High Court dismisses tenant's injunction claim against mortgagee receiver for possession of commercial property.

AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 254

[Record No. 2025/1802 P]

BETWEEN

JERRY BEADES

Plaintiff

AND

BRIAN REILLY, ALFRED REILLY, RAY MCGRATH, THOMAS CARR, FILIPPO

PAOLOZZI, MICHAEL HUGHES T/A FONTHILL PARTNERSHIP,

EVERYDAY FINANCE DAC AND JAMES ANDERSON

Defendants

JUDGMENT of Mr Justice Kennedy delivered on 9 May 2025.

1. The plaintiff claims to be a tenant of a commercial property (“the Property”). Having obtained leave for short service, he seeks injunctive orders to, in effect, require the seventh defendant (“Everyday”), which is the registered owner of a mortgage over the Property, and the eighth defendant, a receiver appointed by it (collectively, “the Mortgagee Defendants”), to vacate the Property and to allow the plaintiff to continue to use it for his business pending trial. The registered owner/mortgagor, the Fonthill Partnership (“Fonthill”), which had entered into the mortgage in 2005, comprises the first to sixth defendants and played no part in this application (save that the first defendant attended throughout the hearing and signed a letter which the plaintiff relies upon).

2. The plaintiff is not entitled to the interlocutory relief which he seeks: a. Because he seeks mandatory interlocutory reliefs, he must show a strong case likely to succeed at trial which would entitle him to the relief sought. However, he has not even met the lower threshold, a fair question to be tried: i. The Mortgagee Defendants recently took possession of the Property following an order of the High Court in protracted litigation with Fonthill and another individual, Mr Gilroy, who claimed to occupy the Property. ii. The plaintiff’s claim to be a lawful tenant is largely based on assertions.

He did, belatedly and informally, furnish some documents during the hearing. For present purposes, I will ignore obvious questions as to the genesis of those documents, the circumstances in which they were entered into and the way they were tendered to the Court. Even taken at face value they fail to establish a lawful basis for the Plaintiff’s purported occupation of the Property. The suggestion that the agreement was an assignment of a 2003 tenancy (obviating the need for the mortgagee’s consent) is factually and legally untenable. Even if, as he claims, the plaintiff entered into an agreement with the first defendant and the latter was contracting on behalf of Fonthill, it could not give rise to an interest in the Property without Everyday’s consent.

There is no suggestion that consent was sought or granted. iii. The plaintiff has not established any lawful interest in the Property. By contrast, Everyday’s property rights have been established and are reflected on the folio. The Mortgagee Defendants have secured orders for vacant possession against Fonthill (in proceedings to which the plaintiff was not a party). Everyday’s property rights take precedence over the plaintiff’s unsubstantiated assertions. Having no lawful interest in the Property, the plaintiff has no standing to contend that the Everyday or the receiver acted unlawfully in taking possession of the Property following their litigation with Fonthill. b.

In any event, the Property is not a residential property. The potential prejudice to the Mortgagee Defendants as a result of granting the relief sought (if the claim fails at trial) would dwarf the prejudice to the plaintiff in the converse scenario. In any event, damages would be an adequate remedy if the plaintiff won. c. Furthermore, the plaintiff has not suggested that he could honour his undertaking as to damages. His affidavits referenced his having been forced to vacate other premises in unrelated litigation. This scarcely inspires confidence.

By contrast, no issue was raised as to the Mortgagee Defendants’ ability to meet any liability if the plaintiff won at trial. d. The balance of justice would not favour the relief sought in any event: i. Following extensive litigation, the Mortgagee Defendants have secured a High Court order for vacant possession of the Property against Fonthill “and other persons having notice of the order”. The order of Stack J would be undermined by the order sought and to that extent the effect of the application, if not its intention, would be an ancillary attack on that order. ii.

Furthermore, the relief sought would impact on the continued operation of the receivership and increase its costs and there is no reason to anticipate that such costs could probably be recouped if the claim fails. iii. It is relevant to the balance of justice assessment (if one was required) that Everyday is the registered owner of the mortgage, and the registered owner has been ordered to allow the receiver to take possession (with any sale subject to a temporary stay). Accordingly, Everyday’s property rights and the entitlement to progress the receivership have been confirmed by the High Court in the litigation between the principal stakeholders. iv.

The plaintiff proposed that, if interlocutory relief was granted, he would pay rent to the receiver and that acceptance of such rent was consistent with the latter’s duties under the mortgage, whereas otherwise the Defendants (and the mortgagors) would lose the benefit of such rent and instead incur the cost of security to safeguard the property. However, there was no evidence that the proposed rent represented with the return which the property would realise on the open market. In any event, while the Mortgagee Defendants can deal with the plaintiff, they are not obliged to do so.

For those reasons, the balance of justice militates against the application. In any event, the lack of an arguable case makes it academic.

Background

3. Many points in the affidavits and submissions are irrelevant to the interlocutory application. I will focus on the evidence pertinent to the current issue.

4. The original notice of motion replicated the prayer for relief in the endorsement of claim, seeking orders in respect of:

“(1) … unlawful forceable breaking and entry into the premises at IDA Business Park, Clonshaugh, Dublin, D17 HC84, in the County of Dublin by The Mortgagee Defendants contrary to the Forceable Entry Act 1634 L.

(2) A declaration that I am the lawful tenant of the Fonthill Partnership.

(3) A declaration that I am entitled to a new 20 year Lease.

(4) A declaration that the Fonthill Partnership failed in their obligations to me as my landlord.

(5) Damages for breach of contract.

(6) Interest pursuant to statute and/or contract as applicable.

(7) Further or other relief

(8) Costs.”

5. The notice of motion was thus seeking reliefs which, save for the first relief, were not possible by way of interlocutory relief. The first relief was badly worded, but the Mortgagee Defendants did not take any point in that regard as the plaintiff was unrepresented. Both sides accepted that the intention was to require the Mortgagee Defendants to vacate the Property, allowing the plaintiff to occupy it pending trial. Both sides accepted that the relief sought was mandatory, requiring the plaintiff to show a strong case likely to succeed at trial that he would be entitled to such relief if successful at trial.

6. At the outset of the hearing the plaintiff sought to amend the notice of motion, producing two different amended notices of motion. The second, the version which he relied upon, sought orders pending trial prohibiting the receiver from entering and/or interfering with the Property, or "from interfering with my constitutional right to earn a living", or from relying on s.18 of the Conveyancing Act 1881 or from refusing rent previously paid to the registered owner who had appointed the receiver as his attorney under the mortgage. In any event, I refused leave to amend the motion since the application was so belated and not all defendants were even in court to respond to the application. However, the broad interpretation which I adopted in respect of the first paragraph of the notice of motion ensured that the plaintiff was not disadvantaged. In doing so I followed the approach adopted by Stack J in Coleman v Ireland & Ors [2022] IEHC 17. At para. 11 of her judgment, Stack J noted the discussion in Delany and McGrath on Civil Procedure, 4th ed., (Roundhall, 2018) of O’N. v. McD [2013] IEHC 135 and commented that:

“the authors note that Birmingham J. stated in at [18] that there is no question of a litigant in person, such as this plaintiff, “being deprived of his right of access to the courts by reason of any lack of skill as a draftsman”. Therefore, in considering these applications, I have afforded leeway to the Plaintiff as a lay litigant and have looked at the substance of what is pleaded or deposed to on affidavit, overlooking any minor defects.” If the proposed amended reliefs had been allowed, I would still have dismissed the application for the reasons outlined in this judgment.

The Grounding Affidavit

7. The plaintiff’s grounding affidavit averred that: a. The property was in poor repair when he occupied it in October 2023. He was told it had been vacant for 10 years. He went to effort and expense to renovate and repair it (in lieu of rent), paying the first defendant €2,000 per month thereafter. He was assigned an unexpired lease in October 2023 and was entitled to a renewal for 20 years from its expiry on 23 December 2023. Having been shown the folio, which referred to the 2003 Lease, he:

“moved in on the back of the 20 year lease that had the consent of AIB from 2003”. b. He received no notification that the Mortgagee Defendants intended to take possession. However, on 3 April 2025 he discovered that locks had been changed. He regained access and changed the locks himself. He contacted Fonthill who told him that their solicitors had received email correspondence from the Mortgagee Defendants’ solicitors which noted that “certain heavy duty and other items remain on the property” and asked Fonthill to arrange for their collection by Friday 11 April, 2025, failing which they would be destroyed. c. He was a stranger to his landlord’s difficulties (with the mortgagee), having been forced to lease the property to store material for his businesses having been dispossessed from his own property. He had nowhere to move his materials to and was concerned that the receiver would destroy his stock.

8. The grounding affidavit exhibited no documentary evidence as to the legal basis for the plaintiff’s occupation and referred vaguely to his being told the property was vacant, being shown the folio and being assigned an unexpired lease. The curious phraseology begged the question as to “by whom?”: (i) he was told that the property had been vacant; (ii) the unexpired lease was assigned; and

(iii) he was shown the folio. It appears from the plaintiff’s second affidavit and from documents later produced that he may have been referring to the first defendant.

The Replying Affidavit

9. By contrast, the receiver’s affidavit, sworn on his own and Everyday’s behalf, was detailed and comprehensive. It exhibited relevant documents including proof of title and of the receiver’s appointment and developments in the possession proceedings, stating that: a. Fonthill is the registered owner and Everyday is the registered chargeholder. Everyday appointed him as receiver on 17 April 2024. b. He wrote to “the Occupant(s)” of the Property on 24 April 2024, 10 July 2024, 7 August 2024 and 14 August 2024 requesting copies of any tenancy agreement or other information or any arrangement or reason for any occupancy. The 7 August 2024 letter informed the occupants that their occupation was unlawful, and they were trespassing. The receiver never received any reply from the plaintiff despite his claim to have occupied the Property since October 2023. Responses from other quarters contradict the plaintiff’s claims: i. By email to the receiver dated 25 April 2024, Mr Gilroy stated that he and Charles McGuinness were “duly authorised to address and manage the concerns pertaining to this matter” ii. Mr Gilroy’s 15 August 2024 letter objected to the receiver’s 7 August 2024 letter having been addressed to “the occupant”, pointing out that:

"I must remind you once again that I am the lawful occupant of this property, as you have been informed on several occasions." c. The receiver’s agent, Ktech, sought to visit the Property on 21 August 2024. However, the first defendant had posted a video on Facebook, inter alia, calling on members of the public to provide "moral support” at the Property. Accordingly, Ktech were met by a gathering of people and parked cars and vans prevented access to the Property. Ktech, perhaps prudently, seem to have concluded that discretion was the better part of valour and withdrawn.

Before doing so, they observed people at the Property, including Mr. Gilroy. The plaintiff said in submissions (but not on affidavit) that he himself was not present. He did not disclose his awareness or otherwise of the reception arranged for Ktech. d. There were two recent High Court actions concerning the Property (together, “the Possession Proceedings”) to which he begged to refer when produced: i. The Mortgagee Defendants were plaintiffs and Fonthill and Ben Gilroy were the defendants in one action (Record No. 2024 4853 P). On 28 March 2025 Stack J granted the Mortgagee Defendants’ application for interlocutory orders in those proceedings, which, inter alia, recognised their right to take possession of the Property and restrained Fonthill and any other person on notice of the Orders from trespassing thereon. ii.

On 9 April 2025, Stack J also rejected Fonthill’s converse application for orders restraining Everyday from entering, interfering with or taking possession of the property, awarding costs to the Mortgagee Defendants. That application was brought in the second High Court action (Record No. 2024 4496 P), which Fonthill had commenced against the Mortgagee Defendants. e. Following the High Court hearing of the injunction applications in the Possession Proceedings, Ktech secured possession of the Property on 2 April 2025. However, the plaintiff re-entered the premises the following evening and changed the locks.

Ktech changed the locks again and secured possession of the Property on 4 April 2025 and has protected it on a 24 basis since then. f. The plaintiff’s claim to be a lawful occupant having been "assigned an unexpired lease in premises in October 2023" was unsupported by documentary evidence: i. There was no evidence that the lease was ever assigned to him; his interest was not registered on the folio. ii. The original sublease was registered as a burden on the folio, confirming that Fonthill entered into it with Business 2 Print for a 20-year term from 22 December 2003.

Business Name and company searches confirmed that: (i) Business 2 Print was owned by Fonthill Printing Company Limited, a private company limited by shares (“the Company”); (ii) the first defendant was the Company’s director and it was dissolved on 2 June 2012 following liquidation proceedings. Accordingly, the plaintiff’s claim to have been assigned the lease could not be true since the Company was dissolved in 2012. g. The mortgage contains a negative pledge clause, as follows:

"7.01 The Mortgagor hereby covenants with the Bank during the continuance of this security:

…

(e) Not to convey transfer assign demise or let or part with the possession of the mortgaged property or any part thereof or any interest therein without the prior consent in writing of the Bank and further and without prejudice to the generality of the foregoing not to exercise the statutory powers of leasing or agreeing to lease or accepting or agreeing to accept a surrender of a lease contained in Section 18 of the Act of 1881 without the prior consent in writing of the Bank." (emphasis added) The alleged assignment was invalid because no consent was sought or granted.

h. When Ktech took possession on receiver’s instructions, The Mortgagee Defendants had obtained mandatory High Court orders restraining Fonthill and any persons on notice from impeding or obstructing the receiver from taking possession and Fonthill simultaneously failed in their attempt, to restrain the receiver. Accordingly, there was no illegal action by the receiver or its agents. i. The receiver was willing to allow a reasonable period for the plaintiff to remove his stock and vehicles from the Property (subject to evidence of ownership).

Mr Ben Gilroy

10. Mr Gilroy’s letters to the receiver contradict the plaintiff’s assertions in these proceedings and provide the context for the receiver’s actions following the conclusion of the injunction hearing in the possession proceedings. Mr Gilroy was added as a defendant in the Possession Proceedings. In short, he claimed to have been in occupation of the Property, (along with Mr Charles McGuinness). He never referred to the plaintiff in his letters. The Mortgagee Defendants did not secure an order against Mr Gilroy on 28 March 2025 in the absence of proof of service.

The Plaintiff’s Supplemental Affidavit and Oral Submissions

11. In his supplementary affidavit and in his oral submissions (which went considerably further than his averments) the plaintiff stated, in summary, that: a. He never received the receiver’s letters to “the Occupant(s)”. Post was delivered to the Kilmartin Printing reception, but he did not direct his business correspondence to the Property and did not look to receive post there. b. Until Ktech took possession, he was unaware of the Possession Proceedings. He learnt of the 28 March 2025 order when he received the Mortgagee Defendants’ replying affidavit at 8 pm the day before the hearing before me (the defendants say it was emailed at 3pm). c. He was “surprised and completely taken aback” by Fonthill’s failure to identify him as the tenant of the large warehouse that he had occupied since October 2023 (six months before the receiver’s appointment). The receiver failed to ascertain that he was the tenant although in the summer of 2024 he provided keys to the first defendant to facilitate the inspection of the building on behalf of the receiver. The inspection would have revealed his identity (and that of his co-tenant David Wright) as their name could be seen on equipment, signage and materials in the warehouse. His vehicles were regularly parked inside or outside the premises, all registered to him. Accordingly, the receiver “failed on his inspection to observe the existent of Jerry Beades and his Business nor David Wright and all the catering equipment in the warehouse”(sic). d. On the day of the receiver’s inspection (which, as he acknowledged in submissions, was pursuant to a court order in the possession proceedings) he was told that Fonthill had made offers to the receiver hoping to avoid court “and I would be given sufficient notice to vacate the building if their negotiations failed”. However, he was not present during the receiver’s visit for medical reasons.

e. He objected that the order of Stack J was directed not only to Fonthill but also to “persons in occupation of the Property”. He was such a person but had not been served notice of the application. f. On the day of the hearing before me, the first defendant showed the plaintiff affidavits on Fonthill’s behalf in the Possession Proceedings which averred to tenants occupying the Property, but without identifying the plaintiff. g. He advanced arguments based on the original mortgage facilities, including that the mortgage terms envisaged that the mortgagee or its receiver would receive monthly rent payments and that in those circumstances, and by virtue of s.18 of the Conveyancing Act 1881, the mortgagee could appoint receivers to collect rent but not to sell the Property. Accordingly, the receiver should accept the proffered rent rather than paying for security.

The Registered Owners’ Evidence of Occupancy in the Possession Proceedings

12. The first defendant’s 11 October 2024 affidavit in the Possession Proceedings said:

"… the deed of appointment dated 4 April 2024 is for a 20 year sub-lease for folio DN 109969L, a sublease which expired on 21 December 2023 and not for the 788 year leasehold property folio DN 85365L….I question the validity of the appointment of a receiver some months after the expiration of a sublease in December 2023"

13. The next paragraph reiterated by reference to the folio that the 20 year lease expired in December 2023, a claim ventilated for a third time in para. 10. Fonthill challenged the mortgagee’s title on that basis in the Possession Proceedings, arguing that their security was over the (expired) 21 December 2003 sublease (not the Property’s leasehold title). Although the argument failed, the testimony that the sub lease expired on 21 December 2023 contradicts the plaintiff’s contention as to the assignment of the lease to him prior to its expiry. (It is also inconsistent with documents furnished at the hearing of this application which are considered below).

14. The fourth defendant’s affidavit in the Possession Proceedings was to similar effect:

"the 20 year lease has expired in December 2023. The deed of appointment of 4 April 2024 over a defunct instrument" (sic)

15. The first defendant’s 19 December 2024 affidavit in the Possession Proceedings likewise denied that the Property was vacant but without identifying the plaintiff stating that:

“7…as I have previously explained the defendant has exhibited folio DN 109969L (L meaning Leasehold) which is a 20 years sub-lease which ended in December 2023 of folio DN85365L a

788 year lease. I say we have pre-emptive rights regarding the property and these matters will be detailed in the statement of claim. 8…I am repeating myself when I say that the deed of appointment dated 4 April 2024 is for a

20 year sublethal folio DN 109 9691, a sublease which expired on 21 December 2023 and not for the 788 year leasehold property folio DN 85365L and I have questioned the validity of the Appointment of a receiver some months after the expiration of a sublease in December 2024 ... The defendant appears to be indifferent to the matter of the expired lease and the fact that the appointment of the receiver is based on an expired lease and that the expired lease is on the schedule of the mortgage indenture…

9. … the defendant have been alleging that the property is vacant which is wholly untrue. We have provided photographs and evidence to confirm we are in occupation and have conducted repairs to the property and have been maintaining the property in addition to paying the superior landlord -IDA (sic).

Conclusion

10. I say in conclusion that:

a) the Plaintiffs [i.e. Fonthill] are in possession of the property and do have pre-emptive rights regarding the Headlease that we believe would be made available by the freeholder.

b) The 20 lease has expired in December 2023. The deed of appointment of the 4th of April 2024 is on a redundant lease while the defendants do not have the proofs of their standing…." (sic)

16. Accordingly, affidavits sworn on Fonthill’s behalf repeatedly confirmed that it was in possession of the Property and (at least 11 times) that the 2003 lease expired in 2023. They never mentioned an assignment to the plaintiff or the plaintiff’s supposed occupation of the Property, although there were references to (unidentified) tenants.

17. The orders of Stack J on 28 March 2025 were in the following terms: a. In the Mortgagee Defendants’ proceedings seeking possession of the Property the Court directed (pending trial and on condition that the receiver could not sell or market the Property for 28 days from the perfection of the Order) that Fonthill, their servants and/or agents, and any other person having notice of this Order were: i. prohibited from impeding and/or obstructing the receiver from taking possession of the Property and restrained from interfering with, impeding and/or obstructing him, his servants or agents, in changing the locks and/or otherwise securing the Property and from trespassing on or otherwise interfering with it and from purporting to collect rents or other payments in respect of it or holding themselves out as the parties entitled to let the Property or otherwise acting to divert the rents or other payments in respect of the Property away from the receiver ii. to deliver up to the plaintiffs all keys and all books and records held by them relating to the Property, including leases and licence agreements And in the event that a Notice of Appeal was lodged within 28 days of the perfection of that Order the restrictions on marketing the Property should continue until the first return date or directions hearing before the Court of Appeal. Fonthill’s application for a stay was refused and it was ordered to pay the plaintiffs’ costs on the Motion. b. In Fonthill’s proceedings, Stack J rejected the application to restrain the receiver from, inter alia, taking possession likewise refusing the application for a stay and ordering Fonthill to pay the costs of the Motion.

Additional Documents

18. Although his affidavits exhibited no documents supporting his right to occupy the Property, in the course of the hearing the plaintiff produced documents including: (i) a signed agreement; (ii) a letter from the first defendant in relation thereto; and (iii) other documents evidencing his alleged payment of rent to the first defendant. The Mortgagee Defendants objected to the irregular and belated production of documents which had not been exhibited. Although the objection was well made, I allowed the plaintiff considerable latitude because he was unrepresented (although he seemed familiar with court procedures). I allowed him to refer to the first two documents (the others would not, in my view, have greatly advanced matters even if they had been properly exhibited). I will consider the two documents which the plaintiff relied upon.

The First Defendant’s 9 April 2025 Letter

19. The Plaintiff produced a letter from the first defendant in the following terms:

“TO WHOM IT MAY CONCERN

I, Brian Reilly, acting on behalf of the Fonthill partnership, agreed to let Sanmore House to Mr Jerry Beades from the first Day of October 2023 on a full repairing basis, and agreed renewal options with him.

WAREHOUSE AREA

I wish to confirm that all the goods contained in the warehouse section at Clonshaugh are entirely in the control of Jerry Beades who had his own keys for the door locks on the entrance doors from reception to the warehouse area.

FIRST FLOOR MEZZANINE

I can also confirm that Jerry Bede has a start up Fibreglass Vintage Car business and the Fibreglass Moulds are all in storage in this area.

RECEPTION/OFFICE AREA

I can also confirm that the office area is in the control of Jerry Beades who holds his own Keys for the 2 front door locks and facilitates myself and/or Ben Gilroy to access this area when access is needed. Ben Gilroy has Office Furniture store on the first floor area of the front of the building. TRUSTING this clarifies the ownership issues regarding the contents at Sanmore House.

Regards,

Brian Reilly”

20. The first defendant did not reconcile his letter with his affidavits.

The “Assignment”

21. The plaintiff produced an alleged agreement on which he relied as the basis for his alleged occupancy of the Property. It: a. was entitled "COMMERCIAL Assignment lease Agreement”.

b. identified

i. the landlord as “Brian ReiIly & partners” ii. the “tennant” (sic) as “Jerry Beades and Dave Wright” iii. the property as that in issue in these proceedings – Sanmore House, Claunshaugh Industrial Estate, Clonshaugh, Dublin 17. c. was signed by the plaintiff and by the first defendant (not by Mr Wright)

d. was dated Sunday 1 October 2023

e. stated

"Condition of agreement: [i] The unit has been vacant for 10 years and in a bad state of repair with trees growing out from front wall and the roof The lawns around the unit had not been cut for years [ii] The industrial estate landlords the IDA require immediate Clean up of the exterior appearance of the building [iii] The 2 no warehouse roller doors are a danger and require immediate repair to secure the building one roller door @ cost 2K to repair and replace the other warehouse door @ cost 6K Hire Skips 3k I Jerry Beades agreed to Carry out the work listed above as a goodwill offer to secure the unit & to maintain and carry out any other repairs that may be required under this agreement. RENT TO BE PAID MONTHLY @ 2000 Euro to Brian Reilly on the First of the Month TERMS: 6 months letting agreement subject to renewal with 6 months Notice to VACATE registered FOLIO NO DN 109969L” (sic)

22. In submissions, the plaintiff explained that the first defendant had referenced a 2003 lease referenced on the folio as proof of ownership; he had not produced the 2003 lease, but showed him the folio referencing it. In essence, the plaintiff maintained that the document constituted an assignment of the 2003 lease, a lease referenced on the folio which did not require or was assumed to have the mortgagee’s consent and his arrangement was subject to an automatic 20 year right of renewal.

23. The Mortgagee Defendants submitted that the document could not be an assignment or sublease since it was not entered into by the tenants under the 2003 sublease but, apparently, by Fonthill, the registered owner. In any event, the 2003 sublease evidently lapsed or was surrendered or repudiated on the dissolution of the tenant, the Company, which was the only party which could have assigned its interest under the 2003 agreement.

Legal Authorities

The test for interlocutory relief

24. I need not set out at length uncontroversial principles applicable to interlocutory injunctions as from authorities such as Merck Sharpe & Dohme Corporation v Clonmel Healthcare Ltd [2020] 2 IR

1. The core questions are whether the plaintiff has established a sufficient case and, if so, whether the balance of justice favours the grant or refusal of the injunction. Applicants generally need only establish a fair issue to be tried but a higher standard applies in some circumstances, requiring applicants to establish a strong case that they are likely to succeed at trial. The higher standard is imposed, inter alia, where, as in this case, mandatory orders are sought (Maha Lingham v Health Service Executive [2006] 17 ELR 140.)

The lawfulness of taking possession of the Property

25. The plaintiff relied on the decision of Dignam J in McGuinness v AIB & Ors [2025] IEHC 180 (“McGuiness”) to contend that the Mortgagee Defendants secured possession unlawfully. (It is not clear whether the plaintiff in those proceedings was the person of the same name who features in correspondence in these proceedings). The plaintiff in that case sought, inter alia, to restrain the mortgagee and a receiver on various grounds, including that security documents were forged. The plaintiff also claimed that the defendants unlawfully entered into possession forcibly, without the mortgagor’s consent or a Court order. Section 97(1) and 100(2) of the Land and Conveyancing Law Reform Act 2009 was inapplicable as the mortgage predated those provisions coming into effect and Dignam J concluded that the provisions did not have retrospective effect, citing ACC Bank plc v Kelly [2011] IEHC 7 (“Kelly”) and the obiter observations of Edwards J in the Court of Appeal decision in O’Neill v Davey [2020] IECA 76. However, Mr McGuinness also argued that the receivers had not taken possession peaceably and therefore acted unlawfully. As in this case, he had replaced locks. At paras. 97 - 100 Dignam J noted the decision of Allen J in a similar situation interlocutory injunction ruling in Charleton v Hassett [2021] IEHC 746 which identified the central question as to the legal effect of a receiver changing locks to take possession. Dignam J noted Allen J’s conclusion at paras. 62

– 64 of Kelly, citing Gale v First National Building Society [1985] IR 609 (“Gale”), as authority for the proposition that a mortgagee or chargeholder “may only lawfully take possession if that can be done peaceably” and doubting that Gale supported the propositions that a mortgagee could change the locks while the householder was away or that lawfulness depended on the degree of force, or the extent of damage. At para. 101, Dignam J cited Stack J’s comments at para. 66 , 70 and 71 of Wallace & anor v Davey [2022] IEHC 120:

“66. … the plaintiffs in these proceedings assert a right to possession on the basis of the Mortgage Deed and this is correct so far as it goes. However, that right is a right to enter, and therefore must be either asserted on foot of a court order or exercised peaceably: see Charleton v Hassett [2021] IEHC 746, where it was held that the breaking of locks does not constitute peaceable re-entry. …

70. If the Joint Receivers wanted to enter into possession of any of the properties secured by the mortgage deed, then either they must obtain the keys from the defendant and enter in a peaceable manner, or they must obtain a court order to authorise such entry. In the process of obtaining the court order, any dispute as to their entitlement to enter into possession in their capacity as receivers can be resolved.

71. That clearly has not been done here, and therefore, the status quo is that the defendant is in possession as mortgagor, that is, as owner of the Property, unless and until a court order dispossessing him is obtained.”

26. Dignam J concluded at para. 102 that the plaintiff had established a strong case that possession was not obtained peaceably as the receiver changed locks without the mortgagor’s consent or a court order. However, he concluded, on the basis of a detailed analysis of the authorities, that the balance of convenience did not favour the reliefs sought (save in one respect). He noted:

“114. … the most important factor, in most cases, is the question of the adequacy of damages. This is particularly so in commercial cases. O’Donnell J notes that in ‘commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy’. The starting point for a consideration of whether this plaintiff could be adequately compensated by an award of damages if an injunction is not granted but he succeeds at the trial is that the development of the Main Street Property was a commercial investment. As such, the starting point is that damages are an adequate remedy. If the Property is sold and it is subsequently determined that the sale was wrongful, the plaintiff can be compensated by an award of damages...”.

27. At para. 118 and thereafter Dignam J considered the “flip-side” that damages would not be an adequate remedy for the defendants if the plaintiff failed at trial because he could not honour his undertaking. Although satisfied that the plaintiff could not honour his undertaking Dignam J noted that the Court should not put too much weight on that factor, commenting at paras. 124 and 125 that:

“124. In Minister for Justice, Equality and Law Reform v Devine [2012] 1 IR 326, O’Donnell J said: “23… it is well established that a court can give an injunction notwithstanding the fact that the undertaking as to damages is of little or no worth because of the lack of means of the Minister (Allen v Jambo Holdings Ltd. [1980] 1 W.L.R. 1252). It would clearly be wrong that the deserving plaintiff with a good claim would be denied an injunction simply because they were without assets. In such a case the court must take into account the unlikelihood of such a party being able to satisfy an undertaking as to damages as one of the factors in considering the grant of an interlocutory injunction but may, and on occasion does, proceed to grant an injunction in such circumstances without such an undertaking...

125. Thus, the likely inability of an applicant to satisfy their undertaking as to damages is not a disqualifying factor but, in light of what the court is trying to achieve, it is an important factor in the assessment of where the balance of justice lies”.

28. Dignam J concluded at paras. 136 - 137 that it was highly relevant to the balance of justice that the plaintiff had established a strong case of fraud. The adequacy of damages was still relevant, but the balance of justice required him to restrain the receiver from selling the property pending trial (but did not justify the other reliefs sought even in the circumstances of that case):

“ 138. … the balance of justice favours an Order restraining the sale of the Property because a sale would either mean the loss of the Property or the possibly the future unravelling of a sale. The balance does not favour an Order being made directing the defendants to give up possession or to deliver the keys because retention of possession and the keys does not lead to the permanent loss of the Property or the unravelling of a sale. In the event that the plaintiff succeeds at trial possession can be restored and the loss of rent is a simple financial exercise.” Status of “tenants” whose leases were not consented to as required by mortgage terms

29. In Hogan v Deloitte & Ors [2017] IEHC 673 (“Hogan”), the High Court dismissed attempts to restrain a receiver from taking possession of a charged property and granted orders preventing the registered owner and an alleged tenant, Mr Walsh, from interfering with the receivership. Stewart J noted that there was no evidence that the mortgagee consented to the tenancy and dismissed the tenant’s argument that consent was not required, noting that that would mean that a mortgagor could:

“42. … unilaterally create a lease under s. 112, with the result of frustrating a receivership. None of these positions can be seriously contended. As for the receiver, the N17 Electrics has made clear that the tripartite agency relationship between mortgagor, mortgagee and receiver does not render the tenancy binding on the receiver. Therefore, I am of the view that there is no fair bona fide question to be tried regarding the tenancy agreement…

44. …Mr. Hogan and Mr. Walsh have failed to set out in any way how the tenancy agreement dated 1st April, 2015, or indeed any prior agreement, would be binding on any party to these proceedings other than themselves, thus rendering Mr. Walsh little more than a trespasser from the receiver’s perspective.”

30. Stewart J also concluded that damages would not be an adequate remedy for the receiver:

“45. …In fact, continued interference with the receivership will exacerbate the amount of damages, while the grant of an injunction would reduce damages significantly. As regards Mr. Walsh, it has long been the case in this jurisdiction that damages are not an adequate remedy for trespass. While the Court is aware that this is not an absolute rule and that recent authorities advocate for a fact-based approach, I am of the view that no facts or circumstances arise with regard to Mr. Walsh that would render damages an adequate remedy.

46. Conversely, damages would be an adequate remedy for any loss suffered by the plaintiff and Mr. Walsh. The most probable loss suffered by Mr. Walsh would be in the form of increased rent under the tenancy agreement he will likely enter into once he has vacated the second property. Those losses are easily calculable…. .. I accept the receiver’s submission that the balance is best served by maintaining the status quo and that the status quo is the orderly administration of the receivership”.

31. Shay Murtagh Ltd v Cooke and Persons Unknown [2022] IEHC 436 (“Cooke”) is to similar effect. Having bought a property on notice of its occupation by persons unknown the plaintiff was granted orders for possession because the occupants were trespassers. Phelan J ruled their tenancy agreement invalid in the absence of the mortgagee’s approval. She concluded at para. 68 that a strong case had been made out that the defendants were trespassers. Phelan J nevertheless considered the balance of justice assessment noting that the tenant:

“71. … has been aware for many months of the precarious nature of his occupation of the dwelling and the fact that it is maintained that he is a trespasser. He has already had significant notice and time within which to seek alternative accommodation”. Orders against “Persons Unknown”

32. The plaintiff complained that Stack J’s 28 March 2025 order named “persons unknown” as defendants, citing the Supreme Court decision in Pepper Finance Corporation (Ireland) DAC v Persons Unknown in Occupation of the Property known as 21 Little Mary Street, Dublin 7 [2023] 1 ILRM 381 (“Pepper”). In that case the plaintiff failed to take reasonable steps to identify defendants and did not add them as parties even where individuals were identified. The Supreme Court reaffirmed the jurisdiction to litigate against “persons unknown” where necessary, but noted that it should be exercised sparingly, where it was not reasonably possible to identify all potential defendants. Hogan J stressed that in such circumstances it could be appropriate to issue proceedings (and make orders) against “persons unknown”, commenting that:

“... the administration of justice should not be placed at the mercy of those who would resort to anonymity and evasion as a ploy to hand trip the efforts of plaintiffs…while resorting to the expedient of suing persons unknown should very much remain the exception, it may sometimes nonetheless be necessary to do so.”

Discussion

Has the plaintiff met the threshold test for interlocutory relief?

33. The plaintiff has not established a fair question to be tried, let alone a strong one: a. His position as to the basis for his occupation was not properly explained on affidavit; his submissions were fluid and inconsistent in his description of his arrangement with the first defendant and/or Fonthill and the usage of the Property (seemingly shared by him and his alleged co-tenant, Mr Wright, and used for storage by the first defendant and by Mr Gilroy). b. Aspects of his account appear difficult to credit. For example: i. he says he was unaware of the Possession Proceedings but in August 2024 the first defendant and Mr Gilroy used social media to organise a gathering of people and a deployment of vehicles at the Property to discourage the receiver’s representatives from visiting the Property.

The plaintiff says that he was not present on that occasion. However, he did not say whether he was aware of those events at the time. If, as he says, he occupied and controlled access to the Property, it would be remarkable if he was oblivious of the drama. Conversely, awareness of the furore would suggest that he was on notice of the receiver’s enforcement efforts. ii. The roles played by the first defendant and Mr Gilroy in the 21 August 2024 assembly suggest that if anyone was in occupation it was them, not the plaintiff. iii. The plaintiff says he provided access in “the Summer of 2024” for the receiver’s inspection on foot of a court order in the Possession Proceedings.

It is not clear whether he is referring to the 21 August 2024 visit (where Ktech were met by the demonstration apparently orchestrated by the first defendant and by Mr Gilroy) or to a separate occasion. In any event, his averment implies awareness of the litigation as does his suggestion that he understood at that time that he would be given time to vacate if the negotiations failed. iv. The plaintiff’s acceptance of the need to vacate on reasonable notice is inconsistent with his claim to a binding tenancy with a 20 year right of renewal. v. Since he and his alleged co-tenant are business people and he appears to have business and legal experience, it seems extraordinary that they committed to an assignment of the 2003 sublease without sight of the sublease which they were taking on.

It would seem exceptionally naive for a business person to enter an arm’s length real estate transaction without knowing exactly what was being assigned, without legal advice and without evidence of title. The plaintiff did not impress me as naïve so I find it difficult to understand how he and Mr Wright would have proceeded on that basis. vi. The timing of the alleged agreement between the plaintiff and the first defendant raises questions as to its bona fides from the latter’s perspective at least, in circumstances in which: (a) the Property was in disrepair and had been vacant for many years; (b) the loan facilities were evidently in arrears and enforcement action must surely have been anticipated; (c) there is no suggestion that the first defendant consulted the mortgagee or sought its consent as required by the mortgage terms.

In the circumstances it is not obvious that it would be appropriate to describe the transaction as a bona fide, arm’s length, transaction. However, oral evidence and cross examination would be required before reaching a definitive conclusion and it is neither necessary nor appropriate that I should seek to resolve that issue now. vii. The plaintiff claimed that he and Mr Wright were the tenant and occupied the Property but his position as to the extent of their occupancy seemed elastic and it emerged during the proceedings that the first defendant and Mr Gilroy also occupied parts of the building.

Indeed, since the plaintiff, Mr Wright, the first defendant and Mr Gilroy all appeared to be using the Property for storage rather than on a daily basis, and to share access, (although the plaintiff allegedly held the key) the nature of the alleged relationship and the modest monthly payment may have been more consistent with a licence than a lease, irrespective of how the parties sought to characterise it. Furthermore, the lack of clarity as to the rights of occupancy suggests that the alleged agreement might well void for uncertainty even leaving aside the other concerns raised. c. the plaintiff claims not to have received the letters to "the occupant" as he would not typically receive correspondence at the Property.

Post delivered to the Property was left at the reception of Kilmartin Printing. Several issues arise with this explanation: i. He has not addressed the fact that the receiver’s letters to the Occupant were received by and answered by Mr Gilroy nor has he explained whether the latter informed him of the correspondence. It would be remarkable if Mr Gilroy failed to do so if he was in fact a tenant. ii. Uncontradicted evidence confirms that Mr Gilroy received and answered the letters sent to the property addressed to the occupant. The fact that such correspondence was forwarded to, and dealt with by, Mr Gilroy suggests that he was perceived as the occupant.

Mr Gilroy’s letters to the receiver confirm that that was his own perception. iii. even if the Plaintiff did not routinely use the Property for correspondence, I would have expected any experienced businessman occupying and carrying on business from a property to arrange for any incoming post or deliveries to be delivered to a secure point which was monitored on his behalf and to ensure that An Post was aware of such arrangements. A residential tenant would do the same. The plaintiff apparently took no such steps which seems difficult to reconcile with his claim to have occupied the Property since 2023.

As he apparently knew that any post would be delivered to Kilmartin Printing it seems strange that he did not arrange for them to hold any post for him and to alert him. To the contrary, it appears that Kilmartin Printing allowed Mr Gilroy to collect correspondence addressed to the Occupant of the Property, suggesting that they saw Mr Gilmore as the occupant. iv. the plaintiff has not explained whether his co-tenant, Mr Wright, received the correspondence or drew the plaintiff’s attention to it. v. I note the failure of the plaintiff’s alleged co-tenant, Mr Wright, to swear an affidavit or to play any part in these proceedings and the plaintiff’s failure to disclose what Mr Wright told him in respect of events including the April 2024 assembly and the receiver’s inspection in the summer of 2024.

For example, although the plaintiff says he was absent for medical reasons during the inspection, he does not say whether Mr Wright was present. If the plaintiff could not attend it would seem surprising that Mr Wright did not do so; the plaintiff has not divulged what, if anything, was communicated to him.

34. In view of the unexplained contradictions between the first defendant’s 7 April 2025 letter and the affidavits previous furnished on the Fonthill's behalf I place no reliance on the letter. Fonthill’s affidavits in the Possession Proceedings never identified the plaintiff as a tenant occupying the Property. There were references to (unidentified) tenants, but the plaintiff was never identified and the plaintiff’s recent suggestion that he and Mr Wright were occupying the Property is not consistent with Mr Gilroy’s correspondence and claims.

35. Even accepting for present purposes the plaintiff's claim that he was unaware of the Possession Proceedings and that he did not receive the correspondence which the receiver sent to the occupant at the property, undisputed evidence confirms that the receiver sent such correspondence to the Property addressed to “the Occupant”, that such correspondence was received and answered by Mr Gilroy who held himself out (along with Mr McGuinness) as the occupant. Despite the plaintiff’s assertions to the contrary, I see no basis on which it could be contended that Everyday or the receiver were or should have been aware of his alleged interest in or occupation of the Property.

36. The plaintiff suggested that the receiver should have affixed copies of his letters to the “Occupants’” to the doors of the Property. Perhaps that course would have been followed if he had suspected that persons unknown were in occupation. However, there was no reason for him to do so and, in the light of Ktech’s reception when they visited the Property in April 2024, they may have wished to avoid confrontation as it was not evident that there were other tenants. Mr Gilroy was the only party other than Fonthill who intervened to claim to be occupying the premises at the time and The Mortgagee Defendants took appropriate steps to add him as a defendant. They would presumably have done the same for the plaintiff (and Mr Wright) if they had made their alleged presence known.

37. Oral evidence would be necessary to determine when the plaintiff first became aware of the Possession Proceedings when they were underway. If he was aware but took no part in the proceedings, then the Mortgagee Defendants would doubtless argue that these proceedings were an abuse of process or offended against the Rule in Henderson v Henderson (1843) 3 Hare 100 because, if he asserted a right to occupy the Property the plaintiff could and should have applied to be joined to those proceedings, the route which a party might have been expected to adopt if it had a bona fide belief in its position, see Vico Ltd & Ors v Bank of Ireland & Ors [2015] IEHC 525. However, I make no finding on that issue and for present purposes assume that the Plaintiff may have been unaware of the Possession Proceedings. Although there seem to be gaps and inconsistencies in the plaintiff's position as explained in his affidavits and (rather more extensive) oral submissions and as evidenced in the two documents he produced, such issues would need to be resolved by oral testimony and cross examination and need not be resolved for the purposes of the current application. Clearly at trial full disclosure would be required of all hardcopy and electronic documents held by the plaintiff (or by Mr Wright or by the First Defendant and/or Fonthill) showing the genesis of the documents which the plaintiff relied on in support of his assertion that an assignment was entered into in October 2023 and that he incurred expenditure and paid rent to Fonthill and that he and Mr Wright have occupied the Property since then. I expect that all such parties have been advised of the necessity to preserve all such hardcopy and softcopy documentation. In the meantime, it is not necessary (or appropriate) for me to conclusively determine all such factual and legal issues for present purposes.

38. The plaintiff has not established a fair question to be tried on the basis that he was the assignee of the 2003 sublease: a. The evidence overwhelmingly suggests that the 2003 sublease lapsed or was surrendered or repudiated. The claim to an assignment is inconsistent with; (a) the liquidation and dissolution of the Company; (b) his suggestion that, when he first occupied the Property, it was in very poor repair and had been vacant for 10 years; and (c) His failure to explain how Fonthill could have assigned the tenant’s sublease. b. The plaintiff’s claim to an assignment is undermined by the fact that it was allegedly entered into by the first defendant, apparently as agent for the registered owners, rather than with the Company which was the tenant under the 2003 lease and which was dissolved in 2012 following the appointment of a liquidator. There was no evidence that the Company ever assigned its interest. If the Company had relinquished its interest to its landlord, Fonthill, that would presumably have been a surrender or a repudiation not an assignment - Fonthill could scarcely be landlord and tenant on the same lease. c. the plaintiff’s own averments as to the property having been unoccupied and in disrepair also suggest that the 2003 lease lapsed or was surrendered or repudiated in or around 2012, a decade before its “assignment”. d. Fonthill could scarcely assign the tenant’s interest, and it is difficult to avoid the suspicion that the characterisation of the transaction as an “assignment” was an attempt by the first defendant to circumvent the need for consent, but that could only be resolved at trial. e. Even assuming (without deciding) that: (i) the document was indeed executed on 1 October 2023 as the plaintiff contends; and that (ii) the first defendant entered into the alleged agreement on Fonthill’s behalf and with its actual or ostensible authority, then any such document could only constitute a new lease. f. The plaintiff did not dispute the fact that any new lease would have required Everyday’s consent. There was no evidence that such consent was sought or given. The references to the folio do not fill that lacuna. The plaintiff’s position is identical to that of the alleged tenants in Hogan and Cooke - he is a trespasser with no lawful right to occupy the Property.

Lawfulness of Receiver’s actions in taking possession in April 2025

39. I do not consider that the Mortgagee Defendants acted unlawfully in taking possession or that they required Fonthill’s consent or a further court order to do so. To the extent that the plaintiff relies on McGuinness, I would observe that as in McGuinness, Section 97(1) and 100(2) of the Land and Conveyancing Law Reform Act 2009 was inapplicable because the mortgage predated those provisions and they do not have retrospective effect. Locks were drilled out in both cases. On this basis the plaintiff claims that entry was forcible and therefore unlawful. While such was actions were found to be unlawful in McGuinness, that decision does not help the plaintiff: a. Mr McGuinness was the registered owner, presumptively entitled to lawful possession. The mortgagee and the receiver were only entitled to take possession on foot of a court order or by consent. Different considerations apply here because the plaintiff is not the registered owner. To the contrary, as far as the Mortgagee Defendants are concerned, he is a trespasser with no lawful interest in the property. b. Secondly, unlike McGuinness, the High Court granted appropriate orders on 28 March 2025. She refused to restrain the receivership and required Fonthill, effectively, to vacate and yield up the premises to The Mortgagee Defendants. c. Thirdly, even on the exceptional facts of McGuinness the court refused most interlocutory relief sought because damages were an adequate remedy. (The court did restrain the sale of the property pending trial for reasons which would not apply in this case because the plaintiff is an alleged tenant not an owner and the quality of the allegations and the strength of the case are fundamentally different from McGuinness). d. Stack J’s 28 March 2025 orders dismissed Fonthill’s application to restrain such actions by the Mortgagee Defendants and granted them the relief they sought, requiring Fonthill to refrain from impeding/obstructing the receiver from taking possession etc. e. I do not agree that the Mortgagee Defendants were obliged to await the perfection of the order. If there was any issue– which I doubt – it would be a point for Fonthill not the plaintiff.

Plaintiff’s right to earn a livehihood

40. I do not accept that the plaintiff’s submission that Everyday or the receiver’s actions impact his "constitutional right to earn a living". His constitutional rights do not entitle him to carry on business from the Property. The property rights engaged are now vested in Everyday as mortgagee. The plaintiff is free to carry on his business elsewhere. If he wins at trial, then any losses caused by a breach of his rights can be compensated in damages. In particular, the facts allege by him suggest prima facie entitlement to pursue such a damages claim but against the first defendant and/or Fonthill, rather than the Mortgagee Defendants.

Plaintiff’s claims to have acted in good faith

41. The plaintiff says that he occupied the Property in good faith. The Mortgagee Defendants may challenge that characterisation: (a) there is no evidence that the “rent” paid by the plaintiff for what he described as a large warehouse reflected its value; (b) the circumstances outlined by the plaintiff might seem inconsistent with a bona fide arms-length commercial property transaction in which typically: (i) parties would be legally represented; (ii) proof of title would be sought and given, including evidence as to the terms of the 2003 lease, the basis for its assignment and clarification as to the respective rights and obligations of the plaintiff, Mr Wright, the first defendant and Mr Gilroy; (iii) the mortgagee’s consent would be confirmed. The informality of the transaction, its timing, the lack of evidence of title or proper legal documentation and, most significantly, the absence of any reference to consent from the mortgagee (whose interest would have been apparent to the Plaintiff from the folio) do not necessarily mean that the transaction was effected other than in good faith but such circumstances raise questions which can only be resolved at trial. However, I need not resolve that issue, and I take the plaintiff at his word for present purposes. However, even if he was acting in good faith, it would not, of itself, mean that there was a fair issue to be tried, much less a strong case against the Mortgagee Defendants. It might suggest a strong case against Fonthill but would not justify relief against the Mortgagee Defendants. Everyday’s entitlements to invoke powers under the 2005 Mortgage

42. For completeness, I should note that the plaintiff advanced submissions concerning the validity or otherwise of the Mortgagee Defendants’ actions and standing on the basis of issues which could only be raised – if at all – by Fonthill. He has no standing to ventilate such issues against the mortgagee or the receiver. See, for example, the decision of Stack J in McCann v Start Mortgages DAC (ex tempore, High Court, 3 November 2022).

Conclusion – Threshold Test

43. The plaintiff has not shown a fair question to be tried let alone a strong case likely to succeed at trial the applicable test. He has not established a lawful basis for his occupation of the Property. The alleged agreement could not give rise to an interest in the Property without Everyday’s consent. The assertion of an assignment of the 2003 tenancy (obviating the need for such consent) is untenable. As against the Mortgagee Defendants, the plaintiff has no right to occupy the Property. Having no lawful interest in the Property, he is a trespasser and has no standing to contend that the Mortgagee Defendants acted unlawfully in taking possession.

Balance of Justice

44. The balance of justice assessment would not favour relief in any event: a. Everyday submitted that the arrears exceeded €1.3m and there had been no repayment since (at least) 2019. However, this was not in evidence and was between Fonthill and Everyday so I have disregarded it. However, I am satisfied that the reliefs sought would reduce the receiver’s ability to maximise the return on the Property and would delay the already protracted receivership and increase its costs. b. The plaintiff has not established any lawful interest in the Property, whereas Everyday’s property rights have been established and are reflected on the folio.

The Mortgagee Defendants have secured an order for possession. Everyday’s property rights take precedence over the plaintiff’s assertions. c. It is significant that the property is not residential. The issues arising in the context of residential and commercial properties are very different, as the contrasting approaches in Clare County Council v McDonagh [2022] 2 IR 122 and Ryan v Dengrove [2021] IECA 38 (“Dengrove”) show. d. Courts are "robustly sceptical" of claims that damages are not an adequate remedy. There was no meaningful evidence from the plaintiff to support the contention that damages would not be an adequate remedy in this case nor do I see any possible basis for such a submission.

The situation seems akin to Dengrove. e. The prejudice to the Mortgagee Defendants from granting relief (if the claim fails) would dwarf the prejudice to the plaintiff in the converse scenario. In any event, damages would be an adequate remedy if the plaintiff won for the reasons outlined by Stewart J in Hogan as noted in para 35above. f. The refusal of interlocutory relief even in McGuinness (where the plaintiff demonstrated a strong case of a serious nature (forgery of security documents) is relevant. The Court still considered that damages were an adequate remedy and that none of the interlocutory reliefs should be granted save for restricting the sale of the property pending trial.

A limited restriction was appropriate in McGuinness due to the strong evidence of a very serious claim and because the plaintiff was the property owner and would not be fully compensated by damages, However, different considerations apply in this case. g. The plaintiff has not shown that he could honour his undertaking. His previous litigation suggests otherwise. While this is not necessarily determinative, I consider it relevant in the circumstances, particularly since there is no issue with The Mortgagee Defendants’ ability to meet any liability which might arise if the plaintiff won trial. h.

The balance of justice would not favour the relief sought: i. The Mortgagee Defendants have secured a High Court order for possession of the Property against Fonthill “and other persons having notice of the order”. That order could be undermined by the order sought. It would be invidious if collateral applications were to undermine the outcome of possession proceedings or obstruct the assertion of property rights by the owners of registered interests in land at the suit of parties who could and should have participated in the original hearing. ii.

Furthermore, the relief sought would obstruct the receivership and increase its costs but there would be no likelihood that such costs could be recouped. i. It is highly relevant that Everyday is the registered owner of the mortgage and the registered owner has been ordered to allow the receiver to take possession (subject to a temporary stay on any sale until the first return date before the Court of Appeal in the event of an appeal). Accordingly, the Mortgagee Defendants’ property rights and entitlements have been established in litigation between the principals.

It would be invidious if the outcome of possession proceedings and Court orders could be undermined by collateral applications. To do so would incentivise defaulting mortgagors to enter into unauthorised arrangements with “tenants”, contrary to their agreement with the mortgagee, in order (to borrow Hogan J’s terminology from Pepper) to ‘handtrip’ mortgagees’ attempts to enforce their legal entitlements. j. I am unmoved by the plaintiff’s proposal to pay rent to the receiver saving the latter the cost of safeguarding the property. There was no evidence that the modest proposed rent represented the income which the property would generate on the open market.

Furthermore, the defendants might consider the plaintiff’s concerns as to the cost of 24 hour security ironic to the extent that those costs were necessitated by the plaintiff’s own unlawful actions. In any event, the Mortgagee Defendants are not obliged to deal with the plaintiff. His modest offer does not move the dial on the balance of justice assessment. k. To the extent that the plaintiff intended to submit that the bona fides of his transaction with Fonthill was relevant to the balance of justice then I disagree for, inter alia, the reasons identified by Phelan J in Cooke. l.

In any event, even if the plaintiff genuinely believed that the assignment was valid – and I make no finding in that regard – he entered into a transaction with extraordinary informality without the basic checks which would accompany an arm’s length commercial property transaction. He, rather than the Mortgagee Defendants, must bear the consequences of his casual approach. If he took the first defendant's assurances at face value and failed to ensure that the latter was entitled to grant a lease without securing the mortgagee’s permission, then he must take responsibility for his naivety. m.

Furthermore, although the plaintiff denies awareness of the litigation, it is surprising that, given the unusual circumstances of the "assignment", the disrepair of the Property and the awareness that it had been unoccupied for years coupled with developments such as the social media posting and the protest at the Property in August 2024, the plaintiff was entirely oblivious of the Mortgagee Defendants’ determination to take possession of the Property. One might have expected that, to paraphrase Phelan J put it in Cooke, the plaintiff must have had at least some inkling of "the precarious nature of his occupation" and the possibility that he would be regarded as a trespasser.

His own reference to the possibility of having to vacate on reasonable notice suggests that this may have been the case, but I do not need to determine that issue. n. Parties were regarded and treated as trespassers in Cooke and Hogan (i.e. the registered owner purported to enter into a tenancy without the mortgagee's consent) in identical circumstances save that those cases involved residential properties. Clearly the balance of justice is even less favourable in these proceedings concerning a commercial property.

Accordingly, the balance of justice/convenience weighs against the relief sought. In any event, my conclusions as to the lack of an arguable case make the issue academic.

45. I have disregarded another balance of convenience point which may favour the Mortgagee Defendants because it was not considered in detail in submissions. However, I note that there was no evidence before the court that it would be impractical for the plaintiff to find alternative commercial premises for the purposes of storing the materials he uses for his business. In particular, there was no evidence of shortages of commercial property for lease such as those affecting the residential property market. If the plaintiff needed to pay a higher rent to secure alternative premises, then any such differential margin could be readily addressed by a damages award if he succeeded at trial. However, if it was indeed impractical to secure alternative premises at a similar rent, then that might imply that he was not being charged a market rent for the property. If that was the position, it would go to the balance of prejudice (since it would be unfair to lock The Mortgagee Defendants into an indefinite acceptance of an inadequate rent), but it would also further call into question the bona fides of the alleged transaction between the plaintiff and the first defendant. If it had been a bona fide arm’s length transaction, then the plaintiff could expect to have been paying a market rent and reducing the prejudice involved in seeking alternative commercial accommodation.

The Order against “Persons Unknown”

The plaintiff complained that the order of Stack J extended to restrain "persons unknown" in occupation of the Property which, he acknowledged, included the plaintiff himself, although he had not been on notice of the application. However, I am dealing with the proceedings instigated by the Plaintiff and his application. If there is any issue with the order made by Stack J (and I'm not suggesting that there

is) then the Plaintiff would need to make the appropriate application in those proceedings, either applying to Stack J to vary or set aside the order or appealing it as appropriate. It is not evident to me that there is any basis to vary the order J in any event. In Pepper the Supreme Court reaffirmed the existence of the jurisdiction to issue proceedings and make orders against “persons unknown” in appropriate circumstances. I have no reason to doubt that this case fell within the circumstances identified by Hogan J in Pepper. The Mortgagee Defendants seem to have complied with the approach mandated in Pepper by joining Mr Gilroy as a defendant. They would presumably have done the same if they had identified the plaintiff as an occupant (or if he had made himself known). I see no basis to fault the Mortgagee Defendants but in any event, it is not relevant to this application.

An Observation

46. Finally, I note that when the receiver took possession on 3 April 2025, the letter from his solicitors to Fonthill’s solicitors imposed an unreasonable deadline for the collection of assets from the Property. That deadline and the threat to destroy material which was essential for the plaintiff’s business, was one of the grounds on which short service was secured. The Mortgagee Defendants adopted a more measured approach following the issuing of proceedings. Their counsel conceded that the receiver’s deadline was inappropriate. I agree that at least 14 or 21 days would have been fairer in the circumstances. Hopefully, in future, mortgagees and receivers appointed by them will not impose such unreasonable deadlines or adopt unduly harsh positions. Their lawyers may be expected to warn them that any actions which may be perceived as unprofessional, unreasonable or unfair may influence the exercise of the judicial discretion as to interlocutory relief and may also influence decisions as to costs.

47. Conversely, the Plaintiff’s expectation that, even if the Court concluded that he was not entitled to occupy the Property, he would be afforded an extended period to remove his property is unrealistic in the circumstances because it would impact on other party’s property rights. It seems to me that it would be reasonable for the Mortgagee Defendants to allow the Plaintiff a further month fto remove his property, on the basis that he would be allowed appropriately limited and controlled access by reasonable mutual arrangement in the meantime for the purposes of enabling him to progressively evacuate his materials (rather than to carry on business from the Property). While the Plaintiff seemed to expect in his concluding submissions that he should, in effect, be allowed to run down his stock at the Property, removing product incrementally as and when he needed it for the purposes of meeting his customers’ orders, the Mortgagee Defendants have no obligation to facilitate such arrangements unless they wish to do so. They should in my view facilitate his reasonable requests for access over the coming weeks as he removes his materials but he cannot expect them to continue to store the materials on his behalf for an indefinite period. The Plaintiff complained that this will impact his business and it will be difficult for him to find alternative warehouse accommodation. While that may well be so, it does not entitle him to continue to utilise the Property other than with the Mortgagee Defendants’ consent. Any losses caused to him as a result of any breach of the tenancy agreement seem to me to be a matter between him and the first defendant and/or Fonthill.

Conclusion

48. In the circumstances, the application must be dismissed. In accordance with the s.169 of the Legal Services Regulation Act 2015, the Mortgagee Defendants are presumptively entitled to their costs in respect of the application. However, either side may file submissions with regard to the terms of the order on foot of this judgement or as to costs within 21 days of the date of this judgement, such submissions to be confined to 2000 words or less. Having reviewed any such submissions, I will confirm the terms of the order on the application, including in respect of costs and or, if necessary, I will direct a short hearing to deal with any such outstanding issues.

APPEARANCES

Mr. Jerry Beades, litigant-in-person, the plaintiff.

Mr. Michael Connolly BL, instructed by Byrne Wallace Shields LLP, for the Mortgagee Defendants.