Start Mortgages Designated Activity Company & Anor v Simpson & Anor

UNAPPROVED NO REDACTION NEEDED THE COURT OF APPEAL CIVIL Court of Appeal Record Number: 2024/33 High Court Record Number: 2023/4333P Neutral Citation: [2026] IECA 67 Whelan J. Pilkington J. Butler J. BETWEEN/ START MORTGAGES DESIGNATED ACTIVITY COMPANY AND MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY PLAINTIFF/RESPONDENT – AND – JANETTE SIMPSON, HOLLY SIMPSON AND ANY PERSON IN OCCUPATION OF THE PROPERTY KNOWNAS BRYANLITTER CLONTIBRET, MONAGHAN AND COMPRISED IN FOLIO MN20535F APPELLANTS/DEFFENDANTS JUDGMENT of Ms. Justice Butler delivered on the 27th day of April 2026 Introduction 1. The appellants in this case are a mother and daughter currently in occupation of a residential property in Co. Monaghan which was formerly their family home. The property -2- was mortgaged as security for a loan taken out by the first appellant and her ex-husband (“the borrowers”). Following significant and lengthy default in making repayments on the loan, the first respondent obtained an order for possession from the Circuit Court in February 2022. That order was executed in March 2023. (The first respondent has transferred its interest to the second respondent who was joined as a co-plaintiff to the proceedings. All references in this judgment to “the respondent” are intended as references to the first respondent unless otherwise stated.) However, the appellants subsequently re-entered the property and resumed living there. In September 2023 the respondent issued trespass proceedings seeking to compel the appellants to vacate the property and sought an interlocutory injunction in that regard. 2. Following the institution of proceedings, the first appellant, through her solicitor, wrote to the respondent on 10th November 2023 making a proposal regarding the restructuring of the underlying loan. The appellants contend that the respondent owed them a Braganza-type duty (per Braganza v. BP Shipping Ltd [2015] 1 WLR 1661, [2015] UKSC 17) in respect of this proposal on foot of a term or terms implied into the contract of loan and mortgage between the parties. Further, the appellants contend that the respondent breached those duties by failing to act fairly and reasonably and, in particular, failing to properly consider the proposal made by the first appellant. Consequently, the appellants opposed the respondent’s application for an interlocutory injunction on the basis that notwithstanding the arguable case made by the respondent on the issue of trespass, there was a serious issue to be tried regarding the application of Braganza in the circumstances of this case and the balance of justice favoured allowing the appellants to remain in the property until the determination of the proceedings. 3. These arguments were rejected by the High Court (Kennedy J. [2023] IEHC 683) and an injunction was granted to the respondent. The High Court indicated that it was prepared to grant a limited stay but only on the basis that the appellants acknowledge the respondent’s -3- lawful entitlement to possession of the property and furnish an undertaking confirming that they would vacate the property by the agreed date. As neither the acknowledgement nor the undertaking were furnished by the appellants, no stay was placed on the High Court order. 4. The appellants’ Notice of Appeal originally raised three issues, namely whether the appellants had shown that there was a serious issue to be tried on the application of Braganza; whether the respondent had made out a “strong case” for the orders sought; and where the balance of justice lay. The Notice of Appeal was amended shortly prior to the hearing of the appeal to include additional grounds relating to the nature of the first appellant’s interest in the property, whether that interest had been mischaracterised by the trial judge and whether the trial judge had erred in treating the property as being in negative equity. The nature of the appellants’ interest in the property is potentially relevant to whether Braganza duties (assuming they arose) continued to apply after an order for possession had been executed because of the appellants’ continuing interest in the property. 5. The respondent disputed all of the appellants’ grounds and, in addition, contended that the arguments now advanced by the appellants were ones which ought to have been raised before the Circuit Court which granted the order for possession. 6. I will deal with all of these issues in due course. First, I intend to set out the background to the matter so that the context in which the appellants make these arguments can be properly understood. Relevant in this regard is the history of the litigation between the parties in the Circuit Court. I do not propose to deal with the High Court judgment in extenso but I will address the relevant parts of it when dealing with the legal issues arising on the appeal. -4- Factual and Procedural Background 7. In July 2007 the first appellant and her ex-husband borrowed €200,000 from the respondent’s predecessor-in-title, which loan was secured on their family home (“the property”) by way of re-mortgage. The property is a substantial four-bedroom detached residential property. The loan was for a period of 25 years and is due to be discharged in full by 2032. The mortgage was registered as a charge on the Folio in September 2008. The mortgage and charge were transferred to the respondent in 2015. Nothing turns on this transfer. Since the institution of the proceedings, the mortgage and charge were transferred by the first respondent to the second respondent. In the appellants’ proposed defence and counterclaim to the proceedings (exhibited in an affidavit sworn after the High Court judgment was delivered) the appellants contend that the respondent was not entitled – as mortgagee-in-possession – to transfer its interest in the mortgage or in the order for possession without the consent of the first appellant, which obviously she had not given. Counsel for the appellant was unable to point to any authority explaining why such an interest could not be transferred and, as this was not an issue before the High Court and does not form part of the grounds of appeal, I do not propose to consider it further. 8. By 2009, repayments on the loan had fallen into arrears although payments were still being made on a regular basis. By 2012, the first appellant and her ex-husband were paying less than half what was due each month. Matters improved in 2017 and 2018, but in 2019 payments ceased altogether with the last and only payment of that year being made in December 2019. By the time of the High Court hearing the amount due on foot of the loan was €288,010 which included a sum of €118,490 in respect of arrears. 9. On 18th September 2018 the respondent issued possession proceedings in Monaghan Circuit Court. Before these proceedings were instituted, the respondent made a formal demand -5- for repayment and called for the delivery up of vacant possession. However, before taking either of those steps, the respondent wrote to the first appellant and her ex-husband (collectively “the borrowers”) on two separate occasions in 2017. On 14th September 2017 the respondent offered the borrowers an alternate repayment arrangement (“ARA”) involving reduced payments for a six-month period. The respondent also suggested the borrowers consult MABS (Money Advice and Budgeting Service) or a Personal Insolvency Practitioner in respect of their indebtedness. It seems the borrowers refused the offer of an ARA and on 20th September 2017 the respondent wrote in compliance with the Code of Conduct on Mortgage Arrears (“CCMA”) informing the borrowers of the consequences of their decision, including the fact that they were now outside the Mortgage Arrears Resolution Process (“MARP”). The respondent also advised the borrowers of other options available to them which included the “Mortgage to Rent Scheme” under which distressed properties can be purchased by a local authority and leased by the authority to the former mortgagors. 10. The possession proceedings took some time to progress through the Circuit Court and were impacted by measures taken in response to the Covid-19 pandemic. In April 2020 the respondent wrote again to the borrowers pursuant to the CCMA offering “Covid support”. The borrowers were informed that an ARA could no longer be offered to them and were again advised of their options including the Mortgage to Rent scheme. Further correspondence followed in September and November 2021, again advising the borrowers of the potential benefits of the Mortgage to Rent scheme. The borrowers were requested to phone the respondent, but it does not appear that they did so. 11. On 11th February 2022 Judge Morrissey made an order for possession of the property in favour of the respondents in the Circuit Court. The borrowers did not appear in court and were not represented. On 15th June 2022 the first appellant and her ex-husband were advised in -6- letters written separately to each of them that an order for possession had been made. On 20 th September 2022 an execution order of possession was issued to the respondent through the County Registrar’s Office. That order was executed on 24th March 2023 by the County Sheriff and possession was handed over to the respondent’s nominated agent. According to a report provided by its agent to the respondent, the appellants initially refused to leave the property, Gardaí who were in attendance stepped in and eventually, about two hours later, the appellants left after which the property was locked and secured. 12. At some unknown date subsequent to this but before 11th April 2023 the appellants broke back into the property and resumed occupation of it and there were visible signs of occupation on an inspection by the respondent’s agent on the April date. On a further inspection in June 2023 the agent met the first appellant who asked him to leave and told him there was a “protection notice on the property”. The “protection notice” was in fact a reference to a protective certificate which the first appellant had applied for under s. 59 of the Personal Insolvency Act 2012 and which was granted to her (on an ex parte basis) by Judge Connolly in the Circuit Court on 19th June 2023. Under s. 62 of the 2012 Act, a protective certificate prevents creditors from taking legal action whilst the debtor applies for a personal insolvency arrangement. 13. A prescribed financial statement dated 22nd May 2023 was filed on behalf of the first appellant in support of her application. This lists her assets as a half share in her “principal private residence”. The current market value of this property is given as €180,000 with the first appellant’s share being valued at €90,000. A debt of €273,272 is listed in respect of the loan on the property. On page 7 of the prescribed financial statement, it is noted that an “order for possession has been granted to Start Mortgages DAC”. No reference is made to the fact that the order for possession had been executed some months earlier nor that the appellants had -7- resumed occupation of the property as trespassers. The prescribed financial statement shows the first appellant as having an income of €1,301 per month derived entirely from social welfare payments and monthly expenditure, excluding repayment of her debt, of €1,660. 14. A protective certificate once granted stays in place for a minimum of 70 days. However, on 2nd July 2023 the respondent applied to the Circuit Court to have the protective certificate set aside on the basis that, as a result of her eviction, the first appellant was not lawfully in possession of the property and, contrary to her prescribed financial statement, it did not form her principal private residence. 15. In an affidavit filed to oppose that application, the first appellant disclosed to the respondent, apparently for the first time, that her marriage had broken up in 2021. Without going into detail, she claimed that her ex-husband had been controlling and abusive and that she had been the victim of financial abuse as a result of which she did not appreciate “the extent of the position” regarding the possession proceedings and had been taken by surprise by the eviction. In circumstances where she had no money for rent and there are long waiting lists for social housing, she felt she had no choice but to go back into the house. She stated that the respondent had not engaged properly with her or assisted her and that she now intended to engage to reach a solution. She exhibited the Mortgage to Rent scheme guidelines and suggested that she met the criteria for the scheme. 16. On 24th July 2023, Judge Connolly set aside the protective certificate as he was not satisfied that on the date the application was made to him the first appellant met the statutory requirements under s. 91 of the 2012 Act. Further, Judge Connolly found that the failure to disclose the execution of the order for possession was a material non-disclosure. No appeal was brought by the first appellant against this decision. -8- 17. On 5th September 2023 the respondent issued these proceedings seeking an order to restrain the appellants’ trespass and requiring them to vacate the property. The following day the respondent issued a motion seeking an interlocutory injunction in similar terms. That application was grounded on an affidavit of the asset manager of the respondent which exhibited inter alia the Circuit Court possession proceedings and the replying documentation and judgment in the application to set aside the protective certificate. It also exhibited the correspondence between the parties to which reference has previously been made. There was in fact more correspondence flowing from the respondent to the borrowers, but I have highlighted only that dealing with proposals made or advice given by the respondent with a view to assisting the borrowers to deal with their mounting indebtedness. 18. In a replying affidavit dated 5th October 2023 the first appellant asserted that she had not been treated fairly by the respondent in that she “was prevented from utilising the personal insolvency provisions by virtue of their actions in repossessing the family home when they did” a step which she contends “shut [her] out” from a scheme intended to assist borrowers in distress. Consequently, she questioned the respondent’s motivations. This is an odd averment in circumstances where in 2017, before the institution of the possession proceedings, the respondent had recommended that the first appellant and her then husband consult with a personal insolvency practitioner and there is no evidence that the first appellant actually did so until after the order for possession had been executed some five years later. The first appellant also averred that the property was in positive equity such that the arrears could “quite reasonably” be warehoused until the term of the loan expired in 2032 while the respondent kept its order for possession. No figure was given by her for the value of the property and no professional valuation provided to support the contention that the property which she claimed had a value of €180,000 in May 2023 now had a value in excess of €273,000. At para. 8 of this affidavit the first appellant states: - -9- “I am advised that there is a serious issue to be tried as to whether the plaintiff is acting fairly and reasonably, and also over whether the loan and mortgage admit an implied term that the plaintiff would not repossess our house without treating us fairly and/or as a last re[s]ort and/or without giving us a reasonable opportunity to save it.” This reflects in part the terms of the Braganza clause that the appellants claim should be implied into the contract of loan and mortgage. 19. On the same date that this affidavit was sworn, the solicitors for the respondent wrote to the first appellant’s solicitors. That letter set out the respondent’s entitlement to possession of the property by reference to the order for possession made by the Circuit Court and the fact the respondent was registered as owner of the charge on the Folio. Both of these points appear directed to the appellants’ assertion that the mortgage/charge was not validly transferred to the respondent, a point which is not pursued on this appeal. The respondent refuted the notion that the appellants had not been treated fairly by it and noted the efforts made to engage with the borrowers to resolve the arrears on their loan account. It was pointed out that the first appellant’s inability to seek a personal insolvency arrangement was because she had been found not to be eligible under the statutory criteria. The letter concluded: – “...our client is not agreeable to the restructure proposed by you. The arrears on your client’s loan account first began in September 2009 and no payments have been made to the loan account since December 2019. Our client has obtained an order for possession in February 2022 which was duly executed by the Monaghan County Registrar. Your client has had ample opportunity to resolve the arrears on her loan account. Your clients are trespassers on the property and our client is entitled to the order sought by it.” - 10 - 20. The first appellant’s solicitor’s letter of 4th October 2023 to which this is a reply is not exhibited. However, a further proposal was made by the first appellant through her solicitor on 10th November 2023. Notably, both proposals post-date the institution of these proceedings. The November 2023 proposal is as follows: The respondent to retain the benefit of its order for possession and the first appellant to make payments of €400 per month subject to: (1) a stay of execution unless the first appellant failed to make three consecutive monthly payments of €400; (2) the current arrears would be warehoused, it being noted that the property was in positive equity; and (3) each party would bear their own costs. 21. The proposal regarding a stay completely ignores the fact that the order for possession had already been executed and, consequently, that the appellants were in occupation of the property as trespassers. The offer to pay €400 per month meant, in reality, that the first appellant’s indebtedness on foot of her loan, then standing at circa €280,000, would not be cleared for nearly 60 years. Even allowing for the warehousing of the arrears, when interest is added to the outstanding sums, the period before the loan would be cleared is more like 70 years. 22. That proposal was formally rejected by the respondent in a letter dated 16 th November 2023 which stated as follows: – “For the reasons set out in our letter to you of 05 October 2023, our client is not agreeable to the proposals set out in your letter. Your client’s loan account has been in arrears since September 2009 and no payments have been made to the loan account - 11 - since December 2019. The arrears outstanding on your client’s loan account currently stand at €118,490.75 with the total balance due on the loan account of €288,010.70. Our client obtained an Order for Possession in February 2022 which was duly executed by the Monaghan County Registrar. Your client has had ample opportunity to resolve the very significant arrears on her loan account. These proceedings and the application listed before the Court on 22 November 2023 concern your clients’ trespass on the property and our client is entitled to the Orders sought by it. We would also note that our client has incurred significant costs as a result of your client's actions since the Order for Possession was executed and our client is similarly entitled to the costs of its application.” 23. Subsequent to the High Court judgment but before the appeal was heard, the appellant filed a further affidavit in January 2025 exhibiting a formal valuation of the property in the sum of €420,000. She claims not to understand why the property was valued at €180,000 in her prescribed financial statement less than two years earlier. She also exhibited the defence and counterclaim filed on the appellants’ behalf in the substantive proceedings, as she put it, challenging whether the respondent had acted in breach of any Braganza duty applicable to the mortgage. 24. The respondent points out that the terms of the Braganza clause which the appellants claim should be implied into the mortgage are expressed differently in the defence and counterclaim than in the Notice of Appeal and first appellant’s affidavits. What is contended for is that the “the mortgage and/or any lawful mortgagee in possession” is subject to a Braganza duty “including that where any discretion was to be exercised under the mortgage any such discretion should not be exercised in bad faith and/or arbitrarily and/or capriciously and/or irrationally and/or should exclude all extraneous considerations and/or take account - 12 - of all relevant considerations”. Alternatively, it is pleaded that it was an implied term in the mortgage that the respondents would provide the first appellant “with a reasonable opportunity to save the Property and her family home”. Strong Case for the Orders Sought 25. The Notice of Appeal contains a ground to the effect that the trial judge erred in considering that the respondent had made out a strong case for the orders sought. This ground does not feature in the summary of the issues to be decided on the appeal in the appellants’ written submissions and was not the focus of any legal argument. Further, the trial judge’s finding that the respondent had made out a strong case (at paragraph 15 of his judgment) is immediately followed by the words “not just an arguable one” thereby indicating that it was the latter, lower threshold the respondent was obliged to meet and not the higher “strong case” standard. Before addressing the Braganza issues, it may be of assistance to briefly address the threshold to be met by the respondent as the applicant for interlocutory relief. 26. The respondent seeks relief as a mortgagee-in-possession to restrain the appellants’ continuing trespass in the property. As the appellants are not in lawful occupation of the property, those orders are properly characterised as being prohibitory rather than mandatory in nature. Consequently, the threshold the respondent must meet is whether its proceedings raises a fair question to be tried (per O’Donnell J. in Merck Sharp and Dohme v. Clonmel Healthcare [2020] 2 IR 1, [2019] IESC 65) rather than the higher test of a “strong case likely to succeed at trial” (per Fennelly J. in Maha Lingham v. HSE [2006] 17 ELR 137, [2005] IESC 89) which applies when a mandatory injunction is sought. While the case law relating to interlocutory injunctions usually uses the language of a “fair issue” rather than an “arguable case” (which is the language used in respect of the grant of leave in judicial review cases), both represent a - 13 - standard which is appreciably lower than a “strong case”. It necessarily follows from the trial judge’s finding that a strong case had been established that the lower threshold was also met. 27. Consequently, even if the trial judge erred in finding that a strong case had been established, it would not necessarily mean that his overall analysis was incorrect. This is because the real dispute between the parties is not the strength of the case made by the respondent but rather that of the case made by the appellants in response to it. If the respondent has raised a fair issue to be tried, the focus properly shifts to a consideration of the case made by the appellants in reply. The question of whether the respondent’s case was a strong one (as distinct from just raising a fair issue) would not be relevant until perhaps the court came to consider the balance of justice. In passing, I note that the parties did not address the standard the case presented by the appellants must meet in response to the fair issue raised by the respondent. The appellants framed their legal issues in terms of asking whether there was a “serious issue” to be tried regarding the Braganza points and the respondent did not take issue with this. Consequently, I will treat this as the applicable standard for the purpose of the following analysis, but as will become evident, nothing really turns on this. 28. I am not persuaded the trial judge was wrong to conclude that the respondent had made out a strong case. There was no dispute as to the loan, the mortgage or the arrears, all of which were documented in evidence by the respondent. As the trial judge observed, an order for possession had been duly obtained and lawfully executed. In granting the order for possession, the Circuit Court was required to be satisfied that the respondent had complied with the CCMA and there was evidence of the positive attempts made by the respondent to engage with the borrowers regarding their indebtedness. The first appellant’s replying affidavit admitted that she had returned to the property after her eviction and was currently occupying it with her children. While she contends that she has been treated unfairly, she does not dispute that she - 14 - is prima facie a trespasser. In those circumstances it is unsurprising that the trial judge reached the conclusion that the respondent had made out a strong case to be entitled to the relief that it sought. 29. The real issue on this appeal is, as it was before the High Court, whether the arguments made in reply by the appellants raise a serious issue so as to disentitle the respondent to the interlocutory relief to which, prima facie, it would otherwise be entitled. This is of course subject to the obligation of the court to consider whether the balance of justice favoured the grant of an interlocutory injunction, a point to which I will return. The Braganza Issue – Introduction 30. The appellants’ Braganza argument has two limbs. First it is contended that a term or terms should be implied into the contract of loan and mortgage between the parties which would require the respondent to treat the first appellant fairly and to entertain any reasonable proposals made by her. As noted, the precise parameters of this implied term vary between the Notice of Appeal and the defence and counterclaim but in both formulations, emphasis is placed on the fact that the property is a family home and the contention that the first appellant should be afforded a reasonable opportunity to save it. On the assumption that such a term should be implied, the second limb requires the appellants to establish that the respondent failed to comply with the duties thereby imposed. 31. I propose to look at the judgment in Braganza and then at the extent to which it has been adopted into Irish law. I will then consider the basis on which the appellants contend that the respondent is in breach of its Braganza duties. However, before doing so I will briefly address whether the trial judge erred in seeming to proceed on the basis that once an order for - 15 - possession was executed the first appellant did not retain “any legal or equitable interest in the property” (para. 16 of the judgment). The reference to the trial judge “seeming” to proceed on this basis is deliberate. At paragraph 22 of the judgment the matter is put more precisely by him: “they have no legal or equitable interest in the property which would entitle them to possession”. Similarly at paragraph 24 he states: “[the] defendants have not established an arguable case that they have a legal or equitable claim to possession of the property”. 32. Consequently, although the appellants are correct in saying that the execution of the order for possession did not extinguish the first appellant’s (and her ex-husband’s) title to the property, it is evident from paras. 22 and 24 that the trial judge was focused on whether they had any continuing entitlement to possession, which it is clear they did not. In any event, once the order for possession was executed the respondent became a mortgagee-in-possession. A mortgagee-in-possession may sell the mortgaged property and in this case the mortgage deed included an express power of sale. In circumstances where property is sold by a mortgagee- in-possession, the interests of the registered owner are over-reached and converted into rights attaching to the proceeds of sale. Obviously, no sale has yet taken place, but it is nonetheless useful to appreciate the nature of the first appellant’s rights vis-a-vis the property at this stage, particularly in the context of the proposal made by her. In the circumstances I am satisfied that the trial judge did not proceed on an erroneous understanding of the nature of the first appellant’s interests in the property. Braganza v. BP Shipping Ltd. 33. Braganza concerned the rights of surviving family members to a death-in-service benefit in respect of an employee who had died while serving aboard a vessel owned by the defendants. Under the terms of his contract of employment, payment of that benefit was excluded if “in the - 16 - opinion of the company” the death resulted from the employee’s “wilful act, default or other misconduct”. The employee disappeared overnight whilst the vessel was mid-Atlantic and was presumed to have gone overboard. The issue was whether this was deliberate or accidental. An investigation carried out by the company concluded, for various reasons, that the most likely scenario was suicide. The report of the investigation was forwarded to the general manager who formed the opinion, based only on the report, that the death was due to “wilful default” and, thus, that the benefit was not payable. The widow sued in contract. 34. The parties were agreed that the opinion formed by the employer had to be reasonable in the sense in which that expression is used in Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233 and that the burden of proving it was reasonable lay on the employer. Lady Hale, who delivered the principal judgment of the UK Supreme Court, identified the issue as being the proper approach to be taken by a contractual fact-finder in order for the resulting decision to be a reasonable one. Lord Hodge, in a concurring judgment, put the issue as follows: “when is the court entitled to intervene in the exercise of a contractual discretion?” (para. 51). Lady Hale saw the issue arising in the particular context of “contractual terms in which one party to the contract is given the power to exercise its discretion, or to form an opinion as to relevant facts”. She acknowledged that the party charged with making a decision affecting the rights of both parties to the contract “has a clear conflict of interest”, especially where there is an imbalance of power between the parties as is typically the case in an employment contract. 35. In examining the existing case law, Lady Hale pointed out that Wednesbury unreasonableness comprises two separate limbs, one looking at the decision-making process (whether the decision-maker had considered all relevant material and excluded irrelevant material) and the other at the outcome of that process (whether the conclusion was so - 17 - unreasonable that no reasonable decision maker could have reached it). There was some discussion as to whether rationality and reasonableness are the same thing. Lord Sumption in Hayes v. Willoughby [2013] UKSC 17, [2013] 1 WLR 935 had identified a difference as follows: – “Rationality is not the same as reasonableness. Reasonableness is an external, objective standard applied to the outcome of a person's thoughts or intentions… a test of rationality by comparison, applies a minimum objective standard to the relevant person's mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse”. This linguistic distinction is not one evident in the Irish jurisprudence where the words unreasonable and irrational (and their antonyms, reasonable and rational), have long been used interchangeably. Notwithstanding this, when exercising their judicial review jurisdiction Irish courts clearly take a different legal approach to the examination of the decision-making process than to the examination of any decision made as a result of that process. 36. The proposition that a term limiting the employer’s contractual discretion should be implied into the contract was not disputed by the parties and was supported by a number of earlier decisions. The general thrust of these authorities was that any contractual discretion had to be exercised honestly and in good faith, for the purposes for which it was conferred and not arbitrarily, capriciously or unreasonably (for example per Leggatt L.J. in Abu Dhabi National Tanker Company v. Product Star Shipping Ltd (No. 2) [1993] 1 Lloyd’s Rep 397 at p. 404; Rix L.J. in Socimer International Bank Ltd v. Standard Bank London Ltd (No.2) [2008] - 18 - EWCA Civ 116). Her review of these cases led Lady Hale to observe as follows (paras 30 to 32 of the judgment): – “It is clear, however, that unless the court can imply a term that the outcome be objectively reasonable – for example, a reasonable price or a reasonable term – the court will only imply a term that the decision-making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose. For my part I would include both limbs of the Wednesbury formulation in the rationality test… But whatever term may be implied will depend on the terms and the context of the particular contract involved… However, it is unnecessary to reach a final conclusion on the precise extent to which an implied contractual term may differ from the principles applicable to judicial review of administrative action. Given that the question may arise in so many different contractual contexts, it may well be that no precise answer can be given. The particular context of this case is an employment contract, which, as Lord Hodge explains, is of a different character from an ordinary commercial contract. Any decision-making function entrusted to the employer has to be exercised in accordance with the implied obligation of trust and confidence. This must be borne in mind considering how the contractual decision-maker should approach the question of whether a person has committed suicide.” 37. Lord Hodge pointed to potentially different levels of scrutiny applied by courts depending on the nature of the contractual decision in issue, saying (at para. 57): – - 19 - “… The courts have reviewed contractual decisions on the grant of performance- related bonuses where there were no specific criteria of performance or established formulae for calculating a bonus. In such cases the employee is entitled to a bona fide and rational exercise by the employer of its discretion. The courts are charged with enforcing that entitlement but there is little scope for intensive scrutiny of the decision- making process. The courts are in a much better position to review the good faith and rationality of the decision-making process where the issue is whether or not a state of fact existed, such as whether an employee’s wilful act caused his death. The decision of the employer is not a judicial determination and the court cannot expect judicial reasoning. But I see no reason why an employer's decision-making should be subject to scrutiny that is any less intense than that which the court applies to the decision of a public authority which is charged with making a finding of fact.” 38. Lady Hale ultimately concluded that the employer’s decision that the employee had committed suicide was unreasonable in the Wednesbury sense, a conclusion with which Lord Hodge agreed. Lord Neuberger, in a dissenting judgment, disagreed as to the outcome but agreed with Lady Hale that the decision of a contractual decision maker should be reviewable by the courts on the same Wednesbury criteria as decisions of the Executive. 39. A number of observations can be made in relation to Braganza. There is no doubt it supports the implication of a contractual term that discretion provided for under a contract shall be exercised fairly and reasonably and that the exercise of such discretion is subject to review by the courts as a failure to comply with the implied term will be a breach of contract. However, much of the analysis in the case is predicated on the fact that the contract in issue was an employment contract subject to an obligation of mutual trust and confidence between the parties, an obligation which is not routinely implied into other commercial - 20 - contracts. Further, the judgments acknowledge that the extent to which such a term will be implied will depend on the nature of the contract and the particular contractual context. 40. Importantly, the judgments, especially that of Lady Hale, frame their analysis in the context of an implied duty applying to the exercise of a contractual decision-making power or of a contractual discretion. This seems to envisage that the terms of the contract will expressly provide either that some decision will fall to be made on a discretionary basis by one party if particular circumstances arise, or that some consequence will automatically follow if the contractual decision maker decides that particular circumstances have arisen. The courts will only intervene if the exercise of the discretion (i.e., the decision) is challenged as being in breach of contract. This is potentially significant as regards the application of the Braganza principles to a mortgagee seeking possession and, thereafter, acting as a mortgagee-in- possession. Although the respondent in this case “decided” to enforce its contractual security by seeking possession, the actual decision to grant an order for possession was one made by the Circuit Court, not by the respondent. Whether it was fair and reasonable for the respondent to act upon an order granted to it by a court is necessarily a materially different question to whether a party to a contract has acted fairly and reasonably in circumstances which do not have the imprimatur of a court decision. O’Sullivan v. HSE 41. The Braganza principles were adopted and approved in this jurisdiction by the Supreme Court in O’Sullivan v. HSE [2023] IESC 11. Like Braganza, this was an employment case. It involved a senior doctor who had been placed on administrative leave for the purposes of an investigation into allegations that he had conducted clinical trials on patients without their knowledge or consent. Under the terms of the doctor’s contract he could be placed on leave - 21 - where it appeared to the CEO that by reason of his conduct there was an immediate and serious risk to patient safety, health or welfare. During the investigation the CEO received a report from a medical expert which stated that, in the expert’s view, the doctor did not pose a serious risk to patients. The doctor challenged both the initial suspension and the failure to review the suspension following receipt of the expert’s report on Braganza grounds. The High Court upheld the suspension; the Court of Appeal overturned it on appeal. In the Supreme Court, O’Donnell C.J. noted that the parties did not dispute that the approach taken by the UK Supreme Court in Braganza was the correct standard. He summarised the standard (at paragraph 25): – “In Braganza, it was held that it was not sufficient that the CEO should be of the relevant opinion stipulated by the contract. The discretion of the decision-maker was limited as a matter of necessary implication ‘by concept of honesty, good faith and genuineness and the need for absence of arbitrariness, capriciousness, perversity and irrationality’”. At a later point O’Donnell C.J. described Braganza as the “introduction of familiar administrative law criteria in the shape of Wednesbury unreasonableness (or in this jurisdiction State (Keegan and Lysaght) v. Stardust Victims Compensation Tribunal [1986] IR 642) into what is otherwise a contractual context”. He continued: – “This does not mean that the decision is a hybrid of public law and private law, it is merely that the contractual discretion is limited as a matter of necessary implication by a requirement that a decision will not be unreasonable in the Wednesbury sense i.e., that it will not be a decision that no reasonable decision-maker could arrive at. The parties could in theory exclude that implication, or indeed, set a higher standard. The - 22 - reference to Wednesbury is only to identify a recognised standard for irrationality and does not impose the elaborate analytical machine of modern judicial review.” 42. Dunne J. also considered the issue in some detail. Having quoted extensively from the decision of Lady Hale in Braganza she went on to observe (at paragraph 87): – “The decision in that case is a useful analysis of the approach to be taken by a decision- maker. Although that was a case that arose in the context of a private law situation, nevertheless some of the principles that apply in an administrative law setting were applied, having regard to the nature of the exercise of the discretion at issue in the context of the terms of employment in that particular case. That such an approach is appropriate is all the more so in a case such as this involving a contract such as the consultant contract which has elements of private law and administrative law in its operation. Thus, one can see that in considering the decision of the CEO in a case such as this where a discretion is to be exercised, that discretion should be exercised in a manner that first of all is carried out in good faith, the decision should also be one which is neither arbitrary, capricious or irrational, and further, as was stated in Braganza, it follows that such a decision could be impugned, not only where it was one that no reasonable decision maker could have reached, but also where the decision- making process had failed to exclude extraneous considerations, which take account of all obviously relevant ones.” Dunne J. went on to conclude (at paragraph 116) that the decision of the CEO to suspend the doctor and to recommend his dismissal were lawful having regard to the Braganza standard as the actions of the CEO were “not arbitrary, capricious, perverse or irrational, in light of the circumstances of the alleged misconduct and all of the evidence available to him.” - 23 - 43. There is no doubt in light of O’Sullivan that Braganza forms part of Irish law and indeed it has been applied in subsequent cases (see, for example, Egan J. in Rajpal v. HSE [2024] IEHC 70). The issue here is the extent to which it applies, if at all, outside of the employment context and, in particular, to the respondent as mortgagee-in-possession in the circumstances of this case. The Position of the Parties on Braganza 44. The appellants did not really develop their Braganza argument in the sense of teasing out whether or why a duty to act fairly and reasonably should be implied into the contract of loan and mortgage between the parties after an order for possession has been obtained and executed. Instead, the appellants rested on the proposition that once they had raised a serious issue as to the application of Braganza that would be sufficient. Indeed, the written legal submissions identify the issue as being how a mortgagee is obliged to treat borrowers once they have obtained orders for possession of the family home, without acknowledging that in this case the order for possession had also been executed nor factoring in the consequences that might flow from the fact that the appellants are now trespassers on the property. 45. On the premise that the case concerns the duty of a mortgagee after an order for possession has been obtained, the appellants dispute the trial judge’s view that that there was no obvious basis to imply a term to the effect that the respondent was obliged to continue to negotiate after it had taken possession or that there could be any ongoing duty to negotiate after an order for possession has been executed (paragraph 16 of the judgment). They also took issue with the trial judge’s view in the same paragraph that “it is difficult to see any possible basis for imposing a relevant implied term that went beyond the Code of Conduct obligations”. - 24 - 46. The appellants relied on two additional cases in support of the proposition that a term should be implied into their contracts that they should be given a reasonable opportunity to save their family home. I cannot see that Bournemouth and Boscombe Athletic Football Club Company v. Manchester United Football Club Limited (Unreported 21st May 1980) is in any way relevant to this case. There, a footballer had been transferred on terms which left over payment of part of the transfer fee until the player had scored 20 goals for Manchester United. The manager who had purchased the player was replaced and the new manager, who did not see a place for the player in his chosen lineup, opted to sell him. He duly did so just two months after taking over, thus depriving the player of the opportunity of scoring 20 goals. In those circumstances, Lord Denning M.R. held that it should be implied as a necessary term of the contract that the player be afforded a reasonable opportunity of scoring 20 goals. By transferring the player so quickly, Manchester United had breached that term. 47. The trial judge (at paragraph 7 of his judgment) noted that the principles governing the implication of terms into contracts, as summarised by Finlay Geoghegan J. in Flynn v. Breccia [2017] IECA 74, had not been met in this case. These include a condition that the implied term be necessary to give business efficacy to the contract such that the term will not be implied if the contract is effective without it and that “reasonable people in the position of the parties would all have agreed to make provision for the contingency in question”. There is no appeal against the trial judge’s findings in this regard. Presumably this is because Braganza does not proceed on the basis that the parties would have expressly agreed a term of the type in question or that such term would be required to give business efficacy to the contract. Instead, the rationale for the imposition of a Braganza term is more general, i.e. that the parties to a contract should act fairly and reasonably in exercising the terms by which they have chosen to be bound and that the weaker party should not be unfairly disadvantaged by clauses which reserve a discretion or decision-making power to the stronger party. - 25 - 48. In formal terms the final payment of the contract price in Bournemouth v. Manchester United was contingent on a certain performance standard being reached and, in order to give the contract business efficacy, the player had to be given a reasonable opportunity of reaching that standard. If the appellants’ case was that they had been denied a reasonable opportunity to comply with their obligations under the contract of loan (and thereby save their family home) the case might be of some relevance. However, their case is that they should have been afforded a reasonable opportunity to negotiate different terms in circumstances where they have been in breach of the terms of the original contract for well over a decade. There is simply no comparison between the two scenarios which would allow a useful analogy to be drawn. 49. The appellants also rely on the statement of Baker J. in Ryan v. Danske Bank [2014] IEHC 236 to the effect that “the Bank had an obligation to act fairly and professionally and indeed honestly towards the plaintiff” (paragraph 26). Taken in isolation the quotation is apt to mislead. Baker J. immediately followed this statement by pointing out that “the Bank’s primary right in regard to its security interest is expressly described in the security documentation itself, namely a right on the giving of demand to enforce the security…”. She rejected the contention that the plaintiff was entitled to be consulted on the loans or on the appointment of the receiver or had a right to be heard or that the bank was obliged to engage with him in relation to these matters. Although Baker J. accepted that the law would import into the relationship of mortgagee and borrower “a duty to act in good faith”, she did not accept that the specific obligations contended for could be said to arise as a matter of contract. 50. Baker J. relied in turn on the decision of Finlay Geoghegan J. in Irish Bank Resolution Corporation v. Morrissey [2013] IEHC 208. Finlay Geoghegan J. rejected an argument that the court should review the reasonableness or fairness of a bank’s decision not to extend credit facilities on the basis that the arguments made to her appeared “directed to public law - 26 - principles which do not apply”. Finlay Geoghegan J. also noted that it was “well established that the courts must be extremely cautious about implying terms into a commercial agreement”. The High Court judgment cites both of these cases along with O’Flynn Construction [2014] IEHC 458 where Irvine J. rejected the proposition that obligations to act fairly and reasonably could be implied into banking/commercial contracts. 51. On one level these cases could be seen as part of a strong line of authority which resists the implication of Braganza-type duties into commercial contracts including, specifically, contracts of loan and related security agreements. However, it should be noted that each of these judgments predates Braganza and, necessarily, predates the adoption of Braganza by the Supreme Court in O’Sullivan v. HSE. It may be that the limits of the Braganza duty will be found to have been reached in the types of circumstances covered by these cases. However, I do not think that this can confidently be stated on an interlocutory basis and without full consideration of whether, in light of Braganza, implied duties going beyond a general obligation to act in good faith, fairly and honestly, will apply to lenders and mortgagees. 52. I will return to the respondent’s principal response to the Braganza point, namely that if the allegation that the appellants had not been treated fairly had any merit, it should have been raised before the Circuit Court when the order for possession was applied for and granted and it was now too late to do so. More generally, the respondent distinguished between cases where a discretion falls to be exercised under a contract and the exercise of absolute contractual rights, such as the right to enforce a mortgage provided as security in the event of default in other contractual obligations. Counsel referred to a recent decision of Chief Master Marsh of the UK High Court in UBS AG v. Rose Capital Ventures Ltd [2018] EWHC 3137 (Ch) which summarises the limits of the Braganza principles based on subsequent case law. Paragraph 49 of this judgment is as follows: – - 27 - “I draw from these authorities the following principles: (1) It is not every contractual power or discretion that will be subject to a Braganza limitation. The language of the contract will be an important factor. (2) The types of contractual decisions that are amenable to the implication of a Braganza term are decisions which affect the rights of both parties to the contract where the decision-maker has a clear conflict of interest. In one sense all decisions made under contract affect both parties, but it is clear that Baroness Hale had in mind the type of decision where one party is given a role in the ongoing performance of the contract; such as where an assessment has to be made. This can be contrasted with the unilateral right given to one party to act in a particular way, such as the right to terminate a contract without cause. (3) The nature of the contractual relationship, including the balance of power between the parties is a factor to be taken into account:… Thus, it is more likely for a Braganza term to be implied in, say, a contract of employment than in other less ‘relational’ contracts such as mortgages. (4) The scope of the term to be implied will vary according to the circumstances and the terms of the contract.” 53. Needless to say, counsel relied on the reference to a mortgage as a less ‘relational’ contract likely to fall outside the scope of the Braganza principles. In response to the emphasis placed by the appellants on the fact the property is a family home, the respondent contended that there was no authority to suggest different principles would apply to residential and commercial property. Counsel argued that the “imbalance of power” between contracting parties referred to by Lady Hale related to an imbalance at the point the discretion is being - 28 - exercised rather than to an inequality in their positions more generally. I am not convinced that this is correct. It may well have some bearing where the parties are otherwise in roughly equivalent positions, but imbalance is mentioned by Lady Hale as something typical of employment contracts generally rather than as something specific to the particular decision- making power and the circumstances in which it fell to be exercised, which was at issue in Braganza. 54. More significantly, the respondent pointed to the fact that in obtaining and executing an order for possession it was not exercising any discretionary power to make a decision under the contract between the parties. The order for possession was granted by the Circuit Court and the execution order by the County Registrar. Consequently, to the extent that any Braganza-type duties might be implied into the contracts (and the respondent did not concede that they should be), it was contended that this situation was well past that point. The respondent is suing as mortgagee-in-possession seeking to eject the applicants who are trespassers. As trespassers, they do not have and are not exercising contractual rights. In that context it was contended that much of the detail of the original contracts between the parties is now irrelevant. Discussion and Analysis 55. The appellants’ assumption that Braganza-type duties can or should be implied into the contract of loan and mortgage overlooks a number of problematic factors. Whilst the limits of Braganza have not yet been firmly defined, the principles are most readily applicable where the terms of the contract expressly confer a discretion or a decision-making function on one party. If a Braganza term is implied, the courts may then review the exercise of the contractual discretion to ascertain if the implied term has been breached. It is less clear that Braganza - 29 - provides a jurisdictional basis for courts to generally supervise the behaviour of contracting parties. 56. No authority was opened to the court to suggest either that a Braganza-type duty would apply to the decision of a party to seek to enforce a contractual obligation nor to the subsequent decision to enforce a court order obtained against the other party to the contract. In both of those situations, the decision as to the rights and entitlements of the parties to the contract will ultimately be made by a court, not by either party. It would represent a very significant shift in the law if the execution of court orders in cases founded on contract and the consequences which normally flow from them were to be made the subject of an additional obligation to act fairly and reasonably and an additional layer of review by the courts questioning whether it was fair or reasonable for a court order to be enforced. If such duties are to be implied into mortgage contracts, it would no doubt have a significant effect on the willingness of lenders to accept such mortgages as security. 57. Further, once the respondent obtained and executed the order for possession, it is unclear the extent, if any, to which the relationship between the parties vis-a-vis the property could properly be characterised as being the subject of a contract between them. Undoubtedly, the underlying loan contract still subsists, as does the first appellant’s liability on foot of it. However, when a mortgagee obtains possession, this marks a major change in the relationship between the parties and in their relationship to the property. Consequently, there is merit in the trial judge’s comments that there is no basis for asserting the existence of a continuing contractual obligation to negotiate after possession has been secured. 58. However, even as I make these observations, I am conscious that this is a judgment on an appeal from the grant of an interlocutory injunction. Thus, the question is not whether the appellants will ultimately succeed in establishing that a Braganza-type duty should be implied - 30 - into their contract of loan and mortgage. Rather the question is whether they have established a sufficiently serious issue that such term should be implied to offset the fair question raised against them by the respondent regarding their trespass in the property. In that limited sense, I am satisfied that the appellants have met that hurdle. The point they make is patently not unstateable, although it may well be more complex and difficult than their current characterisation of it suggests. The arguments made by the respondent in reply seem to offer a strong counter-vailing rationale as to why such terms should not be implied but again, their strength might not withstand scrutiny at a fully contested trial. Breach of the Braganza Duties? 59. However, that is not the end of the matter. At para. 30 of this judgment I identified that the Braganza argument had two limbs. The first is the contention that a term should be implied into the contract of loan and mortgage and, as I have just held, I am satisfied that the appellants have raised a serious issue in this regard. However, the second limb requires the appellants to establish that, in the event that such a duty exists, the respondents have failed to comply with it. It may seem counterintuitive to hold that the respondent has complied with a contractual term the existence of which it disputes. Nonetheless, as the term is one which is designed to allow the courts to review the reasonableness of decision-making processes provided for under contract, it is possible for the court to be satisfied that the respondent has acted reasonably even though the respondent does not accept that it was contractually bound to do so. 60. The appellants complain generally that the first appellant was not treated fairly or reasonably in the process which led to the granting of an order for possession against the borrowers and the subsequent execution of that order. They also complain more specifically that the respondent acted unfairly and unreasonably in failing to engage with the proposal made - 31 - by the first appellant on 10th November 2023. It is of some significance that a proposal of this nature was only made after the order for possession had been obtained and executed and after the respondent had issued trespass proceedings against the appellants. 61. The following analysis assumes that Braganza-type terms of some sort will be implied into the contracts between the parties. It should be borne in mind that such a term does not impose a general obligation that the respondent act impartially in the exercise of its security. Rather the standard to be applied is that of Wednesbury/ Keegan v. Stardust unreasonableness. Thus, to succeed in a breach of contract action, the appellants must establish that the respondent’s decisions were based on irrelevant material or that relevant material was not considered or that the respondent’s decision was so perverse that no reasonable lender holding an equivalent security could have made the same decision. In O’Sullivan v. HSE, where a Braganza clause was implied into the employee’s contract of employment, Dunne J. applied the standard by asking whether the employer had acted arbitrarily, capriciously, perversely or irrationally. At this interlocutory stage it is not necessary to show that a breach of contract action framed in these terms will definitely succeed, but there must be some reasonable evidential basis for contending that it might. 62. In my view, there is absolutely no basis for contending that the first appellant and her ex- husband were treated unfairly by the respondent as regards their indebtedness. The material exhibited by the respondent shows persistent attempts made by it over a period of five years to engage with the borrowers regarding their indebtedness. It seems that those attempts were effectively ignored. Much of the exhibited correspondence emanating from the respondent is expressly stated to have been issued to the borrowers in compliance with the Central Bank’s CCMA. The appellants do not dispute that the CCMA was complied with but appear to take issue with the trial judge’s view that it would be difficult to characterise a lender as acting - 32 - unreasonably if it is complying with the CCMA. Whilst I do not exclude the possibility that wholly exceptional circumstances may arise where a lender complying with the CCMA might nonetheless act unreasonably, as a general proposition the trial judge’s view is correct and there is no evidence before the court to suggest that this is such an exceptional case. 63. It is interesting to note that the matters to which the first appellant refers in her various affidavits as potential solutions to her indebtedness, namely the personal insolvency process and the Mortgage to Rent scheme, are matters which were brought to her attention by the respondent as long ago as 2017. I have set out earlier in this judgment the sequence of correspondence from the respondent in which an ARA was offered (and refused) and the borrowers were advised that they might benefit from consulting with MABS or with a personal insolvency practitioner or by availing of the Mortgage to Rent scheme. No fault can be attributed to the respondent because the appellant did not seek to engage with any of these services or avail of any of these schemes until after an order for possession had been granted and executed. 64. I accept that the appellant may have been in a difficult marriage, but she does not suggest that this was brought to the respondent’s attention at any point prior to the execution of the order for possession. Clearly, no allowance can be made by the respondent for facts of which it is unaware. Even so, it is difficult to see how the first appellant’s marital circumstances would impose an obligation on the respondent to waive its security so that she can remain in the family home without repaying her loan. Notably, the first appellant does not provide any information on the whereabouts or financial status of her ex-husband, who is both a borrower and a registered owner of the property. It is unclear if he is providing any support to her or their children or has the wherewithal to make any contribution to the repayment of the loan. - 33 - 65. Regard must also be had to the fact that this loan has now been in arrears for over 15 years and no payments at all have been made for in excess of six years. Any Braganza clause to be implied into the contract between the parties would have to require both parties to act fairly and reasonably, not just the respondent. Given the extent of the first appellant’s indebtedness, that no payments have been made over an extended period of time, her failure to respond to any of the respondent’s correspondence coupled with the fact that she re-entered and remains in the property as a trespasser, it cannot be said that in seeking to realise its security the first appellant herself has acted reasonably. 66. The argument made by counsel for the appellants, perhaps for obvious reasons, did not focus on conduct of the respondent prior to the execution of the order for possession. Instead, it focused on what he termed ‘the refusal’ of the respondent to engage with the proposal made on behalf of the first applicant on 10th November 2023. Because the respondent’s response of 16th November 2023 referred to its earlier correspondence of 5th October 2023, counsel characterises this as meaning that no fresh consideration was given to the offer made on 10th November. The appellants’ solicitor’s letter of 4th October 2023 has not been exhibited, and the court is not aware of the nature of the proposal made in that letter and the extent, if any, to which it differs from that made on 10th November. 67. In any event, it does not follow from the fact that both offers were refused for the same or similar reasons, that no consideration was given to the second of them. It is possible that the same factors weighed against the respondent’s acceptance of both proposals and the appellants certainly have not demonstrated that the two proposals were so materially different that they could only be rejected for discrete and different reasons. The letter of 16th November 2023 provides a detailed explanation as to why the respondent was not prepared to accept the proposal made by the first appellant. These reasons can be summarised as the extent of the - 34 - indebtedness coupled with the length of time for which the loan account has been in arrears, the ample opportunity the first appellant had to try and resolve the problem and the facts that the appellants are now trespassing on the property, that the respondents had to seek court orders and have incurred significant additional legal expense by reason of the appellants’ conduct. On the face of it, this rationale is not unreasonable and is amply supported by the evidence before the court. 68. It is also difficult to see how the proposal made by the appellants could be characterised as a reasonable one. Repayment of the loan at a rate of €400 per month would take between 60 and 70 years – that is between 80 and 90 years from the date the loan was granted. The only income disclosed by the first appellant in her prescribed financial statement was social welfare. It was indicated to the court that she also works as a cleaner, but no employer was identified, and it is unclear if this is secure and regular employment. In 2023, the first appellant averred that she could not drive which would significantly limit her employment prospects in a rural area. In short, there is little or no reality to her proposal and it looks extremely unlikely, if not impossible, that the loan can be repaid without the property being sold. Further, the proposal suggests that the respondent would keep the benefit of the order for possession but does not acknowledge that the order for possession has already been executed. It assumes that the appellants, who are now trespassers, would be permitted to remain in the property indefinitely subject only to the requirement that the first appellant not miss three consecutive €400 payments. 69. I accept that this analysis may seem somewhat harsh. I appreciate that the property in question is the first appellant’s family home in which, until relatively recently, she was lawfully residing with her two children. One of those children has since moved from home to attend university and the other is on the brink of leaving school. The unfortunate reality is that, - 35 - notwithstanding her attachment to the property, the first appellant is residing in a very substantial home which she cannot afford on her limited income. There is no realistic suggestion that her financial position is likely to change. 70. In the circumstances there is no basis for saying that if a Braganza-type duty applies, the respondent did not act fairly and reasonably in the steps it took regarding the borrowers’ indebtedness and in the enforcement of its security in respect of this loan much less that it acted arbitrarily, capriciously or perversely. Thus, even if a Braganza term is implied into the contract, the appellants have not made out an arguable case (mush less a serious issue) that such a term was breached and, therefore, have not reached the threshold necessary for the court to disregard the fact the respondent has established a fair issue to be tried which, subject to the balance of convenience, would normally entitle it to the grant of the injunctive relief sought. Henderson v. Henderson 71. The respondent argues that if there is a case to be made that it acted unreasonably in seeking an order for possession and thereafter in executing that order, these were arguments which should have been raised before the Circuit Court at the time the order for possession was applied for. The borrowers did not attend court on the day the possession hearings were heard and did not appeal the granting of an order for possession thereafter. The respondents rely on the decision of Murray C.J. in Re Vantive Holdings Ltd [2009] IESC 69, [2010] 2 IR 118 where he stated as follows: – “In the High Court and in this Court [the appellant] relied on the rule of estoppel in Henderson v. Henderson [1843] 3 Hare 100, but by way of analogy. In his judgment the learned High Court judge stated: - 36 - “The rule in Henderson v. Henderson is to the effect that a party to litigation must make its whole case when the matter is before the Court for adjudication and will not afterwards be permitted to re-open the matter to advance new grounds or new arguments which could have been advanced at the time. Save for special cases, the plea of res judicata applies not only to issues actually decided but every point which might have been brought forward in the case. In its more recent application this rule is somewhat mitigated in order to avoid its rigidity by taking into consideration circumstances that might otherwise render it imposition excessive, unfair or disproportionate.” Viewing it through the prism of estoppel and res judicata the rule in Henderson v. Henderson… strictly speaking applies to proceedings between parties where those proceedings determine the rights or obligations between those parties. It is intended, inter alia, to promote finality in proceedings and to protect a party from being harassed by successive actions by another party when the issues between them either were or could have been determined with finality in the first proceedings.” 72. The application of the rule in Henderson v. Henderson in the circumstances of this case is somewhat complex. Insofar as the appellants rely on an alleged failure to engage with a proposal made by the first appellant on 10th November 2023, this is something which could not have been raised before the court which granted the order for possession in February 2022. However, the implication of a Braganza-type term is certainly something which could have been raised at that stage, as could the general complaint that the respondent had not acted fairly or reasonably up to that point in seeking possession of the property. Consequently, the issue is whether the appellants should be precluded from contending that the alleged refusal to consider the November 2023 proposal is a breach of an implied contractual term because they - 37 - did not contend that different action on the part of the respondent constituted a breach of a similar implied term in earlier proceedings? In other words, must the appellants assert the existence of the implied term at the earliest opportunity notwithstanding that arguably stronger grounds for alleging its breach may arise at a later stage? 73. It is unnecessary to determine this issue in circumstances where I am satisfied that the appellants have not made out even an arguable case that any Braganza duties have been breached. That said, I would be slightly reluctant to preclude these arguments being raised by the first appellant in circumstances where she did not appear and was not represented at the time the order for possession was made because, she states, she had just emerged from an abusive marriage where her ex-husband maintained control of the family finances, the detail of which she was largely unaware. I fully acknowledge that a stronger evidential foundation would be needed to justify an exception from the general rule in Henderson v. Henderson on this basis but, for the reasons I have just set out, it is not necessary in the circumstances to decide this point. Balance of Justice 74. The respondent argues that the balance of justice clearly favours the making of an injunction in the circumstances of this case. It is both obvious and uncontroverted that the appellants are not in a position to meet any award of damages if interlocutory relief were to be refused. The basis for the making of the possession order was the default of the borrowers in repaying a significant outstanding debt. No repayments have been made since December 2019 and the amount outstanding continues to increase. The first appellant has not disclosed any income apart from social welfare. Further, the appellants are in unlawful occupation of the property and, as Allen J. observed in KBC v. McGann [2019] IEHC 667 quoting Keane J. in - 38 - Keating & Co. Ltd. v Jervis Street Shopping Centre [1997] 1 I.R. 512 (at p.518): “it is clear that a landowner, whose title is not in issue, is prima facie entitled to an injunction to restrain a trespass and that this is also the case where the claim is for an interlocutory injunction only.” 75. As against this the appellants rely on the fact that the property is, or was, their family home. They seek to distinguish Start Mortgages DAC v. Rogers [2021] IEHC 691 by disputing the validity of the subsequent transfer of the security by the respondent as mortgagee-in- possession because the first appellant did not consent to it (the party to whom the security was transferred has since been joined as a co-plaintiff to the proceedings and a co-respondent to this appeal). In my view, this is largely an irrelevancy. Even if the first appellant was required to consent to that transfer (and I am not finding that this was so), any defect in the transfer would not change the nature of the appellants’ current unlawful occupation of the property. They had been duly evicted from the property by the first respondent at a time prior to the transfer of title to the second respondent such that any defect in that transfer would not revive the first appellant’s entitlement to possession of the property. 76. The appellants also rely on the fact that the property is now in positive equity and indeed complain that the trial judge erred in treating it as being in negative equity. If the trial judge erred in this regard, it is entirely the fault of the first appellant. The only evidence before the High Court regarding the value of the property was the declaration in her prescribed financial statement that the property was worth €180,000 in May 2023. She now seeks to distance herself from that statement in light of the valuation provided in January 2025 which is over 100% greater than her original estimate. A cynical observer might note that the value given in May 2023 was sufficiently low for the property to be eligible for the Mortgage to Rent Scheme for which the first appellant is now no longer eligible since she no longer has lawful possession of - 39 - the property. I am however prepared to accept the valuation of the professional valuer and, consequently, accept that the property is now in positive equity. 77. I am not sure that this makes a material difference in circumstances where the first appellant is not in a position to make any meaningful repayments on the loan and has not made any payment for over six years. Property values can and do fluctuate such that, given that the debt will continue to increase in the absence of any payments, it cannot be guaranteed that the property will still be in positive equity relative to the amount that will be owed when the loan reaches maturity at the end of its term in 2032. In any event, the appellants do not appear to be suggesting that the fact there is positive equity in the property will permit the security to be redeemed at the end of the term of the loan, since their entire case is that this is a family home in which they wish to live, presumably indefinitely. Positive equity in the property does not of itself make damages an adequate remedy when there is no realistic prospect of the loan being discharged and the purpose of this litigation is to ensure that the security cannot be realised to discharge the sums due. 78. As I observed in Start Mortgages DAC v. Rogers (above) at paragraph 61: – “It cannot be the case that, if trespassers go into occupation of property, that occupation must be regarded as the status quo which the law should protect until it has been determined otherwise. In this case, the plaintiff as mortgagee-in-possession is prima facie the person entitled to possession of the property. Allowing the defendants to remain in the property while the plaintiff prosecutes the proceedings it has been obliged to take by virtue of the defendants’ unlawful actions would not be the maintenance of the status quo but rather the inversion of the status quo.” - 40 - Conclusions 79. In conclusion, there is nothing before the court which would enable me to conclude that notwithstanding the respondent’s position as mortgagee-in-possession, the least injustice in this case would be caused by permitting the appellants to remain in the property, as trespassers, pending the determination of the proceedings. Consequently, the appeal against the granting of an interlocutory injunction by the High Court will be refused and the injunction so granted will remain in force. 80. I appreciate that this is difficult for the appellants, and I am prepared to consider the imposition of a temporary stay and to allow for their orderly departure from the property. In circumstances where the Court was informed that the younger daughter, who resides with the appellant in the property, is doing school examinations I will stay the order granting the interlocutory injunction until Friday 24th July 2026 to facilitate the completion of such examinations and allow a short period thereafter for the appellants to organise their departure from the property. I will also direct that in addition to the two named appellants, the younger daughter Lucy Simpson, who is no longer a minor and who is a person in occupation of the property, be served with a copy of the order. 81. In circumstances where the appeal has been wholly unsuccessful and given the normal rule that costs should follow the event, I am provisionally of the view that an order for the costs of this appeal should be made as against the appellants in favour of the respondents. However, the parties will be afforded the opportunity to contend that a different costs order should be made. If either party wishes to do so, they may file written submissions (not exceeding 2,000 words) within 14 days of the delivery of this judgment and the other side will have a similar period within which to reply (again, limited to 2,000 words). In default of agreement between - 41 - the parties the court will adjudicate on the costs issue on the basis of the papers and the submissions lodged. 82. Whelan and Pilkington JJ. have read this judgment in advance of its delivery and have indicated their agreement with it and the proposed orders.