2026 IEHC 369

(7)of the Registration of Title Act 1964 (“the 1964 Act”) for possession of a property at 22 Toberburr Avenue, St. Margaret’s, Co. Dublin and registered on Folio 173225F (“the Property”). The Defendants oppose the order and request that the matter be remitted to plenary hearing. BACKGROUND

1. On 31 June 2006, the Property was transferred to the Defendants by Barbara Thornberry (although it is said that this deed of transfer was later amended and re-executed). By offer dated 18 May 2006, Ulster Bank Ireland Limited (“Ulster Bank”) offered to the Defendants a loan facility in the sum of €272,000 (“the Loan Facility”), the terms of which were agreed and signed by the Defendants on or about 23 June
3. By mortgage dated 14 February 2007 and entered into between the Defendants and Ulster Bank (“the Mortgage”) it was agreed that the Defendants would mortgage and charge their interest in the Property to Ulster Bank as continuing security for all present or future indebtedness of 1 the Defendants to Ulster Bank. On or about 16 February 2007 the Defendants were registered as owners of the Property and the Mortgage was registered as a charge against the Property (“the Charge”). The Defendants assert that the deed of transfer from Ms Thornberry was amended and re-executed on 13 April 2007 (although no such deed has been disclosed).
4. At the request of the Defendants, the Register was rectified and amended on 23 December 2023, to record the Defendants as registered owners of the Property from 8 June
5. The Folio also records Ulster Bank as holding the Charge from 8 June 2007 (also amended on 23 December 2023).
6. On 23 May 2016 Ulster Bank converted to a designated activity company, Ulster Bank Ireland Designated Activity Company (“Ulster Bank DAC”).
7. The case pleaded by Promontoria in the Special Summons issued in these proceedings on 12 March 2024 is that, by Deed of Transfer dated 28 June 2019, Ulster Bank and Ulster Bank DAC irrevocably and absolutely granted, conveyed, assigned, transferred and assured to Promontoria all rights, title, interests and benefits held in and under the Loan Facility and the Mortgage. The Defendants raise questions regarding the transfer of title to the Loan, which will be addressed in more detail in this judgment. By letters dated 3 July 2019 and 4 July 2019 (the “Goodbye” and “Hello” letters), the Defendants were notified of the transfer having completed on 28 June
8. On or about 22 October 2019, Promontoria was registered as the owner of the charge on the Property’s folio.
9. By letters of demand dated 17 October 2019, sent to both Defendants, Promontoria demanded repayment of the sum of €240,860.61 then owing pursuant to the Loan Facility. On 16 June 2020, Promontoria appointed receivers over the Property (“the Receivers”). As of 2 June 2023, the amount of € 253,751.99 was due and owing. On 6 June 2023, the Receivers wrote to the Defendants seeking certain undertakings with regard to the Property. The Property is occupied by tenants who were on notice of these proceedings but did not attend Court. THE PROCEEDINGS
10. On 12 March 2024, the Plaintiff issued these special summons proceedings pursuant to section 62

(7)of the 1964 Act seeking possession of the Property (“the Possession Proceedings”). The application is grounded on an affidavit sworn by Imelda Malone of Cabot Financial (Ireland) Ltd. (“Cabot”) on 8 March

1. In total five affidavits have been sworn in these proceedings: three on behalf of Promontoria and two by William Woodruffe on behalf of the Defendants. 2
2. Separate plenary proceedings bearing record number 2024/6771P were issued by the Defendants against Promontoria and the Receivers, although I have only seen an unfiled draft plenary summons in those proceedings (“the Plenary Proceedings”). The Defendants issued a motion seeking to have the two actions listed and case managed together (“the Case Management Motion”). This motion travelled with these proceedings but was not yet the subject of substantive submissions.
3. An injunction was sought in the Plenary Proceedings and, on 24 February 2025, a limited undertaking was given by Promontoria and the Receivers not to deal with the Property until the determination of these possession proceedings.
4. Written submissions were furnished by the parties in September and November 2025 and supplemental submissions were delivered on 2 and 29 April
5. ISSUES
6. The first section of this judgment addresses the test for granting an order for possession in summary proceedings of this nature.
7. The second section considers whether the Plaintiff has established the first of the proofs necessary to obtain such an order (namely ownership of the Charge). This includes an issue raised by the Defendants regarding the validity of the Mortgage and of the registration of the Charge.
8. The third section of the judgment assesses whether the right to possession is exercisable and, in particular, whether Promontoria has discharged the onus of showing ownership of legal title to the Loan.
9. The fourth section of the judgment deals with the defences mounted by the Defendants.
10. The conclusions reached are summarised in the final section of the judgment. A. APPLICABLE TEST
11. Section 62

(7)of the 1964 Act is the provision that governs the application for possession here. It provides as follows, “When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge … may apply to the court in a summary manner for possession of the land or any part of the land, and 3 on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant…” . 18. The test to apply was addressed by the Supreme Court in Bank of Ireland Mortgage Bank v. Cody [2021] 2 I.R. 381 (“Cody”), a case which also concerned a summary application for possession pursuant to section 62

(7). The matters that must be proved on an application for possession under that sub-section were firmly established by the Supreme Court in the judgment delivered by Baker J. (with which Clarke C.J., O'Donnell, MacMenamin, Dunne JJ agreed): “The owner of a charge who seeks to obtain possession pursuant to s. 62

(7)has to prove two facts: (

1. a)That the plaintiff is the owner of the charge; (
2. b)That the right to seek possession has arisen and is exercisable on the facts” (at [53]). 19. In the course of her judgment in that case, Baker J. analysed the precise contours of section 62

(7), its legislative history, historical context and its interpretation in previous judgments. She went on to identify the spectrum of possible outcomes of a summary application. At one end of that range, there are cases in which the plaintiff makes out its case on the affidavits and the defendant fails to demonstrate that the evidence is incomplete or that a credible defence exists, in which case the order sought will be made following the summary hearing. At the other end of the spectrum are cases in which the defendant demonstrates at the summary hearing that it has a decisive defence on the merits or that the plaintiff has failed to establish the necessary proofs (facing an insurmountable in that respect), in which case the order sought is refused.

1. As acknowledged by Baker J., many cases fall between these two extremes and result in a finding that the defendant has raised a sufficiently credible, prima facie defence or challenge to the plaintiff’s case to warrant further examination or evidence, but not enough to enable a conclusive finding to be made against the plaintiff. Remittal to plenary hearing will also often result when complex questions of law or contested questions of fact arise. In Cody itself, the matter was ultimately remitted to the High Court for plenary hearing.
2. Baker J. cautioned in Cody that the jurisdiction to remit to plenary hearing, “…is perhaps the default position in any case where the affidavit evidence is evenly balanced, where there is a conflict on the affidavits between the parties which cannot be or has not been resolved by way of further affidavit, where the court considers that a matter raised on affidavit, particularly one raised in defence, might have such a 4 bearing on the outcome that its credibility deserves to be fully tested, or where a judge considers that in the light of certain averments which are credible, but not dispositive, it would be either difficult or unfair to resolve the matter without giving both sides the opportunity to further advance that evidence or, where necessary, to test it” (at [105]).
3. The most pertinent aspect of that paragraph here is the acknowledgement that remittal to plenary hearing may be the default if there are averments made which are credible but not dispositive, but which do need to be expanded upon or tested for the matter to be fairly decided.
4. The Supreme Court also found that a judge hearing a summary application for possession must carefully weigh and assess the evidence presented, even if it is not contested: “..a judge met with evidence, whether contested or not, must weigh that evidence, assess its veracity, credibility, and importance for the purposes of proving those matters that are required to be established. In a case where the action is heard on affidavit, courts are vigilant to consider the option to adjourn the matter for plenary hearing” (at [105]).
5. Against that background, it is necessary to assess whether Promontoria has shown on the balance of probabilities that it is the owner of the charge and that the right to seek possession has arisen and is exercisable on the facts. The requirement that these matters be established as a matter of probability was confirmed by the Court of Appeal in Permanent TSB plc v. Donohoe [2025] IECA 222 (“Donohoe”): “… it was incumbent on the High Court to consider the documentary evidence and to consider whether legal title to the loan, as well as the legal title of the charge, had passed from the Bank to Start Mortgages. If that was shown to have occurred, on the balance of probabilities, then that was the end of the matter” (at [52]).
6. As will be seen, demonstrating that the right to seek possession has arisen and is exercisable requires proof of ownership of the Loan. B. PROOF OF OWNERSHIP OF THE CHARGE (a) Introduction
7. Section 31

(1)of the Registration of Title Act 1964 provides, “The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or 5 burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just.”

1. The Supreme Court in Cody addressed the importance of this provision: “
2. The summary process is facilitated by the conclusiveness of the Register as proof that the plaintiff is the registered owner of the charge is a matter of production of the folio, and, as the Register is by reason of s. 31 of the Act of 1964 conclusive of ownership, sufficient evidence is shown by that means: see the discussion in the Court of Appeal in Tanager DAC v. Kane [2018] IECA
3. The judgment of the Court of Appeal inter alia held that the correctness of the register cannot be challenged by way of defence in summary possession proceedings, and that a court hearing an application for possession pursuant to s. 62

(7)of the Act of 1964 is entitled to grant an order at the suit of the registered owner of the charge or his or her personal representative, provided it is satisfied that the plaintiff is the registered owner of the charge and the right to possession has arisen and become exercisable.” 28. Promontoria unsurprisingly relies on the conclusiveness of the register and cites the judgment of Phelan J. in Pepper Finance Corporation (Ireland) DAC v Cuffe [2025] IEHC 393, which in turn applied and reiterated the findings in Cody and Tanager DAC v. Kane [2019] 1 IR 385 that “the conclusiveness of the register cannot be challenged by way of defence in summary possession proceedings” (at [64]). (

1. b)Background 29. The Charge was registered on 8 June 2007 on the Property’s folio and Promontoria has been registered as the owner of that Charge since on or about 22 October 2019. Promontoria points out that the conclusiveness of the register as evidence of ownership of the Charge cannot be looked behind or challenged by way of defence in summary proceedings, such as these. 6 30. The Defendants dispute the fact that the Plaintiff holds a valid legal mortgage over the Property. This is based on the contention that the original deed transferring ownership of the Property to the Defendants from Barbara Thornberry dated 31 July 2006 was ineffective, as Ms Thornberry did not then have title to the Property. According to Mr Woodruffe’s affidavit, this deed of transfer was re-amended and re-executed on 13 April 2007. Mr Woodruffe raises a further doubt in his affidavit about the power of attorney and the validity of the amended deed of transfer, but this question was not before me and I make no comment thereon. The Defendants’ position is that the Mortgage which was dated 14 February 2007 needed to be re-amended and re-executed but this was not done and it is consequently invalid, as is the registration of the Charge. 31. The documents exhibited to Mr Woodruffe’s affidavit are the certified Land Registry transfer deed dated 14 February 2007 transferring beneficial ownership of the Property from Fingal County Council to Ms Thornberry; the Mortgage executed by the Defendants and Ulster Bank in respect of the Property on 14 February 2007; an application for registration of Ulster Bank’s Charge in the Land Registry dated 16 February 2007; and a letter to Shannon Solicitors dated 11 June 2007 confirming completion of an (unidentified) application for registration. He does not exhibit a copy of the original transfer of title or the asserted re-executed and amended deed of transfer, from Ms Thornberry to the Defendants. 32. Mr Woodruffe also exhibits a letter sent by the Defendants in their own names to the Land Registry (now Tailte Eireann) and copied to Promontoria on 31 July 2023 requesting that the Register be corrected to show a date of registration of ownership after 13 April 2007 (when he asserts the deed of transfer was amended and re-executed). The response from Tailte Eireann dated 19 December 2023 is also exhibited, in which the following is explained: there had been an error in amending the dates of registration of ownership, but both the date of registration of ownership of the Property and of the Charge had now been amended to reflect the date of 8 June 2007 (the date on which the amended deed of transfer was lodged). The letter states that “it was clear that the mortgagors were entitled to charge the property on the date of execution of the Charge” and that there was no error in the registration of the charge. 33. Mr Woodruffe exhibits a letter dated 5 January 2023 (presumed to have been issued on 5 January 2024) prepared by “Mr John Deeney, Land Registration Consultant”, addressed to “Mr David A. Reilly B.A. D.L.S, Business & Legal Affairs Consultant” with the subject line “your clients William and Una Woodruffe”. The letter sets out a number of legal propositions and conclusions and advises as to the response that should be sent to Tailte Eireann. The letter includes advice that Tailte Eireann should be asked to cancel the registration of the Charge on the folio under 7 section 32(
2. a)of the 1964 Act. Mr Deeney also advised Mr Reilly as to how to challenge the refusal of Tailte Eireann to deal with Mr Reilly directly. 34. Mr Reilly then sent a letter to Tailte Eireann on 18 January 2024 stating that “we have taken professional legal advice on this matter.” In that letter, Mr Reilly repeats almost verbatim what was said by Mr John Deeney in his letter of 5 January and requests Tailte Eireann to take the precise steps advised by Mr Deeney. 35. Tailte Eireann responded on 25 January 2024 confirming the content of the letter of 19 December 2023, that the registration was correct and that the provisions of section 32 of the 1964 Act are not applicable. The letter notes that it is open to the Defendants to appeal to court under section 19 of the 1964 Act. 36. A further letter ensued from Mr Deeney to Mr Reilly on 1 February 2024 in which Mr Deeney advised as to the response that should be sent to Tailte Eireann “for the record”, reiterating the request for the cancellation of the registration of the charges, although Mr Deeney advised that there was “little merit” in arguing the matter further with Tailte Eireann as it had made its position clear and if a “formal Order of Refusal” was issued, this would require the Woodruffes to appeal to the High Court. However, he did advise that they raise the possibility of making a claim for compensation pursuant to section 120 of the 1964 Act for losses suffered from the refusal to rectify the register. 37. On 6 February 2024, Mr Reilly again wrote to Tailte Eireann and again repeated much of the content of the letter from Mr Deeney. However, he went further and requested Tailte Eireann to, within 7 days, “issue a Formal Order of Refusal so that my clients can Appeal the matter to the High Court”. He then concludes with the following additional paragraph: “…in circumstances where Tailte have refused to rectify a clear error and where the Woodruffes’ have been under constant threat from a Vulture Fund arising from a Receivership Arrangement in June 2020 which would and could not have occurred if not for the Land Registry error, then as regards a Claim for Damages they will be further seeking Punitive and Exemplary Damages against Tailte in their High Court proceedings in addition to the normal levels of Damages sought”. 38. Tailte Eireann’s response on 9 February 2024 reiterated the Defendants’ right to appeal under section 19 of the 1964 Act if dissatisfied with the decision. There was no such appeal. 39. I pause here to note that these letters in January and February 2024 each appear to involve Mr Reilly acting for his “clients” and engaging on their behalf with third parties in relation to 8 questions of law, legal advice and potential legal proceedings. Further letters issued by Mr Reilly on behalf of his “clients” between 2020 and 2024 are also exhibited. These include, by way of example only, (
3. a)a letter dated 13 October 2020 in which he states “I act for” the Defendants; disputes the right of Promontoria to appoint a receiver; and asserts a “statutory failure” by Ulster Bank “to comply with the Data Protection Legislation”; (
4. b)a letter of 24 April 2022 to a property management company in which he alleges “unlawful and illegal interference in [the Defendants’] constitutionally protected property rights and slander” and refers to the issue of a plenary summons; (
5. c)a letter of 7 June 2022 to a property management company in which he refers to the Defendants as his “clients”; alleges “slander on title”; demands that they “cease and desist” from further correspondence; and threatens “appropriate legal action.. without further notice”; (
6. d)a letter dated 23 March 2023 to the Receivers in which Mr Reilly states he “acts on behalf of” the Defendants; asserts that an attempt to rely on the Mortgage is “null and void”; states that “the law on Receivership is very black and white.. there are no grey areas”; cites judgments of the High Court; threatens that “we will be moving” to issue plenary proceedings; and states that “we will also be seeking Punitive and Exemplary Damages”; (
7. e)by letter dated 27 November 2023 Mr Reilly states “I have, on a direct professional access basis, sought Counsels Opinion on behalf of the Woodruffes”; states “there is no legal doubt that a Multi Party Lawsuit…. is 100% sustainable”; and submits a proposal “on a strictly without prejudice basis” offering to settle the debt “in full and final settlement”. It is not apparent what “profession” he purports to belong to. 40. I queried the role and qualifications of Mr Reilly during the hearing and provided an opportunity for these matters to be addressed. It was confirmed by counsel acting for the Defendants that Mr Reilly is not qualified, registered or regulated as a provider of legal services within the meaning of the Legal Services Regulation Authority Act 2015 or the Solicitors Acts and that he acts as an “agent” for the Defendants. 41. It is a matter of concern that Mr Reilly is purporting to advise and act on behalf of other persons in relation to the application of the law and in their legal disputes with third parties, including with the solicitors for those parties, despite not being qualified, registered or authorised to provide legal services in the State. In the specific context of this case, I am satisfied that it is 9 not appropriate to have any regard for or to quasi-legal correspondence issued by Mr Reilly and do not do so. (
8. c)Parties’ Positions 42. The gravamen of the Defendants’ case on this point appears to be that they originally entered into a transfer deed with Ms Thornberry before ownership was transferred to her. The Defendants then needed to re-execute the transfer deed with Ms Thornberry to ensure it postdated the transfer of the Property to her. It is said that the Defendants were not entitled to be registered as owners at the date of the Mortgage and that the Mortgage is therefore invalid and unenforceable. I repeat that no copy of either the original or re-executed deed of transfer from Ms Thornberry was provided or exhibited to Mr Woodruffe’s affidavits. 43. Promontoria’s position in reply is that the Register is conclusive and the validity of the registration of the Charge cannot be challenged in these proceedings. It was acknowledged in oral submissions on behalf of Promontoria that the Plenary Proceedings do include certain reliefs which concern the registration of the Charge, but it was submitted that any challenge to the Register must be brought in separate rectification proceedings, naming Tailte Eireann as a party. This is not what occurred here. It is pointed out that title to the Property and the Charge are now properly registered as of 8 June 2007 and that confers the right to seek possession under section 62

(7)as of that date. Promontoria argues that the rule of conclusiveness of the register is specifically intended to deal with issues such as these and prevent registration challenges being deployed to resist possession orders.

1. It is said that the Mortgage is valid in any event and is premised on the Defendants being “entitled to become registered owners.” Another point that was made in oral submissions (although not on affidavit) on behalf of Promontoria was that the beneficial interest passed to the Defendants with the original transfer in August 2006, which was before the registration of the Mortgage. (d) Assessment
2. This defence is based on an argument that the Mortgage was invalid and could not have been entered into when it originally was, and that the registration of the Charge is similarly invalid. It inescapably does involve a challenge to the validity of the Mortgage, which is registered on the Property’s folio, and to the validity of the registration of the Charge.
3. The starting point for assessing this defence is the judgment of the Court of Appeal in Tanager DAC v. Kane [2018] IECA 352, [2019] 1 IR
4. Baker J. (Peart and Whelan JJ. in agreement) 10 traced the historical context of the 1964 Act and the overarching objective of ensuring the simplification of the transfer of registered land. She cites various authorities to the effect that, once title to land or a charge is registered, the underlying documents cease to be evidence of title and, instead, the register is conclusive (at [27] and [28] of the reported judgment). Baker J. invoked the description in in McAllister, Registration of Title in Ireland (Incorporated Council of Law Reporting for Ireland, Dublin, 1973) of the register as “an “Iron Curtain” behind which it is neither appropriate nor necessary to penetrate” (at [32] of the reported judgment). Baker J. stated unequivocally that the same principle is applied by section 31

(1)of the 1964 Act to charges registered against title to land.

1. The following description of the “curative effect” of registration, as described in Curtis and Ruoff, The Law and Practice of Registered Conveyancing (2nd ed., Stevens & Sons, 1965) and quoted in Tanager DAC v. Kane at [33] (of the reported judgment) is also important:“Past defects of title no longer vex each successive owner after the date of first registration with absolute title because thenceforth, in the case of freehold land, the proprietor is deemed to have vested in him the fee-simple absolute in possession, subject to the incumbrances that appear on the register of title, and subject also to those well recognized incumbrances, interests, rights and powers, known as overriding interests, which do not necessarily always appear on the register, but free from all other estates and interests whatsoever. These are not idle words. The whole essence of the matter is that after the date of first registration with absolute title it is neither necessary nor permissible to go behind the impenetrable curtain of the register.”
2. It is notable that the Court of Appeal in Tanager DAC v. Kane (at [35] of the reported judgment) quoted John Deeney’s textbook as follows: ‘‘ ‘Conclusive’ in this context means that the facts stated are to be regarded as true and that no other evidence is necessary or permitted to verify or contradict this statement” (Registration of Deeds and Title in Ireland (Bloomsbury Professional, 2014), [6.01]).
3. In Tanager DAC v. Kane, the specific question that arose was whether, in possession proceedings such as these, the Court may “look behind” the Register to entertain arguments that the register does not correctly reflect the ownership of the charge and whether the Court should join the Property Registration Authority (“the PRA”, the predecessor to Tailte Eireann) to the summary proceedings. The Court firmly rejected that proposition and determined that “a court hearing an application for possession may not determine a challenge to the correctness or conclusiveness of the register in these proceedings” (at [59] of the reported judgment). The Court of Appeal’s decision was that, in possession proceedings, 11 “[i]t is registration that triggers the entitlement to seek possession. In those proceedings, the court may not be asked to go behind the register and consider whether the registration is, in some manner, defective. In the possession proceedings, the court must accept the correctness of the particulars of registration as they appear on the folio, because the statutory basis for the action for possession is registration. This is one consequence of the statutory conclusiveness of the register, and of the statutory limits to rectification” (at [69] of the reported judgment).
4. Baker J. in Tanager DAC v. Kane explains that the principle of conclusiveness of the register does not prevent rectification under section 31 on the ground of fraud or error, but such rectification is not available in an application for possession (at [62] of the reported judgment). Baker J. also explained (citing Re Patrick Leonard’s Estate [1912] 1 IR 212) that “[t]he jurisdiction to rectify is exercisable in an inter partes action grounded on alleged mistake or fraud, and not in a summary action on affidavit” (at [63] of the reported judgment).
5. In Tanager DAC v. Kane, Baker J. identified two forms of proceedings which can be used for rectification of the register: namely, proceedings between the parties under section 31 in which mistake or fraud is alleged, or proceedings against the relevant registration authority under section
6. It was found that the parties who could dispute the registration of the charge under section 31 were the parties to the transfer of the debt and mortgage, and not the borrower (Mr Kane) and that it was neither necessary nor appropriate for the PRA to be party to such an application. The Court placed heavy emphasis – as does Promontoria here – on the terms of section 31

(1)which ensure that the conclusive effect of registration of any charge as a burden on the folio shall not be in any way affected “in consequence of such owner having notice of any deed, document, or matter relating to the land” (at [31] of the reported judgment).

1. The judgment in Tanager DAC v. Kane dealt separately with section 32, which concerns the correction of an error which occurred in the Land Registry, noting that an application for rectification under that provision must, according to Rule 7 of the Land Registration Rules, be brought by way of originating notice motion under Order 96 of the Rules of the Superior Courts (“the RSC”). As the basis for such an application is an alleged error originating in the Land Registry, the PRA would, according to Baker J. clearly be a necessary party to such proceedings (at [78] of the reported judgment). In Tanager DAC v. Kane itself, the defendant had instituted proceedings in the High Court seeking rectification of the register, naming Tailte Eireann as a party, although the Court of Appeal found that it was not an application under section 32 (at [68] of the reported judgment). 12
2. The Court of Appeal refused to allow the PRA to be joined as a party to the possession proceedings as, in those proceedings, “the court is concerned with ascertaining whether the statutory proofs of registration and default are met, not whether the charge is wrongly entered on the relevant folio” (at [82]). While refusing to join the PRA as a party, the Court of Appeal did countenance the possibility that the possession proceedings could be stayed or adjourned as a matter of inherent discretion: “The court hearing the claim for possession may stay or adjourn the proceedings under its statutory and general inherent jurisdiction, but the court does not, for that purpose, reconstitute the proceedings so that the PRA becomes a party to what is, in essence, a claim on foot of the statutory right of the registered holder of a charge to seek possession…” (at [82] of the reported judgment).
3. This was reiterated as follows: “…I consider that, in addition to the statutory power under s. 101

(1)of the 2009 Act, the court hearing the proceedings for possession must be considered to have the inherent jurisdiction, in a suitable case, to adjourn the proceedings or stay the enforcement or implementation of an order for possession, or to postpone the date of delivery of possession, pending the determination of rectification proceedings, if it considered that those proceedings are reasonably likely to offer a defence to the claim for possession” (at [89] of the reported judgment).

1. In Tanager DAC v. Kane, the Court rejected the objection to the validity of the registration of the charge and the question of a stay or adjournment was not considered.
2. Returning to the facts of this case, the Defendants here did send a letter to the Land Registry (now Tailte Eireann), copied to Promontoria, on 31 July 2023 requesting that the Register be corrected to show the date of registration of the Defendants’ ownership of the Property after 13 April 2007 (when, it is asserted, the deed of transfer was amended and re-executed). The Defendants then – through Mr Reilly - asked Tailte Eireann to rectify the register under section 32 by removing the Charge. This request was refused on 19 December
3. The Defendants could then have appealed under section 19 of the 1964 Act (as indeed Mr Deeney and Tailte Eireann indicated in correspondence). This was not done. An application could have been made by way of originating notice of motion under Order 96 of the Rules of the Superior Courts for the rectification of the register under section
4. This was not done. On the basis of Tanager DAC v. Kane, it is now not open to the Defendants to seek to challenge the validity of the Mortgage or the registration of the Charge in these proceedings. 13
5. However, the Plenary Proceedings need to be considered. I have been informed that these proceedings were issued against Promontoria and the two Receivers, although the only documentation made available to me is a draft unissued plenary summons exhibited to Mr Woodruffe’s first affidavit. It is undated (save for a reference to the year 2024). Tailte Eireann is not named as a party to those proceedings, although I was informed at the hearing of these proceedings that a motion was issued the previous day to join Tailte Eireann as a party to the Plenary Proceedings. The relief sought are primarily directed to the validity of the Mortgage and the appointment of the Receivers. There is also an order sought under sections 31 and/or 32 directing Promontoria to rectify the register. It was confirmed at the hearing that the relief is being pursued under section 32 only.
6. The question raised in Tanager DAC v. Kane is whether there are grounds for staying these proceedings (see [82] and [89] of the reported judgment as set out above). Applying the guidance in those paragraphs, I am not persuaded that the Plenary Proceedings are properly to be characterised as “rectification proceedings”, given that their dominant purpose is to challenge the validity of the Mortgage and the appointment of the Receivers. Even if they are, the criterion for section 32 to apply is that the error must originate in the Land Registry. If it did, “the court, if of opinion that the error can be rectified without injustice to any person, may order the error to be rectified upon such terms as to costs or otherwise as it thinks just” (s 32

(1)(c). 59. In this case, the alleged “error” is an error in rectifying the date of registration of the Mortgage, without the Mortgage being re-executed. The need to amend the date of registration arose from an issue with the date of registration of the Defendants’ own title, which originated with the Defendants. The changed registration date of the Charge imposed no new or different liability or burden on the Defendants. Indeed, as Promontoria emphasises, the Mortgage refers to the Defendants as “the registered owner or the person entitled to become registered as owner” and the Loan provides in clause 11 that the offer was made “on the assumption that the title to the property is or will be in the name of” the Defendants. The effect of the change in the dates of registration was that both the Defendants’ title and Ulster Bank’s title to the Charge were registered as of 8 June 2007, post-dating the asserted date of re-execution of the deed of transfer (which deed, I reiterate, I have not seen). 60. The bar set by Baker J. in Tanager DAC v. Kane is a high one: it is only if it is “reasonably likely” that the rectification attempt would succeed that the possession proceedings may be adjourned or stayed. On the basis of the information before me and the limited documentation which the Defendants have chosen to exhibit, I would find it difficult to see that this threshold has been met. 14 61. However, I cannot overlook four relevant circumstances: (

1. a)my decision that Promontoria has shown its ownership of the Mortgage is premised on the conclusiveness of the register; (
2. b)there is an extant claim in the Plenary Proceedings for rectification of the register; (
3. c)there is an apparent possibility of Tailte Eireann being joined to those Plenary Proceedings; and (
4. d)these possession proceedings are being remitted to plenary hearing on other grounds such that no order of possession is now being made. 62. For these reasons, I consider it appropriate to record that I am satisfied on the basis of the materials and submissions presented to me that the conclusiveness of the register supports a finding that Promontoria has demonstrated its title to the Charge for the purpose of these proceedings. However, if the claim for rectification of the register in the Plenary Proceedings proceeds on the basis of more complete documentation and evidence, with Tailte Eireann as a party, and the outcome is rectification or the removal of the Charge from the register, then the premise of my findings here (that the register is conclusive evidence of the ownership of the Charge) falls away. 63. This possibility does not necessitate or justify a stay, however, both because I do not believe the grounds for a stay have been made out, but also because there will in any event be no order of possession pending the outcome of the remitted plenary hearing. I therefore make no further comments on the likely merits of the application for rectification. C. RIGHT TO POSSESSION 64. The next question is whether the right to possession has arisen and is exercisable. This requires an assessment of whether Promontoria has shown its title to the Loan. Before considering the specific points raised by the Defendants in this respect, I will outline some general legal principles that guide my decision and I will set out the evidence presented by Promontoria. This evidence will be assessed in light of the Defendants’ overarching position that Promontoria has simply failed to demonstrate its ownership of the Loans. The headings will be as follows: (
5. a)General legal principles; (
6. b)Evidence presented; (
7. c)Assessment. (
8. a)General legal principles 65. The starting point is that the conclusiveness of the register only applies to the ownership of the charge. In Permanent TSB plc v. Donohoe [2025] IECA 222, the charge sought to be enforced by means of an order for possession under section 62

(7)of the 1964 Act, was 15 registered in the name of three successive holders. The first criterion of Cody was therefore met. The Court of Appeal (Costello P., delivering the judgment with which Whelan and Allen JJ. agreed) confirmed (at [48]) that the “register does not conclusively determine succession to the debt”. Moving to the second criterion Costello P. described the task of the court (quoted above at [24] and repeated here for convenience): “

1. In my judgment, it was incumbent on the High Court to consider the documentary evidence and to consider whether legal title to the loan, as well as the legal title of the charge, had passed from the Bank to Start Mortgages. If that was shown to have occurred, on the balance of probabilities, then that was the end of the matter …”
2. In this case, Promontoria must prove that the Loan was validly transferred to it by Ulster Bank. As this is an application by Promontoria for an order of possession and proof of the legal ownership of the Loan is an essential component of that application, Promontoria bears the burden of proving this ownership on the balance of probabilities.
3. It is important – in light of some of the arguments advanced by the Defendants – to observe that it is the transfer of the legal title to the Loan that must be shown. The question of beneficial title, and any transfer of beneficial title (whether by means of securitisation agreements or otherwise) is not relevant. This is firmly established as a matter of Irish law and has been confirmed in a series of judgments, such as the judgments of the Court of Appeal in Pepper Finance Corporation DAC v. Maloney [2023] IECA 161 and in Mars Capital Finance Ireland DAC v. Phelan [2025] IECA 117 (“Phelan”), culminating in the judgment of the Court of Appeal in Donohoe (at [51] and [52]). Counsel for the Defendants nonetheless placed surprisingly heavy reliance on a judgment of the Court of Appeal of England and Wales in Bexhill UK Limited v Razzaq [2012] EWCA Civ 1376 (“Bexhill”) as authority that assignees cannot rely on legal title to enforce loans and mortgages without the beneficial owner's express authority. The Defendants even went so far as to suggest in supplemental written submissions that the Court of Appeal in Donohoe should have disapplied the judgment of the Court of Appeal in Phelan in favour of the judgment of the English Court of Appeal in Bexhill. I reject that submission. The position under Irish law is clear: it is the transfer of legal title that must be shown and the question of beneficial title is not relevant to an application for possession under section 62

(7). 16 (

1. b)Evidence presented 68. Promontoria relies on the affidavit of Imelda Malone who is “an ASU Executive” of Cabot, sworn on 8 March 2024. She states her authority to make the affidavit on behalf of Promontoria, her means of knowledge, the review of documents which she undertook, the manner in which the books and records were kept and their custody and control by Promontoria. 69. In terms of the essential proof of transfer of title to the Loan, she refers to the “Irish Law Deed of Transfer (Excluding Property)” dated 28 June 2019 (“the Deed of Transfer”) and states her belief that “it had the effect of transferring the title in the facility and the mortgage to the plaintiff”. 70. The documents exhibited by Ms Malone which are relevant to this issue are the following: (
2. a)A copy of the Deed of Transfer with recital(s), a number of definitions, certain clauses and parts of the schedule redacted. (
3. b)“Hello” letters dated 3 July 2019 which were issued by Promontoria to the Defendants. In those letters, Promontoria states that Ulster Bank previously informed the Defendants on 18 January 2019 that the Loan and Mortgage would be transferred to Promontoria “with effect of (sic) the 28th June 2019”. The letter of 18 January 2019 is not exhibited. (
4. c)The “Goodbye” letters which were issued by Ulster Bank on 4 July 2019. Ulster Bank states in those letters that “[a]s you are aware, by way of letter sent to you in August 2018, Ulster Bank DAC (the Bank) has entered into a contract to transfer [the Mortgage Loan to Promontoria]”. It then states that the “Transfer” of the Mortgage Loan to Promontoria was completed on 28 June 2019 and attaches the notice of assignment of the same date. Neither the letter of “August 2018” nor the contract it apparently referred to are exhibited. (
5. d)A “Notice of Assignment” dated 4 July 2019 was issued to each of the Defendants by Ulster Bank, in which it states that Ulster Bank had assigned all interest in the Mortgage to Promontoria “by a Mortgage Sale Deed dated August 13th 2018, a Deed of Transfer dated 28th June 2019 (the Transfer Date) and an Assignment of Standard Securities (the Transfer Documents)”. (
6. e)Promontoria issued letters of demand to the Defendants on 17 October 2019, stating that “by way of a Global Deed of Transfer dated the 30th November 2018 and made between Ulster Bank Ireland DAC and Ulster Bank Limited of the first part and Promontoria Scariff Designated Activity Company (hereinafter called Promontoria Scariff DAC) of the second part, Promontoria Scariff DAC acquired the right, title and interest of the Bank in the [Loan and 17 Mortgage]” (the “Demand Letter”). By that letter, Promontoria notified the Defendants that the amount due and owing was €240,860.61, with arrears of €48,998.60 and demanded payment of same within 7 days. 71. From this review of the exhibits to the affidavit of Ms Malone grounding this application, I note that the exhibits refer to the Mortgage Sale Deed of 13 August 2018, the Global Deed of Transfer of 30 November 2018 and an “Assignment of Standard Securities”. However, Ms Malone makes no reference to any of those deeds in her affidavit and none of them are exhibited, despite the fact that the “Notice of Assignment” lists two of these as part of the “Transfer Documents”. I see merit in the Defendants’ position that this failure to exhibit these additional legal instruments is an obstacle to Promontoria’s application. 72. Further, as Mr Woodruffe points out in his replying affidavit of 4 November 2024, the Demand Letter refers to the Global Deed of Transfer of 30 November 2018 as the source of Promontoria’s title to the Loan and Mortgage. Mr Woodruffe exhibits to that affidavit an email dated 17 April 2023 in which he was informed by Cabot that the Loan “had sold from the previous loan owner Promontoria Scariff DAC to Cabot Financial Ireland”. He also exhibits a further email dated 4 May 2023 in which Cabot states that “regrettably incorrect information” had been given and the loan remained “firmly” in the name of Cabot’s client, Promontoria. 73. This was a quick correction of an asserted mistake and, without more, that would be something that could be overlooked and accepted at face value. However, that email of 17 April 2023 was not the only occasion on which this assertion that Cabot acquired legal title was made, as will be seen. 74. The replying affidavit on behalf of Promontoria – an affidavit of less than two pages in length - was sworn by Avene Cole, an “ASU Executive” of Cabot on 6 February 2025. The only averment she makes regarding the proof of the loan transfer is that “while the demand does incorrectly refer to the a (sic) deed of transfer of 30 November 2018, the ‘hello’ and ‘goodbye’ letters exhibited in the grounding affidavit accompanying these proceedings refer to the correct date of the deed of transfer and the demands (sic) letter correctly identify (sic) the facility in respect of which the defendants are indebted and the amount to (sic) which they are indebted”. 75. The point she makes in that paragraph is directed to the date of the transfer, which is not the issue: the real question is what legal instrument or instruments conferred legal title to the Loan on Promontoria. The “Hello” and “Goodbye” letters do not provide any clarity on this point: they both refer to an unspecified earlier agreement to sell the Loan having been previously communicated in August 2018 or January 2019 and then refer to a completion or transfer date 18 of 28 June 2019. I do not understand the basis for the averment by Ms Cole that the reference to a deed of 30 November 2018 in the Demand Letter is “incorrect” or how she can say that this is shown by the “Hello” and “Goodbye” letters, given the vague content of those letters and the fact they do (albeit somewhat indirectly) refer to an unspecified earlier agreement. 76. Ms Cole does not refer to the email of 17 April 2023 or explain the apparent mistake in it. 77. In his second affidavit of 15 May 2025, Mr Woodruffe refers to and exhibits Promontoria’s audited financial statements for the year ended 31 December 2023. That includes a directors’ report signed on behalf of Promontoria by two of its directors, Mary Murphy and Ross Dawson, on 26 April 2024. In that report, it is stated that, “[o]n 13 August 2018, Promontoria Holding 267 BV acquired assets from Ulster Bank Ireland DAC and Ulster Bank Limited (together ‘the Sellers’). The beneficial interest in the assets was novated to the Company on 24 April 2018. The Company purchased the beneficial interest in the assets while Cabot Financial (Ireland) Limited purchased the legal right to the assets.” 78. Mr Woodruffe asserts on affidavit that, combined with the email sent on 17 April 2023 to the effect that Cabot held legal title to the Loan, Cabot does appear to hold legal title to the Loan and Mortgage. 79. The response by Promontoria is contained in an affidavit sworn by Jennifer Power, a “Senior ASU Executive” of Cabot, the third and final affidavit on behalf of Promontoria. What is said in this affidavit is critically important to this application and I am mindful of the requirement identified by the Supreme Court in Cody, when assessing the affidavit evidence relied upon in a summary application to “weigh that evidence, assess its veracity, credibility, and importance for the purposes of proving those matters that are required to be established” (at [105]). 80. In her affidavit, Ms Power asserts that the financial statements and directors’ report are not relevant and then states that they are in error. Her evidence is sparse: “This is incorrect in that Cabot Financial (Ireland) Limited did not purchase the right to the assets”. She repeats without elaboration that “Cabot Financial are not the owner of this loan”. She then states that, when preparing the Directors’ Report and Financial Statements for the year ended 2024, “Promontoria intends to remedy this error going forward by accurately setting out the position as described herein”. 19 81. There is no attempt to explain how the error occurred. The only averment made – set out below - appears to be an attempt to prove that Cabot was not in fact the holder of legal title to the Loan: “On 13 August 2018 Promontoria Holding 267 BV entered into a Mortgage Sale Agreement to acquire the assets. The rights under the Mortgage Sale Agreement were novated to Promontoria Scariff DAC on 24 August 2018 and all rights, title, interest and benefit to the assets were transferred thereafter upon execution of the Deed of Transfer dated 30 November 2018”. (
7. c)Assessment 82. Four important points immediately arise from the affidavit evidence of Promontoria. 83. First, in the third and final affidavit sworn on behalf of Promontoria, Ms Power addresses the specific question of ownership of legal title to the Loan and Mortgage in an apparent attempt to demonstrate that the statement in Promontoria’s own directors’ report and audited financial statements in that respect was incorrect. She relies on a reference to the agreement of 13 August 2018, a deed of novation of 24 August 2018, and a deed of transfer of 30 November 2018. Her evidence appears to be that these are the documents which demonstrate that legal title to the Loan vests in the Plaintiff and not in Cabot. It must be recalled here that the only instrument pleaded in the Special Summons as the root of Promontoria’s title to the Loan is the Deed of Transfer of 28 June 2019. However, in seeking to explain in evidence the ownership of legal title to the Loan, Ms Power makes no reference to that instrument. This alone makes Promontoria’s application for a possession order in this summary application untenable in my view. 84. Second, remarkably, despite referring to three separate documents which appear to be relied on to show that Cabot did not hold legal title to the Loans (contrary to what is said in the financial statements), there are no exhibits to Ms Power’s affidavit. If legal title was acquired by the legal instruments identified in the final affidavit sworn on behalf of Promontoria, as suggested by Ms Power, I have seen no evidence of those instruments. I agree with the Defendants’ criticisms in this respect and view this as a clear failure by Promontoria to discharge the burden it bears to prove as a matter of probability that it holds legal title to the Loan. 85. Third, Ms Power appears to directly contradict Ms Malone’s averment that the Demand Letter was erroneous in its reference to the deed of 30 November 2018 as the instrument by which the Plaintiff obtained title to the Loan and Mortgage. This is a clear evidential question that needs 20 to be resolved and which raises questions of credibility which are not suitable for summary determination. 86. Fourth, Ms Power does not in fact explain how the same specific error with regard to the legal ownership of the Loan was made both in correspondence to the Defendants in April 2023 and in so important a document as the company’s audited and filed financial statements which were signed 12 months later for the benefit of all stakeholders of the company. A situation of material confusion has been identified by the Defendants and the evidence of Promontoria does not resolve it. This repeated asserted “mistake” that Cabot was the legal owner of the Loan – including in audited, signed and filed financial statements – calls out for a comprehensive explanation but none has been proferred. No director or officer of Promontoria has advanced any evidence in this application. 87. That is where the evidence rests on the question of the transfer of the Loan to Promontoria. 88. Apart from the inconsistencies and confusion in its position, Promontoria has simply failed to discharge the onus of showing on the balance of probabilities that it is the legal owner of the Loan. On the contrary, the evidence presented raises several questions which have been highlighted by the Defendants but not properly answered and which cannot be resolved in this summary application. 89. It is pertinent here to note that Promontoria’s counsel contended that Promontoria is only relying on the deed of 28 June 2019 and that it is not relevant to consider (or, apparently, have sight
8. of)any other legal instruments regarding the transfer of ownership of the Loan. I do not accept that submission as a matter of fact or of law. 90. The material fact here is that, while there is striking confusion and inconsistencies in the evidence presented by Promontoria, its final position on affidavit is that there are three legal instruments which ostensibly demonstrate that legal title vests in Promontoria. The Deed of Transfer of 28 June 2019 is not one of them. The proposition that title was transferred by the Deed of 28 June 2019 alone is not consistent with Promontoria’s own evidence. 91. Furthermore, I do not accept as a matter of law that it is open to Promontoria to elect to disclose a redacted copy of one deed and not the other legal instruments it cites on affidavit as evidencing the transfer of legal title to the Loan and which are referenced in the Demand Letter and other documentation before me. The judgment of the Court of Appeal (Murray J., with Haughton and Collins JJ. in agreement) in Pepper Finance Corporation (Ireland) Limited v. Macken [2021] IECA 15 is one of the authorities cited by the Defendants. That did concern a substitution application, with different facts, and in which the standard applicable was the lower 21 threshold of a prima facie case. Nonetheless, some of the observations made do resonate here, most particularly the comment by Murray J. that “in an application of this kind a partial explanation of a transaction – however complex it may be – should never be tendered, and the Court should be advised properly of all key elements thereof” (at [12]). 92. Promontoria seeks to derive legal support for its position from the judgment of Murphy J. in English v. Promontoria (Aran) Limited (No 2) [2017] IEHC 322 (“English No. 2”). It is said that English No. 2 demonstrates that it is not relevant to examine the underlying deeds and that any deficiencies or inconsistencies are issues between the parties to the deeds and not relevant to this application. 93. Given this reliance on it, it is necessary to examine English (No 2) a little more closely. The background to that judgment is that a stay was granted against Promontoria (Aran) Limited in English v Promontoria (Aran) Limited [2016] IEHC 662 (“English (No 1)” to prevent the appointment of a receiver. This stay was granted owing to the inadequacy of Promontoria’s proof of title to the loans in question. The material findings in English (No 1) have some resonance here: “27 The factual position in respect of the purported transfer is unclear. According to the evidence on 16th December, 2014 UBIL sold to Promontoria Holding 128 B.V. all its rights, title, interest and benefit in its mortgage over the plaintiff's lands. The sale was effected by way of a mortgage sale deed. On 12th February, 2015, UBIL together with the other named Ulster Bank entities purported to sell to Promontoria (Aran) Limited the same mortgage which UBIL had already sold to Promontoria Holding 128 B.V. two months earlier. There is reference in the evidence to a deed of novation also dated 12th February, 2015 between unnamed parties which deed may explain how UBIL, having sold its interest in the plaintiff's mortgage to Promontoria Holding 128 B.V. in December, 2014, was able to sell the same mortgage to Promontoria (Aran) Limited two months later. Without sight of the mortgage sale deed of 16th December, 2014 and the deed of novation of 12th February, 2015 it is not possible to assess the validity of the purported transfer by UBIL and associated entities to Promontoria (Aran) Limited on 12th February, 2015… 30. There may well be a perfectly good explanation for the apparent uncertainty and potential confusion as to the manner in which Promontoria (Aran) Limited acquired its claimed entitlement to appoint a receiver to the plaintiff's property. If so, that explanation with appropriate supporting documents should be proffered to the plaintiff. It is for Promontoria (Aran) Limited to demonstrate to the plaintiff that it is 22 in fact entitled to appoint a receiver to his property before it can require him to cede possession of his property to its receiver. To date, in the Court's view, it has not done so. Insofar as reliance appears to be placed on the mortgage sale deed of 16th December, 2014 and a deed of novation of 12th February, 2015, those documents should be disclosed.” 94. There is a clear similarity between the evidential deficit in English (No 1) and this case. Following that judgment, Promontoria made an application to vacate the stay. For the purpose of that application, Promontoria adduced further evidence. In the ensuing judgment (English (No. 2)), Murphy J. lists the evidence presented as follows: “

(1)the mortgage sale deed dated 16 th December, 2014;

(2)the deed of novation dated 12 th February, 2015;

(3)the global deed of transfer dated 12 th February, 2015, with some material unredacted and in particular the execution clauses;

(4)the deed of conveyance and assignment dated 12 th February, 2015 which was entirely unredacted save for details of other properties;

(5)the deed of power of attorney dated 20 th June, 2014 by Ulster Bank Ireland Limited authorising, inter alia, Declan Murray and Alistair Aiken as attorney for and on behalf of Ulster Bank Ireland Limited to execute documentation including the mortgage sale deed, the global deed of transfer and the deed of conveyance;

(6)the deed of power of attorney dated 16 th January, 2015 by Promontoria (Aran) Limited authorising, inter alia, Karen McCrave as director of Promontoria (Aran) Limited as attorney for and on behalf of Promontoria (Aran) Limited to execute documentation including the deed of novation;

(7)the deed of power of attorney dated 6 th February, 2015 by Promontoria (Aran) Limited authorising, inter alia, Jonathan Hanly as attorney for and on behalf of Promontoria (Aran) Limited to execute documentation including the global deed of transfer and the deed of conveyance and assignment” (at [23]).

1. There were affidavits sworn by two directors of Promontoria (Aran) Limited which set out in some detail the documents executed and the transfer of title to the loans and mortgages. Those affidavits also explained with some particularity and by reference to specific legal obligations, 23 the reasons for the redactions made. The Court emphasised that, while certain documents were redacted, there were no redactions to the deed of conveyance and assignment.
2. The state of the evidence was described as follows by Murphy J: “This case concerns the chain of title showing the transfer of the plaintiff's loans and security from Ulster Bank Ireland Limited to Promontoria (Aran) Limited. The Court in its judgment of 16 th November, 2016 was not satisfied for the reasons set out, that Promontoria (Aran) Limited had established that chain of title. In this application, Jonathan Hanly and Karen McCrave, both directors of Promontoria (Aran) Limited have averred ownership by Promontoria (Aran) Limited of the plaintiff's loans and security and have substantiated their evidence by exhibiting all relevant deeds such that the chain of title is now clear” (at [58]).
3. On this basis, the Court was satisfied that Promontoria had discharged the burden of showing on the balance of probabilities that it had acquired Ulster Bank Ireland Limited's interests in the plaintiff's loans, facilities and mortgage and the stay on the receivership was lifted.
4. The borrower’s attempt to continue to raise questions about the validity of Promontoria’s title was rejected by the Court as follows: “All of the issues raised by counsel for the plaintiff would be properly and validly raised if the plaintiff were a party to the deeds with an entitlement to challenge their efficacy, but he is not a party to the deeds. He is a third party whose only entitlement is to be shown that the stranger knocking on his door claiming possession has in fact acquired the interests of Ulster Bank Ireland Limited” (at [55]).
5. Murphy J. further observed, “There may well be frailties, defects or deficiencies in the arrangements between Promontoria in its various guises and the various Ulster Bank entities but that is not a matter of concern to the plaintiff. If any such issues exist, they lie between the parties to the deeds. The Court wishes to make it clear that it is not suggesting that such frailties exist. As submitted by the plaintiff, there may well be other parties involved in the wider transaction but again, that is not a matter of concern to the plaintiff. His only entitlement, as stated in the Court's earlier judgment, is to have it established that Promontoria (Aran) Limited have acquired Ulster Bank Ireland Limited's interest in his loans and mortgage and it appears to the Court that that has been established on the balance of probabilities by the uncontroverted evidence of Jonathan Hanly and 24 Karen McCrave and the deeds exhibited which the Court repeats are all valid on their face” (at [60]).
6. That judgment does not support the position of Promontoria on this application. On the contrary, it demonstrates the burden on a party such as Promontoria to properly demonstrate the transfer of title to a loan and mortgage by the provision of copies of all material legal instruments and appropriately detailed and qualified affidavit evidence. The point made in English (No 2) is that, once the transfer of title has been proven on the balance of probabilities, it is not for the borrower or the court to look behind the legal instruments that demonstrate that chain of title to ascertain any defects or deficiencies in those deeds.
7. The state of the evidence presented by Promontoria (Aran) in English No. 2 stands in sharp and direct contrast to the evidence presented here. Even assessing the affidavit evidence at a high level, in English (No 2) two directors of Promontoria, including one of those listed in the allegedly erroneous 2023 financial statements (Jonathan Hanley) swore affidavits to discharge the onus on Promontoria of showing title to the loans at issue in that case. This did not happen here. The affidavits by “ASU executives” of Cabot are short and do not contain the factual information or attach the exhibits that would be necessary to discharge the onus on Promontoria in this application for summary possession. If there is a similarity between this case and English v. Promontoria, it is that in both English (No 1) and this case, Promontoria has failed to adduce sufficient evidence to demonstrate its ownership of legal title to the loan and mortgage.
8. From the foregoing assessment of the evidence presented, it is my view that Promontoria has not demonstrated on the balance of probabilities that it holds legal title to the Loan and Mortgage. The documentary and affidavit evidence presented is confusing and contradictory in certain material respects and raises several questions that cannot be resolved in a summary fashion. In terms of the spectrum of possibilities identified in Cody, I did contemplate whether this case lies at that end of the range in which the proofs are simply not made out and the order should be refused (paraphrasing Cody at [78]). However, in that paragraph of her judgment, Baker J. proceeded to record that most of the cases at that end of the range “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 [2011] IEHC 275 (“Gunn”)”. In Gunn, there was no legal basis on which the order of possession could be made owing to the repeal of section 62

(7)of the 1964 Act. Another example given was GE Capital Woodchester Home Loans Limited v. Reade [2012] IEHC 363, and supplemental decision [2012] IEHC 459. Baker J. describes that case as one in which the defendant “had positively established” that the power of sale was not exercisable and this argument could not be rebutted by the plaintiff (at [79]). 25 103. It therefore appears to be envisaged by the Supreme Court that it is only if there is an insurmountable obstacle to the grant of the relief sought, an issue that could not be resolved in a plenary hearing, that the order should be refused summarily. In this case, the issues raised are more properly characterised as ones of proof which may be remedied by the presentation and testing of further evidence, as distinct from the form of insurmountable legal hurdles which the Supreme Court in Cody referenced. There is simply a lack of clarity as to the true position in this case, a failure of proof. These issues of title may well be capable of resolution in a full hearing. It is not possible on the state of the evidence before me to determine whether they will or will not. For that reason, it is my decision that the matter should be remitted to plenary hearing. C. DEFENCES 104. In light of this decision reached, it is not strictly necessary to consider the discrete additional objections to the proof of title raised by the Defendants. The matter is being remitted to a plenary hearing in which Promontoria will bear the burden of proving its legal title to the Loan and the Defendants can test and challenge the evidence as then presented. In particular, complaints made by the Defendants about the content and presentation of Promontoria’s evidence (such as questions of redactions to the Deed of Transfer and admissibility of affidavits sworn by employees of Cabot) are all subsumed and overtaken by the findings already made here as to the inadequacy of the evidence even taken at its height. 105. I have a similar reservation about the value of making findings on the merits of other defences that were raised (even to the applicable standard of credibility: see Cody at [74]). However, these points were argued and may be raised in any appeal. Determining the arguability of these defences now may allow for the plenary proceedings to be properly focussed on the issues that warrant such remission. For those reasons, I will address the remaining defences briefly here in the following sequence: (

1. a)Redactions (
2. b)Admissibility of evidence (
3. c)Funding arrangements (
4. d)Flaws in the facility letter (
5. e)Validity of demand letter (
6. f)Other defences. (
7. a)Redactions 26 106. The Deed of Transfer of 28 June 2019 that was exhibited to the grounding affidavit of Ms Malone is redacted in several respects. There appear to be recital(s), definitions and at least one clause (clause 4) if not also clause 5 redacted. The schedule is also heavily redacted. 107. In her grounding affidavit, Ms Malone states her belief that the redactions to the Deed of Transfer (without distinction) “were for reasons of (
8. i)commercial sensitivity, (
9. ii)bank and/or client confidentiality [referencing the General Data Protection Regulation and protection of third parties] and (iii) on the basis of irrelevance.” She states that “pages which have been entirely redacted have not been included in [the] exhibit”. 108. Mr Woodruffe in his second affidavit criticises the redactions to the Deed of Transfer as making it “impossible to decipher” and speculates that the redacted recitals presumably refer to the agreement of 13 August 2018. 109. In the affidavit of Ms Power, all she says is that the redactions were already explained, that the agreement of 13 August 2018 was not being relied upon. 110. Promontoria’s position is that the Loan, the Property, and the parties are identifiable and sufficiently clear from the Deed of Transfer despite the redactions. Counsel for Promontoria points to the schedule which includes the account number and points out that this in turn matches the account numbers in the ‘Hello’ and ‘Goodbye’ letters. It is also said that, while definitions and other terms are redacted, this is for reasons of client confidentiality. Another argument by Promontoria was that even excessive redaction or complexity in loan sale documents are irrelevant to borrowers, who are not parties to those agreements, and are only entitled to proof that Promontoria acquired the charge 111. The primary authority on which the Defendants rely is the judgment of Simons J. in Pepper Finance Corporation (Ireland) DAC v Moynihan [2024] IEHC 625 (“Moynihan”). The context of that case was – like this one - an application for possession. The difference was that the lender in Moynihan, Pepper Finance Corporation (Ireland) DAC (“Pepper”), had entered into a deed of sale (a securitisation agreement) with another company known as Windmill Funding Ltd. (“Windmill”), by which the beneficial interest in the loan was transferred to Windmill and the apparent intention was that the legal title would be held, temporarily, by Pepper as a “ bare trustee”. The deed of sale was heavily redacted. 112. The judgment of Simons J. records that, of the 18 clauses of the deed, 15 were redacted almost in their entirety, and 18 of the 26 pages were redacted entirely. The Court concluded that, while certain redactions can be permitted when reasoned and justified on the ground of third party confidentiality or commercial sensitivity, Moynihan was not such a case: “whole swathes of the 27 operative part of the deed have been blanked out, without any meaningful explanation or justification having been offered. The redactions are so extensive that this court cannot safely interpret the legal effect of the deed” (at [24]). The Court could not be satisfied from the heavily redacted deed that the legal title to the debt remained with Pepper. Simons J. observed more generally that, “[i]f a party to litigation wishes to rely on a deed as establishing a particular proposition (here, that the ownership of the legal title remains with Pepper Finance), then it is necessary for that party to exhibit the deed in a form which is meaningful. It is not appropriate to exhibit a deed with more than three quarters of its contents obliterated” (at [21]). Given the limited evidence presented, the Court could not conclude that it was shown either that legal title had or had not passed from Pepper. Consequently, the interests of justice required that the matter be remitted to plenary hearing when an adjudication could be made on the basis of more complete evidence. 113. A later decision in which the same documents and issues were presented was Pepper Finance Corporation (Ireland) DAC v. Hayes [2025] IEHC 692. There, in light and in the wake of Moynihan, there was a resumed hearing of an application for possession in which Pepper made less heavily redacted copies of the relevant securitisation deeds available to the court and explained the redactions and the reasons for them in some detail, including explanations that the redactions were of only commercially sensitive information, irrelevant clauses and information concerning unrelated third parties. This was done on affidavit with a clause-byclause explanation of each individual redaction. The order for possession was granted in that case, as the evidence was markedly different to that presented in Moynihan. 114. The Defendants here also rely on Mars Capital Finance Ireland DAC v Temple [2023] IEHC 94 (“Temple”). That case concerned whether Mars Capital’s summary application for a possession order under section 62

(7)of the Registration of Title Act 1964 should be referred to plenary hearing. One of the material findings in Temple was that the operative part of the deed of transfer evidencing the assignment of the loan from AIB to Mars did not explain or even refer to the schedule which included the relevant loan. Accordingly, “[t]he limited material before the court does not establish, even on a prima facie basis, that the defendant's debt has been transferred to Mars Capital Finance Ireland DAC” (at [7]). Simons J. concluded that it was not possible to determine on the basis of the limited available affidavit evidence whether Mars Capital was the owner of the debt, as “the evidence is, at best, ambiguous” (at [13]). For this reason, among others, the application for possession was remitted to plenary hearing so the application could be determined on the basis of complete evidence, it being impossible to draw any final conclusions on the basis of the limited evidence presented by Mars Capital ([24]). 28 115. A further authority cited by the Defendants (albeit not for the purpose of its findings on redactions) is the judgment of Kennedy J. in O’Callaghan v. Pepper Finance Corporation (Ireland) DAC [2026] IEHC 189 (“O’Callaghan”). There, Kennedy J. summarised the attitude of the Irish courts to redactions to loan sale deeds and the obligation on a party making redactions as follows: “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 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” (at [20]). 116. In O’Callaghan, an unredacted version of the mortgage sale deed was ultimately made available and satisfied the Court (it should be noted that O’Callaghan concerned an application for an interlocutory injunction in which the merits of the case only had to be shown to an arguable standard). 117. The law on redactions can be summarised as follows: legal instruments relied upon to show title to loans in a possession action may be redacted to obscure material which is confidential to third parties or which is commercially sensitive, provided the redacted material is not relevant to the proceedings at hand; does not hinder a proper and meaningful understanding of the instrument, the transfer or chain sought to be proved; and each redaction (or category of redactions) is comprehensively explained on affidavit by a person qualified to make that assessment (or by reference to advice received from a person qualified in that respect). 118. Turning to this case, the Loan Transfer Deed that is relied upon is heavily redacted. It is not as heavily redacted as the deed in Moynihan, but it seems that one recital, several definitions and at least one entire clause are blacked out with no proper explanation. All that is said on affidavit in generic terms by an employee of Cabot with no stated legal experience or reference to legal advice, is that she believes the redactions were for reasons of third party confidentiality protection or commercial sensitivity. I do not accept that it is sufficient for a lender to state that recitals or definition clauses in a deed were redacted on the ground of commercial sensitivity or to protect the confidentiality of third parties, without any explanation as to why or how that 29 is so. An assertion by person who does not profess to have legal qualification or rely on legal advice that opening recital or definitions are commercially sensitive does call out for explanation. The affidavits are simply insufficient to explain the redactions made. It may well be that the redacted operative parts of the Assignment are not relevant, although that it is not explained on affidavit on behalf of Promontoria. It is possible that all material clauses have been made visible to the Court. However, it is simply not possible to form a view on the balance of probabilities as to the correct interpretation of the Assignment as a whole or what the entire deed was intended to, or did, achieve, given the incomplete version of that document and the inadequate explanation of the redactions which have been furnished to the Defendants and to the court. The uncertainty regarding the import of the Deed is compounded by the frailties in Promontoria’s evidence regarding other legal instruments by which it asserts legal title to the Loan was transferred (as already addressed). It was Promontoria’s choice to only partially disclose the deed and not explain the content of the provisions which are not disclosed or the reasons for their redaction. Combined with the wider issues as to Promontoria’s proof of title, this is a deficiency in its own proofs for which Promontoria is responsible. (

1. b)Admissibility 119. The Defendants contend that the evidence set out in the affidavit of Imelda Malone is hearsay (neither Defendants having had any dealings with Ms. Malone). It is also asserted that all of the deponents for the Plaintiff are employees of Cabot rather than of Promontoria. The Defendants asserted that the affidavit evidence was not rendered admissible by the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (“the 2020 Act”). However, the Defendants’ arguments on admissibility were not fully pressed at the hearing and was said by counsel for the Defendants not to be critical to their case. They rather advanced the argument that the evidence is not reliable, given that it was sworn by someone not employed by the Plaintiff. I will accordingly deal with this point briefly. 120. I am satisfied that the affidavits sworn on behalf of a party to proceedings can be sworn by external agents, provided their means of knowledge and authority to swear the evidence are stated. However, I accept the point made by the Defendants that the weight that is to be attached to affidavits may be affected by the limited knowledge or means of knowledge of the deponents. In addition, there are certain points on which Promontoria may have been expected to provide evidence sworn by a person with relevant direct knowledge. The assertion that the directors’ report which was filed with the audited financial statements of Promontoria was erroneous, for example, is something which could more usefully have been addressed by a person with direct knowledge of, and responsibility for, the relevant facts. Instead, it was addressed in a cursory 30 manner by an employee of Cabot, which does affect the weight that may be attached to that evidence. (
2. c)Funding arrangements 121. In his second affidavit, Mr Woodruffe raises an issue concerning funding agreements between Promontoria and Mount Street Mortgage Servicing Limited (“Mount Street”). He cites and exhibits the form filed in respect of the charge (Form C-1 dated 28 November 2018). That document refers under the heading “Loan Assets” to the Chargor (Promontoria) as “legal and beneficial owner” assigning absolutely to Mount Street “all of the Chargor’s present ..and future rights, title, benefit and interest in and to the Loan Assets and the proceeds thereof”. I note that other provisions of the charge as described in the Form C-1 refer only to the interest held by Promontoria as “beneficial owner”. He also refers to another debenture with Apex Corporate Trustees (UK) Limited (“Apex”) in January 2023 which is described by Mr Woodruffe as conveying all rights of the Promontoria in the Loan and Mortgage. He asserts that copies of these agreements and debentures need to be made available to demonstrate whether Promontoria has in fact absolutely assigned all legal title in the Loan to those entities, as he has made out a prima facie case that this is what occurred. 122. The only evidence from Promontoria in response is a bare averment by Ms Power that “[the Form C1] appears to relate to the registration of a charge offered by the plaintiff and has no impact on the ownership of the loan the subject of these proceedings. The same applies to the debenture referred to by the first named defendant”. 123. As already observed, it is only the transfer of legal title that is relevant here and securitisation arrangements in which beneficial title is conveyed are not relevant to applications for possession. The Court of Appeal in Donohoe rejected an argument based on a securitisation transaction as “a complete red herring [which] certainly affords the respondent no defence to the appellants' application” (at [83]). The judgment of the High Court was upheld in this respect. 124. The legal position cannot be doubted. However, in this case, the difficulty for Promontoria is that, whatever may be the usual or normal provisions of securitisation agreements, the language of the exhibited document (Form C1) does appear to indicate the transfer of legal and beneficial title to the Loan. The only evidence by Promontoria on this point is Ms. Power’s very limited averment about what the charge “appears” to show. She does not purport to have any knowledge or understanding of the arrangement. It may be that Promontoria is able to provide sufficient evidence to satisfy a court that only beneficial title passed to Mount Street (or indeed 31 Apex), as would be usual, but I cannot make that finding on the basis of the evidence before me. Rather, on the basis of the available evidence regarding the arrangement with Mount Street, there is a stateable question as to whether legal title was in fact transferred. (
3. d)Flaws in the Facility Letter 125. It is the position of the Defendants that the facility letter dated 18 May 2006 (“the Facility Letter”) is invalid as the offer it contained had already lapsed at the time of acceptance by the Defendants. This is on the basis that the terms of the Facility Letter stated it was “open for acceptance for the period 21 days from the date of the Offer and will lapse if not accepted within the said period unless the Bank in its absolute discretion determines otherwise”. The Defendants submit that as the Defendants acceptance was dated 23 June 2006, and no evidence of any extension of these terms by Ulster Bank have been exhibited, that the offer contained in the Facility Letter was not validly accepted by the Defendants as it had already lapsed. It is also said that there was no proof of drawdown of the loan within the contractual deadlines stipulated. 126. The position of Promontoria on this point is that any of the conditions in the Facility Letter which are cited are for its benefit and could be waived by Promontoria alone and could not be relied on by the Defendants to avoid payment. It is also pointed out that the Defendants acknowledge that the monies were drawn down and are owed and the bank statements evidence the payments that have been made on foot of the draw down of the funds. 127. I do not see any validity to this defence and do not believe there is any basis for its further exploration in a plenary trial. There is no dispute but that the monies were borrowed and drawn down and that repayments are owed. (
4. e)Validity of the Demand 128. The Defendants contend that the Plaintiff cannot legitimately rely on the Demand Letter for several reasons. One is that the Demand is based upon a Global Deed of Transfer dated 30 November 2018 which is at odds with the date of the deed of transfer exhibited by the Plaintiff (28 June 2019). The Defendants argue this is a discrepancy and factual conflict which cannot be resolved on a summary basis. In fact, from my analysis of the evidence, it is not presently clear whether that reference to the deed of 30 November 2018 was in error. I cannot decide on the basis of the information before me whether the Demand Letter is or is not correct in this respect. This is a question that can only be determined following full evidence in a plenary hearing. However, even if this reference in the Demand Letter was an error (as Promontoria itself asserts), I reject the argument that there is a stateable defence in this respect. The attempt 32 to invalidate the Demand on the basis of an erroneous reference seems at odds with conclusive authority on this point (Vivier Mortgages v. Lehane [2017] IEHC 605 at [16]; Flynn v. NALM [2014] IEHC 408 at [233]; and Seniors Money Mortgages Ireland DAC v. Fingleton [2024] IEHC 423). Complaints about the inclusion of incorrect figures in letters of demand do not invalidate the demand, provided the debtor has sufficient information to understand the obligations and steps required to be taken. The demand letter in this case clearly and validly identifies the loan and amount due and there is no arguable basis to challenge its validity. (
5. f)Other Defences 129. The Defendants seek to rely on the fact payments of €746 were being made up to 1 May 2020 as a defence to these proceedings. Promontoria denies there was any arrangement in this respect. Ms Cole states on affidavit that there was no such arrangement and the payments were “towards interest only and a small portion of the capital of the loan”. Promontoria emphasises that the Defendants are in arrears and have not repaid the loan despite demand. 130. I do not see any valid defence as arising from the fact that certain payments were being made. There is no evidence of an agreement in this respect that could have prevented Promontoria pursuing these possession proceedings. The default and arrears are not in dispute. I reject this defence as unarguable. 131. There are two further defences which the Defendants advanced in passing terms only. First, the Defendants allege bad faith in the decision to appoint receivers and separately pursue possession proceedings. I do not propose to make any findings here regarding the question of receivership. That topic forms part of the Plenary Proceedings. I do not determine here the merits of any question concerning the appointment of the receivers. Finally, the Defendants allege the interest rate is excessive. Promontoria’s case is that the rate is contractually agreed and no legal basis has been advanced to challenge it. Both sides accept that Bank of Ireland Mortgages v. O’Malley [2019] IESC 84 has no application to possession proceedings. I agree with Promontoria on this point and see no stateable basis to dispute the interest rate in these possession proceedings. CONCLUSIONS 132. For the reasons set out in this judgment, I am not satisfied that Promontoria has discharged the onus of demonstrating that it is the owner of legal title to the Loan, although the inadequacies and apparent inconsistencies in Promontoria’s evidence may be capable of resolution through the presentation and testing of further evidence. For this reason, the application for possession must be remitted to plenary hearing. 33 133. On the basis of the evidence and argument presented and the conclusiveness of the register, I am satisfied that Promontoria has proven its ownership of the Mortgage. However, I note that the question of rectification of the register may be pursued in the Plenary Proceedings. While I would not be minded to grant a stay for that reason, I do not need to decide that point given the remittal of the matter to plenary hearing. I make no further comments on the merits of the rectification claim. 134. As regards the discrete defences raised by the Defendants, I can see merit to the challenge to the redactions made (although that finding seems superfluous in light of the decision to remit the matter to plenary hearing) and to the question raised about the possible transfer of legal ownership of the Loan and Mortgage to Mount Street. The other defences have not been shown to be stateable or to warrant further assessment in a plenary hearing. 135. Given the findings made in this judgment, in which each side has prevailed and lost on certain issues, I am of the provisional view that it is appropriate to make no order as to costs. Should either party wish to contend for a different costs order, they should deliver a written submission of no more than 1,000 words in length by 23 June 2026. I will list the matter before me at 10.30am on 25 June 2026 for the purpose of making orders and determining the question of costs. 34