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You are here: BAILII >> Databases >> Irish Court of Appeal >> Start Mortgages Designated Activity Company & anor v Kavanagh & ors (Approved) [2025] IECA 127 (05 June 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA127.html
Cite as: [2025] IECA 127

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APPROVED

NO REDACTION NEEDED

 

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THE COURT OF APPEAL

CIVIL

Neutral Citation Number: [2025] IECA 127

Appeal Number: 2024/101

Faherty J.

Allen J.

Hyland J.

 

 

BETWEEN/

START MORTGAGES DESIGNATED ACTIVITY COMPANY

AND

MARS CAPITAL FINANCE COMPANY DESIGNATED ACTIVITY COMPANY

PLAINTIFFS/APPELLANTS

- AND –

 

SIMON KAVANAGH, DEIRDRE KAVANAGH

AND

ANY PERSON IN OCCUPATION OF THE PROPERTY KNOWN AS SITE NO. 15 PARKLANDS (OTHERWISE KNOWN AS 15 PARKLANDS LOWER), ENNISCORTHY, COUNTY WEXFORD

DEFENDANTS/RESPONDENTS

 

JUDGMENT of Mr. Justice Allen delivered on the 5th day of June, 2025

 

Introduction

1.                  This is an appeal by Start Mortgages DAC ("Start") and Mars Capital Finance Company DAC ("Mars") against the judgment of the High Court (Simons J.) delivered on 4th March, 2024 ([2024] IEHC 125) and consequent order made on 12th March, 2024 refusing an application for an interlocutory injunction directing Mr. Simon Kavanagh and Mrs. Deirdre Kavanagh to vacate a residential property; and restraining them, and any other person with notice of the making of the order, from trespassing upon or attending at the property.

2.                  I should say at the outset that at the hearing of the appeal on 6th May, 2025 there was no appearance by or on behalf of Mrs. Kavanagh but the Court was satisfied from the affidavit of Mr. Gerard Field filed on 8th November, 2024 that the notice of appeal was - eventually - served on her personally on 6th November, 2024; and from the affidavit of Mr. James Lawless filed on 27th February, 2025 that she was duly notified of the date fixed for the hearing of the appeal.  Mr. Kavanagh appeared on his own behalf.

3.                  I will come to the detail, but in 2005 and 2006 Mr. and Mrs. Kavanagh borrowed money from Start on the security of a mortgage of a property, which they failed to repay.  On 18th July, 2016 the High Court (Hedigan J.) made an order for possession of "the plot of ground ... now known as site No. 15 Parklands, Enniscorthy in the county of Wexford"; on 17th July, 2022 Start sued out an order of possession; on 20th June, 2023 Mr. and Mrs. Kavanagh were put out of the house; and sometime between then and 23rd June, 2023 they went back in. 

4.                  By plenary summons issued on 13th July, 2023 Start commenced fresh proceedings for a variety of orders requiring Mr. and Mrs. Kavanagh to vacate the property and permanent injunctions restraining them from trespassing on it or attending at the property; and on the following day issued a motion seeking interlocutory relief in the same terms.  The foundation of the action and motion was that from and after 20th June, 2023 Start was a mortgagee in possession, and Mr. and Mrs. Kavanagh were trespassers.

5.                  I have no idea why the proceedings named "Any person in occupation of the property ...".  There was never any suggestion that there was anyone there other than Mr. and Mrs. Kavanagh.

6.                  The High Court judge found that there was a serious issue to be tried firstly, as to whether Start was a mortgagee in possession, and secondly, as to whether the order of possession (that is to say the execution order issued on foot of the High Court order for possession) authorised the taking of possession of the dwelling house rather than a vacant site.  He went on to find that the balance of justice lay against the granting of an interlocutory injunction and that there should be an expedited trial.

7.                  By the time Start's motion first came on for hearing on 20th November, 2023, Start had delivered its statement of claim and Mr. and Mrs. Kavanagh had delivered their defence and counterclaim.   Start's motion - and a cross motion by Mr. Kavanagh - were adjourned to allow both sides to file further evidence.  As far as the progress of the action is concerned, the ball has been in Start's court for eighteen months.

8.                  Also by the time Start's motion was first listed for hearing, Start had agreed to sell the loan and security to Mars and the agreement for sale was completed on 31st May, 2024; which happened to be the date on which the appeal was first listed for directions.  By order of this Court (the President) made on 7th February, 2025, Mars was joined as co-plaintiff in the action and co-appellant in the appeal.

9.                  The core argument on the appeal is that the judge erred in finding that there was any serious issue to be tried as to the regularity of the execution of the order of possession.  Mr. Compton S.C., for the appellants, accepts, on the one hand, that the action will need to be brought to trial but, on the other, submits that there is no issue to be tried.  Start - and Mars - he argues, are entitled to rely on the State for the execution of the order of the High Court and are entitled to assume that the execution of the order was valid and effective.   If there was - and of course counsel submits that there was not - any irregularity in the execution of the order of possession, Mr. and Mrs. Kavanagh's remedy is by way of judicial review.  The proposition that as a matter of law, any complaint or argument that Mr. and Mrs. Kavanagh may have in relation to the taking of possession of the property has nothing to do with Start is, it is submitted, so clear that there is not even a serious issue to be tried as to whether it is so.

The orders

10.              The High Court order for possession was made on 18th July, 2016 on foot of a special summons issued on 19th June, 2013 by which Start claimed an order for possession of the property therein described which had been mortgaged by Mr. and Mrs. Kavanagh to Start on 3rd August, 2005.  The property was described in the summons and order (as it had been in the mortgage) as:-

"ALL THAT AND THOSE the plot of ground part of the lands of Enniscorthy situate in the Barony of Scarawalsh and County of Wexford now Known as Site no. 15 Parklands, Enniscorthy in the County of Wexford, more particularly the subject matter of Deed of Conveyance dated 1st September 1988 - between Lacy Brothers Limited and Simon Kavanagh and Deirdre Kavanagh."

11.              There was no appeal against the order for possession. 

12.              On 26th February, 2018 an order was made on an ex parte application on behalf of Start to amend the title to the proceedings to reflect a change in the status of Start from a limited liability company to a designated activity company.   A motion by Mr. Kavanagh to set aside that order was dismissed by the High Court (Simons J.) on 11th April, 2019 ([2029] IEHC 216) and his appeal against that order was dismissed by this Court on 22nd February, 2020.

13.              The execution order was issued on 17th July, 2022.

14.              On 10th November, 2022 Mr. Kavanagh issued a motion in the special summons proceedings seeking to set aside the order for possession.  That application was dismissed by the High Court (Simons J.) on 30th January, 2023 ([2023] IEHC 37) and an appeal to this Court was dismissed on 9th October, 2023 ([2023] IECA 251).

15.              In the meantime, Mr. Kavanagh had applied to the High Court by motion on notice for an order setting aside the order of 30th January, 2023 and that application was dismissed on 27th July, 2023 ([2023] IEHC 251).   Mr. Kavanagh appealed against that order but failed to appear to prosecute his appeal, which, accordingly, was dismissed. 

16.              A third collateral attack on the order for possession was by a motion issued by Mr. Kavanagh in these proceedings to strike out Start's motion for interlocutory relief on various grounds.  That motion was dealt with in the judgment now under appeal and was dismissed.  There is no appeal or cross appeal by Mr. Kavanagh against the dismiss of his motion.

17.              In his oral submissions on this appeal, Mr. Kavanagh attempted to question the order for possession but he is plainly not entitled to do so.  There can be no issue as to the validity and finality of the order of the High Court of 18th July, 2016.

18.              On 17th July, 2022 Start obtained an order of possession in the Central Office of the High Court.  It reads:-

"To the Sheriff of the County of Wexford/The County Registrar for the County of Wexford greeting.

WHEREAS lately in the High Court it was adjudged that the Plaintiff recover possession of All that and those the plot of ground part of the lands of Enniscorthy situate in the Barony of Scarawalsh and County of Wexford now known as Site no. 15 Parklands, Enniscorthy in the County of Wexford, more particularly the subject matter of Deed of Conveyance dated 1st September 1988 - between Lacy Brothers Limited and Simon Kavanagh and Deirdre Kavanagh with the appurtenances in your bailiwick.

YOU ARE COMMANDED to enter the same and without delay cause the said Start Mortgages Designated Activity Company to have possession of the said lands and premises with the appurtenances.

AND in what manner you have executed this order, make appear to the High Court immediately after the execution hereof and have you then there this order."

19.              The order of possession was based on Form No. 5 of Part 2 of Appendix F to the Rules of the Superior Courts.  The form commences:- "To the sheriff (County Registrar) of ... greeting. ...".  The form of the order of possession in this case suggests that the solicitor who filled out the form contemplated that it might be directed to one or other of the Sheriff of the County of Wexford or the County Registrar for the County of Wexford.   If he did, he was wrong.  But as I will come to, he was by no means alone in his confusion.  

The relevant statutory provisions

20.              Section 3(1) of the Enforcement of Court Orders Act, 1926 provides that:-

"3. - (1) Subject to the provisions of this Act and of rules of court made under the Courts of Justice Act, 1924 (No. 10 of 1924), all execution orders of the High Court shall be executed by the under-sheriff in the like manner and with the like powers, rights and authorities and subject to the like duties and obligations as similar writs of execution of the High Court have heretofore been executed by the under-sheriff."

21.              Section 4(1) of the Act of 1924 provides that:-

"4. - (1)  Every under-sheriff shall, subject to the approval of the Minister [for Justice], appoint such number of persons (who shall be styled and are hereinafter referred to as court messengers) as the Minister shall sanction to act for him and otherwise assist him in the execution of execution orders under this Act."

22.              Section 5(1) of the Act of 1924 provides that:-

"5. - (1)  Every court messenger when assisting an under-sheriff in the execution of an execution order or when executing an execution order for an under-sheriff shall be furnished by the under-sheriff with a warrant in writing signed by the under-sheriff and authorising the court messenger by name to execute or assist in the execution of that particular execution order, and no court messenger shall execute or take part in the execution of any execution order unless duly authorised to do so by such warrant as aforesaid.

(2)  It shall be the duty of every court messenger executing or assisting in the execution of an execution order, at any time after entering on any lands or premised under such execution order and before removing therefrom any property, to produce on demand to the person in apparent possession of such lands or premises the warrant issued to him under this section by the under-sheriff."

23.              The Enforcement of Court Orders Act, 1926 was enacted on 29th May, 1926.

24.              Less than six weeks later, Oireachtas Saorstát Éireann decided to phase out the office of under-sheriff and to transfer the functions and powers in relation to the execution of High Court orders to the county registrars.

25.              Section 54(1) of the Court Officers Act, 1926 - which came into force on 1st September, 1926 - provided that no appointment should be made to the office of under-sheriff after the passing of that Act.  Section 54, sub- ss. (2) and (3) provided that:-

"(2)  In every county and county borough in which the office of under-sheriff is vacant at the commencement of this Part of this Act all the powers, duties, authorities, rights and obligations of the several under-sheriffs of such counties and county boroughs respectively shall as on and from such commencement become and be transferred to and vested in or imposed on the several county registrars of such counties and county boroughs respectively.

(3)  In every county and county borough in which the office of under-sheriff is not vacant at the commencement of this Part of this Act all the powers, duties, authorities, rights and obligations of the several under-sheriffs of such counties and county boroughs respectively shall as on and from the respective dates on which the office of under-sheriff in which counties and county boroughs respectively first becomes vacant after the commencement of this Part of this Act become and be transferred to and vested in or imposed on the several county registrars of such counties and county boroughs respectively."

26.              Section 12 of the Court Officers Act, 1945 made provision for a new office of sheriff.  By s. 12(2) of the Act of 1945 the Minister for Justice was authorised to declare by order, in respect of any county or county borough in which the powers, duties, authorities, rights and obligations of the under-sheriff which had been transferred to the county registrar by virtue of s. 54(2) or (3) of the Act of 1926 should cease to be imposed on or vested in the county registrar.  And by s. 12(3) the Government was empowered to appoint a sheriff of any county or county borough in respect of which an order had been made under sub-s. (2).  Orders under s. 12(2) were made in respect of the counties and county boroughs of Dublin and Cork, and sheriffs were appointed to those counties and county boroughs.   

27.              It is slightly tedious but not difficult to follow and it is all conveniently and clearly brought together in Chapter 3 of the report of the Law Reform Commission on Debt Collection (1) The Law in Relation to Sheriffs, 1988 (LRC 27-1988).  There have been no under-sheriffs for the past 80 years.  In Dublin and Cork, High Court orders are executed by the sheriff.  Elsewhere, the responsible officer is the county registrar who, in the execution of court orders, exercises the powers formerly - at this remove, I think that it can be said, historically - vested in the under-sheriff.

28.              Thus, the officer responsible for the execution of court orders in Dublin City and County and Cork City and County is the sheriff; and the officer in all other counties is the county registrar.  The form of execution order prescribed by the Rules of the Superior Courts allows for the identification of the responsible officer by reference to the county in which the order is to be executed.  In Dublin and Cork, the order should be addressed to the sheriff; elsewhere - including in Wexford - it should be addressed to the county registrar.

The evidence

29.              Start's motion was grounded on an affidavit of Ms. Eva McCarthy.  Ms. McCarthy is a litigation manager employed by Start Mortgages Holding Limited, which is described as a corporate service provider to Start.  She deposed that she made the affidavit from facts within her own knowledge and from a diligent perusal of Start's books and records in relation to Mr. and Mrs. Kavanagh and their accounts. 

30.              At para. 11 of her affidavit, Ms. McCarthy deposed that "the County Registrar for the County of Wexford duly executed the Order of Possession and vacant possession of the Property was handed over to the Plaintiff through its nominated agent Sean Cahill of Blackwater Asset Management" and she exhibited a letter dated 21st June, 2023 which she described as a letter from the county registrar, which, she said, enclosed Mr. Cahill's authority and endorsed order for possession.

31.              The letter of 21st June, 2023 was on a Courts Service letterhead and purported to come from "Sheriff's Office" at The Courthouse, Wexford.  It was addressed to Start's solicitors and was purportedly written by Ms. Deirdre Burke as "Under Sheriff for the County of Wexford."  Ms. Burke is the county registrar for County Wexford.  Her name appears on the letter in printed italics.  The letter simply said:- "I return Order for Possession, possession of the lands having been handed over to your clients."  It did not say when, or by whom possession of the lands had been handed over.

32.              Enclosed with the letter of 21st June, 2023 was the order of possession.  The back sheet shows that - in the ordinary way - the order had been prepared by Start's solicitors.  On the back sheet were what appear to be two rubber stamps, one of which is difficult to decipher but both of which appear to have been directed to showing the manner in which the order had been executed.  The first of the brands had eight boxes offering such tick options as "Fully Paid", "No Goods for Balance", "Wrong B'Wick" and the like; which strike me as possible returns which might be endorsed on an order of Fieri Facias .  One of the boxes appears to have been ticked but the narrative is illegible.   The other brand is a form of return of nulla bona which is clearly not appropriate for an order of possession and has been struck through.

33.              The other enclosure with the letter of 21st June, 2023 is a document on a Courts Service letterhead but signed by Sean Cahill on behalf of Start.  That document identified the premises as 15 Parklands, Enniscorthy, County Wexford.  Mr. Cahill, who signed the letter for and on behalf of Start Mortgages DAC, confirmed that he acted on behalf of Start and "where requested" had provided evidence of that authority to "the Sheriff" and continued:-

"I confirm that I have identified the physical lands, hereditaments and premises set out above to the County Sheriff for Possession.

I CERTIFY that I have received clear possession together with the key (where applicable) of the above-named premises from the County Sheriff for the County of Wexford."

34.              At para. 12 of her affidavit Ms. McCarthy went on to say that she had been advised - she did not say by whom - that the property was secured by Start's agent, Blackwater Asset Management, on 20th June, 2023 and at para. 13 that on 23rd June, 2023 "the plaintiff carried out an inspection of the property" when it was discovered by "the plaintiff's agent" that Mr. and Mrs. Kavanagh had "unlawfully retaken possession".  At para. 16, Ms. McCarthy asserted that "... the plaintiff has lawfully executed the order for possession and took possession of the property as mortgagee in possession" and that Mr. and Mrs. Kavanagh "and any other person who purports to occupy the property" did so as "unlawful trespassers."

35.              The letter of 20th June, 2023 did not - nor did Ms. McCarthy - say that Mr. Cahill; had provided written evidence  of his authority to anyone; or when or from whom he received clear possession; or whether or from whom he received the key. 

36.              Start's motion was first returnable for 14th July, 2023 and was case managed.  On 7th November, 2023 Mr. Kavanagh filed his cross motion to strike out Start's motion but it was not until 13th November, 2023 - a week before Start's motion was first listed for hearing - that he filed his affidavit in reply to that of Ms. McCarthy. 

37.              Insofar as is material, Mr. Kavanagh made the point that there was a discrepancy between the address of the property in the court order - which gave it as "15 Parklands, Enniscorthy, Co. Wexford" and the address on the plenary summons - which gave it as "15 Parklands Lower, Enniscorthy, Co. Wexford".  He also suggested - by reference to the description of the property in the deed of mortgage - that Start's security was limited to the plot of ground the subject of the 1988 conveyance and did not extend to the house which had later been built on the lands.  He said that the value of the site was IR£2,000 and asserted that he had satisfied the security by sending a bank draft for €2,540 to Start's solicitors on 24th October, 2023.  At para. 16, Mr. Kavanagh asserted that the order of possession had been lodged with "the incorrect office of 'County Registrar for the County of Wexford'" when, he said, it was required to be lodged with the office of the under-sheriff for the County of Wexford; and at para. 17 he asserted that Start was not entitled to interlocutory relief based on its motion and Ms. McCarthy's exhibits.

38.              Mr. Kavanagh had a lot to say as to the alleged invalidity of the special summons proceedings; his previous applications in those proceedings; and his then pending appeal to this Court against the refusal of the High Court to set aside the order for possession and his then pending High Court application to set aside its order 30th January, 2023 and so forth but none of that was relevant.  The stay on execution of the order for possession had long ago expired and Mr. Kavanagh's later motions and appeals were no reason why that order could not be executed.  Significantly, Mr. Kavanagh offered no evidence as to the events of 20th June, 2023.

39.              As I have said, Start's motion and Mr. Kavanagh's cross motion were part heard on 20th November, 2023 and adjourned to allow both sides to adduce further evidence.

40.              On 8th December, 2023 an affidavit of Mr. Ciarán Leavy, solicitor, was filed on behalf of Start to address an apparent discrepancy between the High Court record number of the special summons proceedings and the reference number on the correspondence in relation to the order of possession. 

41.              Mr. Leavy exhibited a letter of 24th November, 2024 from "Sheriff's Office", The Courthouse, Wexford, which confirmed that the reference number on the earlier correspondence from that office was "the Sheriff Systems reference number associated with the Circuit Court Record No. 2013/353SP" [Emphasis added.]  The reference to the Circuit Court was obviously an error and the apparent discrepancy between the office reference number and the High Court record number was sufficiently explained.  However, Mr. Leavy did not engage with Mr. Kavanagh's assertion that the order of possession had been lodged with the wrong office.  Rather he repeatedly referred to the correspondence regarding the execution of the order as correspondence with "the Wexford County Registrar / the Wexford Sheriff."

42.              On 22nd December, 2023 an affidavit of Mr. Sean Cahill was filed on behalf of Start to address what had happened on 20th June, 2023.

43.              Mr. Cahill described himself as a director of Blackwater Asset Management and confirmed that what Ms. McCarthy had previously deposed to was correct.  Mr. Cahill deposed that in September, 2022 he had been "duly authorised by the plaintiff to take possession of the property from the sheriff following execution of the order of possession."  He did not indicate how precisely he had been so authorised or whether that authority was in writing.  He identified the property as 15 Parklands, Enniscorthy, County Wexford.  He did not engage with Mr. Kavanagh's evidence that the correct address of the property was 15 Parklands Lower.

44.              At para. 7 of his affidavit, Mr. Cahill deposed that:-

"7.  I attended at the Property at approximately 18.40 with the appropriate Court Officer, a number of my colleagues and accompanied by members of An Garda Siochana.  My colleague knocked at the front door of the Property and advised that we were in attendance to execute an Order for Possession of the High Court.  Mr. Kavanagh exited the Property from a side entrance and was asked to step away from the Property which he did.  He then asked to see the Possession Order and he was shown same."

45.              I pause here to say that this is rather vague but it conveys to me that it was one of Mr. Cahill's Blackwater colleagues who took the lead by knocking on the door and advising someone - presumably Mr. Kavanagh, but if it was Mr. Kavanagh it would have been better if he had said so - that "we" were in attendance to execute the order.  It is by no means clear to me precisely who "we" were, but on one view at least "we" were Mr. Cahill and his unidentified Blackwater colleague.  Neither is it clear to me by whom Mr. Kavanagh was asked to step away from the property; who he asked to see the possession order; who showed it to him; or whether the "possession order" shown to Mr. Kavanagh was the order for possession or the order of possession.  Nor was the "appropriate court officer" identified, either by name or by role.

46.              At paras. 8, Mr. Cahill deposed that Mr. Kavanagh was advised that he could remove any items he needed from the property and that the locks would be changed: but not by whom.  At para 9, he deposed that Mr. Kavanagh had asked to telephone the High Court: but not who he had asked.  At para. 10 Mr. Cahill deposed that Mr. Kavanagh had asked him whether he was registered and that he - Mr. Cahill - had shown him his identification and registration.  This tends to convey to me that the engagement at paras. 8 and 9 was between Mr. Cahill and Mr. Kavanagh.

47.              There follows an account of further engagement with Blackwater personnel and an unnamed Garda before, at para. 18, Mr. Cahill deposed that:-

"18.  Mr. Kavanagh asked for the Sheriff to be identified and I advised him that the Order was executed by the Court Messenger duly authorised by the County Registrar for the County of Wexford who also acts as the County Sheriff.  The Court Messenger handed over vacant possession of the Property to your Deponent on behalf of the Plaintiff."

48.              On Mr. Cahill's chronology of events, it was Blackwater personnel who took the lead.  Mr. Kavanagh was asked to step away from the house; was afforded the opportunity to remove anything he wanted; identified a number of objects which were collected from the house by Blackwater people; was given his car keys; and his dogs were removed from the house: all before the unnamed court messenger did or said anything.  Indeed, on Mr. Cahill's account, it is not clear that there was any engagement whatsoever between the court messenger and Mr. Kavanagh.

49.              Between 22nd December, 2023 when Mr. Cahill's affidavit was filed, and 19th February, 2024 when the hearing of the motions was resumed, Mr. Kavanagh had about eight weeks to file any further affidavit he wished to, but he did not file any further affidavit.  In his  written submissions on the appeal, Mr. Kavanagh offered an account of the events of 20th June, 2023.  In his written and oral submissions he suggested that what happened on 20th June, 2023 took place at noon, and not twenty to seven in the evening.  He suggested that there were seven gardaí and twenty Blackwater personnel in attendance and offered an account of his engagement with the court messenger - who he named as Mr. Martin Boyle - but the only evidence of what took place and when was that of Mr. Cahill.  Mr. Kavanagh asserted in his submissions that Mr. Boyle was not authorised by written warrant of the under-sheriff but firstly, this assertion was not evidence and - just as Mr. Cahill had not set out any basis for his assertion that the court messenger had been duly authorised - Mr. Kavanagh did not disclose any basis for his assertion that he was not.

The High Court judgment

50.              Having identified the relevant legal principes governing interlocutory injunctions generally and interlocutory injunctions to restrain trespass to land in particular, and summarised the arguments on both sides, the High Court judge (para. 31) found that Start had failed to establish that it had a prima facie entitlement to an interlocutory injunction on the basis that it was a mortgagee in possession.   He found (para. 32) that it was not apparent that the order of possession was properly executed.  He said that there were a number of unexplained discrepancies in the paperwork and was not persuaded that the discrepancy between the addressee of the order of possession - the county registrar - and the signatory on what he described as the return to the order - the under-sheriff - was immaterial.

51.              That apart, the judge identified a further potential difficulty the fact that there was no suggestion that the under-sheriff had any direct involvement in the events of 20th June, 2023 and no evidence that the court messenger was duly authorised.

52.              The judge went on to find (para. 38) that there was a serious issue to be tried as to whether the wording of the order for possession captured the dwelling house which had been constructed on the "plot of ground."

53.              Having found that there was a serious issue to be tried on the two points which he had identified, the judge went on to consider the balance of convenience and came down firmly on Mr. and Mrs. Kavanagh's side.

The appeal

54.              By notice of appeal filed on 22nd April, 2024 Start appealed on eight numbered grounds.  The substance of the appeal is that the High Court judge is said to have erred:-

1.        In finding that there was an issue to be tried as to whether Start was a mortgagee in possession;

2.        In finding that there was an issue to be tried as to whether the order for possession included the dwelling house; and

3.        In "... investigating and placing emphasis on the role and/or identity of the County Registrar, Sheriff and/or Under Sheriff in the context of the process of execution. ... and [Start] was entitled to assume that the order of possession was lawfully executed."

55.              It was also said that the judge erred in his assessment of the balance of convenience by failing to take account of the fact that Start was a mortgagee in possession but that, it seems to me, went to whether there was a serious issue to be tried rather than the balance of convenience.

Discussion and decision

56.              It is clear from the judgment of the High Court that the argument in relation to the legal authority of court officials to execute the order of possession was, at best, as the judge put it, limited.  The judgment shows (paras. 28 to 30) that Mr. Kavanagh relied on the Enforcement of Court Orders Act, 1926 but (para. 33) that it was the judge who identified the relevance of s. 54 of the Court Officers Act, 1926.  One of the central tenets of Mr. Kavanagh's argument was that the offices of under-sheriff and county registrar were separate.  In that, it has to be said, he was supported by the correspondence from Wexford Courthouse as well as by the repeated references in Mr. Leavy's affidavit to "the Wexford County Registrar / the Wexford Sheriff."

57.              The written submissions field on behalf of Start on the appeal did not engage with the issue either.  Variously it was said that Mr. Kavanagh sought to question the "process of execution by the Sheriff/County Registrar"; that Start had "submitted the order of possession to the Sheriff for execution and the Sheriff delivered up vacant possession of the property" and that Start "was entitled to and did assume that the Sheriff/County Registrar carried out his functions in a lawful manner."   The suggestion in Start's written submissions that the county registrar was directly involved was unsupported by the evidence.  The suggestion that the order of possession had been submitted to the sheriff was contrary to the plain terms of the execution order.  There was no reference at all to the Enforcement of Court Orders Act, 1926 or to s. 54 of the Court Officers Act, 1926.   The suggestion in Start's written submissions that the order had been executed by the sheriff ignored both.

58.              It was suggested at para. 26 of Start's written submissions that "The county registrar in exercising and/or delegating her statutory functions in executing possession orders enjoys common law immunity", but the suggestion in Ms. McCarthy's affidavit that the order had been executed by the county registrar was shown to have been wrong and there was no evidence of any delegation to the unnamed "court messenger".

59.              It was variously asserted in the written submissions that it was not disputed that the order for possession was executed; that the order for possession had been executed "by the Sheriff"; and, at para. 12, that it was not open to Mr. Kavanagh to challenge Start's application "... once the learned High Court judge had found that the appellant had been put into possession of the Property on foot of the Order for Possession."  But - leaving to one side for the moment whether he was entitled to do so - it was perfectly clear that Mr. Kavanagh was challenging the process of execution; and no less clear that the judge did not find that Start had been put into possession on foot of the order for possession.  What the judge said (para. 32) was that:-

"The first reason is that it is not apparent that the order of possession was properly executed."

60.              Later, at para. 19, it was variously submitted that "... it is very clear that [Start] has established that there is a serious issue to be tried.  However, lest [Start] be wrong in that submission, it is also clear that a strong case that is likely to succeed at trial has also been put before the Court."  However, the grounds of appeal were that the judge had erred in determining that Start was not prima facie entitled to the interlocutory relief sought and in finding that there was a serious issue to be tried as to whether it was a mortgagee in possession.  The thrust of the High Court application and of the appeal was that Start was entitled to an interlocutory injunction as of right.

61.              At the oral hearing of the appeal, the focus of the submission on behalf of Start was that Mr. Kavanagh's answer to Start's injunction application was a challenge to the exercise of the powers of a State official, which he was not entitled to do save by way of judicial review.  Start, it was said, was entitled to rely on the officers of the State for the execution of the High Court order for possession.  It was more or less acknowledged that there was no evidence that whatever official was in attendance on 20th June, 2023 was in fact a court messenger, but it was said that there was no need for Start to prove that he (or she) had been duly appointed.  No authority was cited for that submission.  In answer to a question from the Court, Mr. Compton went further, submitting that even if whoever it was had been sent along by the county registrar was not duly authorised, Mr. and Mrs. Kavanagh were obliged to go quietly and take up the issue with the county registrar in the High Court.  Again no authority was cited for this proposition.  On the evidence, there were not only unexplained discrepancies and a lacuna in the paperwork but - at best, as far as Start was concerned - a lack of clarity as to the involvement of the court messenger in taking possession.

62.              For all the confusion, vagueness and ambiguity, what was clear from the affidavit of Mr. Cahill was that Ms. McCarthy's averment that the order of possession was duly executed by the county registrar was incorrect.  In my view, the judge was abundantly justified in his finding that it was not apparent that the order had been properly executed.

63.              As to the return to the order of possession, I think that when the judge referred to the return to the order of possession as having been signed by the under-sheriff, he probably meant the letter of 21st June, 2023.  Although nothing turns on it for present purposes, I think that strictly speaking the return to the order of possession was probably the partly illegible rubber stamp endorsements on the back sheet of the order, rather than the letter of the following day.  As far as the evidence goes, the height of what was said as to the involvement of a court messenger was that after Mr. Kavanagh had been put out of the property and his possessions and dogs loaded into his van, he was told that the order was executed by the court messenger "duly authorised" by the county registrar.  I agree with the judge that Mr. Cahill's affidavit did not disclose any basis for his assertion either that the unidentified person he described as a court messenger was a court messenger, still less that he (or she) was duly authorised.  The evidence was that Mr. Cahill told Mr. Kavanagh that the court messenger had been duly authorised, not that the court messenger had in fact been duly authorised.  And - as the judge pointed out - it does not show what, if any, basis Mr. Cahill had to say what he said.  If, as required by law, the court messenger had been furnished by the county registrar with a warrant in writing authorising him to execute or assist in the execution of the order of possession, it seems to me that it would have been perfectly straightforward to prove.

64.              In my view the judge was perfectly correct in his finding that the averment at para. 18 of Mr. Cahill's affidavit did not establish that the court messenger was, in fact, duly authorised.  I agree with the judge that Mr. Cahill's averment that he told Mr. Kavanagh that the order was executed by the court messenger duly authorised by the county registrar did not establish that the court messenger was duly authorised.  I would add that, separately, that Mr. Cahill's evidence did not establish that the order had been executed by the person he described variously as the "appropriate Court Officer" and as "the court messenger."

65.              At the oral hearing of the appeal it was submitted that there were ambiguities on the forms prepared by State bodies.  If this was a criticism of the form in the Rules, I do not agree.  To anyone who understands that court orders elsewhere than in Dublin and Cork are to be executed by the county registrar, Form No. 5 of Part 2 of Appendix F to the Rules of the Superior Courts is perfectly clear.  There was an ambiguity in the order of possession in this case but it was introduced by Start's solicitors.

66.              I accept that there was ambiguity in the correspondence which emanated from the Courts Service, but it seems to me that that confusion was later compounded by Start when it could and should have been dispelled.  I emphasise, for the avoidance of doubt, that I am expressing no view on the effect - if any - of this confusion on the validity of the execution process but in my view, it must very significantly undermine the argument - if it is open at all - that all must be presumed to have been correctly done which ought to have been done.

67.              In his oral submission to this Court, counsel for Start suggested that the High Court judge erred in his interpretation of s. 54 of the Court Officers Act, 1926.  I do not believe that that criticism was fair or warranted.  In the first place, it seems to me that this was not identified either in the notice of appeal or the written submissions.  Secondly, the judgment shows that it was the judge - and not counsel - who identified the relevance of s. 54 of the Act of 1926.  Thirdly, the judge was at pains to emphasise the fact that the legal argument was limited and that the issue of the materiality of the addressee of the order of possession and the signature on the return was a matter which was to be resolved at the hearing of the action.  

68.              Counsel sought to make much of the judge's observation that s. 54 transferred "certain" of the duties of an under-sheriff to the county registrar when in fact, it was said - on the appeal, as far as I can see, for the first time - the effect of the section was to transfer to the county registrars all of the powers and duties theretofore vested in and imposed on under-sheriffs; as opposed to some of them.  This belated parsing of the judgment does not sit well with the fact that the judge was given no assistance in the construction of a provision which he had identified as being potentially relevant in resolving the apparent discrepancies in the paperwork which Start was studiously ignoring.

69.              Start's reliance on my judgment in KBC Bank plc v. McGann [2019] IEHC 667 is misplaced.  That was a case in which the uncontested evidence was that the county registrar had directed that the order for possession be executed by a court messenger, and that it had been executed by the court messenger.  It may very well be that when this action comes to trial, Mars will be able to show that the order was executed by a court messenger duly authorised by the county registrar to do so: but in my opinion the judge was entitled to take the view which he did that this was not established by the evidence put up in support of the interlocutory application.

70.              On the second reason identified by the judge for saying that Mr. Kavanagh had established a serious issue to be tried, Start is on stronger ground.

71.              The wording of the order for possession was based on the description of the property in the deed of mortgage of 3rd August, 2005, which, in turn, appears to have been copied from the description of the property in the original conveyance of 1st September, 1988, when it was described as "the plot of ground part of the lands of ... now known as Site no. 15 Parklands."  The judge presumed - correctly in my view - that the deed of conveyance of the site was accompanied by a building agreement for the construction of the house.  The description of the property in the conveyance is likely, in turn, to have been copied from the description in the contract for the sale and purchase of the site.   

72.              The judge was persuaded that there was a serious issue to be tried as to whether the order for possession captured the house which was subsequently - that is, after the conveyance in 1988 - built on the site.  He said that the term "ground" has a particular connotation in the context of land law - which it does - that the concept of "plot of ground" on one reading implied a vacant site - which I suppose it does - and that "the reference to the plot of ground being 'part' of the lands now known as Site No. 15 Parklands" might be understood as indicating that the order for possession applied only to part of the overall lands.

73.              I must say that I was initially uncertain as to precisely what Mr. Kavanagh's point was as to the description of the property, but it was directed to the mortgage rather than the order for possession.   

74.              The special summons which was issued on 19th June, 2013 was grounded on an affidavit of Eva McCarthy which was sworn on 14th October, 2013 to which Mr. Kavanagh referred in his replying affidavit filed on the motion the subject of this appeal.  Ms. McCarthy then deposed - and it was uncontested - that Start had advanced two sums to Mr. and Mrs. Kavanagh: €190,000 on 29th July, 2005 and a further sum of €65,000 on 11th October, 2006.  Mr. Kavanagh's argument - by reference to the description of the property in the 2005 mortgage - was that the security was limited to the ground on which the house had by then been built and the €2,540 which he tendered on 24th October, 2023 was the euro equivalent of IR£2,000, which presumably was the amount apportioned to the site in 1988.

75.              The judge's focus - correctly - was on the meaning and effect of the order for possession, rather than - as he put it - the deed of mortgage from which the unhappy wording was borrowed.   However, that was not quite the point that Mr. Kavanagh was making.  Mr. Kavanagh effectively acknowledged that the order captured all the lands which he and Mrs. Kavanagh had acquired in 1988 but contended that the security did not extend to the house.

76.              I have set out at para. 10 the wording of the mortgage and the order for possession, which was:-

"ALL THAT AND THOSE the plot of ground part of the lands of Enniscorthy situate in the Barony of Scarawalsh and County of Wexford now Known as Site no. 15 Parklands, Enniscorthy in the County of Wexford, more particularly the subject matter of Deed of Conveyance dated 1st September 1988 - between Lacy Brothers Limited and Simon Kavanagh and Deirdre Kavanagh."

77.              The reference to the plot of ground being "part" of lands was not a reference to the plot being part of the lands now known as No. 15 Parklands, but part of the lands in the Barony of Scarawalsh.  I accept the submission on behalf of Start that the judge's analysis of the description of the property overlooks the comma (in the third line of the description as it appears above) after "the County of Wexford".  The description of the property in the first part of the sentence by reference to townland, barony and county, is particularised in the second part - after the comma - to make clear that the boundaries of the property the subject of the mortgage - and the order for possession - are the same as the boundaries of the site the subject of the 1988 conveyance.  It was no part of Mr. Kavanagh's argument that the order for possession was good for so much of the site as had not been built on.  Rather, his argument was that the mortgage subtending the order for possession had been redeemed by his tender of €2,540.  I would not disagree with the judge (para. 39) that it is not immediately apparent that an order directing the county registrar to deliver up possession of a "plot of ground" necessarily authorises the taking of possession of a dwelling house rather than a vacant site but it seems to me that in this case no one - not least Mr. Kavanagh - was in any doubt as to the identity and boundaries of the property the subject of the order.  I would not have considered that an order for possession made in 2016 of the land within the boundaries of the 1998 conveyance - on which there was a house - left any room for reasonable doubt as to what was to happen to the house, and so any serious issue to be tried as to the meaning of the order.

78.              That said, I unreservedly endorse what the judge said as to the discrepancy in description of the property in the order for possession and the order of possession.  The purpose of the order of possession was to effect execution of the order for possession.   It follows - as the judge said - that the description of the property in the execution order ought to have precisely mirrored the description in the High Court order.  In this case, Start's solicitor in drafting the order of possession added the words "with the appurtenances" and "and premises with the appurtenances".  I agree with the judge that this was inappropriate but for the reasons given, I respectfully disagree that the order of possession captured more than the original order for possession.

79.              As to the balance of convenience, the judge took into account, on the one hand, that Start had not sought to execute the order for possession with any great expedition or put up any evidence that the economic circumstances were such as to point in favour of an urgent sale and, on the other, that the property was Mr. and Mrs. Kavanagh's family home in which they had been living - albeit for seven or eight years in breach of the order for possession - for nearly thirty years.  The thrust of the application  in the High Court and of the appeal was that Start was entitled to the interlocutory order ex debito justitiae.  The only ground of appeal directed to the balance of convenience was that the judge failed to take account of the fact that Start was a mortgagee in possession - which was circular. 

80.              At the oral hearing it was acknowledged that it was unlikely that the house could be sold until the substantive action had been disposed of and there was no indication of what might become of it pendente lite if the orders sought were made.  Mr. Compton emphasised that since the order for possession was made, Mr. Kavanagh had brought a number of unsuccessful applications and appeals but I do not consider that this is a significant factor in the balance of justice.  I accept - as the judge found - that Mr. Kavanagh's applications and appeals go some way to explaining the delay in the execution of the order for possession.  On the other hand, it seems to me that the earlier such applications and appeals were no more a barrier to execution than those which were pending on 20th June, 2023.

81.              In my view, Mr. Kavanagh's myriad previous bad points are not to be taken into account in assessing the risk of injustice.  If the orders sought by Start were to be made and Mr. and Mrs. Kavanagh succeeded at trial, they would have been wrongly put out of what has been their home.  While Ms. McCarthy, for Start, asserted a risk of irremediable loss, that appears to have been premised on an inability to sell the property before the action is determined.  If that were to happen, and Mr. and Mrs. McCarthy were to succeed in the action, they would have been permanently deprived of their home - or at least of whatever residual prospect they have of hanging on to it. 

82.              I mentioned at para. 8 that by the time Start's motion was first listed for hearing, Start had agreed to sell the loan and security to Mars and the agreement for sale was completed on 31st May, 2024.  That was demonstrated by the affidavits filed on the motion which was filed in the appeal to join Mars as a co-plaintiff and co-appellant.  The High Court judgment shows that Mr. Kavanagh there sought to argue that Start, as of the date of hearing of Start's motion, had divested itself of the legal ownership of the judgment and order of 18th July, 2016 and that the judge rejected that argument on the basis that it was unsupported by any evidence. 

83.              It is now clear that on 31st October, 2023 Start agreed to transfer the loan and security and that the transfer was completed on 31st May, 2024.  It is thus apparent that Mr. Kavanagh was wrong in his suggestion on 20th November, 2023 that Start had divested itself of legal ownership of the order.   However, the agreement for sale was made after the affidavit of Ms. McCarthy had been filed  and it seems to me that the agreement to transfer was relevant to any consideration of the balance of convenience and was something that ought to have been brought to the attention of the High Court by Start.  Mr. and Mrs. Kavanagh's loan was part of a portfolio of loans.  It is not clear whether, as of 20th November, 2023, a date had been fixed for completion of the transfer but if it had, it seems to me that it was likely that the competing interests in assessing the balance of convenience were those of Mr. and Mrs. Kavanagh, on one side, and Mars - rather than Start - on the other.  If there was at the date of swearing of Ms. McCarthy's affidavit a risk of irremediable loss to Start if the orders sought were not made, it is not obvious to me that as of the date of hearing of the motion there was a risk of any loss to Start.

84.              In the event, as I have said, the thrust of the case made was that the interlocutory orders sought by Start should be made as of right, so that as far as Start was concerned, the balance of justice did not really come into it.

Conclusion

85.              I am not persuaded that the High Court judge erred in finding that that there was a serious issue to be tried as to whether Start was a mortgagee in possession.

86.              In my view the judge was perfectly correct in finding that there were a number of unexplained discrepancies in the paperwork.  Start failed to engage with those discrepancies or to attempt to reconcile the paperwork with the applicable legislation.  Even if it had, the evidence was not such as to clearly establish that the order for possession had been executed in accordance with law. 

87.              On this interlocutory appeal it is not appropriate that I should anticipate what legal arguments may be advanced at trial, but for present purposes I am not persuaded that Start was entitled to assume that the order for possession was lawfully executed.

88.              For the reasons given, I think that the judge's conclusion that there was an issue to be tried as to whether the order for possession included the dwelling house was frail but again, I would not forestall any arguments Mr. and Mrs. Kavanagh may seek to advance at trial.

89.              Mr. Kavanagh has not established that he or his wife are entitled to any sympathy.  They borrowed a great deal of money on the security of a mortgage which they have failed to repay.  They have not offered any explanation for their failure to meet their obligations.  The uncontested evidence is that as of 30th June, 2023 they owed €333,235.97 and that the last payment made was €400.00 which was paid on 30th January, 2012.  I do not believe that it is unfair to say that Mr. Kavanagh has made a series of wholly unmeritorious applications and appeals.  But none of that undermines Mr. and Mrs. Kavanagh's entitlement to insist - as the judge put it - that the legal formalities were properly observed.

90.              I would dismiss the appeal and affirm the order of the High Court, including that the costs of the High Court application be reserved to the trial of the action.  Provisionally - I suppose I should say - it seems to me that Mr. Kavanagh has been entirely successful on the appeal and is entitled to an order for his proper outlay and expenses: but I would stay execution on foot of that order pending the determination of the action.  If either side wishes to contend for any other costs order they may within ten days of the electronic delivery of this judgment notify the other and the office and the panel will reconvene.  Otherwise, the order will be drawn in the terms indicated.

91.              As this judgment is being delivered electronically, Faherty and Hyland JJ. have authorised me to say that they agree with it and with the orders proposed.


Result:     Appeal Dismissed

 

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