APPROVED [2025] IEHC 286
harp graphic.
THE HIGH COURT
2023 2201 P
BETWEEN
DECLAN KEHOE
PLAINTIFF
AND
PROMONTORIA (ARAN) LIMITED
AND
KEN FENNELL
DEFENDANTS
JUDGEMENT of Mr Justice Nolan delivered on the 20th day of May, 2025
Introduction
1. The Plaintiff, who is a businessman and resides in Churchtown Co. Dublin, seeks a series of orders, including mandatory interlocutory orders and prohibitory orders restraining the sale of two properties, namely 9 Beenoskee, Ballard, Tralee, County Kerry (the Kerry Property) and 30 Lower Dorset Street, Dublin 1 (the Dorset Street Property). He also seeks various other orders of a mandatory nature, including an order directing the discharge of the Second Named Defendant as receiver and directing the Defendants to take certain steps in accordance with Section 103 of the Land and Conveyancing Law Reform Act 2009.
2. The grounds of seeking these orders are more particularly set out in his affidavits but can be summarised as being on the basis of the following:
(b) He argues that the Tralee Property and the Dorset Street Property are personal assets, not corporate assets and that he has constitutionally protected property rights as an individual.
(c) He says that the First Named Defendant, Promontoria, has never sought an order for possession in the Circuit Court in respect of the Tralee Property and therefore it cannot sell or attempt to sell it now.
(d) He says he has an equity of redemption in the mortgage over the property and the property has risen in value over the years.
(e) Any delay on the part of the Plaintiff should be weighed against the obvious and considerable delay on the part of the Defendants in taking enforcement action over the Tralee Property and the Dorset Street Property or their failure to progress summary summons proceedings issued in 2017 but were struck out.
(g) The Plaintiff is entitled to rely on the Statute of Limitations 1957 by reference to a Facility Letter dated the 11th of November 2021, as well as the fact the summons proceedings in 2017 have been dismissed by Order of the High Court.
3. The Defendants say that the relief should not be granted for a number of reasons:
(a) The Plaintiff has delayed unduly in seeking interlocutory orders concerning matters which occurred in 2015.
(b) The proceedings constitute an abuse of process in light of the fact that the Plaintiff has brought, but failed to prosecute, three previous sets of proceedings concerning the same issues or related issues.
(c) The affidavits sworn by the Plaintiff in these proceedings contain false or misleading averments concerning the status of the Kerry Property.
(d) Damages would be an adequate remedy for the Plaintiff.
(e) There is, in any event, no substance to the Plaintiff's claim, and as such no serious issue to be tried.
The Background
4. As noted by Butler J. in the Court of Appeal, in associated proceedings entitled Kehoe and others v Promontoria (Aran) Ltd and others [2023] IECA 725, the issues between the parties have their origin in loans taken out by the Plaintiff and his wife from Ulster Bank between 2008 and 2011. The various loans were secured by an 'all sums due' mortgage/charge which the Plaintiff had executed in favour of Ulster Bank on the 22nd of February 2008 in respect of the Kerry Property, of which he is the registered owner. Ulster Bank registered its charge on the folio in October 2008. Additional security over other property was also provided.
5. On the 12th of February 2015, Ulster Bank executed a Global Deed of Transfer under which the Plaintiff's loans and related security were transferred (along with many others) to the First Named Defendant. The transfer of Ulster Bank's interest in the charge over the secured property in favour of the First Named Defendant was registered on the folio on the 9th of April 2015. The Plaintiff does not accept the validity of any of these transactions. The First Named Defendant made a formal demand by letters dated the 8th of October 2015 for repayment of the total sums due on foot of the many loans. At that stage the amount outstanding was just under €5m.
6. As the loans were not repaid, the First Named Defendant appointed the Second Named Defendant as a receiver over the Plaintiff's security on the 28th of October 2015. The Plaintiffs were notified of this appointment by letters the following day.
7. In a general sense, the Plaintiff disputes the amounts demanded by the First Named Defendant as being due on foot of their loans; the validity of the transfer of their loans by Ulster Bank to the First Named Defendant; the validity of the appointment of the Second Named Defendant as receiver; the validity of the sale by the Second Named Defendant of the other three properties in his capacity as Receiver and assert that such sale was at an undervalue.
The Previous Sets of Proceedings
8. In special summons proceedings issued against the Second Named Defendant on the 8th of December 2016 ("the 2016 proceedings"), the Plaintiff challenged the validity of the Second Named Defendant's appointment as receiver over all his properties. A number of affidavits were sworn in those proceedings by both parties and also on behalf of the First Named Defendant, who was not a party to the 2016 proceedings.
9. Although the 2016 proceedings were issued by the Plaintiff as a litigant-in-person, by the time the matter came into the Judge's List, on the 29th of May 2017, he had instructed a solicitor, albeit the solicitor was not formally on record. The court was advised by the solicitor in question, that a Notice of Discontinuance had been filed and that the proceedings could be struck out, which they duly were, with an order for costs against the Plaintiff.
10. Subsequent to the 2016 proceedings being struck out, the receivership progressed, and the other three secured properties referred to in these proceedings, were sold by the receiver. The Plaintiff contends that these sales were at an undervalue.
11. The Plaintiff also issued proceedings against Ulster Bank in 2016 and these are still extant, although no Plenary Summons has ever been served.
12. In 2020 the Defendants discovered that a third set of proceedings ("the 2018 proceedings") had been issued by the Plaintiff against the same Defendants, but he had registered a lis pendens on the Kerry Property. They then brought a motion to strike out those proceedings.
14. It is worth looking further at those two sets of proceedings. In the first, bearing record number 2016 500 SP, the Plaintiff sought a declaration pursuant to Section 22 of the Land and Conveyancing Law Reform Act 2009, that the appointment of the Second Named Defendant as receiver over both properties was invalid and had no legal effect. He also alleged that the instrument of appointment did not comply with the appointing company's Articles of Association and lacked the authority of the board and there was no legal certainty as to the existence or authority of the person who acted as a director. He swore an affidavit confirming his views. An appearance was entered to those proceedings and affidavits sworn to which the Plaintiff replied. These were the proceedings that were struck out in court on consent of the Plaintiff. While he says they were struck out in disputed circumstances, the transcript, which he sought, refers to him being in court. Nonetheless, a notice of discontinuance was served by the Plaintiff.
15. The 2018 proceedings sought very similar orders to the 2016 proceedings including orders restraining the Defendants from enforcing the securities in any way, together with a declaration that the appointment of the Second Named Defendant as receiver was invalid and of no legal effect. Again, they were not served nor were the Defendants notified, in any way, of their existence, despite the fact that the proceedings were, in effect, seeking orders restraining the conduct of an ongoing receivership. Instead, as noted above, on the 26th of March 2018, a lis pendens was registered over the Kerry Property.
16. The Defendants moved to set aside the proceedings and the matter came on for hearing before Twomey J. He removed the lis pendens and dismissed the action on the grounds of delay. The matter was then appealed to the Court of Appeal in which Butler J. concluded her judgment by saying the following:
"The manner in which the Plaintiffs issued a second set of proceedings seeking similar relief, registered a lis pendens and then took no step at all to prosecute them places them in a particularly unmeritorious position".
17. The Plaintiff put none of these details before the court.
The Plaintiff's Submissions
18. Counsel for the Plaintiff makes a number of submissions. He submits that the proceedings essentially concern matters arising from July 2022 and April 2023 onwards. He argues that since the First Named Defendant only appointed the Second Named Defendant as an agent, as opposed to a receiver, in September 2022, this is a relevant matter for consideration. He alleges that his client's possession of the Kerry Property is being interfered with. He alleges that the First Named Defendant must obtain a Circuit Court order for possession pursuant to the Registration of Title Act 1964. He says that it is generally accepted that a mortgage of registered land cannot take possession of the mortgage property without a court order. He submits that in the absence of a power of sale of the receiver or indeed, the mortgage, a power of sale does not exist.
19. He argues that the other properties that his client owned, which still form part of the proceedings, have been sold and questions whether they were lawfully sold.
20. He alleges that the issues in the proceedings are complex and relate to the alleged transfer of loans and securities from Ulster Bank to the First Named Defendant, the alleged appointment of the Second Named Defendant and his actions and the sale of the three Dublin properties. However, he doesn't say why they are particularly complex.
21. He says that the issues can only be determined following a plenary hearing with discovery and inspection of all relevant transfer documentation but does not say why in the context of what is an interlocutory application, he will be deprived of the ability of seeking discovery or inspection of transfer documentation, assuming that the case proceeds to trial. He says that damages have been awarded for the unlawful actions of a receiver selling a property, but it is not at all clear as to how any of these arguments can be relevant to this application.
23. Among the issues raised is whether the Plaintiff's loans and security were validly transferred to the First Named Defendant. In particular, he refers to a loan facility letter dated the 24th of November 2011, which states that it supersedes all prior agreements or correspondence between the bank and the borrower in relation to the facility. There was consideration for this agreement and argues the letter provided that the loans were repayable on or before the 30th of September 2012, unless otherwise agreed in writing with the bank. Therefore, he alleges that since 12 years have passed, the Plaintiff is entitled to rely on the Statute of Limitations 1957, in respect of any enforcement action now proposed to be taken by the First Named Defendant or its agents.
26. Setting out the legal criteria in relation to seeking an injunction, he says all he has to establish is that there is a fair question to be tried and further that the court could order an early trial.
27. He asserts that the Plaintiff does not have to demonstrate that damages are not an adequate remedy, as it is not part of the test in Merck Sharp & Dohme v. Clonmel Healthcare [2019] IESC 65. It is for the Defendants to demonstrate that damages are an adequate or appropriate remedy in the circumstances of this case.
28. He goes on to say that clearly damages are an adequate remedy for the Defendants. Without any evidence, he questions whether in fact the receiver has an appropriately sized policy of insurance.
29. He relies on Section 31 of the Registration of Title Act 1964 and argues that while the Register is said to be conclusive evidence of title, that is not an unqualified statement.
30. In his written submissions he refers the law in relation to maintenance and champerty, but this issue was not argued in court and I can see no basis whatsoever for even considering the granting of injunctive relief under these headings.
31. Before I move on to the Defendants' submissions, I think it is worth making a number of observations in relation to those of the Plaintiff. At times, they seemed to be the type of submissions which would normally be made in defense of proceedings instituted by a bank and/or a receiver. Reference to the Plaintiff being deprived of the opportunity to seek discovery is precisely the type of argument which is often made in cases where there is an application for possession or judgment. At all times the onus in an injunction rests with the Plaintiff. It is not the law that when seeking equitable injunctive relief, the onus falls upon the Defendant. Further, in such applications speed is of the essence.
The Defendants' Submissions
32. Mr. Abrahamson SC for the Defendants makes five points. These are that the Plaintiff has delayed unduly in seeking interlocutory orders concerning matters which occurred in 2015, the proceedings constitute an abuse of process in light of the three previous sets of proceedings concerning the same issue and that the affidavits sworn by the Plaintiff contain false and misleading averments in regard to the Kerry Property. He submits that damages would be an inadequate remedy and that in any event, there is no substance to the Plaintiff's claim and as such, there is no serious issue to be tried.
33. Dealing with the first of his five arguments, he points to the three sets of proceedings and what happened in each. He refutes that this has anything to do with matters which have recently come to light and points to the submissions of the Plaintiff that in fact, the issues relate to the transfer from Ulster Bank to the First Named Defendant, the appointment of the Second Named Defendant and the sale of three properties, all of which took place before 2018. In those circumstances, there has been a clear, substantial and unexplained delay.
34. The second issue relates to the Defendants' allegation that these proceedings amount to an abuse of process. He submits that the court should have regard to the previous sets of proceedings which were instituted by the Plaintiff, either by himself or with his wife and says that these proceedings clearly offend against the rule in Henderson v Henderson [1905] 1 IR 353. Further, the Plaintiff has failed to explain why these issues were not raised in any of the previous sets of proceedings and litigated to their end.
35. The third issue is perhaps the most important in the context of seeking equitable relief, the Plaintiff does not come to court with clean hands. He has sworn information which is not true and is misleading. I shall deal with this issue in some detail below.
36. As far as damages being an adequate remedy, he submits that the Plaintiff's interpretation of the case law is clearly wrong. His case is all about damages.
37. In relation to the Plaintiff's argument that the facility letter did not include the Kerry Property, he says that prior to the transfer of the loans, it was agreed that the properties were to be sold in a permanent reduction of the Plaintiff's indebtedness and in the meantime, any rents were to be applied to offset loan interest. Therefore, the Plaintiff was contractually obliged to realise the security to repay his loans. Further, the First Named Defendant's interest in the Kerry Property is registered on the folio and that registration is conclusive proof of its title to the charge as per the cases of Tanager v Kane [2019] 1 IR 385 and Tyrrell v O'Connor [2022] IEHC 274.
38. As to the contention that the First Named Defendant is somehow precluded from enforcing its security, merely by virtue of the omission from the transfer documentation of a reference to the November 2011 facility letter, he says this argument is without merit. The facility letter continued existing indebtedness, reflected in a series of existing loan accounts. Each of those loan accounts was transferred by Ulster Bank to the First Named Defendant, being described and defined in the transfer documentation as "Underlying Loans". With or without the November 2011 facility letter, those loan accounts represent an extension of credit to the Plaintiff which he is obliged to repay. The security which the First Named Defendant holds expressly extends to "... all present and/or future indebtedness of the Mortgagor to the Bank on any current and/or other account with interest and bank charges ...".
39. The Second Named Defendant was appointed receiver by the First Named Defendant by way of an instrument of appointment dated the 28th of October 2015. It is common case that the receiver does not enjoy a power of sale under the security which the First Named Defendant holds over the Kerry Property and the Dorset Street Property. The First Named Defendant, as mortgagee, enjoys a power of sale under statute.
40. Separately, the Second Named Defendant was appointed agent of First Named Defendant by an Agency Agreement dated the 13th of September 2023. That agreement expressly recited the appointment of receiver and is careful to delineate between the Second Named Defendant's functions qua receiver and those qua agent of First Named Defendant.
Clean Hands
41. At the outset, I think I should express the court's serious concerns in relation to certain matters. As noted in the third submission made by of the Defendants, the Plaintiff has given the distinct impression that the Kerry Property is and was his family home and never was a rental property and in fact, was never rented to third parties at all.
42. At para. 15 of his first affidavit he says as follows: -
"In particular your deponent and his family are in possession of the property actually and have been for some time. This is a residential property and I say and believe the Defendants will require a court order for possession in respect of this asset."
43. In his second affidavit sworn in in September of 2023 at para. 14 he says as follows: -
"Furthermore I do not believe that the first time Defendant has the power to sell my property as a mortgage in possession or otherwise. The Tralee property is currently occupied by your deponent and his family and it's always been a residential property used by myself and my family. This was never an investment property and never rented out. It has always been a residential property and a dwelling for my family." (emphasis added)
44. He went on to say at para. 16 "The property is residential property under dwelling, I believe the Defendants will require a court order for possession, which I intend to oppose."
45. Finally, in his affidavit of the 11th of April 2024 at para. 47 he said, "the Kerry property is a residential property, and it is occupied by your opponent at his family members on a regular basis... your deponent's wife is from Kerry and we spend a considerable amount of time in the Kingdom."
46. These sworn statements by the Plaintiff were made, notwithstanding that the very first line of each of his sworn affidavits state that he resides at Churchtown Co. Dublin.
47. On the face of it, anybody reading these affidavits and in particular, the first affidavit, which grounds the application for an injunction, would form the view that the Kerry Property is a family home. However, the wording in each affidavit subtly changes as time goes on. In court, his Counsel argued that due to family issues, the property is now very much the family home, for at least some members of the family. He offered to file a further affidavit on the issue. Given that this is his client's application for an interlocutory injunction, it seems to me entirely inappropriate and wrong that a further affidavit would be filed, trying to correct a previous mistake or misdescription, which had been highlighted by the Defendants in their submissions. It would be allowing the Plaintiff to mend his hand on being found out.
48. One would also form the view, since it is stated in the Plaintiff's sworn testimony, that the premises were never an investment property and never had been rented out. Had the Second Named Defendant not been able to procure a copy of a lease between the Plaintiff's wife and a Mr. Finn and Ms. McAuliffe, starting in March 2009, showing that they had rented it up to November 2015, the court would have been no wiser.
49. Not only that, but by letter dated the 19th of November 2015, the Plaintiff wrote to the tenants and demanded that the rent be paid to himself and his wife and not the Second Named Defendant, on pain of eviction. He concluded the letter by saying "not to do so will result in your eviction". This at a time where he knew that the second named Defendant had been appointed receiver over the property.
50. It is patently clear therefore, that the Plaintiff has not come to court with clean hands. He has sworn averments which were misleading at best and patently untrue so as to amount to lies, at worst. The courts have continually emphasised the importance of parties, who seek the equitable jurisdiction of the court, to come to court with clean hands. This, he patently has not done. Indeed, had he been truthful, it would have undermined his fundamental argument. Therefore, this is not a situation that he forgot the premises was rented out and therefore, it could not be the family home. On that ground alone, I would refuse the injunctive relief sought. However, there are many other reasons why it should be refused.
The Rule in Henderson v Henderson
51. The rule in Henderson v Henderson is of ancient antiquity but has become an increasing feature of litigation over the past decade, particularly in the Chancery courts. In the case of Moffitt v Agricultural Credit Corporation Plc [2007] IEHC 245, Clark J. (as he then was) set out a useful analysis of the rule and its interplay with the principle of res judicata where he said as follows:
"A second, and analogous, issue arises in relation to the so-called rule in Henderson v. Henderson (1843) 3 Hare 100. This rule is concerned with a similar, although different, situation than that to which the doctrine of res judicata strictly speaking applies. Res judicata per se applies where the matter sought to be litigated has already been decided by a court of competent jurisdiction. Res judicata can relate to the cause of action (which may involve a consideration of whether two separate causes of action arise) or an individual issue (issue estoppel).
In the latter case the issue sought to be litigated must be identical to the issue decided in the previous proceedings. (See for example Royal Bank of Ireland v. O'Rourke (1962) I.R. 159).
The rule in Henderson v. Henderson, on the other hand, applies where a new issue is raised which was not, therefore, decided in the previous proceedings but is one which the court determines could and should have been brought forward in the previous proceedings. The importance of the distinction lies in the consequences. If a matter is res judicata then, in the absence of a defence to the application of the doctrine such as fraud, the availability of fresh evidence in respect of issue estoppel only, estoppel, or other special cases, the plea will necessarily succeed.
On the other hand, where reliance is placed on the rule in Henderson v. Henderson to the effect that it would be an abuse of process to now allow the party concerned to raise a different issue which could have been raised in the original proceedings, it is well settled that the court adopts a more broad based approach."
52. While the court does indeed adopt a more broad based approach, in this particular case, these proceedings have to be seen in the light of the decision of the Court of Appeal and in particular, where Butler J. noted the manner in which the Plaintiff issued a second set of proceedings seeking similar relief, registered a lis pendens and then took no steps at all to prosecute them. She said that placed the Plaintiff "in a particularly unmeritorious position". As Mr. Abrahamson submitted, if it was unmeritorious after the second set of proceedings, how could one describe it after these, yet another set of proceedings, which deal with precisely the same issue.
53. Further, the very relief which the Plaintiff seeks in these proceedings, is what he sought in two separate proceedings, one in 2016 and the other in 2018, which he failed to prosecute. In the first, he consented to them being struck out and filed a notice of discontinuance, while in the second, he simply issued the proceedings in what would seem to be an attempt to stymie the ability of the Defendants to sell the Kerry property.
54. Therefore, I have no hesitation in finding that these proceedings are an abuse of process, since they clearly offend against the rule in Henderson v Henderson.
Delay
55. I do not accept the submission of the Plaintiff that these matters relate to the activities which took place between 2022 and 2023. They fundamentally go back to the failure of the Plaintiff to honour his financial commitments to Ulster Bank and the fact that Ulster Bank then transferred its interests on to the First Named Defendant. That was the issue which formed the basis of his first set of proceedings. It is material that when the tenants of the Kerry Property brought the correspondence from the Second Named Defendant to the Plaintiff's attention in 2015, he then wrote to the Second Named Defendant, describing him as a "purported receiver". He alleged that Mr. Fennell had acted in an illegal manner and that he had made a formal complaint to the Gardaí to investigate entrapment, harassment and intimidation and that he would initiate criminal proceedings against him.
56. There is no doubt whatsoever that the Plaintiff has delayed. If he truly believed in his cause of action, he would have litigated it to the end. He did not do so. No doubt he thought that as time went on the Defendants may lose interest and not prosecute their claims. But matters were in his hands. He now comes to court seeking reliefs which he sought nine years ago and again seven years ago.
57. There has been gross delay. That delay of itself would deny the granting of equitable relief. Therefore, on that ground alone I would refuse to grant the relief sought.
The Registration of Title Argument
58. I briefly would like to deal with some of the arguments the Plaintiff makes in regard to a fair issue to be tried. The Plaintiff says that it is generally accepted that a mortgagee of registered land cannot take possession of the mortgage property without a court order and points to Section 62 of the 1964 Act. He submits that in the absence of a power of sale of the receiver or indeed the mortgage, a power of sale does not exist.
59. The Kerry Property is registered land comprised in Folio 47619F. The Plaintiff contends that the Defendants are obliged to invoke Section 67(2) of the 1964 Act in order to sell the Kerry Property. That Section provides as follows:
"When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession." (Emphasis added)
60. Wylie expresses the view that a charge holder "... who wishes to obtain a court order for possession, usually with a view to selling the land out of court, had to rely upon this statutory provision" (Wylie on Irish Land Law, 6th ed. (2020), §14.21).
61. However, it is not necessarily the case that a charge holder will require an order for possession prior to sale. Whilst Section 62(7) provides a summary mechanism to obtain such an order where required, nowhere is it mandated that a charge holder must invoke Section 62(7) before selling secured property. Wylie recognises this in the following terms:
"The second remedy which a mortgagee has is power to sell the mortgaged property without the intervention of the court but, if the mortgagee is unable to obtain vacant possession of the property, he will find considerable difficulty in selling it, for few purchasers will buy a property in the possession of a mortgagor. That is why an application for a court order for possession is often a preliminary step towards exercise of the power of sale out of court. If the property mortgaged consists of the right to receive rents, the power of sale without the intervention of the court may also be used (e.g. the landlord's reversionary interest in a shopping centre or office block let to multiple tenants). In such cases there is no need to seek physical possession of the property as any sale will be subject to the continuation of leases not captured by the mortgage and of occupation by the tenants under them." (Wylie, §14.54).
62. The court has been supplied with a draft contract for sale of the Kerry
Property, in which it is explicitly provided for, at Clause 6, that the property is sold subject to occupancy and that vacant possession will not be provided. Therefore, it is clear that First Named Defendant is selling as a mortgagee but does not intend to take possession. In those circumstances no application pursuant to Section 62(7) is required.
63. It is also clear that the mortgage deeds provided for the power of sale. Leaving that aside, and even if the Plaintiff's argument in relation to the facility letter, to which I will refer to below, has any merit, I am satisfied that in fact, the provisions of the Registration of Title Act 1964 and in particular Section 62, do not mandate an application to court to exercise the power of sale. The section clearly contains the word "may". It is not a mandatory obligation to apply to court. The provision could not be clearer. Therefore, I see no merit in this argument.
64. The Plaintiff's argument that the Land Registry is not conclusive, flies in the face of stated case law. Naturally, if there has been a mistake or fraud, the Register can be amended. But in the absence of mistake or fraud, the Register is conclusive.
65. In Tanager DAC v Keohan [2018] IECA 352, Baker J. said:
"The first observation to be made with regard to the power of rectification is that the jurisdiction is limited to rectification in the case of actual fraud or mistake, and s. 31(1) of the 1964 Act expressly excludes from the power of rectification any argument that might derive from the knowledge of the registered owner of any "deed, document, or matter relating to the land". The purpose of that restrictive power is to remove from registered title the vexed question of express or implied notice of any equities that might affect the ownership of land, precisely the type of issue that made and continues to make the conveyancing of unregistered land complex and, at times, uncertain".
66. Here there is no suggestion of mistake or fraud with the registration of the first named Defendant's interest. Subject to the issue of the facility letter, I believe the receiver does have power of sale, and therefore this is not a ground a for seeking an injunction. No fair issue has been raised.
Further Ancillary Arguments
67. However, I think it would be appropriate to deal with the other submissions for sake of completeness. I should say, however, that I do not believe that they have any merit. The Plaintiff alleges that he is entitled to rely upon the Statute of Limitations in relation to the facility letter. That may well be the case however it is not a basis upon which to seek an interlocutory injunction.
68. I accept, as do the Defendants, that the receiver owes a duty of care to the borrower. It may well be the case that the provisions of the Land and Conveyancing Law Reform Act 2009 were not complied with in a timely manner envisaged by the legislation. But that cannot possibly be a reason for granting an injunction. There is no basis in law which could justify the granting of an injunction just because the party has breached the regulations relating to a statutory provision.
69. It is possible that the Plaintiff has some equity of redemption in the mortgage over the property, since it has risen in value. If it has risen in value, and if it is sold before the hearing of this action, and if there has been any failure on the part of the Defendants to honour or breach their duties, then the Plaintiff will have his right of recourse in those proceedings.
70. I do not accept for a moment that either of the Defendants are not mark as to damages and any suggestion that since the court has not seen the insurance policy of the Second Named Defendant, that should justify an injunction, is quite frankly unstable.
71. He complains of getting redacted copies of the loan sale deed, notwithstanding, that he requested unredacted copies, again that cannot be the basis of an injunction. Just because he has seen redacted copies does not mean that there is anything sinister taking place. It probably means that the Defendants are concerned about commercially sensitive information being released and perhaps, GDPR issues. While the Plaintiff argues that all of this should be seen in the round, even taken in the round, this does not amount to a stable ground seeking the relief sought.
72. He argues that since the receiver said that he was not aware of a lis pendens, this indicates he had no intention of selling property prior to September 2020. I can not agree. The reason he was not aware of the lis pendens was because of the actions of the Plaintiff in not serving them. It does not show that he did not intend to sell the property.
73. He also relies upon certain provisions of the Banking Codes of Practice, which is simply a code and could never form the basis of seeking an injunction nor could any argument in relation to the statute of limitations, be regarded as a fair question so as to ground an application for an injunction and the circumstances of this case.
The Facility Letter
74. I initially was of the view that the evidence of Mr. Wickham, the financial expert employed on behalf of the Plaintiff, who swore two affidavits late in the day, did raise an issue as to whether the facility letter of 2011 included the Kerry Property. A concession of sorts was made by the Defendants on this issue. But, with or without the November 2011 facility letter, those loan accounts represent an extension of credit to the Plaintiff which he is obliged to repay. Further, it is clear that the First Named Defendant interest is the registered in the Land Registry. In those circumstances, I am unclear that a fair issue has been raised. However, giving the benefit of the doubt to the Plaintiff, all that I can see is that there may be a stable case on this issue which requires to be tried.
The Law Relating to the Granting of Interlocutory Relief
75. The Law Reports are full of analysis of the law relating to the granting of interlocutory relief. In 2019, O'Donnell J. (as he then was) in Merck Sharp & Dohme reasserted the basic principles. The first issue to be addressed is whether or not a fair issue to be tried has been raised.
76. As I have noted above, the issue of the facility letter has caused me some concern. Notwithstanding that it is one of multiple arguments, none of which have any merit whatsoever, I am inclined towards the view that the plaintiff has just about made a case that there is a fair issue to be tried, on that sole issue.
77. The next issue to be addressed is the balance of convenience. As part of that consideration, the court should consider the adequacy of damages. Counsel for the Plaintiff has tried to turn the onus of the issue of the adequacy of damages on its head. To that extent, I think it is worth quoting O'Donnell J. in Merck where he said: -
"In my view, the preferable approach is to consider adequacy of damages as part of the balance of convenience, or the balance of justice, as it is sometimes ca led. That approach tends to reinforce the essential flexibility of the remedy. It is not simply a question of asking whether damages are an adequate remedy. As observed by Lord Diplock, in other than the simplest cases, it may always be the case that there is some element of unquantifiable damage. It is not an absolute matter: it is relative. There may be cases where both parties can be said to be likely to suffer some irreparable harm, but in one case it may be much more significant than the other. On the other hand, it is conceivable that while it can be said that one party may suffer some irreparable harm if an injunction is granted or refused, as the case may be, there are nevertheless a number of other factors to apply that may tip the balance in favour of the opposing party. This, in my view, reflects the reality of the approach taken by most judges when weighing up all the factors involved."
78. As part of those factors, the court has to consider the fact that the Plaintiff is in significant debt to the Defendants. His Counsel conceded that had Ulster Bank still held the debt, an application for an injunction would have been unlikely. Therefore, it is clear that this case is about money. While the Plaintiff suggests that the Defendants may sell the property at undervalue, does not give rise to an injunction. If these things were to occur, the Defendants clearly are a mark for damages. The same cannot be said for the Plaintiff. Certainly, he has put forward no evidence to suggest that if these were to occur, he might be a mark and given the nature of the proceedings which has been brought, it is reasonable to assume that he has not.
79. The Plaintiff borrowed very significant sums of money, in excess of €3 million. This clearly was a business for him. The various mortgages were clearly commercial transactions between the Plaintiff and Ulster Bank, for whom the First Named Defendant stands in title of. The two properties the subject of this application were investment properties. The fact that he may sometimes stay in the Kerry property does not change the fact that for at least six years, up until he got into financial difficulty, it was rented. Even in the circumstances that his cause of action was proven to be correct, it is patently clear that damages would be an inadequate remedy.
Decision
80. I am satisfied that the relief which the Plaintiff seeks by way of injunction, should not be granted. I believe the Plaintiff has offended at least three major equitable principles. I believe he has not come to court with clean hands and has not told the truth in relation to the Kerry property. I believe that his proceedings are an abuse of process pursuant to the rule in Henderson v Henderson, by virtue of the various proceedings which he issued over a number of years, but did not prosecute. I believe that there has been such a delay that it would be unconscionable to grant injunctive relief.
81. Even if none of that were the case, while it is possible that there may be a serious issue to be tried in regard to the interpretation of the facility letter of 2011, clearly damages are an adequate remedy. However, that is only one of the issues relating to the balance of convenience which I have to consider, given that the receiver was appointed 10 years ago and has been carrying out his duties, including the sale of a number of the properties, clearly the balance of convenience does not favour the granting of an injunction.
82. Given the Plaintiff's total failure to be candid with the court, his egregious delay and his failure to prosecute his various other cases dealing with the same issue, an injunction would never lie in his favour.
83. As to legal costs, my provisional view is that as the Plaintiff was unsuccessful in this application, the Defendant would be entitled to recover their costs against the Plaintiff in accordance with the default position under Section 169 of the Legal Services Regulation Act 2015. This matter will be listed before me on the 4th of June 2025 at 10.30 for submissions on the form of the final order and on legal costs.