Court of Appeal dismisses appeal on costs of interlocutory injunction regarding property dispute and garage destruction.

NO REDACTION NEEDED

APPROVED

THE COURT OF APPEAL

CIVIL

Record Number: 2024/286, 2025/23 & 2025/24

High Court Record Number: 2024/1936P

Neutral Citation Number [2025] IECA 152

Costello P. O’Moore J. Collins J.

BETWEEN/

ALAN O’NEILL AND JUNE FINNEGAN

PLAINTIFFS/RESPONDENTS

-AND-

DRUMGOAN DEVELOPMENTS LIMITED, NOEL MARTIN SNR AND

DARREN MARTIN

DEFENDANTS/APPELLANTS

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 28th day of July, 2025.

1. The respondents/plaintiffs, Mr. O’Neill and Ms. Finnegan, are a couple who have lived for 20 years at an address in Portarlington, Co. Laois. On the 21st February 2024 Mr. O’Neill gave evidence that he was at home with his three year old daughter when he heard a loud hammering on the door of his garage. Mr. O’Neill and Ms. Finnegan had been using the garage for the purpose of keeping various reptiles “including chameleons, scorpions, tarantulas and a female caiman alligator”; para. 11 of the affidavit of Mr. O’Neill sworn on the 17th April 2024. The same affidavit goes on to describe what happened on the 21 st February 2024 (at para. 15):- “There were two men smashing the walls of our garage with power tools. Another man approached me holding a piece of paper spuriously claiming that the Defendants owned our garage. A fourth man arrived in a JCB digger and said he intended to drive the digger through the wall. These men were directed by the Third Named Defendant.”

2. Mr. O’Neill continues:-

“16. I told these men there were animals in the garage and I immediately contacted the gardaí. The JCB driver replied that he was aware of the animals and did not care for their safety or welfare. As I turned to pick up my daughter, the JCB driver drove the digger through the wall of the garage causing substantial damage.”

3. This bizarre incident occurred in the following circumstances. At the time the estate in which Mr. O’Neill and Ms. Finnegan live was built, both they and some of their neighbours paid extra amounts to purchase a garage for each of their properties; the homes and the garages had been built by the first defendant to these proceedings (“Drumgoan”). As a result of an error, the garage (or, more accurately, the land on which it was built) was not conveyed to the homeowners. Subsequently, in late 2023 and in circumstances which are far from clear, Drumgoan was registered as the owner of the site of the plaintiff’s’ garage. Indeed, it appears to be the case that Drumgoan was at the same time also registered as the owner of other garages on the estate. In his grounding affidavit, Mr. O’Neill states that Drumgoan, Noel Martin Snr. and Darren Martin had been “grabbing plots of land from my neighbours in the estate claiming that these plots of land belong to them”; para. 13 of the affidavit. He goes on to identify Noel Martin Snr. as the person who had made demands for money in respect of these plots of land. As will appear later, Mr. Martin Snr. was the person in Drumgoan who negotiated the sale of the homes in the estate in the first place; this presumably included the garage site. Regardless of the evidence that Mr. Martin Snr. had not been involved in Drumgoan for some time, it remains unclear as to why Drumgoan acquired legal title to the garage sites and as to how it could done so in good faith given that company’s involvement in the construction and sale of the homes in the first place.

4. Mr. O’Neill also identifies (and exhibits) copies of text messages sent by Mr. Martin Snr. to him. These include the following messages:- “Unfortunately for u I have saved all ur messages and recorded all your conversations with you and will produce to provide proof your liar . I will also be at guards to ask how unlicensed person can keep such dangerous animals at my property. At best your described how u may have purchased garage next to where u kept zoo dangerous animals. You then went on to offer purchase one you actually broke into and trespassed. I retained all this and will use in any circumstance where civil or criminal. Have wonderful weekend alan (sic)”

“I have warned you by writing move that piece scrap from my property. Any damages caused while we load it by teleporter from our property. If you require maps I will provide . This is not your property. This is last warning. Last correspondence you called the guards. Please do immediate. This is scrap ca… Put alligator s in it (sic)”

Importantly, in one of these messages Mr. Martin Snr. refers to the disputed property as “my property”. I will return to the significance of this reference later.

5. On the 12th April 2024, a cease and desist letter was sent by the solicitors for Ms. Finnegan and Mr. O’Neill to Drumgoan. This provoked a further message from Mr. Martin Snr. sent to Mr. O’Neill directly. It read:- “Provide proof not waffle from Solictor .

Tell that solicitor he has conflict he worked for me previously

When you and that previous solicitor goes to high court take the license s for dangerous animals we have pictures of that you housed I private estate with children in vaccines Next point you and he who is already conflicted and is also with your co operation defamation of me and my name . As for quiet enjoyment your property if you continue I may have interest in your property. All these Tex will be exibit in any possible litigation. Bring it on you fool . You found someone to listen to your waffle I have written to guard and informed them as per map s my proof ownership of garage in January past and again this week of your trespassing on my ground of your scrap vehicle on my ground. You as per correspondence you received 7 days removed it or license scrap merchandise will do (sic)”

Again, this message refers to “my proof [of] ownership of garage…”.

6. This series of messages included a statement that Mr. Martin Snr. would report Mr. O’Neill to Tusla “for keeping pets”. In his grounding affidavit, Mr. O’Neill went on to exhibit “images via text message implying that [Mr. Martin Snr.] has reported me to Túsla”; para. 23 of the grounding affidavit.

7. On the 17th April 2024, the High Court (Sanfey J.) made an order in the following terms:- “It is ordered that the defendants and each of them their servants and agents and all persons acting in concert with them be restrained forthwith from writing emailing or communicating directly with the plaintiffs.”

8. With regard to service, the High Court directed as follows:-

“And it is ordered that the plaintiffs be at liberty to notify the second named Defendant by WhatsApp messaging service of this Order and of the said notice of motion and to furnish a copy of the same.”

The plaintiffs were granted short service of a notice of motion for interlocutory relief returnable to the 24th April 2024 at 11am.

9. Curiously, there is no evidence before this court (nor was there evidence before the High Court judge) of the letter notifying Mr. Martin Snr. of the making of the order by Sanfey J. However, that potential issue in this appeal is set at naught by a concession made by counsel for Mr. Martin Snr. at the appeal hearing. On opening the papers, counsel for Mr. Martin Snr. referred to the following statement made by counsel for Mr. O’Neill and Ms. Finnegan on the return date of the motion seeking interlocutory relief. Counsel stated (at p. 4 of the Transcript):- “My solicitor WhatsApped a letter to Mr Martin senior setting out what the Court ordered, including the terms of the interim injunction restraining him from communicating directly with the defendants. So, we say he cannot but have been aware of the terms of the order.”

10. When asked by the court, counsel acting both for Drumgoan and Mr. Martin Snr. accepted that this statement to the High Court was accurate. Given the potential significance of the issue of service of the order of Sanfey J. on the defendants, counsel was asked to make sure that he was correct in making this concession. Junior counsel discussed the matter with Mr. Martin Snr. in the body of the court and the accuracy of the statement made by counsel for the plaintiffs was confirmed, with one caveat: the WhatsApp notifying Mr. Martin Snr. of the making of the order had been sent not by the solicitors for the plaintiffs, but rather by Mr. O’Neill personally.

11. Nowhere in the submissions to us was this concession sought to be reconciled with a statement made by counsel for Mr. Martin Snr. (on the same page of the Transcript of the hearing on the 24th April 2024) to this effect:- “And my instructions are that neither was my client aware that there was an order against any communication whatsoever. Those are my instructions, so if there was a breach it was an unknown breach, but my friend says that it was WhatsApped on the Wednesday. I haven’t seen that WhatsApp so I can’t really speak to that.”

It should be noted that counsel representing the defendants in the High Court (Conor Feeney BL) was no longer acting for any of these parties at the appeal hearing. For the sake of clarity, and to distinguish his actions from those of the counsel who replaced him, I am taking the unusual step of referring to Mr. Feeney by name. In doing so, I should make it clear that I am in no way critical of the way he handled matters for the defendants. On the contrary, Mr. Feeney handled a series of difficult situations skilfully and responsibly.

12. The hearing of the 24th April 2024 is significant for a number of reasons. The motion seeking interlocutory relief was returnable before the High Court (Nolan J.) on that day. The High Court judge was notified that on the 17th April, some hours after the making of the order by Sanfey J., Mr. Martin Snr. had sent to Mr. O’Neill the following WhatsApp message:- “Remove car from my property immediately if you don’t along with all lies your have represented to court s I will bring to its attention. Your headline for news that you brought to there attention will be most beneficial to my complaint for safety for children in your care and crann nua if you and mr jelly feel need bring this to attention of courts . This is dangerous unlicensed animal s so to do so bring all quarantine licenses etc to court and attention of Tulsa . (sic)”

This communication was a clear breach of the order made by the High Court earlier on the same day. The text of the WhatsApp plainly indicates knowledge of the proceedings; as counsel for Ms. Finnegan and Mr. O’Neill submitted to us at the hearing of these appeals, the phrase “court” is used on three different occasions in the relatively brief WhatsApp message. Even more significantly, Mr. Martin Snr. looks for the removal of a vehicle “from my property immediately…”. Not for the first time, Mr. Martin is treating as his own an interest in property registered in the company’s name. That is of great importance when one considers Mr. Martin’s evidence about the real role he is playing in his interaction with the plaintiffs, and the true purpose of this and the second of two communications found by the trial judge to have been in contempt of court.

13. The second reason why the hearing of the 24th April was a significant one is that Mr. Feeney, on behalf of all defendants, stated (at p. 3 of the Transcript) that:- “[the interim order] encompasses an order not to make any communications directly, and I have since explained that through my solicitor to the client and that’s understood. They’re happy to give an undertaking to that effect as well.”

14. Earlier (at p. 1 of the Transcript) Mr. Feeney had given undertakings in terms of the first two reliefs on notice of motion which were (as he summarised it):- “effectively undertaking not to enter upon the property, the subject of the proceedings, or to interfere with the plaintiffs’ use and enjoyment thereof.”

15. The third significance of the hearing on the 24th April 2024 is the seriousness with which the judge took the actions of Mr. Martin Snr., and the endorsement of that view by Mr. Feeney. The judge stated (at p. 2 of the Transcript):- “This is bullying and harassment at the highest level. This cannot be maintained. So, when your client gives an undertaking it is a solemn undertaking to this Court and if it is not abided by I expect the plaintiffs to come in with a penal endorsement where they will be attached and committed and brought before the Court to explain why they’re showing contempt if – and I emphasise if – they breach the undertakings they have given. Naturally, if they behave like civilised people, which there’s a question mark whether they’ve done so so far, then matters can be sorted out in a civilised way.”

In response to that pointed and emphatic statement by the trial judge, Mr. Feeney stated that this was “along the lines of the conversations I’ve had with them already.”

16. The judge went on to say that:-

“Just to show how important I deem this I’m actually going to keep seisin of this case myself.”

17. At page 5 of the Transcript, and to the further undertakings having been given by Mr. Feeney with regard to any communication with the plaintiffs by any of the defendants, the trial judge commented:- “In the circumstances where they’re not seeking an application for attachment and committal then I will not do that, but let your client be in no doubt whatsoever, even as much as a – any form of emoji or any form of communication that is at all, of any description, by electronic means or even by letter, by anything else, or driving past the property, early, late at night, in any shape or form, I will regard that in the most serious way.”

Mr. Feeney responded:-

“Yes, Judge. That’s fully understood and will be communicated in those terms.”

At the hearing of the appeal, the current counsel for Drumgoan and Mr. Martin Snr. described these comments by the judge as “a shotgun approach”. In my view, the approach taken by the judge should not be pejoratively characterised in that way. The judge made it his business to make it plain to each of the defendants (through their counsel and solicitors) that any breach of the undertaking, no matter how it might be characterised, would lead to very serious consequences.

18. Mr. Martin Snr., if he got the message, did not pay it sufficient heed. Within hours of the giving of these undertakings to the High Court by his own counsel, between 7:07pm and 8:03pm he sent the following messages:- “…previously brought to attention of Tusla issue of safety to children in your own care and in particular crann nua as whole where have particular responsibility for safety. It is wish that you provide licensed for such dangerous animals and qualified certified safety training qualifications quanatine certificate planning for such adaptive changes to domestic garage to keep such animals. Animals welfare has also been informed and in particular to consider conditions that animal s have been kept and where they are now how transfer and to where and how this took place and what welfare issue s we’re dealt with . Your agent me jelly shud assist in all above and please exibit and all answers as previously mentioned and omitted as to your agenda . This is open communication and not prohibited by order that provides for visit to your property that never actually took place . Again please remove scrap cars from property that does not belong to you Is this political and polite enough for you to exibit . Have absolutely wonderful evening The guards attended to call by worried neighbours that brought this issue to attention of registered owner of property as to welfare and safety concerns at this property with housing of illegal animals. This is information that you and mr jelly refuse to exibit him as officer court has obligation to do so . This is Tex to bring all attention. Bring this to attention court as we will and letters sent to you in this regard that you omitted as to unclean hands and courts ignorance as to it s participate in such Suck (sic)”

19. Unsurprisingly, in the light of the repeated behaviour of Mr. Martin Snr., a notice of motion was issued on the 26th April 2024 seeking the following reliefs:- “1. An order pursuant to Order 44, rule 3 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the Court for leave to issue an order for the attachment of the Second Named Defendant, Noel Martin Senior, by reason of his failure to comply with the order of this Honourable Court (Sanfey J.) pronounced on 17th April 2024 which said order was passed and perfected on 18th April 2024, as well as the undertakings given to this Honourable Court through counsel on 24th April 2024, in that the Second Named Defendant continues to communicate directly with the Plaintiffs.

2. An order pursuant to Order 44, rule 3 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the Court for leave to issue an order for the committal of the Second Named Defendant, Noel Martin Senior, by reason of his failure to comply with the order of this Honourable Court (Sanfey J.) pronounced on 17th April 2024 which said order was passed and perfected on 18th April 2024, as well as the undertakings given to this Honourable Court through his counsel on 24th April 2024, in that the Second Named Defendant continues to communicate directly with the Plaintiffs.

3. Such further or other consequential Orders and Directions as this Honourable Court may deem proper.

4. An Order providing for the costs of this application.”

The motion was returnable for the 1st May 2024.

20. A report dated the 1st May 2024 from a Tom Ryan, of Mediator Trace and Serve, was prepared for the return date. It described four different attempts to serve Mr. Martin Snr., none of which had been successful. On the morning of the 1st May 2024 counsel for the plaintiffs sought an order for substituted service of the motion seeking the attachment and committal of Mr. Martin Snr. for a failure to comply with the original order of Sanfey J. and failure to comply with his own undertakings given to the High Court. Mr. Feeney had no objection to the making of such an application, though he indicated that neither he nor his solicitors had seen copies of the motion paper. The trial judge dealt with the matter in the following way:- “Well, I’ll tell you what I’m going to do. I’m going to put this matter back until 2 o’clock. You’re going to get your client to be here in court. If he’s not in court, then I will issue the – I’ll issue whatever orders are required to bring him to court and I’ll instruct An Garda Síochána that he brought (sic) to court and we’ll see how matters pan out. So, I’m adjourning this matter to 2 o’clock and I expect to see your client in this courtroom.”

The response of counsel for the defendants was “[f]air enough”.

21. At 2 o’clock, Mr. Martin appeared before the court. His counsel stated that the motion had not technically been served “but I’ve been handed a copy before court”. He then said, importantly, that:- “And I think the position of Mr Martin would be that he accepts that he did send an additional WhatsApp the evening after I gave… the undertakings last week… It was against advice, strong advice, from… the solicitor and barrister and this – the Court’s strong words have been communicated.”

22. The trial judge then stated:-

“Very good. Put him in the witness box, please.”

23. A range of submissions were made on the appeal about the decision by the trial judge to have Mr. Martin Snr. give evidence there and then. It was submitted that Mr. Feeney (or his solicitors) would not have been familiar with the motion papers as they had just got them. I think that that does Mr. Martin Snr’s legal advisers a great disservice. The supplemental motion papers run to a four paragraph motion and a four page grounding affidavit. It would have been immediately evident what complaints the plaintiffs were making about the alleged breach of the order and the undertaking. In any event, Mr. Martin Snr. had clearly communicated to his counsel that a further WhatsApp had been sent on the evening that the undertakings were provided, and that this was done on the teeth of the trial judge’s own strong words and the advice provided by Mr. Martin’s legal advisors. More importantly, at no time did counsel on behalf of Mr. Martin Snr. look for an adjournment in order to consider the papers and/or take instructions. He plainly did not need to do so.

24. A repeated submission in this appeal was that the trial judge had fundamentally breached the rights of Mr. Martin Snr. in that the latter was not provided with an opportunity to put in a replying affidavit. However, this submission flounders when one considers that no application was made to the trial judge for the opportunity to swear such an affidavit. As we will see, nothing useful could have been added by any such affidavit and we were not informed what such an affidavit would have included that was not in any event put before the court through the oral evidence of Mr. Martin Snr.

25. There is also a fundamental misconception to this submission, which is that the provision of evidence on affidavit would be in some way more advantageous to Mr. Martin Snr than the giving of his evidence orally. There is no breach of fair procedures or due process by either allowing or requiring a witness to give oral evidence in respect of a very simple set of facts as opposed to swearing an affidavit in respect of the same facts. This situation might be slightly different for witnesses giving evidence about a very complicated factual landscape, but that most certainly was not the case here.

26. The third major argument advanced on the appeal by counsel for Drumgoan and Mr. Martin Snr. was that it was “important” that the motion had not been formally opened to the trial judge. This might have been a submission that would hold some water in the 1980s or 1990s, when it was not necessarily the case that the trial judge would have available to him or her the papers in any particular application. However, since the establishment of the Commercial Court in 2004, it has been the consistent practice in that division of the High Court that papers are read comprehensively in advance of any hearing. That has increasingly become the norm in other divisions of the High Court, including the Chancery Division where the current application was heard. There is no doubt, from the way in which the trial judge handled the hearing on the 1st May 2024, that he was fully aware of the relevant facts and issues on the application before him. The position advanced on behalf of Drumgoan and Mr. Martin Snr. on this point is that it is “important” that counsel for the plaintiffs had not formally moved or opened the application. However, the absence of such a formal incantation in no way undermines the legality or appropriateness of the approach adopted by the trial judge in considering the matter.

27. Before leaving page 4 of the Transcript of the hearing of the 1st May 2024, it should be noted that it was submitted forcefully by counsel for Drumgoan and Mr. Martin Snr. during the hearing of the appeal that the trial judge had prevented Mr. Feeney from making submissions on that date. This was based on the following section of the Transcript:- “Judge: Thank you, Mr. Martin. Sit down, please. Now, will you just bring your client through how it was, and why it was, that he did what he did on the face of two court orders, not one, but two.

Mr. Feeney: Yes.

A: Can I speak to it, Judge, that I --?

Judge: No. A: Okay, sorry.”

28. In this exchange, it is plain that the trial judge was telling Mr. Martin that he could not address him at that point. He in no way restrained or inhibited Mr. Feeney from making any argument to him. The submission that the trial judge did so was completely misplaced. If there was any doubt about it, the next portion of the Transcript removes any such lingering uncertainty. It reads:- “Judge: You will sit there, and you will answer questions your own counsel will put to you. You will then be cross-examined and then I may have some questions for you.

A: No problem.”

29. It is simply inconceivable that the judge was addressing Mr. Feeney during the course of these exchanges.

30. The oral evidence given by Mr. Martin Snr., from his own perspective, was devastating. When asked (by his own counsel) whether he accepted he had breached the order of Sanfey J. he said (at p. 5 of the Transcript):- “I do accept it. I made a mistake. I’m very sorry. I didn’t understand completely the situation and I can try and explain how I done it (sic) if the Court allows me.”

31. This is radically different to the proposition put forward (on instructions) by his counsel on the 24th April, to the effect that Mr. Martin Snr was not aware “that there was an order against any communication whatsoever.” This is not what Mr. Martin Snr. said in his direct evidence on the 1st May. Put at its simplest, saying that he made “a mistake” is inconsistent with the position that he never knew that there was an order in place preventing the sending of the WhatsApp.

32. Even more unfortunate is the evidence given by Mr. Martin Snr. about the breach of the undertaking. Again in direct evidence, he said the following:- “I had sent the text in relation to my own notes to send to the people at Drumgoan, set out in the future how we would deal with the case and my psychological instincts sent it to Mr. O’Neill by mistake. I’m very sorry, I didn’t mean to do it.”

This is arrant nonsense. I have set out the text of these two WhatsApps at para. 18 of this judgment. They do not, even on the most generous of readings, represent his own notes, nor were they to be sent to the homeowners as a group. They are clearly designed for Mr. O’Neill. The WhatsApps were not sent to Mr. O’Neill “by mistake”. The statement by Mr. Martin Snr. that his “psychological instincts sent it to Mr. O’Neill…” just makes no sense.

33. It must be remembered that this is sworn evidence given by Mr. Martin Snr. to the High Court. At the hearing of the appeal, counsel for Mr. Martin Snr. and Drumgoan accepted that this evidence was quite inconsistent with the texts of the WhatsApps which Mr. Martin Snr. was purporting to explain. It is almost offensive of Mr. Martin Snr. to believe that it would be accepted by the trial judge.

34. Almost as unlikely was the evidence given by Mr. Martin Snr. about his interactions with Mr. O’Neill. Mr. Martin Snr. stated that he was “not Drumgoan anymore…”, evidence which chimed with an affidavit sworn by his son (Darren Martin) on the 25th October 2024 when dealing with the interlocutory motion. Mr. Martin Snr. went on:- “I was asked to come into this of the history that I had in relation to it and, again, I’m sorry. I’m sorry for upsetting – any upset with Mr. O’Neill. Mr. O’Neill asked me to mediate because I was involved when he purchased. I’m sorry to the Court, and I didn’t mean it. It won’t happen again. And I’m not here to disrespect the Court.”

35. In the balance of his direct evidence, Mr. Martin Snr. again stated that what he had done was “a mistake” and he elaborated upon this (at p. 7 of the Transcript):- “It was one of them frugal (sic) mistakes and I hope I’m not chastised.”

36. At page 10 of the Transcript, Mr. Martin Snr. stated (in evidence to the judge):- “You won’t have a problem with me again. I’m sorry.”

In this, Mr. Martin Snr. transpired to be giving accurate evidence. There was no repetition of a breach of the orders or undertakings from late April 2024 onwards.

37. Under cross-examination, there were two topics of note. Firstly, Mr. Martin Snr. sought to explain the use of the phrase “remove car from my property” in the message sent on the evening of the order of Sanfey J. by saying (at p. 11):- “That’s right. It’s not parked in the garage, it’s parked in a common area where he’s not supposed to park it.”

It was also put to Mr. Martin Snr. that he had reported the plaintiffs to the ISPCA, but he denied this.

38. Asked for submissions by the trial judge “before I decide whether Mr Martin will in fact be sent to jail”, Mr. Feeney accepted in the clearest of terms that Mr Martin Snr. had not ceased communication with the plaintiffs, despite the advice given to him by his lawyers and despite the comments made by the court at the hearing on the 24th April, “but it was an isolated incident.” It was also submitted that Drumgoan would vest the legal title to the garage in Mr. O’Neill and Ms. Finnegan, which would address the underlying issue that had been problematic for some years. On being informed of this, the trial judge enquired as to how quickly the title to the garage could be put in order, and (without objection) adjourned his “decision” for two weeks. He stated:- “I will adjourn what sanction I will impose upon Mr Martin. I will impose a sanction, because I am satisfied there has been a contempt of court. The question is what type of sanction, whether it be by way of fine or otherwise. But I will make a view. I will listen to submissions from both of you in relation to that before I make a final

decision. But I’m going to adjourn this matter for two weeks. In the meantime, I advise everybody involved in this matter to do whatever it takes to ensure that the proper registration of Ms. Finnegan and Mr. O’Neill is done so at least that part of the case can be concluded while it is still before me. And then the issues of damages can be assessed at another time.”

The trial judge concluded by advising Mr. Martin Snr. how important that it was that he abided by court orders. Mr. Martin stated that he understood this.

39. In submissions on behalf of Drumgoan and Mr. Martin Snr., the trial judge was criticised for having made a finding of contempt prior to apparently re-opening the issue at a subsequent stage. I do not agree that there was anything inappropriate in the way in which the trial judge concluded the hearing on the 1st May. On the evidence before him, and the submissions from Mr. Feeney, there simply was no dispute about the fact that Mr. Martin Snr. had breached the order of Sanfey J. and the undertakings provided to Nolan J. Any explanations provided by Mr. Martin Snr. as to the circumstances in which these breaches occurred were risible. It would have been perverse for the trial judge not to conclude that Mr. Martin Snr. was in contempt of court. In adjourning the matter and warning Mr. Martin Snr. of the consequences of any repetition of his actions, the trial judge shrewdly and effectively managed the situation such that, as I have already noted, there was no further breach of the undertakings or any order of the court.

40. Much of the written and oral submissions on behalf of Drumgoan and Mr. Martin Snr. on the appeal related to the absence of a penally endorsed order, both the order of Sanfey J. and the order recording the giving of the undertakings by Mr. Feeney. This culminated in a submission that where no penally endorsed order was served there could be no effective sanction for a breach of that order. In this regard, reliance was placed upon the judgment of Hogan J. in Pepper Finance Corporation (Ireland) DAC v Persons Unknown [2023] IESC

21 at para. 74, where he said:-

“I find myself in general agreement with the conclusions of Whelan J. on this point. I consider that before any question of contempt of court could arise there would need — in general, at least — to be proper service of both the original summons in the first instance and, in the case of alleged subsequent default in respect of noncompliance with any order, the personal service of the penally endorsed order required by Ord. 41, r. 8. There may, of course, well be also other circumstances where the Court has made provision for substituted service under Ord. 10, r. 1 in which case service must then be effected in accordance with the terms of that particular order.”

41. In his judgment, Hogan J. refers to the general rule. I would respectfully agree that this portion of the judgment of Hogan J. correctly describes the general rule. However, there will inevitably be cases where compliance with such a general rule is impractical or impossible. Hogan J. himself refers to the occasions when substituted service would be required. There will also be cases where there is simply no possibility of serving a defendant with a penally endorsed order before the prohibited act occurs. Historically, that was always the case. It is particularly true now given the speed with which modern technology allows potentially unlawful acts to take place. Money can be moved from accounts in an instant. Defamatory statements can appear online in a trice. In the current case, these defendants could well have breached the order of Sanfey J. many times over before it was possible for the order to be perfected, let alone for a penal endorsement to be applied and the document served. It would have made a nonsense of the intentions of Sanfey J. if his order could only have practical effect (and legal consequence) after the perfected order had been drawn, penally endorsed, and personally served on the relevant defendant. I do not, therefore, believe that there is any authority supporting the contention made by the appellants to the effect that only actions after the service of the penally endorsed order could be the subject of any sanction.

42. On the adjourned date of the 16th May 2024, the question of the service of the penally endorsed order arose. The judge ruled (at p. 2 of the Transcript):- “[W]hat I will do is I will give you liberty to serve the notice of motion for attachment and committal on the basis of contempt of court, with the penal endorsement on it.

That doesn’t necessarily mean, Mr. Feeney –

Mr. Feeney: No, no, I think that’s right.

Judge: – that’s he’s – but I think I have to give you permission to do that, and then the motion will then be before the court on the day that we’ve adjourned the substantive matter.

Mr. Feeney: Very helpful, Judge, thank you.”

43. While at various stages there was talk of the motion bearing a penal endorsement, the summons bearing a penal endorsement, or the order bearing a penal endorsement, the striking aspect of the hearing on the 16th May is that Mr. Feeney, quite properly and clearly on instructions, raised no issue about the manner of proceedings suggested by the judge. Indeed, counsel offered that his solicitors would accept service in lieu of personal service on Mr. Martin Snr. In the event, the trial judge felt it more appropriate that there would be personal service on Mr. Martin Snr. He then went on to make the following directions (having stated expressly that the motion in respect of the contempt and breach of undertakings was directed to Noel Martin Snr. “and not to the other two defendants…”):- “… then we’ll deal with the attachment and committal application on the basis of contempt of court. And what you might do, gentlemen, is give me submissions as to how I should deal with that matter, and I’ll give the plaintiff seven days to file those submissions and exchange them and the defendant seven days to respond. Both submissions to be emailed to the Chancery Division. And what I’m looking for from the plaintiffs is what orders you seek, and I suppose what I’m looking for from the defendants is why I should not find Mr Martin in contempt and, thereafter, if I were to find Mr. Martin [in] contempt, what sanctions I should impose.”

Both counsel agreed with this approach.

44. The motion was adjourned to the 19th June 2024. It will be remembered that this was, in part at least, to secure the personal service of the penally endorsed order and motion on Mr. Martin Snr. Again, there was a report from Mr. Tom Ryan of Mediator Trace and Serve (dated 13th June 2024) available to the court on the adjourned date. It described a further fruitless effort to serve Mr. Martin Snr. It read:- “I, Tom Ryan of Mediator Trace and Serve Limited, confirm that service of (1) High Court Order Number … (2) affidavit of June Finnegan. (3) notice of motion were not served upon the above subject Noel Martin Snr. at the above address on Wednesday 12th June 2024 at 6:25pm.

At 6:35pm I telephoned subject on his personal telephone number… and left message on my contact details.

At 7:22pm Subject returned my call, however I was on another call at that time.

At 7:35pm, I telephoned subject back on his personal telephone number. I explained who I was and what I had to serve upon him. Subject then said ‘What do you want me to do’. I replied to subject ‘would he make himself available to accept summons’. He said, ‘no can do’ and refused to cooperate”

When the trial judge was notified of the difficulty in effecting service, Mr. Feeney stated:- “Mr Martin remains here and we have indicated since we were before you last that he’s happy to accept service here. Obviously, there’s some logistical issues on my friend’s side.”

45. The “logistical issues” were that on the 19th June 2024 the summons server engaged by the solicitor for the plaintiffs was in Donegal with the original copies. In these circumstances, the trial judge noted:- “The problem with that is I’m not certain that I have jurisdiction to make such an order and that would be then a ground for this saga to continue.”

This comment was described by counsel for Mr. O’Neill and Ms. Finnegan in this appeal as “very prescient”, and I would agree with this observation.

46. Mr. Martin Snr. was then asked to give evidence by the trial judge, he stated the reasons why he had not been able to accept service (“there were a few days’ holidays in the week after my solicitor rang me, and the following week I got Covid”), and then the order with the penal endorsement was served upon Mr. Martin Snr. in the witness box. To put it at its mildest, this was a very unusual procedure. It would ordinarily be roundly criticised by any appellate court. The ‘service’ of the order in this manner appears to have been an attempt to ensure that there could be no doubt that Mr. Martin Snr. was fully aware of the terms of the order which he had breached. However, this had been achieved by earlier notifications which I have already described in this judgment. There had also been evidence (albeit subsequently disputed) of very real difficulties in serving Mr. Martin Snr with the penally endorsed order in the ordinary way, as I have set out at paragraph 44; these included an alleged refusal to cooperate when contacted by Mr. Ryan. Very significantly, there was no objection by any party to this service of the penally endorsed order being purportedly effected in this singular way. Indeed at no time was there any objection raised to the judge dealing with the contempt motion (either on the 1st May, the 19th June, or any other date) on the grounds that there had been either no service of appeal on the endorsed order or a somewhat idiosyncratic service of the order.

47. Earlier in this judgment I addressed (and dismissed) the trenchant criticism of the trial judge because of his alleged failure to provide an opportunity to Mr. Martin Snr. to deliver an affidavit. At an early stage of the appeal hearing, we were told that the judge had refused to allow any affidavits to be filed on behalf of Mr. Martin Snr. This was based on the following exchange (at p. 3 of the Transcript on the 19th June):- “And so I will put this matter back for – well, let me hear from Mr Feeney first. My inclination, gentlemen, let me just tell you, is that I won’t make any order today but that I will put the matter back for one week to allow you to file any further affidavits that you think may be appropriate. Unless you think that there’s no need?

Mr. Feeney: We haven’t filed an affidavit in the injunction application because it has been taken over by this contempt issue. In terms of the contempt, I’ll have to take instructions as to whether we want to file any affidavit. We have already put in legal submissions.

Judge: You have put in legal submissions, yes.

Mr. Feeney: And I hadn’t contemplated that any affidavits will (sic) be required…”

48. The following passage is the one relied upon by counsel for Drumgoan and Mr. Martin Snr. It is:- “Judge: Well, then, you probably – I don’t think there probably is need because – unless, Mr Giblin, do you think there’s any need to put in a further affidavit? My concern is that I don’t want this to go on continually.”

49. Even shorn of the earlier portion of the Transcript, in which Mr. Feeney made his position very plain to the effect that no affidavits had been contemplated, these rather diffident comments by the trial judge do not constitute a bar on the provision of further affidavits by or on behalf of Mr. Martin Snr. Once again, what happened after the exchange which I have set out provides complete clarity on the issue. At page 4 of the Transcript, and in the context of this ongoing dialogue about affidavit evidence, Mr. Feeney said:- “I think Mr Martin gave evidence before the Court on that occasion… that dealt with the facts as regards contempt, as far as I’m concerned… I don’t think there’s anything majorly in dispute in terms of what happened.”

50. Again, the trial judge acted impeccably in exploring whether or not any further affidavit evidence was required, concluding that it was not required, and accepting the word of counsel for Mr. Martin Snr. that there was no real issue in factual terms about what had happened in respect of the alleged contempt of court and that the evidence already provided by Mr. Martin Snr. dealt fully with those facts.

51. I should note that this exchange happened while Mr. Martin was in the witness box. He was then asked, on the instigation of counsel for the plaintiffs, about the report of the summons server. Mr. Martin Snr’s response to that was that there were “three Mr Martins” and that he had not spoken to the summons server. If accurate, that would make the account given by the summons server a rather odd one, but in any event that was the evidence before the trial judge. Mr. Martin Snr. went out of his way to say that all he was “guilty of” was sending a text by mistake.

52. The trial judge concluded the hearing on the 19th June in the following way:- “I’m afraid, Mr Feeney, Mr Martin doesn’t seem to understand quite what a dangerous position he is in and he is attempting to – he’s attempting to give explanation for things which, I have said to you already, have passed. Mr Martin I am going to put this matter back for one week and I am then going to determine, first of all, whether you are in contempt of court and then I will – if I find that you are in contempt of court, I’m going to determine what sanction I will impose on you.”

53. Prior to the delivery of judgment by the trial judge on the 26th June 2024, the directed submissions were provided by the parties. Counsel for the plaintiffs delivered brief submissions which referred to the activities of Mr. Martin Snr., the excuses which he had provided for these activities, and the appropriate response to these actions. The position was summarised at para. 13 of these submission as follows:- “The plaintiffs submit that the Second Defendant is guilty of having committed serious unlawful conduct, which conduct requires a punishment. Past misconduct requires a fixed term of imprisonment while ongoing misconduct requires a punishment that is coercive in nature.”

54. In the section dealing with fines, there was reference to Irish Shell Limited v Ballylynch Motors Limited (Unreported, Supreme Court, 6th March 1997), Curley v Mayor of Galway [2001] IEHC 53 and my judgment in The Board of Management of Wilson’s Hospital School v Burke [2023] IEHC 36. It was also stated that Mr. Martin Snr. was “not an impecunious litigant.”

55. The concluding section of the submission reads:-

“21. The court can be satisfied beyond reasonable doubt that the second defendant repeatedly breached the Order and they did so consciously, deliberately and wilfully. This was not a minor or technical breach of the order; it was flagrant and deliberate, and the second defendant has provided no reasonable excuse.

22. The plaintiffs seek an order committing the second defendant to a fixed term of imprisonment to reflect the punishment warranted for repeated breach of the Order.

23. In the alternative, the plaintiff’s seek an order pursuant to O. 4, r. 4 RSC discharging the second defendant on such terms and conditions as to costs or otherwise as it thinks fit.”

56. These admirably succinct and focused written submissions were answered by written submissions on behalf of Mr. Martin Snr. These are very important. It was submitted (at para. 24) that sending Mr. Martin Snr. to prison would be “inappropriate and disproportionate for a number of reasons”. There was a reference to the first breach being “committed before the order was served on Mr. Martin …” but, as noted, that is inconsistent with the evidence given by Mr. Martin Snr. (who referred to a “mistake”). It is also inconsistent with the acceptance before this court that such a notice was given. While the onus is on the moving party (in this case the plaintiffs) to establish that they had served the order in compliance with the directions given by Sanfey J., Nolan J. was informed (in a passage accepted as accurate) that there had been such service and at no stage did Mr. Martin Snr. give evidence that the service was unsatisfactory, late, or otherwise ineffective.

57. The submissions also emphasised that there had been no further breaches of the order since the 24th April 2024 “and Mr. Martin has thereby demonstrated that imprisonment for the purpose of coercion is not required …”

58. Finally, it was submitted that among the factors militating against the imprisonment of Mr. Martin Snr. was:- “Mr. Martin has a family and thirty employees who would be greatly affected by his imprisonment and is a man of good character.”

No details of the thirty employees were provided. They cannot be thirty employees of Drumgoan, as the position taken by both Mr. Martin Snr. and the third defendant (Darren Martin) in the evidence provided to the High Court was that Mr. Martin Snr. has severed his connections with Drumgoan. The thirty employees must relate to an entirely different enterprise.

59. Very significantly, paragraph 27 of the written submission reads:- “Should the court consider, in the exercise of its discretion, that there should be a financial element to the order made, it is respectfully submitted that that could be satisfied by the imposition of a costs penalty or by a donation to charity by Mr. Martin (which he is willing to give).”

60. There were then submissions about the appropriate fine, given the decision in Burke. These submissions themselves were advanced on the basis that “the contempt and consequential harm here is not ongoing.”

61. It cannot be overlooked that counsel for Mr. Martin Snr. proposed to the court that any financial “penalty” to be imposed could lawfully and properly be done so by the making of an order for costs. That is, ultimately, what the trial judge did. It is impossible to criticise the trial judge for making an order which counsel for Mr. Martin Snr. submitted was an appropriate one to make. It will be remembered that this submission was against the factual background (as contended for in the written submission) that Mr. Martin Snr. had been unaware of the original order of Sanfey J. when he sent the WhatsApp on the 17th April. Even on that basis, however, making an order for costs against Mr. Martin Snr. was, his own counsel contended, an appropriate way for the court to proceed.

62. In his judgment on the 26th June 2024 the trial judge noted that Mr. Martin Snr. accepted (through the submissions of counsel) that he had been in breach of the court order. The trial judge made a finding that (at p. 5 of the Transcript):- “There can be no doubt whatsoever that the second-named defendant deliberately and frequently breached the court order.”

63. The court then went on to find that Mr. Martin Snr. had breached both the order of Sanfey J. and his own undertakings. He did so stating that he made these findings on the balance of probabilities. This passage is one which counsel for Mr. Martin Snr and Dromgoan argued before this court affected the entirety of the judgment as it showed (it is alleged) a lack of understanding on the part of the trial judge as to the appropriate test to apply. However, I accept the submission made on behalf of counsel for Mr. O’Neill and Ms. Finnegan that this was simply an error of expression on the part of the trial judge; the parties had clearly proceeded on the basis that the appropriate standard was proof beyond reasonable doubt, such a standard was set out in the written submissions of the plaintiffs on the contempt motion, and in any event there simply was no dispute at all about the facts of the matter. That is obvious from the recital of the facts contained in this judgment and also from the sensible acknowledgement by Mr. Feeney (at the hearing on the 19th June 2024) that there was nothing “majorly in dispute in terms of what happened.”

64. Ultimately, having found a breach of the order of Sanfey J. and of the undertakings given to Nolan J., the trial judge decided that “the best thing to do is to adjourn this matter until the 10th of October.” He warned again against any breach of orders or undertakings, and again stated that the legal ownership of the garage “should be sorted out.” Having found Mr. Martin Snr. guilty of contempt, the issue of the sanction was adjourned to the 10th October. Counsel for the plaintiffs sought their costs of the contempt motion; counsel for Mr. Martin Snr. asked for leniency, “but … can’t put it any further than that.” The costs of the contempt motion were therefore awarded against Mr. Martin Snr.

65. On the 10th October 2024 there was a change of counsel in the representation of the defendants. On that date the trial judge summarised the position by referring to his finding that Mr. Martin Snr. “was in contempt of court beyond all reasonable doubt …”, that the court order with the appropriate indorsement had been served upon Mr. Martin Snr., and that in those circumstances he had jurisdiction “to impose a sanction for contempt of court which has been found in this case.” It is clear from that portion of the hearing on the 10th October, from the history of the matter, and from the submissions made to him, that the trial judge was now dealing not with a coercive order but rather with the imposition of a penalty in respect of the contempt which he had already found to have been established. There was no objection to him proceeding in that way. He concluded:- “[I]t seems to me that the appropriate sanction which should be imposed upon the second-named defendant and the second-named defendant only is that he be liable for the plaintiffs’ costs a solicitor own-client basis, which my understanding of the matter – it will be a matter ultimately for the cost adjudication service – but that means that all legal costs which have been incurred by the plaintiffs in bringing this case on the many occasions before the Court will [be] a personal liability of that of the second-named defendant.”

66. It was then brought to the trial judge’s attention, by counsel for the plaintiffs, that there was a petition to have Mr. Martin Snr. adjudged bankrupt, and this was at “… an advanced stage…” The initial reaction of the trial judge was that this was a matter for the bankruptcy judge. He then went on to deal with the costs of the interlocutory injunction. The judge asked Mr. Rock, now counsel for the defendants, whether he wished to make a submission given “the practice direction and the rules of court which say that in interim court applications, there must be costs orders made unless they’re unusual circumstances.” Mr. Rock had no instructions from the first and third defendants, but indicated that they would oppose any order for costs on the motion seeking interlocutory relief and would also look for a stay on “any costs order”.

67. The matter was then put back to facilitate the exchange of affidavits (on the question of costs) and ultimately the final hearing of relevance in the High Court occurred on the 19th December 2024. It should be noted that at the hearing of the 10th October 2024 the trial judge indicated a concern that Mr. Martin Snr. and Drumgoan were “involved with each other, and at the very minimum, he was acting as a servant or agent for that company.” This was disputed by Mr. Rock. Counsel for the plaintiffs stated that his side would “be furnishing evidence in due course of a connection between the first and second-named defendant.”

68. In fact, no such evidence was ultimately furnished by the plaintiffs. In his affidavit of the 25th October 2024, to which I have already referred, Darren Martin gave evidence that by letter of the 2nd February 2024 Drumgoan had notified Ms. Finnegan and Mr. O’Neill that they were using “garages or land” illegally and that Drumgoan had contacted the gardaí “to inform them that we will be taking back possession of all land registered in the name of Drumgoan developments (sic) in the Crann Nua housing estate in Portarlington Co. Laois”, advising that “if you have any belongings in property registered to Drumgoan we ask you to remove it or we will have to remove it and put into storage.” It should be noted that this position is radically different to the position set out by Mr. Feeney during the course of the hearing of the 1st May 2024, when he referred to correspondence from his solicitors reading:- “… the first-named defendant wishes to vest the legal title in your said clients, with the property acquired by transfer deed in 2005 when full consideration was paid for the garage. We assume that the issue was that the map or the deed did not accurately reflect the property that was purchased, and hence why your clients are not registered owners of the said property. As our client is not the registered owner of your client’s property, we cannot take up the dealing by which it was registered, so we cannot prepare the deed of rectification until we have sight of same.”

The position taken by Mr. Feeney was consistent with the evidence given by Mr. Martin Snr.

on the same day where he said (at p. 6 of the Transcript):-

“[Mr. O’Neill] bought a house from me and paid handsomely for it. This was a complete mistake of registration not being done properly.”

69. On the assumption that it was sent by persons with a full knowledge of the facts of the case, the letter of the 2nd February 2024 was a threat (made without any merit or real entitlement) to enforce legal ownership on the part of Drumgoan which rested with that company by reason of an error, and to enforce these apparent legal rights against the persons who had the beneficial interest in the relevant property (in this case the garage). Mr. O’Neill and Ms. Finnegan replied by letter of the 27th February 2024 contesting the entitlements claimed by Drumgoan.

70. Darren Martin’s affidavit also talks about the giving of undertakings by the first and third defendants on the 24th April 2024. It is plain from the Transcript that undertakings were also provided by the second defendant.

71. On the role of Mr. Martin Snr., Darren Martin gives evidence that Noel Martin Snr. was not an employee, shareholder, or director of the first defendant for “a considerable number of years”; that he was acting “in his own cause” in sending the texts referred to by Mr. O’Neill in his grounding affidavit; and that Mr. Martin Snr. “was acting as a go-between the plaintiffs and the first named defendant.” Neither Darren Martin, nor Mr. Martin Snr., nor anybody on behalf of Drumgoan gives any evidence about the circumstances in which the texts/WhatsApp messages in breach of the orders and undertakings were sent, or on whose behalf Mr. Martin Snr. felt he was acting when he sent them. He was certainly not acting as a “go-between”. One glance at the content and tone of any one of the texts exhibited (and sent either before or after the making of the order by Sanfey J.) would disclose that they are completely inconsistent with the role of somebody acting as a bone fide gobetween or mediator in any type of dispute.

72. At the conclusion of his affidavit, Mr. Darren Martin gives the following evidence:- “16. I say that the First Named Defendant company disputes the allegation of trespass, particularly in circumstances where the company held legal title to the property and gave the Plaintiffs the opportunity to raise the issue of mistake by letter dated the 2nd day of February 2024. The First Named Defendant did not receive a response before it visited the site on the 21st of February 2024. It is disputed that there was any work being carried out by JCB as alleged or at all.

17. Further, it is also in dispute whether the Defendants engaged in threatening communications, and I say and am advised that that this matter can only be determined at trial where the Third Named Defendant will be able to adduce its own evidence.”

73. There are a number of things to be said about that evidence. Firstly, it is said earlier in the affidavit that the letter of the 27th February 2024 was sent by Mr. O’Neill solely to Mr. Martin Snr. It is not said that Mr. Martin Snr. did not pass on a copy of that letter to his son or to the company with which (it is said) he had previously been involved. Secondly, if Mr. Martin Snr. was acting as a “go-between” as asserted by Darren Martin) one would have expected that he would have passed on such correspondence to the company. Thirdly, even if Mr. Martin Snr. was not acting as a go-between, it would be expected that he would inform his son and the company of which his son was a director about this correspondence; that company (Drumgoan) was, after all, the legal owner of the property. Fourthly, even without sight of the response from Mr. O’Neill, the aggressive nature of the letter of the 2nd February 2024 (threatening to take back possession of property for which Ms. Finnegan and Mr. O’Neill had paid in full) in itself justified the taking of court action. This is particularly so when the letter of the 2nd February 2024 is seen in conjunction with the “visit” to the estate which Darren Martin accepts occurred on the 21st February 2024. Even if one strips out the JCB activity (which Darren Martin denies) there was uncontradicted evidence given by Mr. O’Neill in his affidavit about Darren Martin and Noel Martin Snr. approaching nine garage owners near the O’Neill/Finnegan home “making various demands”, the loud hammering on the wall of the garage of the O’Neill/Finnegan home, the smashing of the walls of the garage with power tools by two men, and the approach by another man with the piece of paper making a claim as to the ownership of the garage. All of that activity, undisputed by Darren Martin or by Noel Martin Snr., was simply shockingly unacceptable and should never have occurred.

74. In response, Mr. O’Neill swore a brief affidavit on the 6th November 2024. This denied that Noel Martin Snr. was a “go-between” and instead suggested that he was “controlling events in the shadows.” Mr. O’Neill referred to the messages in which Noel Martin Snr. refers to “my property”.

75. Mr. O’Neill also gave evidence that in August of 2024 he became aware of a petition to have Mr. Martin Snr. declared bankrupt. He exhibited a ruling of Sanfey J., and expressed a concern that any order for costs would be ineffective. The plaintiffs therefore requested the High Court to measure the costs for which the second defendant had been made personally liable, and also to measure the costs for which all defendants were liable (namely the application for an interlocutory order against the defendants).

76. In support of this latter request, Mr. O’Neill exhibited a range of fee notes from counsel, the solicitors, and the legal executive engaged by the plaintiffs.

77. In reply, Mr. Martin Snr. swore a brief affidavit. He said that there was no evidence that he was close to bankruptcy, that there was therefore no reason to measure the costs “that will be imposed as a penalty to me…”, and that it would be “prejudicial for the Court to make any determinations which relate to separate and ongoing litigation.” This last contention does not appear to me to be a well-founded one. Understandably, the ruling given by Sanfey J. on the progress of the bankruptcy petition was an important factor at least as far as the plaintiffs were concerned. In a letter of the 13th November 2024, and exhibited by Noel Martin in his affidavit, his solicitors (James H. Murphy and Son) say:- “Firstly, it is untrue that Noel Martin is close to Bankruptcy. He is not close to Bankruptcy. He is not even close to a hearing of the petition taking place. He has a complete defence to the petition and he intends to have it heard on a plenary basis which is a live possibility on appeal of Judge Sanfey’s judgment to the Court of Appeal or, if appropriate, to the Supreme Court as the matter in the judgment is of most importance and requires to be resolved for the benefit of the public interest. If that false allegation is the sole basis for your application for the measurement of costs it must therefore fail.”

78. While it could not have been known to the trial judge at the time, the appeal against the perfectly mundane directions given by Sanfey J. with regard to the hearing of the petition was itself listed for hearing by this Court on the 1st of April 2025. The day before the hearing of that appeal, the Court of Appeal Office was informed—in a manner as unexplained as it was abrupt—that the appeal would not be proceeding. However, the withdrawal of the bankruptcy appeal is of no relevance to the current appeals.

79. Mr. O’Neill swore a third affidavit, again on the question of costs, and again referring to the possibility that Noel Martin Snr. would be adjudicated a bankrupt. In reply, and in the final piece of evidence in these motions, Mr. Martin Snr. swore an affidavit exhibiting a letter from Connolly Lowe Legal Costs Accountants which significantly disputed the sums claimed by the lawyers and agents acting on behalf of the plaintiffs, noted that there was no legal costs accountant report on those fees or costs, and assessed the appropriate practitioner and own client costs at €27,022.80 as against costs claimed of €46,172.80.

80. On the basis of the affidavit evidence, the trial judge on the 19th of December 2024 set out a brief summary of the history of the proceedings, made costs orders in respect of the interlocutory injunctions on a joint and several basis against all three defendants, and in respect of the contempt motions made orders as against the first and second defendant on a joint and several basis “not against the third named defendant because there was no finding of contempt as against the third named defendant.” The orders drawn reflect that the award of costs in favour of the plaintiffs against the first and second defendants on the contempt motion was on an own practitioner and client basis.

81. As set out at the start of this judgment, there are three appeals. The first is the appeal by Mr. Martin Snr. against the procedure followed by the judge in the contempt motion, the finding of contempt against Noel Martin Snr., and the penalty imposed on Mr. Martin Snr. by the trial judge.

82. The second appeal is the appeal of Drumgoan and Noel Martin Snr. against the award of costs against both of them on a joint and several basis in respect of the contempt motion.

83. The third appeal is the appeal of Drumgoan, Noel Martin Snr., and Darren Martin against the award by the trial judge of the costs of the interlocutory motions on a joint and several basis.

The first appeal

84. There are nine grounds in respect of this appeal.

85. Ground one is to the effect that the trial judge erred in proceeding to hear the motion for attachment and committal in circumstances where the order of the 24th April, 2024 had not been served with a penal endorsement on Mr. Martin Snr. If, as was contended for during the oral argument, the infirmity suggested here is that the order with penal endorsement was not served on Mr. Martin Snr. prior to his breach of it, this ground is ill founded for the reasons set out earlier in this judgment. If, as may be the case, the complaint here is that the order with the suitable penal endorsement should have been served on Mr. Martin Snr. before the motion for attachment and committal was heard, this is misplaced in the circumstances of the current case. Firstly, despite being represented at all material times by solicitor and counsel, no submission was made on behalf of Mr. Martin Snr. that the motion could not proceed because he had not been validly served with a penally endorsed version of the order. Secondly—and even more relevantly—when the question of service of the order on Mr. Martin Snr. was raised by the trial judge, this was affected in a way to which Mr. Martin (through his counsel) expressly consented. When the parties were directed by the trial judge to make written submissions as to whether or not there was contempt of court and as to the appropriate penalty, not surprisingly in those circumstances no question was raised about the ability of the trial judge to make a finding of contempt on the basis that the penally endorsed order had not been properly served on Mr. Martin Snr.

86. During the course of the appeal, it was argued on behalf of Mr. Martin Snr. that it would have been good practice had the order embodying the undertakings he gave to the court been served on him in advance of any motion alleging breach of such undertakings. At its height, the case law relied upon by Mr. Martin Snr. suggests that such service would be desirable as opposed to necessary. It may well be particularly desirable in the circumstances where the undertakings are complicated and involved. However, here the undertakings provided by his counsel to the trial judge were so simple and so clear that not even the strictures of best practice could suggest that it was necessary in these circumstances to serve an order embodying these undertakings on Mr. Martin Snr. before action could be taken in respect of his breach of them. This is particularly so in circumstances where the trial judge, at the very hearing at which the undertakings were given, emphasised the importance he attached to compliance with court orders and the serious consequences which would flow from any failure to comply with them.

87. The second ground of appeal is to the effect that the trial judge erred in hearing the motion for attachment and committal on the 1st May 2024 and on the 19th June 2024 without service of the motion on Mr. Martin Snr. Again, this ground of appeal completely ignores the fact that no such complaint was raised on behalf of Mr. Martin Snr. at the time. Indeed, Mr. Martin Snr’s then counsel clearly allowed matters to proceed without making any such objection as to service, and no such objection can now ground an appeal against the order of the trial judge.

88. The third ground of appeal is to the effect that the trial judge erred in putting Mr. Martin Snr. into evidence “and inducing evidence from him” without proper service of the notice of motion and without Mr. Martin Snr. “having the benefit of legal advice.” Again, none of these matters were raised before the trial judge. In addition, it is worth noting that Mr. Martin Snr. was being asked to address a very simple factual issue: his compliance with the order of Sanfey J. and with his own undertakings. As already noted in this judgment, there was simply no real dispute about any relevant fact. With regard to the taking of legal advice for the purpose of dealing with the motion, it was open to counsel for Mr. Martin Snr. to seek an adjournment (of however brief a period) to allow such advice to be provided— but he did not do so. This may well be because legal advice was in fact provided—certainly there was no evidence given by Mr. Martin Snr. that he had wanted to obtain legal advice but had been prevented from doing so by the requirement that he give evidence. Not only, therefore, is this ground of appeal inconsistent with the position taken at the hearing before the trial judge, it is also one without the necessary evidential basis.

89. The fourth ground of appeal is to the effect that the trial judge erred in allowing service of the penally endorsed order on Mr. Martin Snr. while he was giving evidence on the 19 th June 2024. This course of action, while singularly unusual and not to be imitated, was accepted by Mr. Feeney at the time and cannot now be a point of objection. This form of service, as I have already noted, must be seen in the context of five relevant factors. Firstly, Mr. Martin Snr had originally agreed to cooperate with the penally endorsed order—he did not do so. Secondly, there was evidence available to the trial judge that there had been active evasion of service. Thirdly, Mr. Martin Snr. was fully aware of the terms of the order and the details of his alleged breach of it. Fourthly, the trial judge had vividly and forcefully spelled out to Mr. Martin Snr. on the 24th of April 2024 the importance of compliance with the order and the undertakings, as well as the potential consequences of any breach of these. Fifthly, Mr. Feeney had informed the trial judge, in light of the alleged breach, that the former had explained to Mr. Martin Snr. the import and effect of the order and the seriousness of his client’s position. Given all these circumstances, the service of the penally endorsed order was more a matter of form than of substance.

90. The fifth ground of appeal is that the trial judge erred in finding that Mr. Martin Snr. was in contempt of Court. A very attenuated rationale is given to support this ground. It is that – “(a) Mr. Martin Snr. was ambushed by being asked to give evidence;

(b) Mr. Martin Snr. was not afforded legal advice as a result;

(c) the evidence is ‘tainted’ and inadmissible in accordance with the law of evidence, Rules of the Superior Courts, constitutional and natural justice and fair procedures …”

91. Apart altogether from the fact that there is nothing in the Rules of the Superior Courts circumscribing the receipt of evidence by reference to its admissibility on the grounds that it is tainted, and apart from the fact that we were not addressed at all about the relevant case law on the admissibility of evidence by reference to the same factor, this ornate ground of appeal overlooks the fact that at no stage did Mr. Martin Snr. or his lawyers object to him giving evidence. As I have recently mentioned, no evidence was given by Mr. Martin Snr. to the effect that he had not had legal advice.

92. The sixth ground of appeal impeaches the findings of contempt on the grounds that such a finding must be made beyond reasonable doubt and that this “could not have been met due to … deficiencies arising only after the penal endorsement was served in Court.” There is no connection, at least on the facts of this case, between the unusual service of the penally endorsed order and the need to have facts established beyond reasonable doubt. I have already found that the penally endorsed order was served (albeit in a highly unusual manner) without any objection being made by or on behalf of Mr. Martin Snr. While the trial judge erred in describing the standard of proof as being on the balance of probabilities, he subsequently corrected himself and I have already accepted that he could not have been mistaken about the relevant standard to apply. In this case, the breach by Mr. Martin Snr. both of the order of the High Court and of his own undertakings was certainly established beyond reasonable doubt, given that no relevant fact was in dispute.

93. Remarkably, the seventh ground of appeal is to the effect that there was “reasonable doubt as to the alleged breach of the order of the 24th April, 2024.” There could have been no doubt about the breach, given the evidence that I have recited earlier in this judgment.

94. The eighth ground of appeal relates to the penalty imposed on Mr. Martin Snr. It is suggested that “no coercive or punitive orders were appropriate.” It is impossible to understand this submission, given the undisputed fact that Mr. Martin Snr. breached a court order and undertaking solemnly given on his behalf by his counsel. One aspect of the trial judge’s handling of this matter is the adroit way in which he continued to keep the motion for attachment and committal in play. This resulted in compliance by Mr. Martin Snr. with the orders made by, and undertakings given to, the High Court. The immediate breach of the court order and of his own undertakings was not repeated over the months that this matter was handled by the trial judge. Precisely because of the way in which the matter was managed by the High Court, there may not have been any need for a coercive order to be made at the time the judge made his costs order on the motion for attachment and committal. However, it was entirely appropriate for him to make this order given the earlier contempt committed by Mr. Martin Snr. As I have already noted (at para. 58 of this judgment), the suggestion was made by Mr. Martin Snr’s own counsel that these contempts could be addressed by the Court imposing “a costs penalty”.

95. Two of the complaints are made under the heading of this ground of appeal with regard to the imposition of the costs penalty. The first, quite extraordinarily, is that there was “…no evidence to suggest that the conduct of [Mr. Martin Snr.] was so serious, contumacious or wilful or otherwise constitute contumacious or a gross affront to the integrity of the Court to justify the proportionality of imposing a fine.” Apart altogether from the fact that the written submissions on behalf of Mr. Martin Snr. suggest that a fine would be an appropriate measure, the undeniable facts are that Mr. Martin Snr. had behaved in a deliberate, arrogant, and disrespectful way in committing the contempt which he did. A submission to the contrary is not one that can properly be made. The second subsidiary point is that there was no evidence which would allow the trial judge “to determine the proportionality of a penalty fine…” as against Mr. Martin Snr. This is quite inaccurate. The trial judge was told, in terms, by Mr. Martin Snr.’s counsel that he had “thirty employees…”, which would suggest that Mr. Martin Snr. was a businessman of some substance. On that fact alone, but even more so when taken in conjunction with counsel’s submission that a costs penalty would be appropriate, the trial judge was quite entitled to take a view that rendering Mr. Martin Snr. responsible for the costs of a motion was an appropriate response to his repeated contempt of court.

96. The final ground of appeal on this first appeal is that the trial judge “erred in law in conflating the Court’s jurisdiction to award costs and the calculation of a penalty.” Again, the first obstacle this argument faces is the fact that it was submitted on behalf of Mr. Martin Snr. that the appropriate penalty for the double contempt of court would be the imposition of a costs order. The conflation, such as it was, did not begin with the trial judge. It is certainly the case that it was open to the trial judge to make an award of costs against Mr. Martin Snr. even if there had been no findings of contempt of court. The jurisdiction permitting the Court to express its displeasure at the conduct of parties by awarding costs against them at a heightened scale is well-established; see the judgment of Kelly J. in Geaney v Elan Corporation [2005] IEHC 111. However, the fact that the trial judge could have made an identical costs order to indicate his displeasure at Mr. Martin Snr’s behaviour (even absent a finding of contempt of court) does not mean that he was deprived of the ability to make this costs order having found that Mr. Martin Snr. was in fact guilty of contempt of court. That would be a nonsense. It would mean that an order available to the trial judge in certain less grave circumstances was somehow one that he could not make in the more serious circumstances of a finding of contempt.

97. The rationale of the trial judge in making the order as to costs that he did make is clear. It follows from the submission made to him on Mr. Martin Snr.’s behalf, and was to the effect that the two contempts of court committed by Mr. Martin Snr. should be punished by making an award of costs against him in favour of Mr. O’Neill and Ms. Finnegan.

98. The first appeal is therefore dismissed.

The second appeal

99. The second appeal relies upon three different grounds.

100. The first of these is that the trial judge was permitting double recovery on the part of Mr. O’Neill and Ms. Finnegan in making an award of costs as against Drumgoan and Mr. Martin Snr., in circumstances where he had already awarded costs of the same motion against Mr. Martin alone. This is an utterly unconvincing argument. Firstly, the award of costs against Drumgoan and Mr. O’Neill Snr. is joint and several. In the event that there is recovery (under any order for costs) against one or other of those parties then there is an automatic decrease in the amount that can be recovered against the other party. Secondly, there is only one set of costs to be assessed and paid. The orders made by the trial judge are incapable of giving rise to the double recovery on the part of the beneficiaries of the order.

101. The second ground of appeal is that the trial judge should not have awarded the costs of the attachment and committal motion against Drumgoan at all. However, this was not a submission made at any time to the trial judge. In addition, it is worth recollecting the precise status of Drumgoan and Mr. O’Neill Snr. It was ultimately accepted by all parties that Drumgoan was the registered owner of the land (including the garage to the respondent’s home). The beneficial owners of that property were the individual homeowners. Mr. Martin Snr. had no interest in the property. Notwithstanding that, he sent messages referring to “my property”. The property in question can only have been the property of Drumgoan. Mr. Martin Snr., on any view of the facts, had neither a legal nor beneficial interest in any of the property in dispute between Mr. O’Neill and Ms. Finnegan on the one part and the defendants or any of them on the other part. The interest he asserted must, therefore, have been the interest of Drumgoan. For the purpose of determining the costs of the contempt motion, therefore, there was adequate evidence available to the trial judge to make the order which he did. It is also of real significance that Drumgoan never distanced itself from the actions of Mr. Martin Snr., instead implausibly describing his behaviour as that of an intermediary. The only party which could conceivably benefit from his activities was Drumgoan, as the legal owner of the property. It made no sense for Mr. Martin Snr. to act as he did, unless it was to accrue an advantage for the company for which he had once been undisputably a central mover. Strikingly, Drumgoan did nothing whatsoever to curb the activities of Mr. Martin Snr despite the fact that they arose from a claim that Drumgoan owned the disputed property. Indeed, one would expect that Drumgoan would have told Mr. Martin Snr. that he had no business behaving as he did since the garage had been bought and paid for by the homeowners (as he knew). It did absolutely nothing. All of these factors support the exercise of the trial judge’s discretion to award costs as he did. Even if we were to upset the trial judge’s costs award on the contempt motion, I would replace his decision with an identical order for the reasons I have set out.

102. The final ground with regard to this appeal is to the effect that, if Mr. Martin Snr. won the first appeal then the costs order in favour of Mr. O’Neill and Ms. Finnegan should be overturned. As Mr. Martin Snr. has not been successful in the first appeal, the issues raised in this ground of appeal simply do not arise.

103. I would therefore dismiss the second appeal.

The third appeal

104. The third appeal concerns the costs of the application for interlocutory relief. There were four grounds of appeal set out.

105. The first ground of appeal is to the effect that the underlying issue of trespass was to only be determined at the trial of the action. However, in this case it was conceded at a relatively early stage that there had been an error in the transfer of property to Mr. O’Neill and Ms. Finnegan when they bought their home, that the continued legal ownership of the garage area by Drumgoan was a mistake, and that the garage area should now be conveyed to the people who had actually paid for it. It will also be remembered that this issue was raised by the plaintiffs in correspondence before the proceedings were issued (and the interlocutory injunctive relief sought). Finally, there were the dramatic events of the 21st February 2024 which in themselves justified the seeking of the protection of the courts. In all those circumstances, the trial judge was quite entitled to decide the costs of the interlocutory injunction without needing to wait for final findings to be made at the trial of the action.

106. Ground two is to the effect that the trial judge erred in finding Drumgoan and Mr. Martin Snr. jointly and severally liable for the costs of the interlocutory motion. He erred, it is said, because he was not in a position “to adjudicate justly on the issue of liability between [Drumgoan] and [Mr. Martin Snr.].” I have already dealt with this argument in the context of the second appeal. On the facts as advanced by Drumgoan and Mr. Martin Snr., he simply had no dog in this fight.. Notwithstanding this, his actions were aggressive and intimidatory. Whatever his connection with Drumgoan, the only interests which he must have been pursuing were the interests of that company. He was certainly not pursuing the interest of Mr. O’Neill or Ms. Finnegan. The idea that he was acting as a mediator, while farfetched and inconsistent with the uncontested facts, would not in itself (even if found to be true) excuse Mr. Martin Snr. or Drumgoan from bearing the costs of the motion given his undisputed involvement in advancing the interests of that company in the manner in which he chose to do so.

107. The third ground of appeal is that it was wrong for the trial judge to fix the third defendant, Darren Martin, with the costs of the motion. This is also, in essence, the fourth and final ground in this appeal. However, as submitted on behalf of the respondents, this argument overlooks one simple fact. The interlocutory reliefs were not sought solely against Drumgoan. They were sought against all defendants on a joint and several basis. Whether or not the individual defendants were acting as agents of the company, their behaviour was such as to justify the bringing of the motion for interlocutory relief. It may be the case that either Mr. Martin Snr. or Darren Martin can seek an indemnity from Drumgoan. That is a matter between themselves. However, such a possibility did not prevent the trial judge from awarding the costs of the interlocutory motion against each defendant.

108. I would therefore dismiss the third appeal.

109. Costello P and Collins J agree with this judgment. Our preliminary view is that the respondents should be awarded the costs of all three appeals. If any party wishes to argue for a different order, notice should be given to the Court of Appeal office by 5pm on the 14th day of August, 2025. Should any such notice be received, the Court will then issue the required directions.