Irish Supreme Court upholds restitution and rejects locus standi in civil claims

In Bank of Ireland Mortgage Bank v Brian Murray and Attracta Murray [2026] IESC 30, the Irish Supreme Court decided that restitutionary claims (claims to strip a recipient of an unjust enrichment) would succeed despite the fact that similar contractual reliefs were barred by statute.

It also decided that Irish law would not import the technical concept of “locus standi” from public law into civil proceedings where contractual rights had been assigned. The only question in Irish civil proceedings is whether a plaintiff has “sufficient title to sue” at the time when proceedings are commenced.

Facts

The Plaintiff, Bank of Ireland Mortgage Bank (BOI) lent monies to the Defendants, a fisherman husband and his wife from Killybegs, Donegal, secured on their family home. In 2013, BOI sought to recover the outstanding balance, including interest paid into the couple’s joint account. BOI obtained judgment in full against the wife for €202,233.02 (principal and interest), together with 50% of its costs. It then brought a claim for the same amount against the husband on a joint and several basis. The husband defended the claim on the basis of “non est factum”, arguing that the signature on the loan and security documents was not his.

First Instance – The High Court

The High Court[1] found that the husband had not signed the loan documentation. As a result, BOI could not succeed in its claim against him under the loan agreements, and the charge on the family home was void because there was no written consent from the husband as required by s.3 of the Family Home Protection Act 1976 (Ireland). However, the High Court also found that the husband was “not ignorant” of the couple’s exceptional purchases, which could only be explained by the loan monies. In those circumstances, BOI was entitled to pursue a claim in unjust enrichment (restitution) against him.

The Husband argued that a claim for unjust enrichment would circumvent the provisions of the Consumer Credit Act 1995 (Ireland). The High Court decided that as the advance was not a home loan, s.38 applied. This provides that a failure to comply with formalities is not fatal if a court considers it “just and equitable” to dispense with them.

BOI succeeded in its claim but limited to the principal outstanding.

Appeals

Both the Irish Court of Appeal[2] and the Irish Supreme Court dismissed the appeal and upheld the High Court’s judgment. In doing so, they set out general principles on the effect of assigning claims and judgments, and on the standing of original parties to bring claims. Two days prior to the Supreme Court hearing, BOI had agreed to transfer its loan book to Pepper Finance Corporation (Ireland) DAC, although this was only brought to the Supreme Court’s attention some months later.

The husband argued that BOI lacked “locus standi” (standing) to bring the claim, and both defendants sought to set aside the judgment on grounds that it constituted an abuse of process.

The Supreme Court

The husband argued that if the transfer agreement from BOI to Pepper had been disclosed, he might have argued that the transfer of the loan and/or the claim in restitution had the effect of removing any loss on the part of BOI and precluded it from bringing an unjust enrichment claim.

However, on the facts, the Supreme Court found that nothing in the transfer affected the underlying claim: the only issue was which party was entitled to pursue it.  It also found that reliance on locus standi points in civil litigation was misconceived, noting that the concept is more appropriately confined to public law claims.

Chief Justice O’Donnell held: “The only question in civil proceedings, is whether the plaintiff has sufficient title to sue… Here, the Bank undoubtedly had title to sue when it commenced proceedings, and indeed when the matter was appealed to this Court. Furthermore, as observed in argument, the Bank’s title had not been put in issue either in the proceedings, or in the appeal.”

The Supreme Court also found that both (i) a claim for unjust enrichment, and (ii) a judgment on such a claim were capable of being assigned. It also rejected any theoretical possibility of excessive recovery against defendants arising from claims by both an assignor and assignee against husband and wife. In such circumstances, appropriate credit would be given to one judgment debtor for any sums recovered from the other.

Conclusions

The Irish Supreme Court has emphatically rejected any “locus standi” test for bringing civil claims before the Irish Courts. Instead, the focus is on whether a plaintiff has “sufficient title to sue” at the time proceedings are issued, with the courts permitting amendments to the identity of a plaintiff where an assignment occurs during proceedings.

Irish courts have confirmed that restitution will “fill the gaps” and prevent unjust enrichment even when statutory formalities have been missed.  This is a sensible result given the obvious unfairness of allowing the husband to benefit for free from monies provided by the lender. It also shows that the Irish courts take a flexible and sensible approach to stripping enrichments from knowing receivers.

Therefore, even if formalities have not been observed and a claim in contract cannot succeed in law, restitution may be an avenue which clients may wish to investigate when litigating in Ireland.

Our construction team can assist on contractual, restitutionary and assignment issues.

[1] [2019] IEHC 234 Baker J.

[2] [2024] IECA 11; [2025] IESC 24