‘It’s Good To Talk’: High Court Clarifies Impact Of CCMA Engagement With Borrowers After Proceedings Commence

Introduction 

In a judgement delivered by Mr. Justice Barry O’Donnell on 22 June 2026, the High Court held that sending correspondence to a borrower pursuant to the Code of Conduct on Mortgage Arrears (CCMA) after possession proceedings are instituted does not, in itself, require a lender to then halt court proceedings or preclude a court from granting an order for possession if the lender does not pause the proceedings. 

Circuit Court Proceedings

In 2007, the defendants took out a mortgage. Subsequently around October 2013, the defendants stop making repayments. Pepper Finance Corporation (Ireland) DAC (“Pepper”), for whom RDJ acted, issued court proceedings in 2019. In the Circuit Court, Pepper was granted an order for possession of the defendant’s property. The borrowers then appealed this decision to the High Court. 

The Appeal

While a number of grounds of appeal were initially relied on, just prior to the hearing of the appeal the defendants stated they would be relying on one legal argument only, namely alleged non- adherence by Pepper to the CCMA. The appeal was treated as a de novo application and so the judge allowed the defendants to raise an issue on appeal which hadn’t been addressed in the Circuit Court. The Judge held that the new issue introduced at the eleventh hour could be adjudicated on having regard to affidavit evidence advanced in the Circuit Court proceedings. 

The impact of alleged non-adherence to the CCMA on the Courts’ ability to grant an Order for Possession has been addressed in a number of cases. The Supreme Court addressed the overall position of the CCMA in Irish Life and Permanent Plc v Dunne, where Judge Clarke noted that in essence the CCMA forms part of the law and it is mandatory for financial institutions to comply with it. 

The defendant’s argument centred around the fact that before the commencement of the proceedings in 2019 the Mortgage Arrears Resolution Process (MARP) had been completed by Pepper. However, in 2023, Pepper re-engaged the MARP process by sending correspondence to the defendants, which they said was in accordance with the CCMA, and that they were now treating the defendants’ situation under the MARP process. The correspondence mentioned, amongst others, that if the defendants didn’t contact Pepper, legal proceedings might be issued. The defendant’s argument was that Pepper shouldn’t have continued seeking possession after they re-engaged the MARP process and instead should have paused the court proceedings. 

Pepper submitted to the Court that they were entitled to move forward with the possession proceedings after the 2023 communication, as they had already completed all necessary steps under the CCMA before proceedings issued in 2019, and the subsequent letter was merely the lender continuing communication with the borrowers. 

In examining the previous decisions of the Superior Courts on the applicability of the CCMA, Judge O’Donnell held that they did not address directly the situation that arose in this case where the pre-commencement moratorium under the CCMA was observed, and where correspondence issued after proceedings had been commenced stated that the defendants’ situation was being treated under the MARP process and in compliance with the CCMA. 

The court held that if the parties had reached an alternative repayment arrangement (ARA) after the commencement of the proceedings, but the plaintiff did not place the proceedings on hold, that would be a reason to reject an application for possession. However, in this case where there was no obligation under the CCMA to tell the borrowers that they were being treated as being in the MARP process, there was a clear public policy objective in permitting some level of communication between the parties to see if the situation could be resolved. 

In summary, the Judge decided that where a lender (1) has complied with CCMA and (2) then commenced and sought to progress an application for possession, and (3) takes a step that is not mandated by the CCMA or that gives rise to any form of hold on proceedings, this should not lead to a court refusing a possession order. For these reasons, the court refused the appeal and granted the possession order. 

Importance of Decision

For lenders and loan servicers, this decision from the High Court positively affirms that continuing to engage with borrowers after proceedings are issued will not hinder lenders’ ability to seek possession orders unless some other factor exists that requires the lender to pause the proceedings. Such factors would include non-compliance with moratorium periods under the CCMA prior to commencement of proceedings or entering into an ARA with a borrower. 

Lenders and loan servicers should note that earlier this year the CCMA was consolidated into the modernised Consumer Protection Code (CPC) 2025. These new rules became legally effective in March 2026. It is the CPC 2025 that should be consulted as regards interactions with borrowers after 24 March 2026.

Footnote

1. [2016] 1 I.R. 92