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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Martin v O'Keeffe & Anor (Approved) [2025] IEHC 272 (14 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC272.html
Cite as: [2025] IEHC 272

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[2025] IEHC 272

 

THE HIGH COURT

 

Record no. 2018/8404 P

Between:

CONOR MARTIN

Plaintiff

-   and –

 

RAY O'KEEFFE and ETNA O'KEEFFE

Defendants

 

JUDGMENT of Ms Justice Nessa Cahill delivered on  14 May 2025

1.    By this motion, the Defendants seek to an order vacating a lis pendens that was registered by the Plaintiff in the Central Office of the High Court on 18 September 2018 in respect of a property known as "the Beach Tavern" which is located at 7/9, Bath Street, Irishtown, in the County of Dublin ("the Property").   The application is opposed by the Plaintiff (a litigant in person).

2.    For the reasons given in this judgment, I grant the order sought.

 

Background

The Option Judgment

3.    In very broad terms, the Plaintiff issued these Proceedings seeking specific performance of an alleged contract for the purchase of the Property for the price of €625,000, which he asserted was binding on the Defendants by virtue of an option to purchase which was conferred on the Plaintiff by a tenancy agreement entered by the parties.  He also registered a lis pendens against the Property.

4.      In a judgement delivered on 21 March 2021 ("the Option Judgment"), Pilkington J. found that the Plaintiff had exercised an option for the purchase of the Property for the consideration of €725,000 and not €625,000 as the Plaintiff claimed.

5.    In the Option Judgment, Pilkington J. also explained that an application had been made to vacate the lis pendens, but that this was refused on the basis the proceedings had just been issued and it was important that "a strict timetable of pleadings be agreed" (¶9).

6.    On 21 January 2022, the High Court ordered that the Plaintiff was entitled to rely on the Option conferred on the Plaintiff by the 2015 Agreement to purchase the Property for the sum of €725,000 ("the 2022 Order").  The Order was perfected on 3 February 2022.

7.    The purchase of the Property did not occur.

8.    The Defendants issued a Motion on 22 March 2024 seeking an order dissolving or varying the 2022 Order, relying on the jurisdiction of the Court to dissolve or vary an order of specific performance ("the Variation Motion"). That Motion came on for hearing before me on 29 October 2024 and I delivered judgment on 20 January 2025 ("the Variation Judgment"). 

The Variation Judgment

9.    By the Variation Judgment, I refused the relief sought on the basis that the Option Judgment confirmed that an option to purchase the Property for the price of €725,000 had been exercised, but did not prescribe what was to occur in the future.  There was no order for specific performance and no jurisdiction to dissolve or vary the 2022 Order.

10.  In making that decision, I emphasised that it was

 "not a determination that the Defendants are incorrect as a matter of fact or of law in their view that they should no longer be constrained by the option that was exercised by the Plaintiff over six years ago or that the Defendants are not now entitled to take such steps as they deem fit with regard to the Property." (¶12)

11.  The Variation Judgment also considered the offers which the Plaintiff had made to purchase the Property, all of which were subject to deductions for legal costs and other matters.  It was determined that these offers were not valid attempts to exercise the option:

"The issue of legal costs is separate from and does not answer, the failure by the Plaintiff to complete the contract for the purchase of the Property. The Plaintiff remains entitled to pursue the recovery of legal costs which the Defendants were ordered to pay, but this does not alter the purchase price as found by the 2022 Order" (¶61).

12.  It was made clear that the Plaintiff had failed to exercise the Option within a reasonable period of time and that the contract had simply not culminated in a completed contract (¶79).

 

 

 

 

 

 

 

Events since the Variation Judgment

13.  In light of the findings in the Variation Judgment, the Defendants wrote to the Plaintiff on 27 January 2025 asking for the lis pendens to be vacated.  By letter dated 19 March 2025, the Plaintiff instead made a further offer for the purchase of the Property, subject to deductions.  This time the deducted amount was €150,000, stated to be 75% of a total of €202,000 owed in respect of legal costs.

This Motion

14.  The Defendants issued this Motion on 6 March 2025 seeking to have the lis pendens vacated.  They invoke section 123 of the Land and Conveyancing Law Reform Act 2009 ("the Act of 2009"), which provides:

"Subject to section 124, a court may make an order to vacate a lis pendens on application by—

(a) the person on whose application it was registered, or

(b) any person affected by it, on notice to the person on whose application it was registered—

(i) where the action to which it relates has been discontinued or determined, or

(ii) where the court is satisfied that there has been an unreasonable delay in prosecuting the action or the action is not being prosecuted bona fide."

Defendants' position

15.  The Motion is grounded on the affidavit of Mr O'Keeffe sworn on 4 March 2025, in which he states that the Plaintiff has failed to exercise the Option since the 2022 Order was made on 21 January 2022 (the judgment having been delivered on 12 March 2021).  It is said that, while the Defendant does not dispute that the lis pendens was validly filed, the Plaintiff has failed to move expeditiously as required by section 123.

16.  Mr O'Keeffe avers that "the maintenance of the lis pendens after the Plaintiff had successfully pursued the right to purchase the Premises is unjust in circumstances where he continues to refuse to purchase the Premises".

17.  It is also averred that the Defendants risk losing their family home if they cannot sell the Property.

18.  In written submissions and oral submissions (both delivered on 29 April 2025), the primary position of the Defendants is that the proceedings have been determined and that the lis pendens should be vacated under section 123(a)(i).  Their secondary position is that there has been "unreasonable delay" in progressing the Proceedings since their determination within the meaning of section 123(a)(ii).  It was said that the obligation to prosecute the proceedings expeditiously includes the obligation to pursue the remedy ordered by the Court without delay.

19.  The judgments of the Court of Appeal in Carthy v. Harrington [2018] IECA 321 and of Barniville J (as he then was) in Hurley Property ICAV v. Charleen Ltd. [2018] IEHC 611 were relied upon.

20.  By way of replying oral submissions, counsel for the Defendants contended that the Plaintiff had the right to exercise the Option since March 2021 and all he had to do was pay the sum of € 725,000 but that he never did this.  It was said that the question of legal costs is separate and that there is no dispute as to the liability of the Defendants to pay costs in accordance with the 2022 Order, but that the Plaintiff cannot make a unilateral deduction to the option price ordered by Pilkington J. 

Plaintiff's Position

21.  The Plaintiff swore a replying affidavit on 2 April 2025 and delivered written submissions at the resumed hearing of the motion on 7 May 2025.

22.  He refers to the computation of legal costs, reiterating that the total figure expended was €209,466, and explaining his view as to why the costs were not taxed, which was based on conversations and negotiations which I am informed by counsel for the Defendant were conducted without prejudice.

23.  The Plaintiff's repeated position is that he had funds, had produced evidence of funds and was at all times ready and willing to complete the sale in accordance with the Option Judgment.  He contends on affidavit and in submissions that there were agreements to purchase the Property, but that the Defendants had frustrated his attempts to sell the Property, delayed the process of sale and that the First Defendant acted with unclean hands. The Plaintiff states on affidavit that he is "bewildered that the Court cannot see that I am completely willing and able to purchase this premises at the agreed price". 

24.  The Plaintiff referred in his submissions to the evidence of attempts to purchase the Property which he had relied upon previously, during and in advance of the hearing of the Defendants' motion to vary the 2022 Order. He also refers (without evidence) to monies he has expended in attempting to secure a conveyance of the Property, stating that his conduct is only consistent with an intention and attempt to exercise the Option.

25.  He asks that the Court deny the motion to vacate the lis pendens.

Decision

Facts relied upon by the Plaintiff

26.  Dealing with the facts relied upon by the Plaintiff to oppose the orders now sought, it is readily apparent that they are substantially the same facts he relied upon when he sought to oppose the Variation Motion. In that context, the Plaintiff presented submissions and evidence (including two affidavits sworn by him), seeking to show that he had been ready, willing and able to purchase the Property for the option price; that he attempted to do so; and that his efforts were frustrated by the Defendants. 

27.  In the context of the Variation Motion, he contended on affidavit that the Property should be acquired for the sum of €725,000 less several deductions, including for legal costs (which he assessed in his sworn affidavit to be in the sum of €197,000), and he would then lift the lis pendens.  During the hearing of that Motion, he proposed further alternatives, including that he purchase the Property for €425,000 (Judgment ¶46, ¶47).

28.  Having considered the Plaintiff's averments in support of that position and the submissions he advanced, I made the following finding in the Variation Judgment:

"... there is no evidence before me of any attempt or intention  by the Plaintiff to acquire the Property for the sum of €725,000. This is the only contract  which Pilkington J. found to exist, and was yet to complete, and there is nothing in the Plaintiffs' affidavits or submissions which indicate any intention or attempt by him to pay that sum of money to acquire the Property" (¶59).

29.  The Variation Judgment also includes a finding that the obstacle to the completion of the contract in accordance with the 2022 Order was the Plaintiff:

"the offers, proposals and positions advanced by the Plaintiff are simply not in furtherance of the option which Pilkington J. found was exercised on 16 October 2017. On the contrary, the very fact that the Plaintiff seems to believe he has a right to deduct certain sums from the purchase price demonstrates that he has and had no intention of seeking to purchase the Property for the agreed sum of € 725,000 in accordance with the 2022 Order" (¶74).

30.  It is concluded in the Variation Judgment that

"It is striking that, three years after the Order was made, there is no evidence before me that the Plaintiff  has attempted to complete the contract in accordance with the 2022 Order or that he has any intention of seeking to do so and the Plaintiff's own evidence points in the opposite direction." (¶75) 

31.  Accordingly, it has already been determined in a final judgment of the High Court that the Plaintiff did not attempt to conclude the contract for the purchase of the Property in  accordance with the Option between 2021 and 2025.   

32.  There has been no appeal against the Variation Judgment and no intention to attempt to appeal it has been intimated.  Consequently, it is not permissible or appropriate for the Plaintiff to seek to re-visit or collaterally challenge those findings, by relying again on the same facts to make the same case that was rejected in that Judgment (as he attempts to do).

33.  Insofar as the Plaintiff seeks to rely on the offer to purchase the Property made on 19 March 2025, this offer is based on a deduction for legal costs.  I do not propose or need to consider the quantum of legal costs being sought to be deducted or how the figure in question was arrived at.  I do not therefore need to consider any prior negotiations (in respect of which a disputed question about without prejudice negotiations arises).  This is so for two reasons. 

34.  First, I did find in the Variation Judgment that the 2022 Order did not require the Defendants to keep the Property available for purchase by the Plaintiff indefinitely and that the option was not exercised within a reasonable time after the Option Judgment (¶79).  There has been no concluded contract. The 2022 Order does not address this scenario.  It is not forward-looking and does not provide for the rights of the parties now, given the lapse of time and the failure of the Plaintiff to exercise the Option. The new offer does not alter these findings. 

35.  Second, I have determined in the Variation Judgment that the only price for which the Plaintiff had an option to purchase the Property was the price of €725,000 without deductions and that the offers made were not in exercise of that option.

36.  Similarly, even if the latest offer could be captured by the Option Judgment, it is not a valid exercise of that option. It remains the case that there is no evidence of any attempt by the Plaintiff to purchase the Property for the option price that was determined by Pilkington J, €725,000.

37.  The next question is whether, in these circumstances and in light of the findings in the Variation Judgment, the lis pendens should be vacated.

Analysis of "lis pendens"

38.  It is apparent from a simple translation of the latin words "lis pendens" that this concept is concerned with a suit or action (a "lis") that is pending. 

39.  This is also readily apparent from section 123(a)(i) which provides that a lis pendens may be vacated "where the action to which it relates has been discontinued or determined".

40.  The purpose of a lis pendens, and its necessarily close connection to ongoing legal proceedings, is also helpfully set out in the judgment of Cregan J. in Tola Capital Management LLC v Linders (No 2) [2014] IEHC 324:

"59... the essential nature of a lis pendens appears to be that if there is a lis which is pending in respect of property, then the party against whom the lis is registered should not sell, assign, mortgage or otherwise dispose of his lands. If he does so and the purchaser is aware of the lis, then the purchaser takes the land subject to the rights and liabilities in respect of the land which might be subsequently declared by the court in those proceedings. In most cases that is a sufficient deterrent to ensure that a vendor will not sell and a purchaser will not purchase the land until the lis has been determined.

60. Therefore, the effect of a lis pendens and the registration of a lis pendens is effectively to freeze any further disposition of land until the proceedings are determined. It can, therefore, have the same effect as an interlocutory injunction restraining the disposition of land pending the hearing of the action without the necessity of the moving party having to establish that there is a serious issue to be tried, that damages are not an adequate remedy and that the balance of convenience is in favour of the application. Moreover, the moving party does not have to give an undertaking as to damages."

41.  The critical point for the purposes of this judgment is the intimate connection that must necessarily exist between the lis (the action) and the registered lis pendens: the latter only serves to maintain the status quo while the proceedings are underway.

42.  There are some specific provisions of the Act of 2009 which demonstrate this and seek to guard against the risk of a lis pendens being asserted for an excessively lengthy period of time, to the detriment of the property owner. 

43.  Most notably, section 123 itself ensures that a lis pendens may be vacated either if the proceedings are determined or if there is unreasonable delay in prosecuting them.

44.  In addition, section 125 provides that,

"A lis pendens does not bind a purchaser of unregistered land without actual knowledge of it unless it has been registered in the Central Office of the High Court within 5 years before the making of the conveyance to the purchaser."

45.  While this case concerns registered land and section 125 is not applicable, it does indicate a legislative intention that a lis pendens should not endure for an open-ended period of time. 

 

Assessment

46.  The lis pendens that was registered here coincided with the issue of these Proceedings.  It was registered in September 2018 (over 6.5 years ago) to protect the interest of the Plaintiff arising from the option of which he sought specific performance (for the purchase of the Property for the sum of €625,000).   

47.  Those proceedings and that claim were finally determined by Pilkington J. on 21 March 2021 and the 2022 Order recognised an option to purchase for a higher sum of €725,000.

48.  There was no appeal by either side.

49.  The Proceedings were then finally and conclusively determined.

50.  The purpose of the lis pendens at that time was spent.  The position had been held during the currency of the Proceedings; the Defendants had not disposed of the Property; and the Plaintiff was free to exercise the option that had been recognised by the Court, namely an option for the purchase of the Property for the sum of €725,000.

51.  An application could have been made at any time thereafter on behalf of the Defendants under section 123(a)(i) on the sole basis that the Proceedings had been determined.  It would have been a matter of the Court's discretion to determine whether to vacate it.

52.  Instead what has occurred is that it is now over 6.5 years since the lis pendens was registered.  The option to purchase which was recognised by the High Court in March 2021 has not been exercised and no evidence has been adduced that the Plaintiff at any time sought to exercise that option in the terms confirmed by the High Court.  It was found in the Variation Judgment that there was no forward-looking element to the Option Judgment, there being no order of specific performance or similar.  The Proceedings were therefore fully concluded.

53.  I consider that the Plaintiff's position has been protected for considerably longer than is envisaged by section 123 (the lis pendens having remained in situ for almost 3.5 years beyond the determination of the Proceedings).

54.  In these circumstances, section 123(a)(i) is applicable and confers a power to vacate the lis pendens.  On the basis of the facts and circumstances outlined above, I am satisfied that this is a case in which it is appropriate to exercise that power.  In making that decision, I have regard to, and repeat, the findings in the Variation Judgment that it would be unjust (as well as legally vulnerable) for the Defendants to be restrained indefinitely from selling the Property.

55.  For completeness, I note the secondary case made by the Defendants in reliance on section 123(a)(ii).  That provision hinges on there being "unreasonable delay in prosecuting the action."  While the Variation Judgment includes clear findings that the evidence does suggest a failure by the Plaintiff to exercise the Option within a reasonable time after the Option Judgment and the 2022 Order, I do not believe there is evidence before me of a delay in the prosecution of the Proceedings within the meaning of section 123(a)(ii).  It is a novel point that is advanced by the Defendants, but I am not persuaded that delay in enforcing or exercising rights after the determination of proceedings constitutes a delay "in prosecuting the action" within the meaning of section 123(a)(ii).  No case or authority was opened to me which supports such an interpretation of that provision.   Indeed, the cases that were cited in the written submissions of the Defendants (Carthy v. Harrington [2018] IECA 321; Hurley Property ICAV v. Charleen Limited [2018] IEHC 611) both concerned allegations of delay during the currency of proceedings.

56.  In short, I do not believe the power conferred by section 123(a)(ii) is exercisable after the proceedings have been determined: at that stage (as here), the correct source of the Court's jurisdiction is section 123(a)(i).  It is on the basis of the latter that I am satisfied to make the order sought by the Defendants.

Conclusions

57.  For the reasons set out above, I propose to make an order granting the relief sought by the Defendants.  Given this decision and the grounds on which it was made, I am of the provisional view that the Plaintiff should be liable for the costs incurred by the Defendants in relation to this Motion.

58.  I will list the matter before me at 11am on 22 May 2025 to hear any submissions the parties may wish to make on the question of costs and to make final orders.

 

 

 

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