Mars Capital Finance Ireland DAC v Carty & Ors

THE COURT OF APPEAL CIVIL The President Approved/No redactions needed Pilkington J. Neutral Citation Number [2026] IECA 69 McDonald J. High Court Record No.2023/2092P Court of Appeal No. 2025/84 Between:- MARS CAPITAL FINANCE IRELAND D.A.C. Plaintiff/Respondent and PATRICK CARTY AND IDENA CARTY AND ANY PERSON IN OCCUPATION OF THE PROPERTY AT NEWTOWN, CAIM, ENNISCORTHY, IN THE COUNTY OF WEXFORD Defendants/Appellants JUDGMENT (on costs) of Mr. Justice McDonald delivered on 29th April 2026 1. This judgment deals solely with the issue of the costs of this appeal. It should be read with the substantive judgment delivered electronically on 18th March 2026 1 ([2026] IECA 40). The same abbreviations will be used in this judgment as those deployed in the substantive judgment. 2. As outlined in para. 2 of the substantive judgment, the appellants sought to raise four grounds of appeal. For the reasons explained in para. 21 of the substantive judgment, there was no factual basis to support the first ground of appeal. Moreover, it was not pursued in oral submissions at the hearing of the appeal. The third ground of appeal was pursued by the appellants at the hearing of the appeal but was rejected for all of the reasons discussed in paras. 22 to 27 of the substantive judgment. The appellants did not pursue the second and fourth grounds of appeal. By those grounds (in particular, the fourth ground), the appellants sought to draw a parallel between the facts and circumstances of the execution process undertaken in this case and the facts and circumstances of the execution process considered by the High Court and this Court in Start Mortgages v. Kavanagh. The fourth ground was added after the appellants were given liberty to amend their notice of appeal. Following that amendment, Mars delivered further affidavit evidence addressing this new ground. 3. As explained in para. 28 of the substantive judgment, at the outset of the hearing of the appeal, counsel for the appellants, very properly, indicated that, in light of the additional evidence placed before the Court by Mars in response to the amended notice of appeal, the appellants could no longer make the case that there were defects in the execution process of the kind discussed in Start Mortgages v. Kavanagh. Although the appellants decided not to pursue those grounds of appeal, counsel for the appellants nonetheless submitted that the appellants should be entitled to the costs of the appeal. Counsel argued that Mars should have placed this additional evidence before the High Court and that it had been constrained to place this evidence before this Court in order to plug the evidential holes which he 2 submitted had previously existed in Mars’ case. Counsel also argued that Mars should have placed such evidence before the High Court. 4. For the reasons explained in paras. 33 to 54 of the substantive judgment, the appellants’ application for costs was refused. In para. 53 of the substantive judgment, it was noted that no issue was raised in the High Court which mirrored the points discussed in Start Mortgages v. Kavanagh. Such issues were raised for the first time following the amendment of the notice of appeal. On that basis, it was held that it was clear that Mars had no need to adduce such evidence in the High Court. Furthermore, the point was made in para. 54 of the judgment that, after the appellants chose to raise this new point on appeal, they had been met with a comprehensive answer in the additional evidence placed by Mars before this Court. In raising these points on appeal, the appellants took the risk that such an answer might be forthcoming. The additional evidence was provided by Mars in October 2025 many weeks before the appeal was due to be heard on 16th December 2025. Yet, the appellants persisted in the appeal. They did not withdraw it. In all of these circumstances, it was held that it would be quite wrong to award the costs of either the High Court or of the appeal to the appellants. 5. Against the backdrop described above, the substantive judgment made clear that Mars was presumptively entitled to its costs of the appeal but the appellants were given liberty to deliver written submissions in support of any argument they might wish to make that there should be no order as to costs. Such submissions were delivered on behalf of the appellants on 1st April 2026 and replying submissions were delivered on behalf of Mars on 17th April 2025. 3 6. In their written submissions, the appellants accept that, under s. 169 of the Legal Services Regulation Act 2015 (“the 2015 Act”) the sequence of issues to be considered on an application for costs are: (a) Has either party been entirely successful; (b) If so, is there any reason why, having regard to the matters specified in s. 169(1)(a) to (g) of the 2015 Act, all of the costs should not be awarded to that party. 7. The appellants expressly accept that Mars has been entirely successful but they contend that this result “could only be reached [by] adducing evidence addition [sic] to the documents as they were before the High Court which were not adequate as proofs of compliance throughout the execution process including additional evidence regarding the execution as established by this court in Kavanagh”. I do not believe that this is consistent with the substantive judgment. In the first place, as outlined above, it had been highlighted in para. 53 of the judgment that the appellants did not raise these points before the High Court. Secondly, as noted in para. 54, by raising these points on appeal, the appellants ran the risk that a comprehensive answer might be forthcoming. Moreover, the evidence provided by Mars in response to the new points raised by the appellants on this appeal was made available well in advance of the hearing and, yet, the appellants did not withdraw their reliance on Start Mortgages v. Kavanagh until the opening of the appeal. In those circumstances, I cannot see how those matters can be advanced as a basis to resist the usual order that arises under s. 169(1) of the 2015 Act where Mars has been entirely successful in the appeal. 4 8. The appellants seek to improve their argument by saying that Mars did not invite them to withdraw the appeal but, in my view, that does not assist them. They were the appellants and they opted to continue the appeal notwithstanding the comprehensive answer they received in the affidavit evidence presented by Mars in October 2025. Moreover, they did not withdraw their first ground of appeal and they pursued their third ground of appeal even though there was no factual basis for their first ground and their argument on the third ground had previously been shown to be erroneous in the judgment of Noonan J. in Irish Life & Permanent plc v. Duffy [2017] IEHC 760 (addressed in paras. 22 to 26 of the substantive judgment). 9. The appellants also seek to make the case that, by raising points of a similar kind to those considered in Start Mortgages v. Kavanagh, they have given Mars the benefit of clarity on the issues which were of concern to the High Court and this Court in that case. They also suggest that there is a public interest in ensuring that, where “proceedings involving ejection from a dwelling are sought to be resolved summarily, for the Plaintiff's proofs both to be in order and seen to be in order”. In my view, those arguments are misconceived. In the first place, the appellants have not shown that such considerations fall within any of the factors identified in paras. (a) to (g) of s. 169(1). Secondly, the submission ignores the fact that their appeal failed on other grounds. As noted above, the appeal went ahead in any event on the basis of their first and third grounds of appeal, both of which failed. Thirdly, it could not be said that this was public interest litigation. It was litigation between private parties. As noted in para. 61 of the judgment, it is essential that the process of execution of court orders for possession of property should be carried out correctly. But, in my view, that does not alter the default position under s. 169(1) of the 2015 Act that a party who has been entirely successful in proceedings of this kind is 5 presumptively entitled to costs. Taken to its logical conclusion, the appellants’ argument would mean that a plaintiff seeking to enforce a court order for possession would never be entitled to costs even where the plaintiff shows that the execution process was carried out correctly. That would be a particularly perverse result in this case where it is clear that the appellants have failed to comply with the order for possession made by the Circuit Court as long ago as 6th December 2017 notwithstanding that the stay on execution of that order expired three months later. On the expiration of the stay, the legal effect of that order is that the appellants were required to vacate the property in issue. As noted in para. 6(h) of the substantive judgment, that order was not appealed. 10. For all of these reasons, I am of the view that, having been entirely successful in its appeal, Mars is entitled, as against the appellants, to an order for the costs of the appeal, such costs to be adjudicated in default of agreement. 11. Costello P. and Pilkington J. have confirmed that they agree with this judgment and with the order proposed above. 6