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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mars Capital Finance Ireland DAC v O'Halloran & Anor (Approved) [2025] IEHC 307 (16 May 2025)
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Cite as: [2025] IEHC 307

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THE HIGH COURT

[2025] IEHC 307

[Record No. 2023/5601HP]

BETWEEN

MARS CAPITAL FINANCE IRELAND DAC

PLAINTIFF

AND

 

AVRIL O'HALLORAN AND ANNE O'HALLORAN

DEFENDANTS

Judgment of Mr. Justice Cregan delivered on the 16th day of May 2025

Introduction

 

1.                  The plaintiff in this case has brought an application for the attachment and committal of the first-named defendant, Ms. Avril O'Halloran, who resides at 21 Roselawn, Tramore, County Waterford. The application is brought because of the first-named defendant's ongoing breach of the order of the High Court (Ms. Justice Stack) made on 20th March 2024. The application was fully contested by Ms. Avril O'Halloran who represented herself and who made submissions to the court.

Background

2.                  The background to this case is that on 7th March 2007 the defendants took out a loan of €150,000 with EBS Building Society and secured their borrowings by executing a mortgage in favour of EBS in respect of the property at 21 Roselawn, Tramore, County Waterford, the property in dispute in these proceedings.

3.                  The defendants subsequently defaulted on their loan repayment obligations to the EBS and the EBS sued the defendants in respect of this default.

4.                  It is clear from the affidavits of the plaintiff that EBS Building Society converted from a building society to a bank ("EBS Ltd") and subsequently, in 2016, EBS Ltd converted to a Designated Activity Company ("DAC")

5.                  It is also clear that EBS Building Society assigned its interest in the loan and mortgage to EBS Mortgage Finance (on 28 November 2008) and in turn EBS Mortgage Finance assigned its loan and mortgage to EBS DAC (on 1 September 2020). (I will refer to all the EBS companies as "EBS").

6.                  On 2 July 2018, EBS obtained an order for possession from the County Registrar in Waterford in proceedings entitled EBS Mortgage Finance v. Avril O'Halloran and Anne O'Halloran (Record No. 2016/00502). The perfected order states that this application for possession was made before the County Registrar on 2nd July, 2018 and that the defendants were duly served with a Civil Bill for Possession on the Title herein. The order also recites that the matter came before the County Registrar on 2nd July, 2018 on a motion for leave to enter judgment. The order of the County Registrar provides as follows:

"The Court Doth Order that the plaintiff do recover from the defendants vacant possession of ALL THAT AND THOSE the premises known as 21 Roselawn, Tramore, County Waterford being all of the premises, lands and hereditaments comprised in Folio WT1966F of the Register of Freeholders/Leaseholders and County of Waterford and the Court Doth Further Order that the plaintiff do recover from the defendants the costs of the proceedings to be taxed in default of agreement.

And the Court Doth Further Order that execution for possession hereon be stayed for three months from this date."

7.                  It is clear from the order that this application was undefended by the defendants.

8.                  Subsequently on 18 February 2021, EBS DAC sold its interest in the said loan and mortgage to Mars Capital Finance Ireland DAC and on 30 April 2021, EBS DAC executed a Global Deed of Transfer in respect of this loan and this mortgage in favour of the plaintiff. I am satisfied - as indeed was Ms. Justice Stack in the application before her - that the plaintiff is the lawful successor in title to EBS.

Actions taken by the plaintiff

9.                  Pursuant to the Deed of Transfer dated 30th April 2021, the plaintiff purchased the defendants' loan and mortgage. The plaintiff then registered its ownership of the charge in respect of the property on 28th June 2021.             

10.              It is also clear that the defendants are in substantial arrears to the plaintiff. As at 28th February 2025 the defendants owe the plaintiff the sum of €186,178.80. (The arrears of this amount to over €105,000). Moreover interest continues to accrue on the monies due and owing. Mr. Hogan for the plaintiff also states that the market valuation of the property is around €210,000.

11.              On 29th June 2023 the Circuit Court (Southeastern Circuit, County of Waterford, Judge Simon McAleese), granted leave to Mars Capital Finance Ireland DAC to issue execution in respect of the Order for Possession dated 2nd July 2018. The recital to the order noted that the defendants were duly served with a Civil Bill and again that there was no appearance by or on behalf of the defendants.

12.              On foot of the order for possession, and subsequent leave to issue an execution order, an execution order dated 27th July 2023 was issued by the Waterford Circuit Court. This execution order authorised the sheriff take possession of the premises at 21 Roselawn, Tramore, County Waterford.

13.              The grounding affidavit of Eoin Pentony, the solicitor for the plaintiff, in this application states that "Acting and on foot of and with the authority pursuant to the execution order, the sheriff of County Waterford secured possession of the property in around 3rd November, 2023."

14.              It is also clear that the sheriff took back possession of the property on 3 November, 2023 because he wrote to the plaintiff's solicitors on 3rd November, 2023 saying:

"Dear Sir/Madam,

I return order for possession; possession of lands having been handed over to your clients. Kindly acknowledge receipt.

Yours faithfully,

Sheriff for the County of Waterford."

15.              It is clear therefore that the plaintiff lawfully obtained possession of the property in question.

The first defendant's trespass

16.              However immediately thereafter, at some time between 3rd November, 2023 and 6th November 2023, the first-named defendant broke back into the property and took back possession of the property. As and from that point she was, as a matter of law, a trespasser on the said property. See Carlisle Mortgages Ltd v. Costello [2018] IECA 334.

The plaintiff's injunction trespass proceedings

17.              As a result of the first defendant taking back possession of the property, the plaintiff then issued the within proceedings and, by way of notice of motion, issued on the 21st November 2023, the plaintiff sought various injunctive reliefs to restrain the defendants, their servants or agents (and anyone having notice of the order) from trespassing upon the property and compelling them to deliver up possession of the property to the plaintiffs.

18.              This application for an injunction was heard by the High Court (Stack J.) on 5th March 2024 and 20th March 2024. On 20th March 2024, the High Court (Stack J.) granted relief to the plaintiff as set out in the perfected order of the High Court. The first defendant appeared in person to contest these matters for the first time and was therefore fully aware of the issues and of the order made by the High Court.

19.              In the order, as perfected, Ms. Justice Stack made an order amending the proceedings pursuant to O.17 r.4 of the Rules of the Superior Courts by substituting "Mars Capital Finance Ireland Designated Activity Company" for "Mars Capital Finance (Ireland) Designated Activity Company" as the plaintiff in the title of the within proceedings. In other words, the court amended the title by deleting the brackets around the word "Ireland". It was also ordered that the within proceedings should be carried on between Mars Capital Finance Ireland Designated Activity Company and the defendants.

20.              It also provided - as is common in orders of this nature - that "This Order to be entered to the Proper Office of the Central Office". This relates to the fact that the practice of the Central Office is to require the plaintiff's solicitor (when the name of a plaintiff is changed), to present a copy of the perfected order to the Central Office to enable them to amend the title of the proceedings. This was done in this case.

21.              More substantively, the High Court ordered "that the defendants, their servants or agents, in respect of the property known as and located at 21 Roselawn, Tramore, County Waterford, comprised in Folio 1966F of the Register of Freeholders of the County of Waterford, comply with the order for possession of the County Registrar of Waterford dated 2nd July, 2018 in proceedings entitled "Mars Capital Finance (Ireland) DAC and Avril O'Halloran and Ann O'Halloran (Waterford Circuit Court Record No. 2016/00502)".

22.              The High Court also ordered that the defendants "do deliver forthwith possession of the property to the plaintiff".

23.              It was also ordered that the defendants, "be restrained from trespassing, entering upon or otherwise attending at or interfering with the property".

24.              It was also ordered that the defendants, "be restrained from impeding or obstructing the plaintiff, its servants or agents in their efforts to secure and take possession of the property".

25.              It was also ordered that the defendants should deliver up to the plaintiff all keys, alarms, codes and/or security and access devices in respect of the property.

26.              The said order was stayed for one month from the date thereof.

First defendant's actions after the High Court order

27.              One might have thought that the first defendant having been ordered by the High Court to vacate the premises would have done so immediately - and certainly within the one month period directed by the High Court. Instead, by letter dated 26 March 2024, the first defendant wrote to the plaintiff's solicitors making various allegations about the proceedings including an alleged fraud and stating that she would be attending at the office of the plaintiff's solicitor on 12 April 2024.

28.              Subsequently on 10 April 2024, the first defendant also made an application for leave to appeal the order of the High Court to the Supreme Court.

29.              On 10 April 2024, the first defendant attended at the office of the plaintiff's solicitors. By letter dated 15 April the plaintiff's solicitors wrote to the first defendant to summarise this meeting. This letter from the plaintiff's solicitors urged the first defendant to seek legal advice. The letter also set out the appropriate bank details of the plaintiff into which funds could be transferred if the first defendant wished to redeem her mortgage.

30.              On 16th April, 2024 the first defendant wrote to the plaintiff solicitor making various threats and also stating that she would redeem the loan - which to date she has failed to do.

31.              It appears that the first-named defendant also appeared at the plaintiff's solicitor's office on 19 April 2024 with a so-called "Document Inspector" to seek title of the documents to the property. This meeting was inconclusive.

Service of the order of Stack J. dated 20 March 2024

32.              As it was clear to the plaintiff that the first-named defendant had no intention of complying with the order of the High Court, the plaintiff endorsed the required penal endorsement on the order of the High Court (Stack J.) dated 20th March 2024 and engaged the services of RB Legal Services Ltd to effect personal service of the said order with the penal endorsement. However, despite all his reasonable efforts, the summons server was unable to effect personal service on the first-named defendant. Having tried to attempt personal service, the plaintiff's solicitors also sent letters by registered post on the 8th May 2024 and 31st May 2024. However both of these attempts at service also failed.

33.              In the circumstances, the plaintiff applied to the High Court for an order for substituted service, which order was granted on 15th July 2024. This provided that good service could be effected by posting the order of the High Court (with the penal endorsement) to the first-named defendant by ordinary pre-paid post to the defendant's address, 21 Roselawn Terrace, Tramore, County Waterford and by email to the first defendant's email address. 

34.              On 17th July 2024, in accordance with the said order, the plaintiff's solicitors issued a letter to the defendants by pre-paid ordinary post calling on the defendants to vacate the property by 24th July 2024 and putting them on notice of the plaintiff's intention to issue a motion for attachment and committal if she failed to do so.

35.              The first defendant however failed to comply with the High Court order and on 29th October 2024, the plaintiff issued this motion for attachment and committal.

The first defendant's submissions

36.              At the hearing of the motion, the first-named defendant read out a long and detailed submission to the court. In order to ensure that I had understood all of her arguments correctly, I requested her to type up this speaking note/submission and to provide a copy to the Court and also to the plaintiff within a period of seven days. I also adjourned the matter for a period of two weeks to permit the plaintiff to consider the matters which she had raised.

The first argument - the incorrect title of the plaintiff

37.              The first defendant's first argument was that the proceedings were not properly before the court, because brackets were put around one of the words in the title of the plaintiff. She argued that proceedings were instituted in the name of Mars Capital Finance (Ireland) Designated Activity Company as the plaintiff and that this was not the correct name of the Plaintiff.

38.              In other words, the first defendant's argument was that the plaintiff, when it initiated proceedings, had put brackets around the word "Ireland". Based on this trivial objection, the first defendant sought to raise an enormous superstructure of an argument by submitting that:

(a) the proceedings were not properly instituted;

(b) the proceedings were not properly constituted;

(c) the proceedings were void ab initio;

(d) the motion for attachment and committal was not properly brought;

(e) counsel for the plaintiff had lied to and misled the court when he indicated that the motion papers for the motion for attachment and committal were in order and were ready for hearing.

39.              It is clear that this argument is entirely without substance. In fact, when it was first raised, the plaintiff made an application to the High Court (Stack J.) for an order to amend the proceedings in order that the correct name of the plaintiff be correctly reflected in the title of the proceedings. On 20 March 2024, the High Court (Stack J.) made an order substituting Mars Capital Finance Ireland Designated Activity Company as the plaintiff in the title of the within proceedings for "Mars Capital Finance (Ireland) Designated Company". In other words even if this trivial error had been made, it was amended in the High Court on 24th March 2024.

40.              Secondly, the first-named defendant appealed this decision of Stack J. to the Supreme Court. In the Supreme Court, the first defendant again argued that the name of the plaintiff in the plenary summons was incorrect and thus the proceedings were void. The first defendant also argued that she was unable to take any steps in the proceedings (e.g. to put in an appearance) because of this defect. 

41.              The plaintiff submitted, in the Supreme Court, that the typographical error in the title of the High Court proceedings was not central to the real issues of the controversy between the parties and that the identity of the plaintiff was clear from the execution order dated 27th July 2023 (and the order for leave to issue execution dated 29th January 2023) and that the order of Stack J. appropriately amended the typographical error in the title of the proceedings.

42.              The Supreme Court issued a determination in this matter on Monday 22nd July 2024. Paragraph five of the determination of the Supreme Court states as follows:

"The present proceedings originate in an application for an injunction requiring the applicant to comply with the order for possession, in circumstances where the applicant failed to deliver possession to the respondent. By order of the High Court dated 20th March, 2024, Stack J. directed the applicant and second defendant inter alia deliver possession of the property to the respondent and be restrained from trespassing upon or otherwise attending at and/or interfering with the property. Stack J. further ordered that the title of the proceedings therein be amended to substitute "Mars Capital Finance Ireland Designated Company" for "Mars Capital Finance (Ireland) Designated Activity Company" as the plaintiff in the title of the proceedings pursuant to O.17 r.4 of the Rules of the Superior Courts. The trial judge found that the previous orders on foot of which the respondent secured repossession were in the name of the correct legal entity".

43.              The Supreme Court stated in its decision at paragraph 11:

"Her complaint stems from the fact that the title of the respondent on the plenary summons was wrong and that, as such, the entire proceedings are defective. The error in the title of the respondent comprised the inclusion of brackets around the word 'Ireland' in the title of the respondent. The error was the subject of an application to amend, and it was so amended by the High Court judge. Certain other orders were made at the same time. It is noteworthy that the applicant was on notice of the application before the High Court and that the applicant was afforded the opportunity to file an affidavit by way of response but she chose not to do so. The order made by the High Court in amending the title of the respondent was one which was routine in circumstances where there was a clear typographical error which could not in any conceivable way prejudice the applicant. This application does not meet the constitutional threshold for leave to appeal to this court. There is no point of general importance nor could it be in the interests of justice that this court should hear an appeal.... In the circumstances this application is refused".

44.               It is clear therefore that Ms. O'Halloran's argument that the fact the proceedings were unlawfully constituted and void ab initio because the plaintiff failed to put brackets around the word "Ireland" in its title is an argument of no merit. In the circumstances therefore, this argument made by the first defendant - and all of her arguments based on this point - are not accepted.

45.              Despite the fact that the Supreme Court in its determination stated that the order made by the High Court (amending the title of the respondent) was routine in circumstances where it was a clear typographical error which could not in any conceivable way prejudice Ms. O'Halloran, Ms. O'Halloran persisted arguing this point before this court in the motion for attachment and committal. It was a point of no substance at every stage in the proceedings and it is a point of no substance in defending this attachment and committal application.

The first defendant's second argument.

46.              The first defendant also argued that she never received a copy of the plenary summons and that the plenary summons was not served on her. However counsel for the plaintiff has demonstrated by reference to the documents before the court that the plenary summons was in fact issued and served on the first defendant. In my view, again, there is simply no substance to the first defendant's argument on this point. It is clear from the submissions and the papers filed in this matter that the plaintiff issued a plenary summons and served this on the first-named defendant.

The third argument - lawful status of the plaintiff

47.                 The first defendant adopted a fairly scattergun approach in her legal submissions and sought to cast doubt far and wide about every aspect of the proceedings and the orders obtained. One of these submissions was that the plaintiff had no lawful status. The first defendant's argument was that the plaintiff - Mars Capital Finance Ireland Designated Activity Company lacks the status of a company and therefore is not a lawful plaintiff.

48.              It is clear however that this argument is also without substance.        

49.              Mr. Glen Hogan, a manager for the plaintiff, swore a supplemental affidavit on 24 March 2025, at the court's direction, which stated that Mars Capital Finance Ireland Designated Activity Company is a "DAC" established under the laws of Ireland having its registered office at 1 Warrington Place, Dublin 2, DO2H27.   The registered company number is 558978. Mr. Hogan also exhibited the certificate of incorporation of the plaintiff. It is clear therefore that the first defendant's argument on this is without substance.

The fourth argument - that the order made was not duly entered with the proper office of the High Court.

50.              Another of the first defendant's submissions was that the order made by Ms. Justice Stack in March 2024 was not duly entered with the proper office of the Central Office consistent with the explicit terms of the order itself. This refers to the fact that on the face of the perfected order (at para. 3 on page 2) it states "This order to be entered with the proper office of the Central Office".

51.              However Mr. Eoin Pentony, the solicitors for the plaintiffs swore a supplemental  affidavit, at the direction of the Court, dated 24 March 2025 in which he states at paragraph 5 that "The Order made by Ms. Justice Stack in March 2024 was duly entered with the proper office of the Central Office, consistent with the explicit terms of the order itself. I say the registrar drafted the order. The Registrar sent the order to the Central Office of the High Court and I say I took up a copy of the order on High Court bespeak at courts.ie on 22nd March, 2024".

52.              At paragraph 7, he states "the phrase 'this order to be entered with the proper address of the Central Office' reflects standard procedural wording directing the entry and sealing of the order by the Central Office. Such wording neither indicates nor necessitates that any substantive amendment or alteration to the terms of the order be made subsequent to its initial issuance".

53.              I agree with these submissions. It is clear that this phrase "This order to be entered with the proper address of the Central Office" relates to the order that the proceedings are to be carried on between the re-named substituted plaintiff (i.e. Mars Capital Finance Ireland Designated Activity Company). It is clear that the Central Office is cognisant of this order and of this name change because all subsequent orders made in relation to these proceedings were in the name of Mars Capital Finance Ireland DAC.

The fifth argument - the allegation of tampering with court documents

54.              The first defendant also submitted that the order of Ms. Justice Stack was tampered with. As Mr. Pentony, solicitor for the plaintiff stated on affidavit this was a "bald, highly defamatory and unsubstantiated allegation". It is clear, and as is stated in Mr. Pentony's supplemental affidavit, that no amendment or alteration was made to the order of Ms. Justice Stack. As he says "The sole action taken was the insertion, through proper procedural means, of the standard penal endorsement required under Order 41 rule 8 of the Rules of the Superior Courts, an entirely routine and necessary administrative step, not amounting to "tampering" or "improper alterations". Mr. Pentony also exhibited (i) a copy of the original order of Ms. Justice Stack, and (ii) the copy with the penal endorsement attached. It is clear from a review of both that there are no improper alterations to the High Court order. The only addition is the penal endorsement.

55.              Order 41 rule 8 of the Rules of the Superior Courts provides for the general requirement that court orders containing coercive obligations must include the penal endorsement to be enforced through the process of attachment and committal. This rule provides as follows:

"Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered, shall state the time, or the time after service of the judgment or order, within which the act is to be done; and upon the copy of the judgment or order which shall be served upon the person required to obey the same, other than an order directing a mortgagor to deliver possession to a mortgagee, or an order under section 62 subsection (7) of the Registration of Title Act 1964, there shall be endorsed a memorandum in the words or to the effect following, viz.:

'If you the within named A.B. neglect to obey this judgment or order by the time therein limited, you will be liable to process of execution including imprisonment for the purpose of compelling you to obey the same judgment or order.'"

56.              Order 41 rule 8 of the Rules of the Superior Courts also provides a general procedural requirement mandating a penal endorsement on court orders which compel a person to perform an act.

57.              As Clarke J. (as he then was) stated in Ulster Bank Ireland v. Whitaker [2009] IEHC 16:

"The order must contain the relevant endorsement. In the circumstances I am satisfied that, in order that a party may be subject to a form of enforcement such as attachment, committal or sequestration or, indeed, a fine in lieu, arising out of a failure to comply with an order for discovery, it is, in the ordinary way, necessary that the order concerned should contain what is now described as a memorandum in the form set out in O. 41, r. 8 of the Rules of the Superior Courts."

58.              It is clear therefore that there was no tampering with the High Court order and the inclusion of the penal endorsement on the order was required by the rules.

59.              I am satisfied that the first defendant's allegations on this matter are entirely without substance.

The sixth argument - Orders made by the County Registrar without jurisdiction

60.              One of the arguments made by the first defendant is that the County Registrar had no jurisdiction to make an order for possession.

61.              In my view this submission is incorrect as a matter of law. The Circuit Court Rules have a new order - Order 5B - which was inserted by statutory instrument 264/09. This order is entitled "Procedure in certain actions for possession or sale of land and actions for well-charging relief."

62.              Section 1 provides that "This Order applies to any proceedings in which the plaintiff claims " [...] recovery of possession of any land on foot of a legal mortgage or charge".

63.              Section 4 provides that "Every Civil Bill to which this Order applies shall, upon being issued, be assigned a return date before the County Registrar, which date shall be entered in the Civil Bill."

64.              The Rules also provide that the procedure is to be on affidavit and no party shall have a right to adduce any evidence otherwise than an affidavit except by leave of the judge or in certain other cases (see section 6 of Rule 5B).

65.              Section 7(1)(e) of Order 5B provides as follows:

"On the return date of the Civil Bill [...] the County Registrar may, in addition to any other order which the County Registrar has power to make:

[...]

(e) where an appearance has not been entered or an affidavit in accordance with rule 5(2) setting out a defence has not been filed and delivered, make an order for possession in accordance with paragraphs (xxxiii) or (xxxiv) of the Second Schedule to the Courts and Courts Officers Act 1995".

66.              In the present case, the defendants did not enter an appearance, or file any affidavits as they were entitled to, and/or obliged to, do if they wished to resist an application for possession by the plaintiff.

67.              Section 34 of the Courts and Courts Officers Act, 1995 deals with "Hearings by County Registrar". Section 34(1) provides as follows:

"(1) Without prejudice to any powers, authorities, duties or functions that may be exercised by or conferred by statute or by rules of court on a County Registrar, a County Registrar may make any of the orders mentioned in the Second Schedule to this Act.

(2) All orders of a County Registrar shall be subject to appeal to the Circuit Court."

68.              The second schedule is entitled "Orders Which can be Made by County Registrars".

69.              Section 1 of the Second Schedule provides as follows:

"1. A County Registrar may make any of the following orders:

(xxxiii) An order for possession of any land within the meaning of section 3 of the Registration of Title Act 1964 , in proceedings for an application under section 62(7) of that Act in which an appearance has not been entered or a defence has not been delivered.

(xxxiv) An order for the recovery of possession of any land on foot of a legal mortgage or charge in proceedings in which no other relief is claimed and an appearance has not been entered or a defence has not been delivered."

70.              I am satisfied therefore that s.34 of the Courts and Courts Officers Act, 1995 and Order 5B of the Rules of the Circuit Courts provides for a specific power to allow the County Registrar to make an order for possession in cases where an appearance has not been entered  or an affidavit setting out a defence has not been filed or delivered.

71.              I am therefore satisfied that the County Registrar did have the specific statutory power to make an order for possession in this case and I am of the view that the first defendant's submission on this is incorrect as a matter of law.

The plaintiff's arguments- the first defendant's arguments are a collateral attack on the plaintiff's possession orders

72.              The plaintiff submitted that almost all of the first defendant's submissions were, in substance, an impermissible collateral attack on the possession orders obtained by the plaintiff against the defendants in Waterford Circuit Court. I agree with this submission.

73.              The plaintiff also submitted that purpose of an attachment and committal application is not to serve as an appeal of substantive issues which have previously been decided. I agree with this submission also.

74.              The plaintiff relied on the recent decision of Heslin J. in The Board of Management of Wilsons Hospital School v. Burke [2023] IEHC 528 where the court stated at para. 7 as follows:

"It seems to me that those submissions constituted an invitation to this Court to ignore the order made ..., to ignore the proceedings which gave rise to that order and to, instead, embark on a reconsideration of matters, either by way of a re-hearing of the case (already dealt with) or, in substance, an appeal against the decision and order made, .... To do the foregoing is simply impermissible."

75.              As Heslin J. stated at para. 23 of his judgment:

"The central point is whether or not there is a willingness on the part of the defendant to obey an order made by the Court which he has been breaching ...."

76.              I agree with this "over-arching" submission made by the plaintiff - as it characterised it. Most, if not all, of the first defendant's submissions are, in substance, aimed at the validity of the original order for possession obtained by the plaintiff from the County Registrar in County Waterford and/or subsequent orders made in the Circuit Court.

77.              Moreover, the first defendant also decided not to appeal the orders made by the Registrar to the Circuit Court or thereafter to the High Court.

78.              Any attempt by her now to argue points which could have, or should have, been made in the Circuit Court are simply a collateral attack on the possession orders made by the Circuit Court and are therefore impermissible.

Finality in litigation

79.              The plaintiff also submitted that essential principle of finality in litigation was also relevant in this case and that the first defendant could not be allowed to seek to endlessly argue and reargue points which had already been decided against her. The principle of finality of orders was set out by Murray J. in Riordan v. An Taoiseach [2000] IESC 61 where Murray J. stated that, as a general principle of law, there must be an ultimate finality to litigation. In that case, the applicant had sought to set aside judgments which he considered to be fundamentally flawed by errors of law and errors in the interpretation of the Constitution. Murray J. however observed that the proceedings "are at an end and are binding on the parties to them. This is so even if a party may not only be dissatisfied with the results but even if it chooses to disagree fundamentally with a reasoning in the judgments or the interpretation given to the law".

80.              As Murray J. stated:

"If a party, solely because he or she disagreed with a judgment of the Court of final appeal could by one means or another restart the proceedings to have issues tried all over again, and perhaps even again, it would undermine the functioning of the administration of justice and weaken the authority of the law, which are there for the benefit, not of the Courts, but of citizens as a whole."

81.                The plaintiff therefore submits that the Circuit Court possession proceedings are at an end and the orders are final and have not been appealed. I agree with these submissions. Inspection of title documents

82.              One of the arguments raised by the first defendant is that she said she had a right to respect the documents to the property. However the issue of the inspection of title documents is irrelevant to the issue of the application for attachment and committal. What happened was that the first defendant made an issue of the fact that she wished to inspect the title documents and claimed that she was entitled to do so under section 91 of the Land and Conveyancing Law Reform Act, 2009. As a result, I requested the solicitors for the plaintiff to facilitate such an inspection. Mr. Pentony in his affidavit of 4th March 2025 stated that the parties organised an inspection of title documents for 19th March 2025 at 10 am in the office of the plaintiff's solicitors. However the plaintiff's solicitor stated that only the mortgagor would be entitled to inspect the documents under s.91 - as s.91 of the Act provides. It appears that on 19 March 2025, the first defendant attended the plaintiff's solicitor's office with a Ms. Catherine Ross. The first defendant or Ms. Ross asked for copies of the transfer documents between AIB and the plaintiff. The plaintiff refused to provide these. The first defendant then declined to inspect the title documents on the basis she would not know what she was looking at.

83.              It appears that sometime later, on 19th March 2025, the first defendant and a so called "Documents Inspector" attended the plaintiff's solicitor's office and the "Document Inspector" requested access "to validate" the documents. However the plaintiff's solicitor refused on the basis that only the mortgagor can inspect the title documents under s.91 of the Act. She invited the defendant to inspect the title documents but the first defendant refused. The first defendant then subsequently left their office.

84.              I set out the above narrative of events for general information purposes only. I am satisfied that this issue is not relevant to any of the matters that I have to decide in this contempt of court application.

Procedural justice

85.              The first defendant also sought to rely on the dicta of Hardiman J. in Quinn and Others v. IBRC [2012] IESC 51 in which Hardiman J. emphasised the importance of fair procedures in attachment and committal proceedings stating as follows:

"If a citizen could be summarily imprisoned, or fined a huge sum of money, without all proper meticulous attention being paid to the procedures which exist for his protection, then the liberties of citizens generally would be undermined. Everyone threatened with imprisonment for contempt, ... is entitled in the public interest, to a meticulous observation of procedural justice."

86.              I am satisfied in the present case that the first defendant has had all the protections of procedural justice in this application. At the original hearing of the motion for attachment and committal, having heard the plaintiff's submissions. I then heard the first defendant's submissions which she read out from a prepared note. In order to ensure that I had fully understood all her arguments I requested the first defendant to type up the submissions and to circulate them to the Court and to the plaintiff. I adjourned the matter for ten days to allow this to happen and also to allow the plaintiff to file submissions in reply to the plaintiff and also to file a supplemental affidavit dealing with some of the factual issues raised by the first defendant. The matter came back before the Court and again I adjourned the matter for one final occasion to allow the first defendant to consider the replying submissions of the plaintiff and also to consider the further affidavits of the plaintiff. I am satisfied that the first defendant has had all the time she needs, and has been afforded every element of procedural justice, to deal with this application for contempt of court.

87.              The first defendant has also made generalised complaints under Articles 1 and 6 of the European Convention of Human Rights. I am satisfied that the Article 1 requirement and obligation to respect human rights has been fully complied with in the present case or has no relevance to the narrow issues of compliance with a valid finding and properly served court order. I am also satisfied that the Article 6 rights to a fair trial and grounds of procedural fairness have been fulfilled in these proceedings.

Conclusion

88.              As Heslin J. stated in Wilsons Hospital v. Burke at paragraph 33:

"This Court's jurisdiction to make such an order exists for an important reason and the reason is because deliberate disobedience of an order of this Court is an extremely serious matter. And why is this so? It is because the will of the Irish people, as expressed in the Constitution adopted by the people and as expressed in legislation enacted by the Oireachtas, elected by the people, as well as expressed in secondary legislation introduced by elected members of the Executive, is that court orders must be observed. In other words, it is an insult to every law abiding citizen for someone who is the subject of a court order to decide, unilaterally, that it should be ignored and that it is of no force or effect. 

...

Put crudely, a court order is not an 'à la carte menu' where someone can pick and choose what obligations they will or will not abide by."

89.              In Sherry v. Gunning [2014] IEHC 411, Hedigan J. stated at paragraph 1:

"The jurisdiction of the courts to enforce their own orders is an essential aspect of the rule of law and coercive orders provide courts with a method to ensure compliance. The court cannot and will not allow the re-litigation of issues already concluded in the courts."

90.              In Quinn and Others v. IBRC [2012] IESC 51 the Supreme Court (Fennelly J.) stated:

"Coercive imprisonment in order to enforce compliance in the future with a court order is imposed for civil contempt and can be indefinite in duration"

91.              In my view, in order to find that a person is liable to an order for committal to prison on foot of an application for attachment and committal a court should be satisfied:

(i)                       that there is an order of the High Court which is clear and precise about what has to be done or not done;

(ii)                    that the Respondent to such an application has received a copy of this order with the penal endorsement thereon;

(iii)                  that the Respondent understands clearly what the order means and what steps he or she must take to comply with the order;

(iv)                   that the Respondent refuses to comply with the High Court order; and

(v)                     that the Respondent has no reasonable grounds as to why he or she will not comply with the said order.

92.              I am satisfied that, in the present case, all of these conditions have been fulfilled.

93.              Between the date of the order 20th March, 2024 (and allowing for the stay of one month on the said order), and the date of this application and judgment, the first-named defendant has consistently, and persistently, refused to comply with the order of the High Court for the last twelve months. She remains in occupation and in possession of the said property. She is quite clearly trespassing on the said property and she is quite clearly in breach of the High Court order of 20th March 2024. It is also clear that the first defendant has no intention of complying with the terms of this order.

94.              In the circumstances I am satisfied beyond reasonable doubt that the first-named defendant is engaged in a deliberate and wilful contempt of court.

95.              I am of the view that the first-named defendant should be committed to prison until she purges her contempt and agrees to vacate the property. I will hear the parties further on the exact terms of the order.

 

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