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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Tweedswood Ltd & anor v Power (Approved) [2025] IESC 18 (13 May 2025)
URL: http://www.bailii.org/ie/cases/IESC/2025/2025IESC18Hogan.html
Cite as: [2025] IESC 18

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AN CHÚIRT UACHTARACH

THE SUPREME COURT

 

[2025] IESC 18

 

 

O'Donnell C.J.

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

 

 

BETWEEN/

 

 

TWEEDSWOOD LIMITED (IN RECEIVERSHIP)

 

AND

 

TOM KAVANAGH (RECEIVER)

 

PLAINTIFFS/RESPONDENTS

 

AND

 

 

MARTIN POWER

                    

 

                     DEFENDANT/APPELLANT

 

 

AND

 

 

BY CONSENT OF THE COURT

 

ULSTER BANK (IRELAND) LIMITED

 

 

COUNTERCLAIM DEFENDANT

 

 

JUDGMENT of Mr. Justice Gerard Hogan delivered the 13th day of May 2025

 

 

Background

1.        The town centre of Wexford offers striking views out to the harbour and marina. It is an area bustling with commercial and retail activity. A casual observer might well wonder why a property situated right in the heart of this town centre has remained vacant and unused since 2009. Indeed, at one stage the property was entered on the register of derelict sites maintained by Wexford County Council under the Derelict Sites Act 1990. The answer lies in the fact that although a receiver was appointed by Ulster Bank (the then holder of a fixed charge in respect of this property) as far back as August 2009, very little has happened in the meantime. The entire tale is, unfortunately, a reflection on the indifference, casualness, and inefficiency on the part of banks and receivers and, unfortunately, perhaps - one is obliged to admit - delays in the legal system, few of which institutions emerge with much credit from this debacle.

2.        During this period of fifteen years this unused property has only served to blight the surrounding area. And although the receiver assured this Court as far back as November 2010 in the course of resisting an application for a stay on the operation of an interlocutory injunction which had been originally granted in his favour by the High Court in May 2009 that it was his intention to prepare the property in question to let or for sale, this has not occurred. At some point thereafter the receiver appears to have changed his mind and to have decided that any necessary renovation of the property prior to sale or rent would not have been commercially worthwhile. Neither this Court nor the High Court were ever informed at the time of this change of heart on the part of the receiver.  It would appear that the original holder of the fixed charge, Ulster Bank, has not received even a cent in income from the receivership over the last fifteen years. The loan was sold on to Pepper Finance in November 2023. In the meantime, it appears to be common case that the quality and value of the building as an asset has deteriorated appreciably since the receiver was first appointed.

3.        We are now required to consider whether the defendant's appeal against the grant of this interlocutory order effectively giving possession of the Wexford property to the receiver should be allowed. I agree, of course, that the original decision of Murphy J. in the High Court making this interlocutory order was entirely correct for all the reasons which O'Donnell C.J. has given in the judgment which he has just delivered. More than fifteen years later, however, the question has now become whether it is appropriate to continue this interlocutory order which was granted by the High Court some fifteen years ago. The circumstances have, of course, completely changed to the point whereby it would be unreal for this Court now to disregard all that has happened - or, perhaps, it would be more accurate to say, all that has not happened - in this interval.

4.        One may note in this context that that at the conclusion of the ex tempore judgment delivered by Macken J. in this matter in November 2010, this Court offered to hear the full appeal against the grant of the interlocutory injunction without delay. Neither party availed of this offer. There is the further point that, as I have already mentioned, the receiver had assured the Court that he intended to proceed to sell or let the property and that this was the reason why he needed vacant possession. While I do not accept the defendant's contention that the receiver had thereby given a formal undertaking to this Court for this purpose, the averments to this effect in the receiver's replying affidavit of 29th October 2010 were nonetheless fairly clear statements as to what the receiver then intended to do. At some point thereafter the receiver decided to abandon this plan. It seems that he considered that the expenditure of further money on these premises in anticipation of a possible sale or letting would not have been cost effective. Yet it would appear that the receiver overlooked advising this Court or the High Court of that change of heart, because this Court at least was only first told of this development in November 2024 when this matter was first re-entered before this Court.

5.        In the interval fifteen long years have passed while nothing - or almost nothing - has been done to the property. It has not been sold or leased and, as I have already observed, at one point between June 2023 and September 2024 the property fell into such a state of decay that it was entered on the register of derelict sites maintained by Wexford County Council. (It is only fair to record that the receiver addressed the concerns of the Council so that the dereliction notice was subsequently lifted). In the meantime, the present proceedings have been wending their way through the High Court. At the hearing of this appeal on 19th December 2024, this Court was informed that it was likely that the receiver's action would be heard at some stage in 2025.

6.        Perhaps as members of a legal community we have become so accustomed to lengthy legal delays that we are no longer taken aback by delays of this magnitude. Yet the fact that a routine receiver's action should take somewhere between fifteen and sixteen years to come to trial in the High Court displays a casualness and inefficiency within the legal system such as would make the shade of Dickens blush.

7.        It is against this background that I must now consider whether it is appropriate to continue the interlocutory relief first granted by the High Court in May 2009. In my view, the receiver's conduct of this litigation in the interval has been such as would disentitle him to the equitable relief which he now seeks. I say this for three inter-related reasons.

The conduct of the litigation

8.        First, as Clarke C.J. observed in Charleton v. Scriven [2019] IESC 28, a litigant who obtains the benefit of an interlocutory injunction is under a particular obligation to progress this litigation in a diligent fashion. That was also a receiver's injunction case, but the delay between the grant of the interlocutory injunction and the hearing of the appeal by this Court was just five years. Clarke C.J. nonetheless noted that:

  "in a case where it could be shown that a plaintiff who had obtained a beneficial interlocutory injunction had not moved with reasonable expedition thereafter to bring the matter on for trial, it may well be open to, and appropriate for, a court to consider whether that party should retain the benefit of what was clearly intended to be a temporary order for a prolonged period of time."

9.        In the present case the delay is immeasurably longer and these dicta of Clarke C.J. have an obvious resonance. A delay of over fifteen years between the grant of an interlocutory injunction and the ultimate hearing of the action by the High Court is prima facie abusive. As Irvine J. remarked in Taite v. Beades [2019] IESC 92, an interlocutory injunction is merely a "stepping stone towards a trial" and, as she observed, this means that the courts "must ensure that such relief is not, in practice, treated as a means of obtaining summary judgment against the defendant."

10.    In expressing that view, I do not overlook the difficulties which the receiver faced in progressing this litigation. He had hoped that the entire matter would be resolved by the appointment of a liquidator to Tweedswood in 2017 following a decision of this Court refusing Mr. Power's appeal against an order of the High Court winding-up the company, but this, for whatever reason, did not come to pass. There was a six-year delay between the hearing of a discovery application by the High Court on 24th July 2013 and the subsequent disposal of an appeal against of that decision by this Court in December 2019. The existence of a complex and convoluted counterclaim lodged by the defendant further inhibited the sale of the property. Nor can one absolve the defendant from a great deal of blame in this regard. He was given the opportunity of an early hearing of the appeal in respect of the interlocutory injunction in this Court which he for his own reasons spurned. As I have just noted, he has since pursued a complex counterclaim in the High Court.

11.    One is bound to remark that the entire affair is itself a very poor advertisement for a legal system whose sluggish inactivity and at times cumbersome procedures have surely contributed to these delays. It is mystifying to understand how the proceedings (including the counterclaim) have taken so long to come to trial. It does not seem, however, that either of the parties pursued this matter with any great urgency.

12.    While acknowledging all of this, the fact remains that it was the receiver who is the dominus litis. Not only is he the plaintiff in the action, but he is a professional person with considerable experience of litigation. He can presumably look to the mortgagee to be reimbursed for his costs. The receiver must therefore carry the ultimate responsibility for these unacceptable litigation delays. This, after all, is commercial litigation which relates "to decisions in a commercial field, where there should be very little excuse for delay": see Dekra Éireann Teo v. Minister for Environment [2003] 2 IR 270 at 304, per Fennelly J.

13.    Second, I cannot ignore the fact that in the interval the receiver has failed to live up to the assurances he previously gave this Court when the stay application was heard in November 2010 that he was about to either sell or lease this property. But having told the Court one thing he then went and did the exact opposite. Of course, I have already observed that the defendant's counterclaim greatly complicated any endeavour to dispose of the property. While making all allowances for his, the receiver's failure to inform the Court in a timely fashion that he had resiled from these assurances cannot go without consequences.

14.    Third, the receiver's inaction has had unfortunate consequences which were deleterious to the public interest. A receiver is, admittedly, not an officer of the Court and he or she owes a primary duty to protect the mortgagee in respect of the secured property: see Gomba Holdings (UK) Ltd v. Homan [1986] 1 WLR 1301. Yet a court asked to continue an interlocutory injunction is, I think, entitled to have regard to the public interest in addition to the private law rights of the parties to the mortgaged property. It is most assuredly not in the public interest that a receiver should allow a commercial property of this kind to fall into a state of disuse or even (for a fifteen-month period) a state of dereliction. Dereliction has terrible consequences not only for the property itself but also for the surrounding area.

15.    Here I find it difficult to disguise my impatience with a state of affairs in which a property was allowed to fall into such a state of disuse for such a long period of time. It is disappointing that neither the bank nor the receiver apparently seemed to care sufficiently so as to prevent such damage to the appearance of a properly so centrally located in Wexford town. If this Court were now to affirm the grant of interlocutory injunction it would effectively send a signal that the courts were all but indifferent to the consequences of legal delays and litigation inefficiency for the overall protection of the public interest. It is, after all, surely in the interests of all of the parties and in the public interest that properties charged as security in this way are, if at all possible, put to good use to help to repay that debt.

Conclusions

16.     It is for these special and unusual reasons that I consider that this Court should now discharge the interlocutory injunction which Murphy J. had granted. It is important to be clear about this. This decision should not be seen as an adjudication that the defendant has any rights or entitlements in respect of this property or that the plaintiff's current possession of that property is somehow irregular. It does not even mean that the receiver could not apply afresh to the High Court for injunctive or other relief (including interlocutory orders) should this prove necessary: see, e.g., Bowmaker Ltd. v. Brittania Arrow Holdings Ltd. [1988] 3 All ER 178; AO v. Minister for Justice and Equality (No.1) [2012] IEHC 1.  But it does mean that in any such application the High Court will be required to consider afresh the full consequences of the case and the respective rights of the parties having regard to all that has gone before.

17.     It is for these reasons - which I trust are peculiar and special to this case - that I would allow the appeal and discharge the interlocutory injunction granted by the High Court in May 2009.

18.    Since preparing this judgment, I have had the advantage of reading the judgment of the Chief Justice. I fully agree with that judgment and with the order which he proposes.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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