving oral evidence, i.e. information compiled in the ordinary course of business of which that person had personal knowledge, whether or not they had compiled that information. Section 14(1)(b) makes clear that it is not necessary that the person who compiled the information be identifiable for the purpose of having the documentary evidence admitted. Indeed, such a requirement would wholly undermine the purpose of the provisions of the relevant part of the 2020 Act (Part 3, Chapter 3) which, as described in the long title to the Act is "to provide for the admissibility, in certain circumstances, of business records in civil proceedings." If the person seeking to have documents admitted in evidence has personal knowledge of the matters dealt with in those documents, reliance on the 2020 Act is unnecessary. The conclusion in Nolan v Dildar that section 14(1)(b) of the 2020 had not been satisfied in that case where the origin of the document had not been established is not inconsistent with this interpretation.

 

33.     Insofar as the decision in Cabot v Duffy might suggest that the person seeking to have the document admitted pursuant to the 2020 Act must establish that they have personal knowledge of the matters contained within the documents, I would respectfully disagree, and prefer the approach taken by the court in Cabot v Hamill. In any event, in the case of the documents exhibited by the solicitor for the first plaintiff, the documents are legal documents evidencing a transfer of interest between two parties for both of whom that solicitor's firm was on record in these proceedings. The solicitor does not rely on any documents from any other party. The position in relation to these documents is clearly distinguishable from that in Cabot v Duffy.

 

34.     The content of the agreements regarding the transfer of interests which the plaintiffs have tendered in evidence is clearly evidence which would be admissible as fact if given by a person with personal knowledge of those matters. The origin of the documents has been adequately identified, insofar as Nolan v Dildar suggests that that is a requirement of section 14(1)(b) of the 2020 Act. The defendants' objection to the admissibility of these documents based on section 14(1) is, therefore, ill-founded.

 

35.     I note that the 2020 Act does set out a number of other grounds upon which a party might object to the admissibility of business records, but none have been relied on by the defendants in this application. Nor have they advanced any argument that, if admissible, they are insufficient to prove the first plaintiff's interest in the Facility. In the circumstances, I am not satisfied that the defendants have made out an arguable defence on the ground that the first plaintiff has not succeeded to ILP's interest in the Facility.

 

Accrual of cause of action

 

36.     Section 9(2) of the Civil Liability Act 1961, as amended, provides as follows:

 

(2)       No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either—

(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or

(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.

 

37.     The parties are agreed that the two-year time limit contained in section 9(2)(b) is only applicable where the cause of action had accrued at the time of the deceased person's death (see, for instance, WF Shap (Ireland) Ltd v Fingleton [2020] IEHC 50). The issue between the parties is whether the present cause of action had accrued prior to Mr Gallagher's death.

 

38.     The plaintiffs filed three affidavits in support of their application for possession (other than the affidavit regarding the transfer from Start to the first plaintiff). Each was sworn by the Manager of Asset Management for Start, Ms Antoinette Roche.

 

39.     In her initial affidavit verifying the special summons, she avers as follows:

 

"On or about 16 September 2011, the Deceased defaulted for the first time in the making of a monthly repayment. He defaulted again the following month, and thereafter. Mr Gallagher resumed making repayments in July 2013 after the arrears were capitalised and a new loan product agreed with ILP. The Facility was thereby amended and/or varied and/or a concession (within the meaning of the Facility and/or Mortgage) was granted in relation thereto. Thereafter, Mr Gallagher made and complied with the agreed upon repayment instalments in relation to the loan until he passed away on or about 10 December 2014, the instalment due to have been made on or about 18 December 2014 being the first one missed. This constituted an event of default."

 

40.     The affidavit exhibits bank account statements purporting to reflect the above. The statements for 2013 show that for each month from January to June 2013, there was a 'Repayment Due' of €1,936.29 (with a slight reduction following an interest change in June). No repayments are shown, and the arrears and loan balance continue to increase. On 18 June 2013, arrears were due on the account of €43,423.81. A line item dated 30 June 2013 with the description 'Add Arrears to Prin' shows a credit to the account of €43,423.81, i.e. equal to the amount of arrears. The arrears due are shown as zero. The current loan balance does not, however, show an equivalent increase.

 

41.     From July to November 2013, the statements show a 'Repayment Due' of €470.92.  Each month, a sum of €1000 was debited from the account by direct debit, each time described as 'Agreed Repayment'. The 'Repayment Due' is shown as having reduced to €383.42 on 18 December 2013 (again following a reduction in the applicable interest rate). The 'Agreed Repayment' is shown as €912.50 on that date. In January 2014, the 'Repayment Due' is again shown as €383.42. A direct debit payment in the same amount is shown on the same date. For the remainder of the year, the 'Repayment Due' each month is shown as being c. €900 (the precise amount changed slightly as the applicable interest rates changed), with corresponding direct debit payments in the same amount being made on the same day each month, until an unpaid direct debit of €866.41 on 23 December 2014. No other evidence of the agreement with the deceased was exhibited in Ms Roche's first affidavit.

 

42.     In her replying affidavit, the second defendant raised a number of issues, not all of which were pursued at the hearing of this application. However, she did challenge Ms Roche's means of knowledge for the alleged agreement whereby arrears were capitalised, describing Ms Roche's averments as inadmissible hearsay. She points out that there is no evidence of any such agreement other than the bank statements, and no evidence of the terms of any such agreement.

 

43.     In her second affidavit, Ms Roche suggests that it is for the defendants to prove that there was no agreement, an argument, unsurprisingly, not pursued at the hearing. However, in a third affidavit, Ms Roche exhibits documentation not previously furnished relating to Permanent TSB's arrangements with Mr Gallagher. As noted above, the defendants object to the admissibility of these documents.

 

44.     In her third affidavit, Ms Roche explains as follows:

 

"Through inadvertence certain documents were not included in earlier Affidavits. These are all records in document form compiled in the ordinary course of business by ILP, the First Named Plaintiff's predecessor in respect of the loan and security the subject of the within proceedings, and obtained by the First Named Plaintiff in the normal course of acquiring the said loan and security."

 

45.     The nature of the "inadvertence" is not explained.

 

46.     The defendants make the same complaints about these documents as they did regarding the documents evidencing the transfer to the first plaintiff. For similar reasons, it seems to me that the objection is not well-founded. The documents are clearly documents compiled in the ordinary course of business. They contain information about which a person familiar with those matters could give oral evidence. There is, therefore, no basis, pursuant to section 14(1), to disallow the documents as evidence of the facts contained within them. No other basis for disallowing the evidence contained within the documents was advanced. I acknowledge, however, that the position is not as clearly distinguishable from the decision in Cabot v Duffy with respect to these documents insofar as Ms Roche does rely on documents compiled in the ordinary course of business by a different party. For present purposes, I propose to treat the documents as potentially admissible pursuant to the 2020 Act in order to determine whether, if admissible, they are sufficient to prove the plaintiffs' contention that there was no subsisting cause of action at the date of the deceased's death.

 

47.     The first four documents relate to a purported restructure agreement made in June 2013. They consist of a copy of a letter dated 17 June 2013 to the deceased confirming that the deceased's account had "been approved for a Partial Capital and Interest repayment which includes Capitalisation of any existing Arrears." The payments required under this restructure reflect the payments shown in the bank statements from 2013.

 

48.     The second document is dated 27 June 2013, on Permanent TSB headed paper, and is a copy of a restructure agreement, in terms of the offer contained in the 17 June 2013 letter, executed by the deceased. It also includes a direct debit mandate signed by the deceased on the same date, 27 June 2013.

 

49.     The third document is a letter to the deceased dated 2 July 2013 confirming that the direct debit has been updated. The fourth document is dated the same day. It is a letter from the manager of the Asset Management Unit to the deceased and confirms that the "[f]ollowing a review of your financial circumstances, I can now confirm that your mortgage has been restructured to collect interest and partial capital." The new repayment details are described in the following terms:

 

-          Repayment amount                                   €1000

-          First Repayment Date                               18/07/2013

-          Amount Capitalised                                   €43,423.81

-          Review Date                                             18/12/2013

 

50.      The fifth document is a letter dated October 2013, on headed paper, which simply details a change in the way in which Permanent TSB will collect direct debit payments for mortgage payments.

 

51.     The final document is similar to the second letter dated 2 July 2013 referred to above, save that it is on headed paper. It is dated 4 February 2014 from the Arrears Support Unit to the deceased and includes the same opening paragraph as the 2 July 2013 regarding the restructuring of the mortgage. The new repayment details are given as follows:

 

-          Repayment amount                                   €926.53

-          First Repayment Date                               18/02/2014

-          Outstanding balance                                  €431,772.15

-          Outstanding balance at loan maturity        €286,354.00

-          Term remaining                                         238

-          Review date                                              19/01/2017

 

52.     It can be observed that the payments shown on the deceased's account reflect, first, the terms of the restructure agreement evidenced by the June and July 2013 documents, and then the purported restructure agreement evidenced by the February 2014 document. It can further be observed that although there is documentation evidencing the deceased's agreement to the restructuring of his mortgage in June 2013, there is no evidence of any such agreement in February 2014 other than, as counsel for the plaintiffs points out, his apparent acquiescence in the deductions from his bank account consistent with that agreement.

 

53.     The defendants contend that, even if this documentation is admissible, it does not provide a sufficient basis for the grant of a summary order for possession. The plaintiffs argue that it is clear from the documents exhibited to Ms Roche's third affidavit, and even from the bank statements alone, that any default by the deceased in his loan repayments from 2011 had been addressed by new agreements and that, from July 2013 until his death, he complied with the terms of those new agreements. More particularly, they argue that as at the date of his death, Permanent TSB could not have contended that there was an event of default under the facility entitling it to exercise its right to possession of the Property. As counsel for the plaintiffs put it, had they brought a claim based on the deceased's historic breach in 2014, that would have been quickly rejected by any court in light of the new agreement.

 

54.     The defendants say that it is not clear that this is so, that the terms of any June 2013 agreement clearly expired in December 2013 and that there is insufficient evidence of any February 2014 agreement to be able to conclude that the plaintiffs' predecessors in title could not have claimed that the deceased was in default such as to trigger its right to seek possession. The defendants are, in effect, contending that it is not certain either that there was no event of default in 2014 or that the plaintiffs were not entitled to rely on any earlier default in the absence of further detail regarding the terms of any purported 2014 restructure agreement.

 

55.     The question of whether the defendants have a defence to the plaintiffs' claim, whether based on the Statute or otherwise, is not to be determined on the balance of probabilities. In an application for summary judgment, be it on foot of a special summons or a summary summons, the question for the court is that identified in Aer Rianta cpt v Ryanair Limited  [2001] 4 IR 607 (at p. 623):

 

"[T]he fundamental questions to be posed on an application such as this remain: is it "very clear" that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendant's affidavits fail to disclose even an arguable defence?"

                                      

56.     On the basis of the admissible evidence, including that contained in Ms Roche's third affidavit, it is not "very clear" that the defendants have no defence, i.e. it is not very clear that there was no subsisting cause of action at the time of the deceased's death. Although many of the terms of the 2013 restructure agreement are clear, there is no reference in the documentation to any agreement regarding the consequences of the earlier default. It may well be, as the plaintiffs suggest, that it is implicit from the restructure agreement that the plaintiffs, or their predecessors, lost an entitlement to rely on the earlier default, but that has not been established to the standard required in a summary application. Moreover, in respect of the 2014 restructure agreement, matters are even less clear. There is no evidence of any express agreement to the 2014 restructuring at all. There is no evidence of any agreement in relation to the significant balance which would be due once the term of the Facility ended. It is true that the deceased appears to have made payments consistent with the 2014 agreement, but it is not clear that that would have been sufficient to defeat any claim which might have been brought against him prior to his death.

 

57.     Even if I am wrong about the foregoing, the defendants have, in any event, made out an arguable defence regarding the application of Clause 2.8 of the Mortgage. In her replying affidavit, the second defendant argued that if there was an agreement regarding the restructuring of her father's loan, it was a 'concession' within the meaning of Clause 2.8 of the Mortgage. Clause 2.8 provides:

 

If permanent tsb makes a concession to the Mortgagor by allowing the suspension or postponement of any payments, then in the event of subsequent default by the Mortgagor in the payment of interest or otherwise, the concession will cease to operate and become void and the Mortgagor shall on request be obliged to fulfill his obligations and permanent tsb shall have such rights under the Mortgage as if the concession had not been made.

 

58.     She contends that the subsequent default on the loan, in December 2014 and thereafter, "annulled" the concession and that accordingly "the October 2011 default stands". Accordingly, the defendants contend, these proceedings are statute barred.

 

59.     The plaintiffs argue that the restructure agreements are not a concession within the meaning of Clause 2.8. Even if they are to be regarded as a concession, they contend that the effect of Clause 2.8 is not to render them void ab initio in the event of subsequent default, but merely void from the time of that default, in this case, from a time after the death of the deceased.

 

60.     Although the defendants' interpretation of Clause 2.8 has potentially anomalous consequences, particularly where, as here, the borrower has died, they have made an arguable case that Clause 2.8 is applicable in this case and may have a bearing on the question of whether these proceedings have been brought within time. First, it is at least arguable that the restructure agreements, whatever their full terms, amount to concessions within the meaning of Clause 2.8. The February 2014 agreement appears to envisage that a very significant sum would remain due and owing at loan maturity. Even if it was envisaged that the sum would be repayable as a lump sum upon maturity, which, as noted above, is far from clear, it is at least arguable that this amounted to a 'postponement' of payments which were originally due under the Facility, within the meaning of Clause 2.8, and therefore is a concession for the purpose of that clause. The plaintiffs' argument that it is not a concession is not assisted by the fact that their pleaded claim is that the Facility was "amended and/or varied and/or a concession (within the meaning of the Facility and/or the Mortgage) was granted", terminology repeated in Ms Roche's first affidavit.

 

61.     In addition, it is arguable that 'void', when used in Clause 2.8, means precisely what it says, i.e. rendered of no effect. The plaintiffs point to cases in which the court has determined that the use of the term void ab initio has been determined to have that effect, and seeks to draw a distinction with the use solely of 'void' in this instance (see, for instance, Gradual Investments Ltd v Grant [2024] IEHC 398 and Gradual Investments Ltd v Kennedy [2024] IEHC 602), but it is not clear that void in this instance has the limited effect contended for by the plaintiffs.

 

62.     Finally, the plaintiffs contend that the concession is only rendered void where the mortgagor requests fulfilment of the original obligation. The defendants have, however, made out a stateable case that a request to comply with the original terms is not a prerequisite to the concession being rendered void, merely a prerequisite to a borrower being required to fulfil their original obligations.

 

63.     I acknowledge that, on the defendants' interpretation, the clause could have the consequence that if a subsequent breach rendering a concession void caused the accrual of a cause of action to be fixed at the time of the original breach, that could have startling implications if, for instance, the subsequent breach occurred at a time when a cause of action grounded on the original breach would be statute barred. Be that as it may, the defendants' interpretation is not clearly wrong and provides them with an arguable basis for contending that the plaintiffs' claim should have been brought within two years of the deceased's death.

 

Acknowledgement

 

64.     The plaintiffs contend that even if there was a cause of action subsisting at the date of the deceased's death, such that a two-year time limit ran from the date of his death, a subsequent acknowledgement of that cause of action would trigger a fresh cause of action, with a twelve-year time limit. They rely on section 52 and section 56 of the Statute, though section 52 appears to be the applicable provision since this is an application for possession, i.e. an application to recover land. Section 52 provides:

 

52. —Where—

(a) the right of a mortgagee of land to bring an action to recover the land has accrued, and

(b) either—

(i) the person in possession of the land acknowledges the mortgagee's title to the land, or

(ii) the person in possession of the land or the person liable for the mortgage debt acknowledges the debt,

the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.

 

65.     For completeness, section 56 provides:

 

56.—(1) Where—

(a) any right of action has accrued to recover any debt, and

(b) the person liable therefore acknowledges the debt,

the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.

(2) Where—

(a) the right of action of a mortgagee of land to recover the mortgage debt has accrued, and

(b) the person in possession of the land acknowledges the mortgagee's title to the land,

the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.

 

66.     The plaintiffs contend that the letter of 26 January 2015 is an acknowledgement for the purpose of these sections. There are, however, a number of difficulties with this argument which the plaintiffs have not overcome, at least not for the purpose of establishing that they are entitled to summary judgment.

 

67.     The first and most obvious difficulty is that the letter, at least on first analysis, does not contain any acknowledgement at all. Rather, it is a simple enquiry as to what liabilities the deceased may have had to Permanent TSB. As counsel for the plaintiffs pointed out, there is more to the letter than first appears. First, it was written to the 'Deceased Mortgage' section in Permanent TSB. Second, it refers to the account number for the Facility. And third, it refers to the mortgaged property. In the circumstances, counsel argues, the letter could only be taken to have been an acknowledgement that the deceased did have a liability to the plaintiffs' predecessors in title and that it was the details of that liability, not its existence, which was being queried.

 

68.     Even if the letter could correctly be interpreted as acknowledging that there was some liability and, in effect, as being an enquiry as to the amount, there remains a valid question as to whether that could constitute an operative acknowledgement for the purpose of the Statute. In Good v Parry [1963] 2 QB 418, the Court of Appeal of England and Wales concluded, in relation to a similar English provision, that for there to be an acknowledgement of a debt, the debt must be quantified or ascertainable of calculation without further agreement of the parties. That decision was subsequently distinguished in Dungate v Dungate [1965] 1 WLR 1477, where the Court of Appeal determined that a general acknowledgement of a debt was sufficient so long as the amount of the debt could be calculated by reference to extraneous evidence. Dungate v Dungate was applied by the House of Lords in Bradford & Bingley plc v Rashid [2006] 1 WLR 2066 where references to the "outstanding balances owed to you" were sufficient acknowledgement of the debt in issue for the purposes of the limitation period, with the plaintiff permitted to adduce evidence of the actual outstanding balance due. No relevant Irish authority was identified by the parties, though the plaintiffs did commend the helpful discussion of the issues in Canny, Limitations of Actions (3^rd ed., 2022).

 

69.     There is, in light of these slightly divergent approaches to the question of acknowledgement in the neighbouring jurisdiction, at the very least a question as to whether the letter of 26 January 2015 could be regarded as a sufficient acknowledgement even if it could be read as acknowledging a liability.

 

70.     Even if it were so regarded, there are other issues which preclude the plaintiffs relying on it for the purpose of this application.

 

71.     First, there is a live question regarding whether an acknowledgement for the purpose of the Statute could have the effect of disapplying the provisions of section 9(2) of the Civil Liability Act 1961. In Bank of Ireland v O'Keeffe [1987] IR 47, Barron J suggested, albeit obiter, that an acknowledgement cannot extend the specific limitation period contained in section 9(2).

 

72.     And second, there is a serious issue to be tried regarding the capacity of the second defendant when making the alleged acknowledgement. For an acknowledgement to be effective for the purpose of section 52 of the Statute, it must be either an acknowledgement of the mortgagee's right to the land by the person in possession of the land or an acknowledgement of the mortgage debt by the person in possession or the person liable for the mortgage debt.

 

73.     There is no evidence that the second defendant was, at the time of the letter of January 2015, in possession of the Property. Indeed, the evidence is to the contrary. Nor was she, at the time of the letter, liable for the mortgage debt. Although the defendants are sued in their capacity as administrators, at the time that the letter was written, it is very clear that the second defendant had not yet been appointed as administrator. She was not, therefore, liable, in her capacity as administrator, for the mortgage debt at the time of the letter. At the time that it was sent, therefore, the letter could never have been a valid acknowledgement for the purpose of the Statute.

 

74.     The plaintiffs seek to overcome this difficulty by reliance on the doctrine of "relation back". In this regard, the plaintiffs rely on the decision of the High Court (McKechnie J) in Finnegan v Richards [2007] IEHC 134; [2007] 3 IR 671. The judgment concerned an application to strike out a claim on the grounds, inter alia, that at the time that the proceedings were instituted, the defendants had not yet been appointed as administrators of the estate being sued, although they had subsequently been appointed as such. The court refused to strike out the case, drawing a distinction between cases where proceedings were issued by a proposed administrator prior to a grant of administration and cases where proceedings were issued against such a person. McKechnie J referred to the decision in Ingall v Moran [1944] KB 160 in which proceedings were dismissed because they had issued before the letters of administration were granted:

 

"[16] During the course of his judgment Luxmoore L.J. also touched upon the doctrine of "relation back" which in effect is an exception to the general proposition that an administrator cannot sue until letters of administration have issued. At p. 167 the judge said the following:- 

 

"It is, I think, well established that an executor can institute an action before probate of his testator's will is granted, and that, so long as probate is granted before the hearing of the action, the action is well constituted, although it may in some cases be stayed until the plaintiff has obtained his grant. The reason is plain. The executor derives his legal title to sue from his testator's will. The grant of probate before the hearing is necessary only because it is the only method recognised by the rules of court by which the executor can prove the fact that he is the executor ... An administrator is, of course in a different position, for his title to sue depends solely on the grant of administration. It is true that, when a grant of administration is made, the intestate's estate, including all choses in action, vests in the person to whom the grant is made, and that the title thereto then relates back to the date of the intestate's death but there is no doubt that both at common law and in equity, in order to maintain an action the plaintiff must have a cause of action vested in him at the date of the issue of the writ." 

It appears therefore that whilst the doctrine of relation back applies, it does not legalise the maintenance of an action by an administrator if that action was commenced prior to the issue of letters of administration."

75.      McKechnie J referred to this limitation on the doctrine of relation back and expressed a reluctance to extend it further. He concluded (at para. 23):

 

"As of today's date therefore, I would have little time for re-echoing the rigidity of technicalities within the law as was commonly the position at the time of Ingall v. Moran [1944] K.B. 160. Instead I would much prefer an approach based on justice where there are no compelling reasons to uphold and continue a rule capable of inflicting the opposite, namely injustice. For my part therefore if it became necessary for the purposes of this decision I would not extend the application of the rule to the facts of this case. In addition, even if I am wrong in this regard, I see no reason why circumstances like the present would not comfortably fall within the reasons which underline the doctrine of "relation back". On either basis I would refuse the defendants' application on this point."

 

76.     The plaintiffs have, however, identified no authority in support of the proposition that the doctrine of relation back could, for the purposes of the Statute, bind an administrator to an acknowledgement made when that person was not an administrator. Nor have the plaintiffs established for the purpose of this application that an "approach based on justice", to borrow the phrase employed by McKechnie J in Finnegan, would dictate its application in this instance.

 

77.     In the circumstances, the defendants have identified an arguable basis for contending that section 9(2) of the Civil Liability Act 1961 renders these proceedings statue barred and that, whether as a matter of law or fact, there was no subsequent acknowledgement such as to disapply the special time limit contained within that statutory provision.

 

 

Other matters

 

78.     The defendants have also raised issues regarding the appointment of the receiver and delay. It is difficult to see what impact any purported infirmities in the appointment of the receiver could have on the first plaintiff's entitlement to seek possession. If the other issues relied on were not arguable, this would not be a basis for refusing an order for possession.

 

79.     Similarly, it does not appear to me that, by reason of the plaintiffs delay in bringing proceedings, the defendants have been denied the possibility of a fair trial. Certainly the defendants have not identified any basis for contending that the proceedings should be dismissed at this juncture on the application of the principles identified in O'Domhnaill v Merrick. However, as I propose adjourning the proceedings to plenary hearing, it would be inappropriate to finally determine this issue on a summary application.

 

Conclusion

 

80.     For the reasons stated above, the defendants have made out an arguable case that the plaintiffs' claim is statute barred. This is a case which falls between the two ends of the spectrum identified in Bank of Ireland v Cody: the plaintiffs have not proven their claim, but nor have the defendants established that they have an unanswerable defence. In the circumstances, the appropriate step is to adjourn these proceedings to plenary hearing. I will list the matter on 1 May 2025 at 10.30 am for the purpose of giving directions for the exchange of pleadings.

 

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