Court of Appeal refuses stay on trespass injunction due to unlawful re-entry and balance of justice.

THE COURT OF APPEAL

APPROVED

NO REDACTION NEEDED

Neutral Citation No. [2025] IECA 187

Court of Appeal Record No. 2025/198

High Court Record No. 2024/7334P

Hyland J.

BETWEEN

WENDY DOYLE

PLAINTIFF/ RESPONDENT

AND

EUGENIE HOUSTON

DEFENDANT/ APPELLANT

Judgment of Ms. Justice Hyland delivered on 12th day of September 2025

Introduction

1. This judgment concerns a motion brought by Ms. Houston (the “appellant”), seeking a stay on the Order of Kennedy J. in the High Court of 9 July 2025 granting an interlocutory injunction that the appellant be restrained from continuing to unlawfully trespass on the premises at 258 Morell Dale, Naas, Co. Kildare (Folio number 25772F) (“the Property”) and directing that Ms. Doyle (the “respondent”) recover against the appellant the costs of the action to be assessed on a legal practitioner and client basis. Kennedy J. granted an initial stay on that Order until the matter came before the Court of Appeal for directions on 18 July 2025. The stay was continued until the motion came before me for hearing on 25 July 2025, at which time the appellant sought a stay on the

decision of Kennedy J. until the hearing of the appeal against that decision on 13 November 2025 by this Court.

2. Having heard the parties on the question of a stay, I made the following Orders: That the stay be extended until 31st day of July 2025 or the date in which judgment will be delivered (whichever date is later); The respondent's solicitors to email in the relevant High Court Order and the High Court Judgment of Quinn J on Monday 28 July; The respondent’s solicitors to file and serve a short affidavit by close of business on Monday the 28th day of July 2025 addressing the up-to-date position re the undertaking. The appellant to file and serve a replying affidavit by the close of business on Tuesday the 29th day of July 2025.

3. The stay therefore remained in place until today’s date i.e. the date of this judgment. For the reasons I explain in this judgment, I have decided to refuse the application for a stay pending the hearing of the appeal on 13 November. That means that the interlocutory injunction granted by Kennedy J. restraining the appellant from continuing to unlawfully trespass on the Property is in full force and effect.

Factual Background:

4. This application is made against a background of long running litigation between the parties. Reference is made to the judgment of Kennedy J. which partly summarises the history of the dispute. For the purposes of this judgment, the important aspects are that following litigation between the parties, significant costs Orders were made in favour of the respondent against the appellant. The respondent spent a number of years seeking to enforce those Orders. Ultimately, on 27 March 2019, Allen J. granted the respondent’s application for Orders declaring that monies secured by four judgment mortgage affidavits entered on the property’s folio were well charged and that in default of payment of the debts the property should be sold. An appeal against that Order was dismissed by the Court of Appeal on 7 April 2020, and the Supreme Court refused leave to appeal on 14 September 2021.

5. On 7 November 2022, Quinn J. in the High Court ordered the appellant to surrender vacant possession subject to a six-month stay. This Order was upheld in the Court of Appeal and on 2 August 2023 the Supreme Court refused leave to appeal this Order.

6. On or about 26 July 2023, the appellant was served with the Order directing vacant possession. The appellant refused to deliver up vacant possession.

7. The respondent applied for a writ of fieri facias, instructing the County Sheriff to execute the High Court’s Order. On 24 July 2024, the Sheriff took possession of the property and placed it in the possession of the respondent’s agent. Later that day, the appellant re-entered the property and has remained in occupation of it since that date.

8. As a result, the respondent issued the within proceedings seeking an injunction restraining the appellant from a) continuing to trespass on the premises; and b) interfering with the sale of the property. Kennedy J. made an Order in the High Court directing that the appellant be restrained from continuing to unlawfully trespass on the premises in question. As set out above, he granted a stay until 18 July and that stay has continued until today in the circumstances described in the first two paras. of this judgment.

Motion for a stay

9. By way of Notice of Motion issued 21 July 2025, the appellant sought a stay on the entire Order of 15 July 2025. In fact, although it was perfected on 15 July, the Order was made on 9 July. The motion was grounded upon an affidavit of the appellant sworn

21 July 2025, where she refers to the grounds in the Notice of Appeal and adds that the application brought by the respondent for an injunction lacked candour, referring to an application that she, the appellant, made to Tailte Eireann in August 2024 to vacate three judgment mortgages, and the failure of the respondent to refer to the existence of this application. She avers that, because of this lack of candour, the injunction ought not to have been granted, and that the Order of Kennedy J. must be stayed. She exhibits her application to cancel the judgment mortgages, the letter by Tailte Eireann giving notice of the application to the respondent and the response of the respondent to Tailte Eireann.

10. No replying affidavit was filed by the respondent.

Arguments of the parties

11. In considering a stay application, I am required to examine whether any bona fide appeal grounds have been raised against the judgment of Kennedy J., and, if so, I must consider the balance of justice arguments. At the hearing, no submissions were made by the appellant in relation to the lack of candour argument identified in her affidavit. Rather, her ground of appeal appears to be primarily focused on the question of the undertaking given by the respondent. She submitted there is no undertaking in damages, that any undertaking given was provided in the context of previous proceedings and that in any case, the undertaking is not valid because it has not been recorded in the Order.

12. In relation to balance of justice arguments, she argues that the status quo rests in her favour, as at present she is residing in what she describes as her home, and that maintenance of the status quo requires that she remain in her home pending the resolution of the appeal against the decision of Kennedy J. She submits that the balance of convenience lies against granting the stay. In this respect, she relies upon Clare County Council v McDonagh [2022] IESC 2, where the Supreme Court overturned an injunction directing a traveller family to vacate a site provided by Clare County Council. In her oral submissions, the appellant relies on Start Mortgages v Kavanagh [2024] IEHC 125, noting that procedural defects like those present in Kavanagh apply here. Additionally, she notes that it is only a matter of weeks before the substantive hearing, and that in the circumstances a stay is not unreasonable.

13. In response, the respondent opposed the application for a stay and emphasised the delay in receiving the costs that are due to her under various court Orders. She noted that it is now six years since the original costs Orders were made, in addition to an Order of possession being made in 2022. The respondent further noted that the appellant has refused to deliver possession of the Property, and that there has been prejudice against her insofar as she has waited so long to receive payment of the monies owing to her.

14. The respondent argues that the balance of convenience rests in favour of refusing the stay. In doing so, she points to the well charging Order, the Order for sale, and the Order of possession and noted that there is no irrevocable consequence against the appellant should possession be granted to the respondent.

15. The respondent further drew attention to the undertaking offered by her in seeking the injunction, as noted at Kennedy J.’s judgment at para. 65.

Analysis

16. The legal test that I must applying in deciding whether to grant a stay pending an appeal is well established. The applicable principles were summarised by Clarke J. in Danske Bank v McFadden [2010] IEHC 119: “2.1 … In general terms, two broad issues will ordinarily arise for consideration in relation to whether a stay should be placed on an order of this Court pending appeal to the Supreme Court.

2.2 The first issue is that, in order that a stay might be considered, any such appeal must be bona fide …

2.4 Where the appeal is genuine, it seems clear from Ingersoll that the court should conduct a process analogous to the balance of convenience test which the court is required to apply in determining whether to grant an interlocutory injunction … In the words of McCarthy J. in Redmond the court is, in those circumstances, required to “maintain a balance so that justice will not be denied to either party”.

17. In Lobar Limited v. Gladney [2018] IECA 129 Irvine J. on an application to extend a stay granted in the High Court stated at paras. 15 and 16 of the judgment: “15. The aforementioned authorities make clear that the court is bound to engage in what is often described as a two-stage test. First, the applicant must demonstrate that they have an arguable ground of appeal and is one which is bona fide rather than tactical.

16. If the court is not satisfied that the appellant has demonstrated an arguable ground of appeal, that is the end of the stay application. Assuming, however, the appellant demonstrates a bona fide and arguable ground of appeal, then the court must consider where the balance of justice is to be found. As is stated in many of the more recent authorities, a stay brings with it potential detriment to both sides. Thus, it is necessary for the court to consider where the greatest risk of injustice may arise. It must consider the likely effect that granting a stay would have on the respondent should the appeal fail and must also consider the effect that refusing a stay may have on the appellant should it succeed on its appeal. In this context, the court may impose a stay in terms which can ameliorate the potential detriment of granting or refusing a stay”.

18. In respect of the grounds of appeal, I do not consider the appellant has identified a bona fide/arguable ground of appeal. The argument in relation to lack of candour does not appear to have been made to the High Court and no explanation is given for that. Moreover, there is no explanation as to why the appellant did not herself bring her application to Tailte Eireann to the attention of the High Court if she thought it relevant. Nor was the lack of candour issue advanced as an argument at the oral hearing before me.

19. In respect of the undertaking, following the appellant’s submissions on this point at the oral hearing, I requested that the parties file affidavits to clarify the position as to an extant undertaking. The affidavit sworn by Mr. Brennan, solicitor for the respondent, on 28 July 2025 identifies that the respondent had given an undertaking in the usual terms in her affidavit of 12 December 2024 grounding the application for interlocutory relief, and notes that this was referred to by Kennedy J. in his judgment of 3 July 2025. At para. 4 he avers that nothing has changed since the undertaking was given by Ms. Doyle.

20. In her replying affidavit, the appellant objects to the undertaking on two grounds: first that there is no Order confirming the existence of an undertaking as to damages and second that the respondent had given no details as to how she could meet an undertaking. These objections are misconceived: the appellant introduces no authority to support the argument that, to be effective, there must be a reference to the undertaking in the Order. In any case, a reference to the existence of the undertaking can be included in the Order of this Court refusing a stay. In respect of the means of the respondent to meet an undertaking, as Kennedy J. noted, the appellant failed to explain why, in her view, the respondent would not be able to meet the undertaking given. Nor was this issue raised in advance of the High Court hearing. In the circumstances, I cannot treat these arguments as being bona fide or arguable.

21. Moreover, I have significant doubts as to whether an undertaking was required at all in the context of this application. This is an application to restrain a trespass: as Kennedy

J. noted, there is extensive authority in support of the proposition that a balance of justice analysis is not required where trespass is established, as the court may grant an injunction without a balance of justice assessment if the defendant has failed to adduce evidence to suggest a right to do what would otherwise be a trespass (see para. 26 of the High Court judgment, and the judgment in Fox v Reilly [2025] IECA 115, as follows: “5. The law on an application for an interlocutory injunction seeking possession of lands in the case of an alleged trespass is well established. In Keating & Company Ltd v Jervis Shopping Centre Ltd [1997] 1 IR 512, Keane J. said that a land owner whose title is not in issue is prima facie entitled to an injunction to restrain a trespass, including where the claim is for an interlocutory injunction only, but, following Patel v. WH Smith [1987] 2 All ER 569, the defendant may seek to put in evidence to establish he has a right to what would otherwise be a trespass and then the court must consider the application of the traditional injunction principles”.

22. In other words, the defendant must establish that there is serious issue to be tried in respect of his alleged entitlement to occupy the property before the court will go on to consider traditional injunction principles. Absent any such evidence, the plaintiff is entitled to an injunction without being required to address those principles. Here, the appellant does not appear to have adduced any evidence to suggest a right to do what would otherwise be a trespass, and therefore an undertaking was arguably unnecessary given Kennedy J. was not required to consider balance of justice arguments, including adequacy of damages, at all.

23. Having regard to the foregoing, I am not persuaded that the appellant has raised bona fide or arguable grounds of appeal either in respect of lack of candour or the undertaking accepted by Kennedy J. Following Irvine J. in Lobar, that ends the inquiry into whether a stay should be granted. However, for the sake of completeness, I will go on to consider arguments raised by the appellant that go towards balance of justice issues in the context of a stay.

24. The appellant argues that the refusal of a stay will impact upon her right to remain in her home pending the hearing of the substantive appeal against the grant of an interlocutory injunction. If this were an appeal against an Order for possession in what I might describe as “standard” litigation, this argument would likely carry significant weight. However, this is not an appeal against an Order for possession: that Order was made in 2022, and the appeal against same was heard and determined by 2023. Rather it is an appeal against an Order restraining a trespass following the making of an Order for possession. As Kennedy J. notes, following a well-established line of authority (see Start Mortgages DAC v. Rogers [2021] IEHC 691, KBC Bank Ireland Plc. v. McGann [2019] IEHC 667 and Carlisle Mortgages v. Costello [2018] IECA 334, once the Order for possession is executed, the person who has obtained that Order– in this case the respondent – has legal title to, and possession of, the property. In this case, that means the Property is no longer the dwelling of the appellant and she is a trespasser.

25. Therefore, her entitlement to invoke property rights - whether derived from the Constitution or the ECHR - is highly circumscribed. It is true that in McDonagh, Hogan

J. indicated that, in certain circumstances, even persons with no legal right to remain in a property may invoke rights under Article 40.5 of the Constitution. However, that case arose in the context of litigation against a public authority. Hogan J. was careful to stress that, in litigation between private parties, the same considerations would not apply - see para. 98, where he observed as follows: “These are special and particular considerations which, it is important to stress, would not apply, for example, in the case of a private landowner seeking an injunction to restrain trespass. In that situation any Article 8 ECHR issues would not in strictness even arise by way of possible defence as the litigation would then be between purely private bodies… So far as constitutional considerations are considered, the courts’ first duty would normally be to ensure, in the words of Article 40.3.2, that the property rights of the private landowner to protect his or her own property were adequately vindicated, whether by means of an order restraining trespass or otherwise.”

26. Therefore, I give very little weight to the appellant’s attempt to rely upon property rights to justify a stay. In respect of the status quo, and how I should approach it, I adopt the approach of Butler J. in Rogers as to the status quo, as quoted by Kennedy J. at para.

32 of his judgment as follows: where an order for possession is made and executed, and a person re-enters: “It cannot be the case that, if trespassers go into occupation of property, that occupation must be regarded as the status quo which the law should protect until it has been determined otherwise. In this case, the plaintiff as mortgageein-possession is prima facie the person entitled to possession of the property.

Allowing the defendants to remain in the property while the plaintiff prosecutes the proceedings it has been obliged to take by virtue of the defendant’s unlawful actions would not be the maintenance of the status quo but rather the inversion of the status quo.”

27. Therefore, I consider the status quo is that following the re-possession and before the unlawful re-entry by the appellant. The fact of the trespass is relevant not only to the status quo but more generally to the balance of justice. The appellant has entirely failed to explain why the balance of justice favours allowing her to remain in the premises from which she has been evicted, which she illegally re-entered, and in which she is now trespassing.

28. Separately, from a balance of justice point of view, I must take into account the truly extraordinary history of the litigation between the parties, and the approach of the appellant to the litigation. The tortured history of the litigation has been set out in the judgment of Kennedy J., and I do not propose to repeat it, save to say that I agree with his analysis of the appellant’s actions set out at para. 65(e). Her conduct in this respect further mitigates against a stay.

29. Finally, in relation to the invocation of the decision in Start Mortgages v. Kavanagh by the appellant at the oral hearing, in sharp distinction to the position in Kavanagh, no issue was raised in the High Court as to the validity of the procedure whereby the Sheriff took possession of the Property. This fact is carefully recorded by Kennedy J. in his judgment. No evidence was put before the court by the appellant in this regard and no complaint was made. In those circumstances, the appellant cannot now, in the context of a stay application, seek to rely on a decision that was based on the facts of that case as established in evidence, where she did not raise any similar issues in the High Court.

Conclusion

30. In conclusion, for all the reasons set out above, I refuse a stay on that part of the Order of Kennedy J. restraining the appellant from continuing to unlawfully trespass on the Property. However, I will grant a stay on that part of the Order directing that the respondent recover against the appellant the costs of the action as this represents the usual approach of this Court towards a stay on a costs Order pending the hearing of an appeal.

31. As the respondent has been largely successful in resisting the application for a stay, I propose to make an Order for the costs of the application in her favour as against the appellant. If either party wishes to contend for a different Order, they may do so in written submission of not more than 1,000 words within 10 days of the date of the judgment, such submissions to be provided to the Court of Appeal (Civil) Office.