Court of Appeal dismisses stay application as appellants failed to show arguable grounds for appeal.

THE COURT OF APPEAL

APPROVED

NO REDACTION NEEDED

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

High Court Record Number: 2024/1936P

Neutral Citation Number: [2025] IECA 207

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 21st day of October, 2025

1. This is my judgment on an application by the appellants for a stay in respect of the judgment of this court delivered on the 28th July 2025.

2. In that judgment, with which Costello P. and Collins J. agreed, three appeals against orders of the High Court were dismissed. In the course of my judgment, I upheld findings by the High Court (Nolan J.) to the effect that the second appellant (Mr. Martin Snr.) had been guilty of flagrant breaches of an order of the High Court made by Sanfey J. and undertakings given to Nolan J.

3. One consistent theme of my judgment is that much of what the appellants complain of before this court involved procedures which were either not objected to or were actively consented to before the High Court judge. This acquiescence by the then counsel for the appellants was not accidental. And as stated in the main judgment of this court, Conor Feeney BL (who represented the appellants at virtually every relevant hearing before the High Court) “handled a series of difficult situations skilfully and responsibly.” Even if the appellants do not agree that this is the case, it is not now open to them to complain that the trial judge on a number of occasions acted in a way which Mr. Feeney either clearly endorsed or to which Mr. Feeney decided not to object.

4. One other striking aspect of the current application for a stay is that the only sanction actually imposed upon any of the appellants were orders for costs. No evidence has been presented to us about the progress (if any) made in respect of having these costs adjudicated, let alone having such adjudications executed. In the normal course of events, by the time bills of costs are drawn, submitted to the other side, been the subject of negotiation between costs accountants, and go through the process of adjudication many months have passed. While I am aware from the appeal papers that bills of cost have been presented on behalf of the respondents to the appellants’ solicitors, I am also aware that these have been the subject of criticism by the costs accountants engaged on behalf of the appellants; matters, at least as far as this court is aware, may well have reached an impasse at this point in time.

5. This second aspect, therefore, can be summarised in the following way. Notwithstanding the fact that the application for leave to appeal to the Supreme Court is likely to be heard and determined promptly, and notwithstanding the fact that at its height the issues agitated on behalf of the appellants are rather limited ones, an application for a stay has been made in respect solely of awards of costs against the appellants when it is quite likely that the process of the adjudication of these costs will not be completed by the time any appeal has run its course. The need for such a stay is therefore difficult to understand; the way in which it is presented in the written submissions on behalf of the appellants is somewhat overstated, to put it as neutrally as I can. It is asserted (at para. 4.2 of the written submission) that: - “The Second and Third Appellants are private individuals, who intend to appeal this Court’s decision, and would be severely prejudiced pending a potentially successful appeal if they were open to the execution of any costs orders against them.”

6. As I have indicated, there is no evidence whatsoever provided which would suggest that the execution of any costs order is likely to take place over the short to medium term, within which time one would anticipate that the appeal to the Supreme Court will have been determined.

7. There are then certain “particulars” given to underpin this general assertion of prejudice. With regard to Mr. Martin Snr., the complaints focus on the potential enforcement of the costs orders against him. As I have just observed, there is nothing in the papers to suggest that this is imminent. With regard to the third appellant, Darren Martin, the following is stated:- “In relation to the Third Appellant. (sic) His ground for appeal is that he should never have been held liable for a costs order due to his status as director of the company. It is therefore prejudicial for him to be held liable immediately for any costs orders of this Court, with him having to incur potential further costs in circumstances where he could ultimately be successful on appeal and therefore”

8. This submission ends in exactly the way I have set it out. It is abrupt, inconclusive, and without substance. Repeating the ground of appeal does not really assist in persuading me as to why a stay should be granted in this case. The comments with regard to the imminence of the enforcement of costs orders - the contention that Darren Martin will “be held liable immediately…” - is subject to the same frailties and lack of either evidence or reasoning which I have described in respect of the adjudication and enforcement of costs orders against Darren Martin’s father. In addition, in the event that the Martins were to incur expenses in dealing with the adjudication of the costs claims of the respondent, this presumably could be the subject of an appropriate order in their favour in the event that the appellants were to succeed in some or all of their appeal. It is not suggested in the appellants’ written submissions that the respondents would not be good for any such award against them.

9. In their written submissions, the appellants suggest that there are two criteria which must be satisfied for them to be granted a stay. The second of these is the one which I have just considered, namely whether or not the balance of justice supports the grant of a stay. Nothing has been put forward on behalf of the appellants which succeeds, in my view, in establishing that the balance of justice does in fact require a stay to be granted.

10. I will now turn to the first of the two tests, namely whether or not “the Appellants have a stateable or arguable ground for appeal”; paragraph 2.1 of the appellants’ written submissions.

11. I have already observed that much of this court’s judgment on the appeal dealt with the fact that the appellants were seeking to impugn decisions of the court below to which they either had not objected or had actively consented. This aspect of my judgment is not addressed in any way, shape or form in the submissions now presented seeking a stay. This is a truly notable omission. The written submissions focus on general propositions of law without in any satisfactory way engaging with the critical factual background which applies in this case. Inasmuch as there is any attempt at engaging with the facts, this is confined to propositions which are put in a way so vague as to be meaningless, or propositions which are simply misleading.

12. An example of the first is the final sentence in para. 3.2 of the written submission.

This reads: -

“It will be the Appellants’ submission that the Court erred in the application of this principle, and moreover, it incorrectly inferenced sufficient knowledge on the part of the Appellant based on the incorrect Standard of Review and transcript before the Court.”

It is simply impossible to understand what the last portion of this sentence means. The first portion of the sentence relates to my interpretation of the judgment of Hogan J. in Pepper Finance Corporation (Ireland) DAC v Persons Unknown [2023] IESC 21. It is not explained at all how my analysis of that judgment is incorrect, or why the rationale which I deployed in support of my analysis is in any way mistaken. On the factual matters, however, the second portion of the sentence is meaningless and not otherwise explained anywhere in the submission.

13. An example of the second type of proposition is to be found at para. 3.5 and 3.6 of the written submission. There was a potential issue in the appeal with regard to the service on Mr. Martin Snr. of the original interim order made by Sanfey J. I observed, at para. 9 of my judgment, that: - “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.”

14. From that sentence, carefully replicated in the written submission of the appellants, the following proposition is predicated: - “It is the Appellants’ position that the Court erred in exploring potential evidence, unavailable or not before the trial Judge, and making determinations on this basis. It would be the Appellants’ submission that this was a misapplication of the Hay v Grady Standard of Review. It is submitted that a question as to whether there has been a departure from the correct) Standard of Review meets the public importance and interest of justice threshold.”

15. What this somewhat confused submission ignores is that the balance of paragraph 9 in my original judgment, which reads as follows: - “However, that potential issue in this appeal is set at naught by a concession made by counsel for Mr. Martin Senior 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.”

16. No attempt has been made, in their written submissions, by the appellants’ current counsel to explain away the significance of the concession made to this court. Doing the best one can, it appears that counsel for Mr. Martin Snr. are now saying that this concession was not made to the trial judge, and this court cannot take account of it. There are two problems with this line of argument. The first is that it is an argument not made to this court, notwithstanding the very significant importance that we clearly placed during the hearing on the obtaining of these instructions from Mr. Martin Snr. about the service of the interim Order on him. Secondly, had this argument been made it would raise the question as to whether or not an appeal court should reverse a trial judge for proceeding on the basis that an order has been properly served, when in fact the appellate court is informed that such proper service did occur.

17. The incomplete quotation of the relevant section of my judgment, and the somewhat peculiar argument that is extrapolated from that partial quotation, does not satisfy me that Mr. Martin Snr. has a statable or arguable ground for appeal on this point.

18. The same is true of the second and third ground of appeal identified by reference to Mr. Martin Snr.; as described in the written submissions, they simply fail to take account of what actually happened at the hearings.

19. With regard to the grounds of appeal on the part of Drumgoan and Darren Martin, there is no engagement with the judgment of this court on the question of whether or not the trial judge was involved in the exercise of “piercing the veil” of a limited liability company. The analysis of this court is simply not addressed; in those circumstances, it is difficult to see why it would be upset.

20. For the purpose of this ruling, I have taken as correct the legal test to be applied (which I have described earlier) as advanced on behalf of the appellants. That is not to say it is necessarily a correct statement of the law, but it is not one disputed by the respondents’ counsel and it provides a helpful framework within which the current application can be addressed.

21. In my view, the appellants have not shown that they have a stateable arguable ground for appeal in the written submissions which they have presented. Even if they had, the fact remains that the only mischief against which the stay is designed to protect the appellants is the processing, adjudication and execution of costs orders against them. I do not believe that the appellants have made out the need for a stay given the fact that the adjudication and execution of costs is likely to be an elongated process and given that the Supreme Court is likely to deal with this appeal (even if leave was granted) in a prompt way.

22. I should emphasise that my analysis of the merits of the appellants’ appeals is based solely on the arguments and materials which they provide in their written submissions. It may well be that different submissions will be made to the Supreme Court, which inevitably raises the possibility that the judgment of that court will be different to the judgment of this court.

23. As this is an application in which the appellants have failed completely, the costs of the written submissions will be awarded in favour of the respondents.

24. Costello P. and Collins J. agree with this judgment.