High Court: Court of Appeal to consider substitution applications in context of appeals

About this case:

• Citation:
  [2024] IEHC 742
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons observed that “it is better that this matter now come before the Court of Appeal, rather than the High Court attempt to cut the Gordian knot by making its own decision in relation to the precise form that a change of party application under Order 17 RSC should take”.

Keith Rooney BL appeared for the plaintiff, instructed by Joynt and Crawford LLP. The defendant appeared as a litigant in person.

Background

The plaintiff’s predecessor, KBC Bank Ireland PLC, sought and obtained an order for possession from the Circuit Court in respect of a charge on registered land.

The defendant appealed the order for possession to the High Court. Before the hearing of the appeal could take place, there was a change in ownership of the charge and the underlying debt secured by it. 

The transferee of the charge and debt, Pepper Finance Corporation (Ireland) DAC, successfully made an application to Mr Justice Cian Ferriter in the High Court to be substituted into the proceedings as plaintiff pursuant to Order 17, rule 4 of the Rules of the Superior Courts.

The appeal came on for hearing before Mr Justice Simons in the High Court. 

The High Court

Mr Justice Simons considered that the first question arising was whether the correct procedure was utilised by the plaintiff, in light of the judgment of the Court of Appeal in Irish Bank Resolution Corporation v Halpin [2014] IECA 3. 

The court highlighted that Halpin appeared to suggest that “at least in the context of an appeal from the High Court to the Court of Appeal — the proper order in circumstances where a transfer has occurred between the date of the first instance decision and the hearing of the substantive appeal is that the transferee be joined as an additional party”.

The judge continued: “In other words, rather than simply stepping into the shoes of the original plaintiff, it seems that the appropriate order is that the transferee is joined to the appeal proceedings as a second plaintiff.”

Mr Justice Simons recounted that he had recently applied Halpin in the case of Permanent TSB plc v Morrissey [2021] IEHC 18 in the context of an appeal from the Circuit Court to the High Court.

The court considered that an issue arose as to whether the form of order made in the present appeal was correct in that it released the original plaintiff, with counsel for Pepper relying on Fitzgibbon v Law Society of Ireland [2014] IESC 48, [2015] 1 IR 516 in support of his contention that there is a distinction between an appeal from the Circuit Court to the High Court, a de novo appeal, and an appeal from the High Court to the Court of Appeal, effectively an appeal on the record.

Counsel for the plaintiff also submitted inter alia that a party wishing to resist an appeal to the High Court does not need to affirm, uphold or justify the order of the Circuit Court, and so it followed that it is not necessary or essential that the party who acted as plaintiff be a party to the appeal before the High Court.

Finding that there was “some attractiveness” to those submissions, Mr Justice Simons commented that it was difficult to reconcile them with Halpin as the concern of the Court of Appeal “was that the making of an order of substitution mid-course an appeal, as it were, might appear to have the effect of giving retrospective judgment to the newly added party”.

Accepting that the legal position was not clear cut and having regard to the competing considerations advanced by the plaintiff’s counsel, including instances where a company has been wound up or a party’s lack of interest in the outcome of appeal proceedings, the High Court considered that it was appropriate to state a case to the Court of Appeal in its discretion under s.38 of the Courts of Justice Act 1936 where there was a “significant point of law to be decided”.

The judge pointed out that the issue was a jurisdictional one, as if it was determined that the substitution procedure used was incorrect, Pepper would not have legal standing to pursue the appeal proceedings in its sole name.

Conclusion

Accordingly, the High Court adjourned the appeal proceedings to allow that preliminary issue to be determined.

Pepper Finance Corporation (Ireland) DAC v Tracey O’Reilly [2024] IEHC 742