About this case:

• Citation:
  [2026] IEHC 16
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons explained: “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.” 

Keith Rooney BL appeared for the plaintiff, instructed by Joynt & Crawford LLP. The defendant appeared in person.

Background

In January 2019, the Circuit Court granted an order directing the defendant to deliver up possession of a Ballyfermot property to KBC Bank Ireland plc, pursuant to s.62(7) of the Registration of Title Act 1964. The defendant appealed the order to the High Court.

In March 2023, prior to the hearing of the appeal, Mr Justice Cian Ferriter in the High Court granted an order substituting Pepper Finance Corporation (Ireland) DAC as plaintiff in the proceedings.

When the hearing of the appeal came before Mr Justice Simons, the court referred a point of law to the Court of Appeal by way of consultative case stated.

The High Court asked the Court of Appeal whether, in circumstances where there has been an assignment of interest in a registered charge and the underlying debt following the making of an order for possession 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 or whether the transferee or assignee should be joined to the appeal proceedings as an additional party.

The Court of Appeal advised that in general, it will be appropriate to substitute the transferee/assignee as plaintiff, but that there will be cases where it will be appropriate to retain the assignor as a party to the proceedings, such as where there is a counterclaim against the original plaintiff.

The case was returned to the High Court and was heard before Mr Justice Simons In October 2025.

The High Court

Mr Justice Simons firstly noted that having regard to the relevant Land Registry folio and to s.31 of the 1964 which provides that the register shall be conclusive evidence of any right, privilege, appurtenance or burden appearing thereon, Pepper had established that it was the registered charge holder.

As to the second essential proof, that the “principal money” in respect of the debt secured by the charge had become due and owing, the court referred to the series of four loan agreements relied upon by the plaintiff.

Mr Justice Simons highlighted: “The complicating factor is that each of the four loan agreements was entered into with a different entity than that which is now the plaintiff in the proceedings. More specifically, the various loan agreements entered into by the defendant had been with IIB Homeloans (renamed KBC Bank).”

The court observed that Pepper had exhibited a redacted deed of transfer, the recitals to which had been blacked out in their entirety.

Finding it to be “apparent from the language of the deed that it is parasitic upon one or more other instruments”, the judge explained: “A number of terms in the deed are capitalised, indicating that they are defined terms. However, no definitions are set out in the deed itself. The relevant definitions are, presumably, contained in one or more other instruments, including the Mortgage Sale Agreement referred to at §2.1 of the deed.”

In the circumstances, the court determined that it was impossible to determine the legal effect of the deed without sight of the other instruments referred to, and in particular, that it could not be ascertained whether the deed effected a transfer of the ownership of the debt where the operative clause of the deed referred to terms such as “Underlying Loan” without defining those terms.  

Mr Justice Simons explained that if a party wishes to rely on a deed as establishing a particular proposition, then it is necessary for that party to exhibit the deed and any supporting documents in a form which is meaningful, noting: “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.” 

The judge continued: “At the very least, as a first step, the party should provide a detailed explanation, on affidavit, as to what type of information has been redacted and offer a justification for doing so. It is then a matter for the court to determine whether it is appropriate to admit the document in evidence subject to redactions, or whether, alternatively, the document must be disclosed in full.”

The court considered the matter to be further complicated by the assertion that a further onward transfer to Penryn Funding 2004 DAC had occurred, which assertion had not yet been substantiated on affidavit.

Mr Justice Simons concluded that in the circumstances, the court could not interpret the deed or its precise legal effect and consequently, could not be satisfied based on the documentation before the court that Pepper was the holder of the debt secured upon the registered charge.

In this regard, the judge stated: “It cannot be said, at this time, that Pepper Finance is the party entitled to the principal money secured upon the registered charge.”

The judge reiterated that this was not a case where minor redactions were made to the deed to protect the privacy of third parties, nor where it had been asserted on a reasoned basis that certain information was redacted on grounds of commercial sensitivity.

The court indicated that it would adjourn the matter to a plenary hearing before the High Court, noting that while Pepper had yet to make out the proofs for its application for possession, the court was not satisfied that the defendant had yet made out a defence on the basis that legal ownership of the debt had transferred to Pepper.

The court also acknowledged the additional grounds of defence advanced by the defendant, including inter alia the assertion that the mortgage facilities had been negotiated and concluded away from KBC’s premises in breach of Directive 85/577/EEC, and that the mortgage and underlying loan agreements breached the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. No. 27 of 1995) and Council Directive 93/13/EEC on unfair terms in consumer contracts.

Mr Justice Simons considered it important to reiterate that the court’s judgment “says no more than that the defendant has demonstrated, on the basis of the limited materials before the court to date, that there are credible grounds for defending the proceedings”.

Conclusion

Accordingly, the High Court remitted the case for plenary hearing and listed the matter for further directions and to address the issue of costs.

Pepper Finance Corporation (Ireland) DAC v Tracey O’Reilly [2026] IEHC 16