High Court grants plaintiff immediate possession and restrains trespass despite defendant's appeal pending.

THE HIGH COURT

[2025] IEHC 373

[Record No. 2024/7334P]

BETWEEN

WENDY DOYLE

PLAINTIFF

AND

EUGENIE HOUSTON

DEFENDANT

JUDGMENT of Mr Justice Kennedy delivered on 3 July 2025.

1. The plaintiff seeks to restrain the defendant from: (a) continuing to trespass on premises in Co. Kildare (“the Property”); and (b) interfering with their sale. The Property was, or had been, the defendant’s home and principal private residence but, after years of litigation and enforcement proceedings arising from the defendant’s failure to satisfy long outstanding cost orders against her on the basis of which the plaintiff registered four judgment mortgages against the Property, the plaintiff secured, inter alia, a well charging order and an order for vacant possession. Despite the failure of her appeals, the defendant still refused to vacate so the plaintiff eventually applied for a writ of fieri facias, (“FiFa”), which is a writ instructing the County Sheriff (“the Sheriff”) to execute the High Court’s order. The Sheriff duly took possession of the Property and placed it in the possession of the plaintiff’s agent. However, later that day, the defendant reentered the Property, and she remains in occupation.

2. The plaintiff says that she lawfully took possession of the Property and that the defendant’s re-entry and continued occupation constitute unlawful acts of trespass. The defendant does not deny the essential facts alleged by the plaintiff in respect of: (a) the making of the various orders; (b) the Sheriff’s seizure of the Property on foot of the orders; (c) the plaintiff’s agents’ taking possession of the Property; or (d) her own actions in breaking into the Property and remaining in occupation. However, she vigorously disputes the validity of its seizure and of the judgments and orders which led to that seizure, citing her rights under the law of the European Union and the European Convention on Human Rights (ECHR) and saying that she was entitled to re-enter her family home. She also denies that the plaintiff is entitled to enforce the orders in her favour because, inter alia, she merged her legal practice with another firm’s after those orders were made in the plaintiff’s favour. The defendant says that any entitlement under the costs order was assigned to the new firm as a result of that transaction.

3. For the reasons explained below, I am satisfied that the plaintiff is entitled to the relief sought in its 18 December 2024 Notice of Motion because, after the Sheriff took possession and then gave possession to the plaintiff in accordance with the Court’s directions, the plaintiff was in fact, and was lawfully entitled to be, the party in possession of the Property. Throughout these and related proceedings, including this motion, the defendant’s rights, whether under Irish law, the law of the European Union or the ECHR, have been vindicated. It follows that, hard as it might be for the defendant to accept, she became a trespasser when she re-entered the Property and by continuing her unlawful occupation of the Property since then. Furthermore, the balance of convenience favours the granting of the relief ex debito justitiae.

The Background

4. The wider litigation has been chronicled in numerous judgments, most recently by Sanfey J on 5 February 2025 in proceedings initiated by the defendant in these proceedings against Reynolds J, Ireland and the Attorney General (2020/831P) (“the Isaac Wunder Judgment”) and in my own judgments on 6 March 2024 in proceedings bearing record no 2023/1876P (“the March 2024 judgment”) striking out those proceedings, and on 30 January 2025 in proceedings bearing record no 2017/377SP rejecting the defendant’s application that I recuse myself from dealing with this and related matters (“the Recusal Judgment”) arising from the defendant’s reoccupation of the Property.

5. In short, the plaintiff and the defendant are a solicitor and barrister respectively. In happier times, they may have collaborated harmoniously. Unfortunately, relations soured for reasons which are not material. The defendant unsuccessfully pursued proceedings against the plaintiff, including High Court defamation proceedings, with calamitous consequences. The defendant’s unsuccessful claims backfired, resulting in significant cost awards against her. Those costs orders obtained in 2015 and 2017 ultimately led to the defendant’s predicament after the plaintiff registered four judgement mortgages to enforce them.

6. The defendant never complied with the costs orders, the most significant of which was made on consent. She has also continuously contested attempts to enforce them, repeatedly appealing not only to the Court of Appeal but also unsuccessfully seeking leave to appeal to the Supreme Court. She has also twice issued additional High Court proceedings against the plaintiff, attempting to undermine the cost orders and judgment mortgages. However, the High Court struck out both proceedings as frivolous and vexatious, an abuse of process, and a collateral attack on the cost orders, the judgment mortgages and related judgments. My March 2024 Judgment dealt with the second such proceeding and detailed the background to the granting of the cost orders which underpinned them and associated litigation.

7. Undeterred by the generally adverse outcomes of a litany of hearings, the defendant continues to dispute the validity of the judgment mortgages and the cost orders on grounds repeatedly rejected by the Courts, including on appeal. While her challenges have delayed matters, obstructed efforts to enforce the cost orders against her, and increased cost exposures on all sides, she has been largely unsuccessful, although the Court of Appeal did quash an Isaac Wunder order in the plaintiff’s favour. That was a temporary reprieve since, as noted below, Sanfey J ultimately granted such an order to the State in related proceedings. His order restrains the defendant from issuing further proceedings without leave against members of the legal profession, a restriction encompassing claims against the plaintiff, a solicitor.

The Plaintiff’s Evidence

8. The plaintiff's grounding affidavit summarised the factual background (exhibiting key documents) as follows: a. by order dated 27 March 2019 the High Court granted her application for orders declaring that monies secured by four judgment mortgage affidavits entered on the Property’s folio were well charged on the Defendant’s interest in the property and that, in default of payment of the debts, the Property should be sold (“the Well Charging Order”). The Court of Appeal upheld the Order. The Supreme Court refused leave to appeal on 14 September 2021. Since that issue was finally determined nearly four years ago, the plaintiff has been endeavouring to secure the sale of the Property to satisfy the outstanding debt. b. By letter dated 29 March 2022, the plaintiff’s solicitors called upon the defendant to give vacant possession. She refused, accusing the plaintiff of fraud. c. On 7 November 2022, the High Court ordered the defendant to surrender vacant possession subject to a six-month stay (“the Vacant Possession Order”). The Court of Appeal upheld the Order. The Supreme Court refused leave to appeal on 2 August 2023.

d. On or about 26 July 2023, the defendant was served with a copy of the Vacant Possession Order (including penal endorsement). The plaintiff’s solicitors wrote to the defendant on 11 March 2024 requesting compliance. The defendant again refused to deliver vacant possession. e. The Central Office of the High Court issued a FiFa on 25 March 2024 and the Sheriff was duly instructed to attend the Property to obtain vacant possession. On 30 April 2024 the defendant emailed the County Registrar stating “Kindly note that I will NOT be leaving my home on foot of the order sent to your office.” f. In a further email dated 18 June 2024 the defendant reiterated her refusal to comply with the Vacant Possession Order:

"I have lawful cause to resist any attempted ejectment and will do so in exercise my rights". g. After further correspondence, the Sheriff seized the Property on 24 July 2024 in accordance with the FiFa. The Sheriff delivered possession to the plaintiff’s representatives and returned the original FiFa to the plaintiff’s solicitors. The latter emailed a letter to the defendant referring to the seizure of the Property and to the arrangements for collection of her belongings, warning her not to trespass on the Property. However, later on the same day, she emailed the plaintiff’s solicitors stating that "I have regained possession of my home".

9. The plaintiff says that the property was lawfully placed in her possession and the defendant is now trespassing thereon. She says that the defendant continues to demonstrate a long-standing disregard for orders of court, breaching and ignoring the same. She offered an undertaking as to damages in the normal terms.

Service of Application

10. Although difficulties with service of papers in this and related applications arose previously, those issues were resolved at previous hearings and were not agitated as a live issue at the hearing to which this judgment relates. In any event, affidavits of service were filed, and no point was taken in that regard.

Evidence of Taking Possession

11. The Managing Director of Blackwater Asset Management (“Blackwater”) confirmed that: (a) Blackwater acted on behalf of both the Sheriff's office and the plaintiff; (b) he and two colleagues were instructed to act on behalf of the Sheriff's office on foot of a “Warrant on Order Lodged for Execution” dated 24 July 2024 and (c) Blackwater was also instructed by the plaintiff solicitors to attend at the Property on the plaintiff's behalf; (d) Their role on the plaintiff’s behalf was to receive and secure possession of the Property on her behalf; (e) he and colleagues identified in the warrant attended at the Property at 11am on 24 July 2024 with a representative of the Sheriff's office. It was vacant apart from a pet dog. Lawful access was gained at 11:30am. Locks were changed, and the Property was secured; (f) He retained possession of the keys as the plaintiff’s agent and he noted on the warrant and the order of possession that he had been placed in possession of the Property by the Sheriff’s office; (g) enforcement notices were posted around the Property to confirm the lawful execution of the order. He exhibited key documents, including the warrant on order issued by the County Registrar which directed designated individuals to enter and take possession of the Property.

The Defendant’s Affidavit

12. The defendant’s affidavit sworn on 6 March 2025 was as follows;

I Eugenie Houston a practising barrister who resides at her home and principal private residence, 258 Morell Dale, Naas, County Kildare W91 WPH4 (the contracts for building and purchase of which is 258 Morell Park), aged 18 years and older, MAKE OATH and says as follows;.…

2. I resist this application for an injunction by the Plaintiff.

3. I expressly assert my guaranteed EU law rights including my guaranteed directly effective personal rights enshrined in the Charter of Fundamental Rights, including but not only Articles 47 and 48 of the Charter, my constitutional rights, my human rights, my rights under the Good Friday/Belfast Agreement and all of my rights including my property rights. Article 2 TEU ,which is which is not directly effective on a stand-alone basis, is triggered by my assertion of my guaranteed rights and is justiciable.

4. I expressly invoke my guaranteed right to effective judicial protection and Article 19(1) is engaged and by operation of law would be engaged even in the absence this express invocation of Article 19(1).

5. I expressly invoke my constitutional rights, including my property rights.

6. I expressly assert the lack of standing of the plaintiff Wendy Doyle and it is my clear position that it was accepted by the Court of Appeal on 4 May 2023 that this issue was not determined. Ms Justice Whelan expressly stated on that day, in an appeal in the within action ‘how can we unpack this?’.

7. Wendy Doyle has already conceded in sworn evidence that she did not put before the High Court the requisite proof required for the well charging order.

8. Wendy Doyle must prove that she has standing.

9. I expressly assert that my own former solicitors who are now acting against for Wendy Doyle are not entitled to benefit financially from acting against their former client; it is contrary to public policy.

10. At issue is my home, which is my principal private resident. The land and the building contract are for 258 Morell Park Naas, County Kildare. The address on the folio is 258 Morell Dale.

11. I say that an application for an extension of time to appeal the Judgment of Mr Justice Kennedy published on courts.ie on 4 March 2025 has been filed in the Court of Appeal Civil, Office.

12. In exercise of my guaranteed rights, I require to file a supplemental Affidavit.

13. I PRAY this honourable court to comply with its binding Article 19(1) TEU obligations and to deny the reliefs sought in the Notice of Motion. I request a preliminary reference to the Court of Justice of the European Union”.

The Parties’ Positions

13. The plaintiff’s claim is simple. A series of Court orders over an extended period culminated in the Sheriff taking possession of the Property. She was lawfully entitled to possession and her agents lawfully secured physical possession for her. The defendant’s reentry was an act of trespass. Her continued occupation is a continuing act of trespass.

14. The defendant’s affidavits did not join issue with the essential factual averments in the affidavits sworn on the plaintiff’s behalf. The defendant did not, for example, deny the making of the various orders, culminating in her eviction from the Property or that the plaintiff had secured possession following the execution process. She did not take issue with the way the execution process had been completed nor did she allege any flaw or omission in the process leading up to the execution. She essentially resists the current application on the basis of her contention that the various orders leading to execution, such as the Order for Vacant Possession, should never have been made in the first place, advancing wide ranging allegations against the plaintiff and, more obscurely, her lawyers. She also says that the plaintiff cannot enforce the cost awards because she merged her legal practice with another firm at one point. I consider her key points below.

The Defendant’s Preliminary Objections

15. At the start of the hearing the defendant raised a series of preliminary issues and objections, including requests for an adjournment, for leave to file additional evidence, to give viva voce evidence, to cross examine the plaintiff and her fellow deponent and a submission that the injunction application could not proceed as it had in fact already been heard. Rejecting these submissions, I determined that the defendant had had ample time to file affidavits or to bring any application. The motion was issued on 8 December 2024, there had been numerous case management hearings to offer the defendant the opportunity to file an affidavit and to seek directions. The hearing was specially fixed on 7 March 2025 for 21 & 22 May, so she had had ample opportunity to raise any issue or to apply to the Court of Appeal without impacting the hearing date. I determined that the hearing should proceed on the basis of the affidavits as filed and that there would be no oral evidence or cross examination. I will deal with those points below but will first note the way in which this and related applications have progressed.

Case Management of this and Related Applications

16. Since November 2024 I have case managed this and related applications towards a hearing with a view to resolving the various issues. The first issue to come before me in this context was the plaintiff’s application seeking the defendant’s attachment and committal (“the Committal Application”) in response to the defendant’s re-entry of the Property. That motion was brought on the basis of the defendant allegedly being in contempt of the Vacant Possession Order. It was listed for mention before me on 26 November 2024 following Quinn J’s decision to recuse himself. At early listings of that motion, the defendant queried the plaintiff's entitlement to pursue that application since it was grounded on the defendant’s failure to comply with the Vacant Possession Order, saying that that order was spent, having already been executed (when the Sheriff took possession of the Property on 24 July 2024, before the defendant broke back in). I noted that I would require submissions in respect of authorities such as Start Mortgages DAC v Rogers [2021] IEHC 691 (“Rogers”), and related cases (which concerned inter alia whether further enforcement steps could be taken to enforce a particular order once it had been executed and the appropriate procedure if such an order was “spent”). Having reflected on the issue, the plaintiff ultimately issued the current trespass proceedings. In answer to my enquiry as to whether the plaintiff intended to pursue both the committal application and the current application (which would appear inconsistent), her counsel confirmed that the Committal Application would not be pursued. The Defendant wishes to seek the costs of that application and I have given directions accordingly.

17. The plaintiff's application for an Isaac Wunder order against the defendant, which had been issued on 26 March 2024 in proceedings 2023/1876P, was also listed for hearing before me along with the current application. Affidavits were filed by the plaintiff, with the defendant not filing any affidavit. However, there were two related developments. Firstly, as noted above, the State independently secured an Isaac Wunder order in separate proceedings. On 5 February 2025 Sanfey J, essentially restrained the defendant from issuing proceedings against various parties including the State, judges, registrars, employees of the Court Service or “any member of the legal profession, including any person who is or was a practising barrister or solicitor” without the High Court’s leave. I asked whether the plaintiff’s Isaac Wunder application had become moot as a result of the judgment of Sanfey J. However, the plaintiff wished to proceed because she sought relief going beyond that granted by Sanfey J. That application was accordingly listed for hearing on 21-22 May 2025 along with the trespass motion.

18. The second Isaac Wunder development was that, at the outset of its hearing, the defendant raised a preliminary objection, namely that the application could not proceed because it had been brought in proceedings which I had since struck out. The proceedings, (2023/1876P), were in being when the defendant issued her application on 26 March 2024 but were struck out when an order was perfected on 14 May 2024 on foot of my March 2024 judgment (which concluded that the defendant’s proceedings were, inter alia, frivolous, vexatious and an abuse of process). The defendant submitted that the application could not be moved since the proceedings had been struck out. Although the application had been before the court for directions repeatedly, this was the first point at which the point had been taken. If it had been raised earlier, the application would presumably not have been listed for hearing until the issue had been resolved (or a corresponding application might have been brought in the live proceedings). Having reflected, the plaintiff accepted the 2023/1876P proceedings were no longer live, and that the additional Isaac Wunder reliefs could not be pursued in those proceedings. She reserved the right to bring a further application in the live proceedings (and I noted that the defendant would reserve her right to object in that scenario). Accordingly, I do not need to consider the Isaac Wunder application save to note that the residual reliefs sought by the plaintiff went beyond the typical terms of such an order and would in any event have needed to be supported by cogent and detailed affidavit evidence and legal submissions. Since the plaintiff elected not to pursue the application on this occasion, I gave directions (on consent) for the future resolution of any cost issues.

19. At the four directions hearings before me in respect of this and related motions, the defendant was, inter alia, repeatedly encouraged and directed to file any replying affidavit or submissions in respect of this motion or to bring any application which she wished to advance, including in relation to seeking leave to cross examine or to explain the basis on which she contended that the Court should refer questions for determination to the Court of Justice of the European Union and also to facilitate her professed intention to take other steps such as to move to join other parties to the proceedings or to set aside earlier rulings by me and by other judges in the course of the wider litigation. While repeatedly professing her intention to take such steps she generally did not avail of the opportunities afforded to her by such directions.

The Law

20. The applicable legal principles are uncontroversial.

The Defendant’s rights under EU law and the ECHR

21. Article 19 of the Treaty on the European Union provides:

“1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. 2.Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”

22. Article 2 Treaty on the Functioning of the European Union provides:

“1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas. Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.

6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.”

23. Articles 47 & 48 of the Charter of Fundamental Rights of the European Union provide:

Article 47

“Everyone whose rights and freedoms guarantee by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

Article 48

“1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2.Respect for the rights of the defence of anyone who has been charged shall be guaranteed.”

24. European Convention on Human Rights

Article 7

“No punishment without law

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

Article 8

“Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 17

“Abuse of Rights

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” Basic Principles Governing the Grant of an Interlocutory Injunction

25. O’Donnell J. summarised the steps to be followed when considering applications for interlocutory injunctions in Merck Sharp & Dohme Corporation v Clonmel Healthcare Ltd [2020] 2 IR 1 (“Merck”), at para. 64. In brief, the factors relevant to this application are: a. I must consider whether, if the plaintiff won at trial, a permanent injunction might be granted. (It would in this case). I must then consider if it has been established that there is a fair question to be tried, which may also involve a consideration of whether the case will probably go to trial. b. If there is a fair issue to be tried (and it probably will be tried), I must consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of justice. When considering the balance of justice, I should do so in the knowledge that cases may not go to trial, and that the presence or absence of an injunction may be a significant tactical benefit. c. While the adequacy of damages is the most important component of my assessment of the balance of justice, other factors may properly be weighed in the balance in considering how matters are to be held most fairly pending trial and recognising the possibility that there may be no trial. Any application should be approached with a recognition of the fundamental objective of minimising injustice, where the parties’ legal rights have yet to be determined.

Principles Governing Grant of Injunction in Trespass Cases

26. The authorities suggest that a balance of justice analysis is not necessarily required if trespass is established. Kirwan’s Injunctions: Law and Practice (3rd Ed., Roundhall, 2020) at para. [6-276] suggests that Courts may grant an injunction without a balance of justice assessment if the defendant has failed to adduce evidence to suggest “a right to what would otherwise be a trespass”. Kirwan cites Ferris v Meagher [2013] IEHC 380 (at para. 19), Havbell DAC v. Dias [2018] IEHC 175 (“Havbell”) (at para. 42) and Kavanagh v. Lynch [2011] IEHC 348 (“Kavanagh”) as authorities, noting that in Havbell:

“the High Court held that, prima facie, the plaintiff was entitled to an injunction to restrain a trespass on an interlocutory basis unless the defendant put in evidence to establish that he had a right to do what otherwise would be a trespass. Costello J. observed that there was no such evidence before the court. That being so, she felt that it was not necessary to consider the Campus Oil principles. Equally, in Beltany Property Finance DAC v Doyle, Allen J. was quite clear in his assertion that ‘[a]bsent any bona fide issue which would engage the Campus Oil principles, the plaintiff is entitled to an interlocutory injunction ex debito justiciae’.”

27. In AIB plc v Diamond [2012] 3 IR 549 (“Diamond”) (at pp. 589-590), Clarke J discussed the approach to interlocutory injunctions when property rights were in play:

“The courts have always been anxious to guard property rights in the context of interlocutory injunctions: see for example Metro Inter v Independent News [2005] IEHC 309, [2006] 1 ILRM 414. The reason for that is clear. Even though there may be a sense in which it may be possible to measure the value of property lost, declining to enforce property rights on the basis that the party who has lost its property can be compensated in damages would amount to a form of implicit compulsory acquisition. If someone could take over my house and avoid an injunction on the basis that my house can readily be valued and he is in a position to pay compensation to that value (even together with any consequential losses), then it would follow that that person would be entitled, in substance, to compulsory acquire my house. The mere fact that it may, therefore, be possible to put a value on property rights lost does not, of itself, mean that damages are necessarily an adequate remedy for the party concerned is entitled to its property rights instead of their value.”

28. In Metro International SA v Independent News & Media plc [2005] IEHC 309, [2006] 1 ILRM 414 (“Metro”) Clarke J commented that:

“Thus in many cases where the plaintiff alleges an infringement of his property rights the court will intervene by injunction where those property rights have been established rather than compensate the plaintiff for the loss of those property rights…Thus the mere fact that a property right (or indeed a diminution in such a right) can be valued in monetary terms does not of itself mean that damages for an infringement of that property right can necessarily be said to be an adequate remedy.” The consequences when a former owner breaks into a property after possession has passed

29. In Rogers, after a mortgagee lawfully took possession of a home, the original owner broke back in and regained possession, Butler J noted that the courts:

“cannot ignore the legal consequences which flow when the law has taken its course ... In this case, the plaintiff is seeking, as a mortgagee-in-possession, interlocutory relief requiring the defendants to vacate property which was previously their family home and in which the plaintiff alleges they are now trespassers. As is frequently the case, there is a long and involved history to the issues between the parties going back to the making of an order for possession by the High Court (Dunne J.) on 14th July, 2008”.

30. In that case, an order of possession addressed to the County Registrar for County Cavan issued from the High Court on 19 July, 2019. Its execution on 10 March 2020 involved the defendants’ eviction. The plaintiff took possession but the defendants later broke back in. As the “mortgagee-in-possession” following the execution and having taken possession, the plaintiff sought an interlocutory injunction requiring the defendants to vacate. It claimed that the defendants were trespassers following execution, so the relief sought was prohibitory and the test was whether there was a serious question to be tried rather than whether there was a strong case, likely to succeed. Dismissing the submission that the application was statute barred, Butler J cited KBC Bank Ireland Plc v. McGann [2019] IEHC 667 stating that:

“37. … In circumstances similar to this case, the bank obtained judgment and an order for possession against the defendants and ultimately an execution order of possession was issued within six years of the date of the judgment and an eviction carried out after that six-year period had expired. Allen J. noted firstly (at para. 25) of the judgment that ‘the cause of action on which these proceedings is founded is trespass which commenced on 17th December, 2018 and which has been continuing since’. At para. 38, he noted that, on that date, the property was no longer the first defendant’s dwelling and commented it ‘had been until a week before, but it ceased to be when the order for possession was executed’. Ultimately, he concluded that the case was simple. Once the County Registrar had entered the property pursuant to the order of possession and caused the bank to have possession of the land and premises, anything the defendants did thereafter they did as trespassers. In other words, as the judgment had been executed, the cause of action in the proceedings before him was not one brought on the judgment but was instead based on the fact that the bank had legal title to and possession of the premises.

38. A similar conclusion was reached by Peart J. in Carlisle Mortgages v. Costello (above). At para. 31 of that judgment, he stated as follows:- ‘In my view, at that point the order for possession had been executed. Possession had been taken of the lands on foot of the order for possession. Thereafter no further action needed to, or could, be taken on foot of that particular order. Its purpose had been achieved. Thereafter, any adverse action taken by the appellant after that date constituted an act of trespass. None amounts to a re-taking of possession as such. It follows that the respondent did not need to re-execute the order for possession by making any application to renew the execution order of possession after the 17th July 2014 because he was already in possession as mortgagee in possession. He was entitled to seek to restrain any subsequent trespass of the lands by the appellant…’ A similar position applies here. The proceedings now brought by the plaintiff are not proceedings to enforce the original judgment which was executed on 10th March, 2020. Having executed the judgment, the proceedings now taken by the plaintiff are taken against the defendants as trespassers on the plaintiff’s property, a trespass which commenced on 10th March 2020 and which is still continuing…”

31. As regards the test for an interlocutory injunction, Butler J observed:

“40. …The plaintiff asserts that the application is for a prohibitory injunction to restrain the defendants from doing something which is prima facie illegal pending the trial of the proceedings. The second defendant contends that this is a mandatory injunction to which they have a strong defence. …

41. In the second defendant’s written submissions, the court is urged to exercise its jurisdiction to grant a mandatory injunction sparingly ‘as it places a burden on the defendant to do something rather than to undo or refrain from doing something’. This of course begs the question as to whether an order directed at requiring persons who are prima facie trespassers to leave property is placing a burden on them to do something or alternatively requiring them to refrain from doing something. Much depends on the extent to which actions of the defendants can be characterised as being prima facie legal or prima facie illegal in the context of the litigation. The second defendant does not really address this issue and simply assumes that because the practical effect of the order sought would be to require the defendants to leave the property that the injunction must of its nature be mandatory…

42. … I am inclined to accept the plaintiff’s argument that this is an application for a prohibitory injunction to restrain an ongoing trespass rather than a mandatory injunction requiring defendants to deliver up possession of property to which they might have lawful title.

43. As it happens, I do not think that the test to be met will make a critical difference in this case because I do not think that the grounds relied on by the second defendant are of legal or factual merit.”

32. Butler J cited the Supreme Court decision in Charleton v. Scriven [2019] IESC 28 on the applicable threshold but concluded the plaintiff met the higher threshold requirement in any event. As regards the balance of convenience, she observed that:

“60. …no specific argument is made on the facts as to why the balance of justice favours allowing the defendants to remain in the premises from which they have been evicted or why the risk of least injustice would be caused by adopting the same approach.

61. Insofar as the second defendant relies on the dictum of McCracken J. in B&S Ltd v. Irish Auto Traders Ltd [1995] 2 IR 142 to the effect:-‘It is normally a counsel of prudence, although not a fixed rule, that if all other matters are equally balanced, the court should preserve the status quo.’this begs the question as to what is the status quo on the facts of this case. 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 mortgagee-in-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 defendants’ unlawful actions would not be the maintenance of the status quo but rather the inversion of the status quo”. Save for referring in general terms to her rights (whether under the Constitution, the law of the European Union and the European Convention on Human Rights (“ECHR”)), the defendant did not cite specific authorities in response to those identified by the plaintiff.

Orders Affecting a Family Home

33. Although it was not referred to in any detail at the hearing of the current application, I have reviewed the decision of the European Court of Human Rights (“ECtHR”) in Rousk v Sweden (App. No. 27183/04, 25 July 2013) to which the Plaintiff referred at the first hearing of the related Committal Application (on 26 November 2024). In Rousk a Swedish national alleged that the Swedish tax authority had violated his rights under Article 8 of the ECHR to respect for private and family life, home, and correspondence. The authority had taken possession of and sold his home to discharge an alleged tax liability. Para. 137 of the decision noted that the loss of a home is an extreme interference with the right to respect for the home. Any such action must be proportionate, and the decision-making process must be fair. The ECtHR noted that significant weight must be placed on national procedural safeguards. In Rousk, the applicant’s Article 8 rights had been infringed because the authority sold his home although: (a) he had been granted a respite from payment; (b) the debt was modest; and (c) his appeal against the assessment was pending and had not been finally determined. Due to the Authority’s actions, the procedural safeguards were available in theory but not in practice.

34. In the recent hearing, I also referenced Clare County Council v. McDonagh [2022] 2 IR 122(“McDonagh”), in the context of ensuring sufficient care was taken to facilitate the defendant given that her family home (or former family home) was at stake, and that

decision may be regarded as an Irish counterpoint to Rousk. In McDonagh, a local authority had obtained injunctions to force members of the Travelling Community to vacate land which they were illegally occupying. The issue was whether the particular orders contravened Article 8 of the ECHR and Article 40.5 of the Constitution, guaranteeing the inviolability of the dwelling. Delivering the judgment of the Supreme Court, Hogan J observed that because “the loss of one’s home represented the most extreme form of interference with the right to protection of one’s dwelling”, the Court must carry out a proportionality analysis before making such an order. Hogan J emphasised the fact the authority was subject to a statutory duty to provide suitable housing for the defendants, whereas the interlocutory orders would in effect leave the defendants with no place to go. The Court discharged the mandatory interlocutory orders and remitted the case to full hearing.

Jurisdiction to refer issue to the Court of Justice of the European Union

35. Article 267 of the TFEU provides as follows:

“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity of interpretation of acts of the institutions, bodies, offices or agencies of the Union; where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the court…”

Discussion

36. Irish law provides extensive safeguards before property can be seized in execution of a judgment, order or debt. Such provisions balance both parties’ rights (whether under Irish law or the law of the European Union), affording appropriate protections, particularly where, as in this case, a family home (or former family home) is involved. Those procedures were followed here. No specific objection has been raised by the defendant to the validity of the execution process and the steps which led to it other than her visceral attacks on the judgment mortgages and earlier proceedings and her objection to the plaintiff’s standing to enforce cost awards following her merger of her practice with a larger firm’s.

37. The defendant’s oral submissions resurrected points determined at previous hearings in this and other applications and in other proceedings. She also attacked various individuals, making gratuitous factual assertions which are not on affidavit in these proceedings, or relevant thereto. She advanced factually incorrect factual assertions (and sweeping legal claims without citing authorities). Even leaving aside the paucity of her affidavit evidence, the defendant has not raised any issue of substance. The Notice of Motion was issued and informally served in December 2024 and formally served on 17 January 2025, following an application for substituted service. At a succession of directions hearings, the defendant was repeatedly given the opportunity to seek directions as to affidavits, submissions and any other points she wished to raise in respect of the various applications, including this application. Her replying affidavit on application was eventually sworn on 6 March 2025. On 7 March 2025 Cregan J set down this application and the plaintiff’s Isaac Wunder application for a two-day hearing commencing 21 May 2025. Accordingly, she had ample opportunity to bring any application to file affidavits and advance oral and written submissions. Instead, she advanced a disparate range of unmeritorious submissions without citing specific legal authority. She also made wide-ranging assertions as to the conduct of other parties and their lawyers and as to my previous rulings in this and related matters, assertions which, even leaving aside their lack of substantiation and dubious pertinence, were replete with factual and legal inaccuracies.

38. The defendant has represented herself in these proceedings. It is difficult to undertake an active role as advocate while simultaneously maintaining an accurate record of all oral exchanges in such proceedings, either on behalf of either parties or in terms of questions or comments for the bench. That may partly explain why the plaintiff’s recollection, understanding or characterisation of what previously transpired in the proceedings often differed from the plaintiff’s or the Court’s. I repeatedly encouraged her to exercise her right to avail of the services of a “McKenzie friend” to take notes on her behalf and generally assist her presentation of her case. However, she consistently declined to avail of any such facility and preferred to rely on her recollection to make assertions as to what transpired on previous occasions when these matters were before the Court. Insofar as they concern hearings in which I was involved, many of her assertions as to what transpired at various hearings differ from my own recollection and I do not consider that her account of what transpired either on those or other occasions can be regarded as objective, fair or reliable. Nor is there any reasonable basis for her contention that she was frightened or constrained in her ability to make her submissions. Claims that the defendant has made to me about proceedings in other courts, claims that are not supported on affidavit or reflected in judgments or orders, appear equally far-fetched.

The Defendant’s Application to Cross-examine

39. The defendant submitted that, if the motion proceeded, she would need to file affidavits and written submissions and to file the necessary paperwork to cross-examine the plaintiff. She insisted that she was entitled to do so, asserting that essential proofs (which she largely failed to specifically identify except insofar as she referenced standing, in an apparent reference to the merger of the plaintiff’s legal practice) had been omitted from the plaintiff’s affidavits. She confirmed that she herself was available for cross-examination.

She wanted to cross-examine both deponents on the plaintiff’s application and said that it could have been done on the spot save that the deponents were not in Court. She said that her constitutional rights and her rights under the law of the European Union were engaged, particularly as the proceedings concerned her home and the plaintiff had no standing. Cross examination would allow the Court to establish whether the plaintiff can meet “the mandatory test for standing in a trespass action, namely the right to exclusive possession, and a few other matters”. She submitted that there was no need for advance notice of cross-examination in circumstances where it went to her constitutional rights and concerned her home (noting my own previous reference to the Supreme Court judgment in McDonagh and that she should be permitted to cross-examine both deponents pursuant to her rights under the Charter of Fundamental Rights of the European Union, namely the Article 47 right to a trial before an impartial court, and under Article 19(1) of the TFEU, since crossexamination is the norm in an adversarial system. She offered to file a Notice of Motion and submitted that if she was not allowed to cross-examine, the issue would go to the heart not only of this justice system, but the European justice system and she sought a preliminary reference in respect of the issue.

40. In fact, on several occasions when these motions were before the Court for directions the defendant raised the possibility of cross examination. On those occasions I gave directions allowing the defendant to bring an application setting out the basis on which she maintained that cross examination was required. While taking tentative steps to do so in respect of the Committal Application (steps which became moot when that application was not pursued), she never brought any such application in respect of this motion despite my affording her opportunities to do so.

41. The plaintiff objected to the application for cross examination on two grounds, one procedural, the other substantive. I consider both objections well founded. The procedural objection arose from Order 40, Rule 1 of the Rules of the Superior Courts which provides that evidence on any application may be given on an affidavit, but the Court may "on the application of either party, order the attendance for cross-examination of the person making any such application." There was no such order and there had never been a formal application for such order. Accordingly, the application made at a hearing set down two months earlier was highly irregular. The more substantive objection was that in order to give leave to cross-examine, the court would have had to be satisfied that a material conflict of fact required resolution in order to determine the particular application. Here, the facts are largely confirmed by previous judgments, and any attempt to challenge those judgments and orders made would be impermissible collateral attacks and an abuse of process. Accordingly, there was no ground to challenge any factual assertion or to contend a conflict of fact on the basis of the affidavits. The plaintiff noted that they had not been on notice of this application and were therefore not armed with authorities but that para. 52 of the Court of Appeal judgment in Doyle v Houston [2020] IECA 86 was particularly pertinent, with Costello J (as she then was) observing that:

"In my judgment, there was no want of fair procedures in the conduct of the proceedings before the High Court. Cross-examination of Ms Doyle or Mr Brennan was not necessary for a fair hearing and thus, the trial judge was clearly entitled to refuse to permit such cross-examination. As the trial judge said, Ms Houston had not identified any conflict of fact which was required to be resolved or which otherwise made cross-examination of witnesses either necessary or appropriate. There is, therefore, no basis for interfering with the trial judge's determination on this issue." The plaintiff submitted that to justify cross examination, a genuine conflict of fact would need to require resolution in order to decide the application. No such conflict had been identified.

42. The defendant responded with comments which did not appear pertinent, let alone directed to a conflict of evidence which required resolution for the application. For example, she referred to her proceedings against various judges who had made decisions against her (including myself) and stated that the plaintiff’s standing was in issue from the beginning. She also stated from the bar that the plaintiff had given evidence in separate proceeding about transferring her legal practice to another firm by operation of law (and it appeared from submissions that the defendant argues that the benefit of the cost orders is now vested in that firm rather than in the plaintiff and that the plaintiff cannot enforce them. She also asserted an entitlement to cross-examine both deponents pursuant to Article 48 of the Charter of Fundamental Rights of the European Union, noting that she had “given the Court a tutorial” on that provision. She submitted that she was entitled under Article 48 to an effective opportunity to present her defence, including the right to cross examine and she would be deprived of that right unless she was allowed to challenge her accuser and test their evidence.

43. I agree that every defendant is entitled to a full opportunity to defend proceedings but I considered that that opportunity (along with the defendant’s constitutional rights and her rights under Irish law and the law of the European Union) was vindicated by the rules of the Superior Courts and the legislation. The plaintiff’s procedural objections were well made, and the defendant was afforded ample opportunity to file affidavits and to make any applications. Any application for leave to cross-examine should have been brought earlier. More importantly, no substantive ground has been shown on the affidavits in connection with the issues on this application. I accept the plaintiff’s submission that the defendant’s affidavit raised no fact that is justiciable in this Court at this stage. The key issues which go to the plaintiff’s standing are decided by the relevant judgments and orders. As the plaintiff put it, the defendant has had her opportunities but has not advanced these points successfully. I presume that if she had an entitlement to make such an application under the rules, such an application would have been forthcoming; in fact, she appeared more concerned with relitigating earlier proceedings than addressing this application. On the basis of the affidavits, I concluded that no dispute required cross examination. I noted that I could revisit that issue if the situation changed during the hearing, but that scenario did not arise.

44. As an experienced barrister, the defendant knows the Rules of the Superior Courts and should have made the application at the appropriate time. I respectfully endorse the remarks of the Court of Appeal at para. 52 of its judgment in [2020] IECA 86 and note that the same issue arose in the strike out application which I dealt with at para. 9 of my judgment of 14 May 2024. The defendant knew the rules but ignored them. Accordingly, I refused the application for leave to cross-examine because it was not made in accordance either with the Rules of the Superior Court or with previous directions and, more importantly, because she had not identified any matter that required to be resolved for the purposes of the application.

45. While ruling that the hearing should proceed in the meantime, I readily acceded to the defendant’s request to ensure that an Order reflecting my directions would be drawn up as soon as possible to facilitate her possible appeal from those directions.

The Defendant’s EU law, ECHR and Constitutional Rights

46. Throughout the recent proceedings and in her affidavit the defendant has emphasised her EU law rights including her “guaranteed directly effective personal rights enshrined in the Charter of Fundamental Rights, including but not only Articles 47 and 48 of the Charter, my constitutional rights, my human rights, my rights under the Good Friday/Belfast Agreement and all of my rights including my property rights. Article 2 TEU, which is which is not directly effective on a stand-alone basis, is triggered by my assertion of my guaranteed rights and is justiciable.

47. She invoked her right to effective judicial protection under, inter alia, Article 19(1) of the Treaty of the European Union. She also invoked her constitutional rights, including property rights. The plaintiff responded by invoking the fundamental principle that member states enjoy national procedural autonomy subject to the principles of effectiveness and equivalence but submitted that there was no issue of equivalence here, nor any suggestion Irish procedure disadvantaged claims under European Union law. As for effectiveness, the authorities recognised that time limits and procedures that bar people from raising points a second time did not violate that principle. The defendant had not identified authorities to support her submission, as to why a breach had arisen.

48. While I do not understand the relevance of the Good Friday Agreement in this context, I consider that the defendant, like any other individual, is entitled to assert her rights, whether under the Irish Constitution, the European Convention on Human Rights or otherwise under Irish law or the law of the European Union. However, she has not satisfied me that she has a fair case to be tried to the effect that the procedures that led to the seizure of the Property, including the many hearings, judgments and orders that led to that development, or the procedures in respect of the current application, violated her rights.

Para. 33 of my Recusal Judgment dealt with similar submissions: “The undoubted primacy of the law of the European Union is uncontroversial as is, in my view, the meaning and effect of these provisions. Those provisions mirror the rights extended to all litigants pursuant to the Constitution of Ireland and the primary and secondary legislation thereunder. These include the right to have disputes adjudicated by a fair and impartial tribunal. It is not obvious to me that, for present purposes, there is any conflict between the requirements imposed by the Constitution of Ireland and those imposed by virtue of Ireland’s membership of the European Union.

Furthermore, although Ms Houston has repeatedly cited the provisions which I have referenced, she has not articulated a coherent basis for her contention that her rights - whether under the Constitution or pursuant to the Law of the European Union or pursuant to those provisions in particular - have been breached in the proceedings. It seems to me that the long and complicated history of the litigation shows the reverse, that Ms Houston has been afforded ample opportunity to vindicate her rights and bring forward her claims. I have seen no evidence that the outcome of the various hearings is tainted by any procedural deficit or by disregard for her constitutional or EU law rights.

The Schedule details the numerous hearings afforded to Ms Houston in the various legal proceedings in which she has engaged. I have no reason to doubt that the various Courts’ approach to those proceedings, and the primary and secondary legislation pursuant to which the proceedings were conducted, were designed to (and did in fact) vindicate both parties’ rights to a fair and impartial hearing (whether under the Constitution of Ireland, the Law of the European Union or otherwise). However, to the extent that Ms Houston contends otherwise, she has not availed of the opportunity to appeal the various rulings.”

49. The many hearings in these and related proceedings show the care which the Courts have taken to vindicate the parties’ rights (both under Irish law and the law of the European Union). The history of the litigation make that clear; if anything, the plaintiff could complain that the years of litigation, largely due to the multiple appeals and legal proceedings initiated by the defendant, have impacted on her own right under Article 47 of the Charter of Fundamental Rights to expect that the litigation would be resolved within a reasonable time.

50. I do not consider that the decisions in Rousk or McDonagh avail the defendant in this case. While the Rousk confirms that the loss of one’s home is a most extreme interference with the right to respect for the home it did not conclude that such action was impermissible; its concern was that any such action must be proportionate, and the decision-making process must be fair. That was the case here. The ECtHR also acknowledged the significant weight to be placed on national procedural safeguards. In Rousk, national procedural safeguards were available in theory, but they were not available in practice. By contrast in this case the plaintiff, a private individual, secured execution of a judgment mortgage against the defendant (and the validity of those steps has not been successfully impugned. Over years of litigation and countless court filings, the defendant has been given every opportunity to avail of robust national procedural safeguards guaranteed by Irish law and vindicated by the Irish courts, rights further reinforced, when, as here, a home is at stake. The defendant has in consistently sought to invoke such safeguards throughout the prolonged history of the litigation. The failure of her attempts to challenge the relevant judgments or orders should not obscure the fact that she has had every opportunity to vindicate her undoubted rights. Unlike in Rousk: (a) the impugned execution did not occur during a period in which the defendant had been granted respite – any stay had long expired; (b) the outstanding debt cannot be described as modest; and (c) the enforcement action was, quite properly, delayed until the Supreme Court had refused leave to the defendant to appeal against the Court of Appeal’s dismissal of the appeal from the High Court’s well charging order; (d) the assessment of liability was therefore the subject of a final determination. Accordingly, sufficient national procedural safeguards were available in theory and exhaustively availed of in practice.

51. The Council’s public law obligation in McDonagh was a crucial fact which does not apply here. Hogan J emphasised the fact the authority was duty bound to provide suitable housing for the defendants, but the injunction would leave the defendants with no place to go. Accordingly, the Court discharged the interlocutory orders and remitted the case to a full hearing (an outcome which did not preclude the possibility of such relief if the local authority won at trial). At para. 102 of his judgment Hogan J noted the particular considerations which arose where public law measures (ie the local authority’s duty to provide appropriate housing) affected Article 40.5 or Article 8 rights, while acknowledging that in the case of a private landowner (who, unlike a local authority, is not subject to a statutory housing duty), the court’s first duty under Article 40.3.2°, would be to ensure the private landowner’s property rights were vindicated from trespass or other interference. The latter scenario applies here.

Points Raised in the Defendant’s Affidavit

52. Dealing with specific points in the defendant’s affidavit I conclude as follows: a. The defendant understandably but erroneously refers to the Property as “her” home and principal private residence. However difficult as it may be for her to accept, that is no longer the position under Irish law. She lost her right to the Property when the Vacant Possession Order became final. She lost physical possession when the Sheriff executed the FiFa. As of that date the Plaintiff was lawfully in physical possession of the Property and had become the only party lawfully entitled to possession.

It follows that the Plaintiff became a trespasser when she unlawfully re-entered the Property. She remains a trespasser to this day. The position is confirmed by Rogers and in the decisions cited by Butler J therein. I respectfully agree with her reasoning and that of Allen and Peart JJ in the decisions cited by her. b. The defendant asserted “a lack of standing of the plaintiff” but the plaintiff’s “standing” is established by the orders and judgments in her favour. The defendant’s contention to the contrary appears to rest on a comment, which was, she says, made by a member of the Court of Appeal on 4 May 2023, at the hearing of Doyle v Houston [2023] IECA 175 The defendant avers that, in the course of the hearing, Whelan J asked “how can we unpack this?” and the defendant avers that “it is my clear position that it was accepted by that this issue was not determined”.

I do not have a transcript of that hearing, but I do not see how any such question or comment could be interpreted as alleged. Judgments and Orders are binding legal precedents, but exploratory comments or questions in the course of argument enjoy no such status, for obvious reasons. That Court of Appeal hearing apparently concerned the appeal by the defendant in these proceedings against a decision of Quinn J not to recuse himself . As far as I can tell the Court of Appeal’s ex tempore judgment did not refer to any question relevant to the plaintiff’s standing in these proceedings and dismissed the appeal on the basis that the Court correctly applied the objective bias test and the judge was not objectively biased.

The Supreme Court rejected the defendant’s application for leave to appeal. In the circumstance, any such comment or question in the course of argument can not affect the legal analysis. The plaintiff’s standing in these proceedings derives from judgments and orders in her favour, which resulted in her lawfully obtaining physical possession.

c. The defendant’s submissions contended that the plaintiff

“has already conceded in sworn evidence that she did not put before the High Court the requisite proof required for the well charging order”. I dismissed this argument in my March 2024 judgment (which the defendant has apparently not appealed, although she has asserted her intention to do so). The defendant has not articulated any basis to revisit my previous determination.

d. In the context of the current application, the dismissal of the appeal from the Well Charging Order and the Supreme Court’s refusal of leave for further appeal renders that order a final determination - the defendant is not entitled to mount a collateral attack on previous determinations and orders by way of a defence to this application. e. The defendant sought to criticise the plaintiff’s solicitors. I have no reason to conclude that there is any substance to those attacks but, in any event, the defendant knows the proper channels to pursue any legitimate grievance.

In any event, her assertions against the solicitors have no relevance to this application. f. The defendant says that the Property is her home and principal private residence. While that may well be her perception, as noted above, she ceased to be entitled to occupy it when the Order of Possession was made and her lawful physical possession ended when the Sheriff took possession. She is now a trespasser on the Property, not its owner. Hard as it may be for the defendant to accept, it is the plaintiff’s constitutional property rights which are engaged. g.

The defendant referred to her intention to appeal my Recusal Judgment dated 4 March 2025. Although rejecting the defendant’s application to recuse myself, I arranged with Cregan J, the judge presiding over the chancery list, to provide a sufficient interval before the hearing of the plaintiff’s trespass motion to allow the defendant to apply to the Court of Appeal if she wished to challenge my remaining seized of the applications. She does not appear to have taken any such steps when, on 7 March 2025 the application was set down for hearing on 21 May.

However, days before that hearing date, she informed the Court that she had been unable to appeal because the Order arising from the Recusal Judgment had not been perfected. Although the Order had been perfected shortly after the Recusal Judgment, confusion appears to have arisen because it referenced one of the other proceedings between the parties to this multipronged litigation. There was no dispute as to the fact that the defendant had intended her recusal application to apply to all related proceedings before me. Accordingly, when the issue was raised with me at the outset of the hearing of this motion, I promptly directed that a perfected order should issue in the same terms in respect of the recusal issue in all related proceedings.

However, I was not prepared to adjourn the trespass hearing to allow the defendant to seek an order from the Court of Appeal requiring me to recuse myself. I had afforded the defendant ample opportunity to make any necessary application to the Court of Appeal. She could have raised any issue with the perfection of the order at any stage. She only did so just before the hearing. h. The defendant’s 6 March 2025 affidavit stated that she needed to file a supplemental affidavit in exercise of her guaranteed rights, but she did not do so, nor was any satisfactory explanation for her delay tendered at the hearing when she again sought the adjournment of the hearing to allow her to file an additional affidavit.

Prior to the hearing date being set, this and related motions were repeatedly listed for directions with a view to progressing them. The defendant should have filed any additional affidavit over the months prior to its hearing.

Referral to the Court of Justice of the European Union

53. The defendant requested a preliminary reference to the Court of Justice of the European Union, without identifying specific issues which required such a reference other than whether Article 48 of the Charter of Fundamental Rights entitled her to cross examine the deponents who swore affidavits supporting the application. Generalised references to European Law rights do not suffice. At previous directions hearings, after the defendant indicated her request for a reference, I repeatedly invited her to make a formal application explaining what issues she wished referred and on what basis. I gave directions to facilitate the issuing of any such application, but the defendant did not issue the application despite her repeated declarations of intent and despite my facilitating her so I could consider her request.

54. I have noted the conclusion of Sanfey J (in [2024] IEHC 64) in a slightly different context, involving related proceedings between the defendant and a Judge of the High Court, Ireland and the Attorney General, rejecting a similar application from the defendant in these proceedings. Likewise, I do not consider that a reference is necessary or appropriate at this stage, whether in respect of cross examination or other issues. The principles which I am applying are clear and uncontroversial. The defendant has not advanced a coherent rationale to support the contention that a reference was necessary. Such a reference would delay and obstruct the enforcement of previous Court orders. I will not invoke my discretion to make a reference.

The Plaintiff’s Opportunity to Apply to the Court of Appeal

55. The defendant made clear at the recent hearing that she intended to appeal my rejection of her preliminary objections and my decision to proceed with the hearing. I made orders to facilitate the defendant issuing an application in support of any ongoing issues (obviously without expressing any view as to the validity or outcome of any such application) but the hearing of the plaintiff’s trespass application was specially fixed and I concluded that I should proceed with its hearing (having dealt with the defendant’s preliminary objections). I did not consider it appropriate to delay the hearing pending an appeal in respect of my rulings on the preliminary objections. I noted that, if my decision on the motion was in favour of the defendant then some points might become moot. If on the other hand my

decision on the trespass motion favoured the plaintiff, then it would probably be an additional matter for appeal (the defendant having previously made her intentions clear in that eventuality). I confirmed that after completing the trespass hearing, I would be reflecting on my decision, and it would be a few weeks before I would deliver judgment, which would in practice give the defendant a further period to take any action she deemed necessary in the intervening period (including any application to the Court of Appeal). The defendant observed “basically, yes, that doesn't sound completely unreasonable”.

Other Points Raised in the Defendant’s Oral Submissions

56. In oral submissions, the defendant appeared to object to the trespass motion on the basis that the plaintiff was precluded from bringing such a motion since she had previously brought, but withdrawn, the Committal Application. The latter was grounded on the defendant’s failure to comply with the Vacant Possession Order and, as I have noted, was withdrawn in response to queries raised at the early return dates of that motion (initially by the defendant herself and subsequently by me), as to whether the Vacant Possession Order could ground such an application or whether it was spent once execution occurred. I accordingly made clear at an early directions hearing that I would require submissions in respect of whether the order was, as the defendant had contended, spent and I noted that such submissions would need to address Rogers and related decisions. The plaintiff subsequently issued the trespass motion and, when I queried if it was simultaneously pursuing the Committal Application, confirmed that the latter would be withdrawn. The defendant wrongly characterises my intervention as my directing the plaintiff’s strategy or proofs, encouraging her to bring the current motion or offering guidance as to the way it should be presented. There is no basis for that suggestion. Judicial case management responsibilities routinely extend to identifying and facilitating the resolution of factual and legal issues. It was appropriate to identify points which would need to be resolved, including points prompted by the defendant’s own initial response to the committal application. It was the plaintiff’s decision to issue the trespass motion and withdraw the committal application. It was also inevitable that Rogers and related decisions should feature at the hearing of either application. In any event the defendant has suffered no prejudice. She had ample opportunity to make submissions in response to the authorities (although she did not in fact make any substantive decisions in response to the three decisions). Accordingly, there is no legitimate basis for her objections. Nor do I see any basis for contending that the Committal Application precluded the subsequent issue of the trespass application nor has the defendant explained the rationale for her objection or cited authority for that assertion.

57. The defendant also argued that the trespass motion was res judicata, having been heard by me on 21 January 2025, a submission which appears inconsistent with her filing of an affidavit in response to that application on 6 March 2025. I agree that there was confusion (inadvertently caused by me) as to whether the 21 January listing was for the hearing of various motions or purely for directions (an issue referenced in the footnote on page 6 of the Recusal Judgment). In any event, there was no hearing as it was confirmed that the listing should purely have been for the purposes of directions. Accordingly, I see no basis for the objection. Nor do I agree that the lodgement of papers before such a listing or my review of any such papers constitutes the hearing of the motion or precluded the hearing proceeding on 21 May. If that had been the defendant’s position, then she should have made a submission to that effect to Cregan J on 7 March 2025 when he fixed 21 and 22 May for the hearing of the motions before me. In short, the motion was not heard on 21 January although I gave directions on that date.

58. The defendant also objected to the application proceeding since the plaintiff was not in court, but there was no obligation or need for her to attend in person.

59. The defendant asserted repeatedly that the plaintiff had no standing to bring this application. I disagree. Her standing is derived from the cost orders in her favour, the judgment mortgages, the Vacant Possession Order and by her having been placed in lawful possession of the Property following the Sheriff’s execution of the FiFa. I see no factual or legal basis for the submission that the plaintiff’s merger of her practice with another firm extinguished her entitlement to previous cost awards in her favour. The defendant’s submission ignores the findings of my 6 March 2024 and 14 May 2024 Judgments and the

decision of Costello J, as she then was, at para. 35 of the Court of Appeal’s 7 April 2020 judgment stating that:

“Ms. Doyle was awarded costs against Ms. Houston. She is entitled to recover those costs from Ms. Houston. The fact she is a solicitor is neither here nor there. There is no question of the costs being awarded to her firm. The orders speak for themselves and are in favour of Ms. Doyle. Ms. Doyle and Ms. Doyle, solicitor, are one and the same legal person”.

60. I suppose that it would have been theoretically possible for the plaintiff to assign debts owed to her personally when she joined Kane Tuohy & Co, but there was no obvious commercial reason for her to have done so, nor on the basis of my experience (both as a partner in a law firm for many years and from having acted for professional firms) does it seem plausible that she would have done so. There is no evidence of any such arrangement having been entered into (which would have been a matter between the plaintiff and Kane Tuohy & Co in any event). The defendant cannot assert, without evidence, that the merger transferred the right to enforce a personal debt to the law firm. The argument is unstatable in the absence of evidence of an assignment, and no such assignment has been asserted by the plaintiff (or Kane Tuohy & Co).

61. The defendant indicated her wish to submit a further affidavit explaining the background to the original cost orders, which were, she said, “obtained under duress”, on foot of the judge presiding over that hearing “roaring at me in my successful defamation action”. She also asserted, from the bar, that the case was struck out on that basis that it was agreed that those costs would not exceed €36,000. As far as I am aware this is the first time that the defendant contended that the defamation costs were subject to a cap. In fact, she does not appear to have ever offered to pay even that figure nor did she take any action to correct the consent order to reflect the cap. The defendant would appreciate the action which would have been required if any such cap was agreed at the time the proceedings were concluded but not reflected in the resulting order. It is difficult to see how the defendant can advance such a contention at this remove. Likewise, it is difficult to credit the defendant’s mere assertions as to “duress”. In any event, as a barrister, she knew the routes open to her in either scenario. She did not avail of them.

62. The defendant also said, for reasons which were unclear, that she did not owe Wendy Doyle a penny, and that there was no valid possession order because it was stayed. Such submissions show that the defendant is seeking to defend these proceedings on the basis of a collateral attack on historic orders and judgments of other courts, which is impermissible. I accordingly declined to give her leave to file an affidavit deposing to those issues or to give viva voce evidence in respect of them. I noted that the same issue arose on the strike out application which I dealt with in my March 2024 judgment and that, as a barrister, she understood how the chancery procedures are dealt with on affidavit, without viva voce evidence unless an issue arises which requires it. I saw no need for either cross examination, viva voce evidence or a further affidavit. The defendant attended successive directions hearings and was given repeated extensions to give her the opportunity to file affidavits or motions or to lodge submissions but largely failed to avail of such opportunities. The defendant says that she has been deprived of an effective remedy or of the opportunity to present her case (which, if true, would be contrary to both Irish law and the law of the European Union). However, her contentions are entirely at odds with the way these and related proceedings have progressed. Nor do my decisions to proceed with the hearing or to refuse viva voce evidence or cross examination change the position. In the recent Supreme Court judgment in Kirwan v Connors & Ors [2025] IESC 21, O’Donnell CJ rejected the contention that the jurisdiction to dismiss claims for delay was an interference with a right of access to courts. His observations are relevant here:

“The derived right of access to courts is a right of access to courts to litigate claims. A system of administration of justice with scarce resources must set rules for the conduct of claims which, if not unreasonably strict or difficult to comply with, are perfectly permissible. The claimant who brings proceedings and does not prosecute them has been afforded full access to the courts to litigate their claim and has not done so. In Slattery and Ors v An Taoiseach and Ors [1993] 1 IR 286, the Plaintiffs had been refused liberty to serve short notice of motion during a vacation, on grounds that they should have moved earlier and had not explained their delay. Their appeal to the Supreme Court was dismissed on the basis that the claim could not succeed. In the course of his judgment McCarthy J. said:- ‘They argue that they have been denied access to the courts. They have not. Within three days of issuing the summons, they were heard in the High Court; two days after the High Court ruling, they were heard in this Court. The fact that neither court granted leave to serve the notice of motion is quite irrelevant to the issue as to whether or not they had access to the Courts. They did; they availed of it and, having failed, cannot be heard to complain.’” Although this is not a delay case, the Chief Justice’s comments are relevant because they show that a party cannot complain when, as in this case, they have been afforded every opportunity to present their case. There must be finality in litigation. I have no reason to believe that there is any genuine basis for the defendant’s assertions. However, if there was an issue as to the terms of the Original Consent Order which resolved the defamation proceedings then the defendant could and should have brought the appropriate application at the appropriate time. She is not entitled to resist the current trespass application on the basis of a collateral attack on an Order to which she consented in 2017. Nor is the defendant entitled to resist the application on the basis that her rights have been infringed as a result of the constraints imposed by the various case management hearings which afforded her ample opportunities to present her case. As Denham J observed in Talbot v Hermitage Golf Club & Ors [2009] IESC 26:

“Among the unenumerated rights in Article 40.3 of the Constitution is the right to have access to the courts for the purpose of litigation. This was described by the Supreme Court in Tuohy v Courtney [1994] 3 IR 1 at 45 as ‘the right to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing damage or loss as recognised by law.’ The resources of the courts are there for litigants. Those resources are not, however, unlimited. No litigant is entitled to more than what is reasonably and necessarily required for the just disposal of a case within the context of the other demands on court time. Whether it is an unrepresented litigant or not, the resources which the courts decide to assign to a case must depend upon: the importance of the legal issues involved; the gravity of the wrong allegedly suffered by the moving or counterclaiming party; the monetary sum involved; and the public interest in the outcome of the case. Courts are entitled, and indeed are required, to foster their resources. This is both a matter of public and private interest. Court resources used in litigation are funded by public money. In addition, the parties pay for legal representation. Litigants should not be faced with cases that are longer or more expensive than they need to be for a fair resolution. In many instances, costs if awarded against a losing party may not be recovered. In that regard, putting reasonable limits on submissions in terms of time and allowing a measured number of hours or days for each side to litigate their case is both right and appropriate. The calling of repetitive expert evidence may and should also be curtailed. Many motions can be brought in apparent aid of certainty as to nature of each side's case. This needs to be vigilantly watched by the courts. The Rules of the Superior Courts are there to aid in the just disposal of litigation and are not to be over-used in such a way as to overwhelm the central core of what a case is actually about. Clear focus on that is required from the start; IBB Internet Services Limited and Others v Motorola Limited [2013] IEHC

541 (Unreported, High Court, Charleton J, 19 th November, 2013) at paragraph 3 refers.”

63. The defendant also maintains that the stay initially placed on the Vacant Possession Order precluded the subsequent enforcement of that order. I disagree. The stay has long expired but the defendant continued to refuse to comply with the order.

Basis for the Plaintiff’s Application

64. There was no controversy between the parties as to the test for an injunction application. There is scope for argument as to whether the applicable standard is a fair question to be tried or a strong case likely to succeed. However, the plaintiff meets either standard (and my conclusions are the same as Butler J’s in similar circumstances in Rogers). There was no dispute about the making of the Well Charging Order, the issuing of the FiFa, the execution by the Sheriff or the fact that possession passed to the plaintiff. The defendant does not deny her re-entry. The defendant’s justification for her action depends on impermissible collateral attacks on previous judgments and orders. Accordingly, whereas the plaintiff has met the higher threshold, the defendant has not demonstrated a fair issue to be tried. It is the plaintiff’s property rights which are engaged.

65. Authorities such as Diamond show that in trespass cases it is unnecessary to undertake a balance of justice assessment if, as is the case here, a continuing breach of property rights is established with no evidence of any justification for the trespass. However, the balance would favour the Order sought in any event. The defendant appeared to submit that the balance favoured her because the plaintiff was no longer entitled to enforce the cost orders in her favour, having merged her legal practice with another firm. However, she failed to establish a fair issue to be tried in that respect.

I have of course taken account of the fact that, at least until the FiFa was executed, the Property was the defendant’s family home, but nevertheless I am satisfied that the balance of justice overwhelmingly favoured the plaintiff because: a. The plaintiff has given an undertaking as to damages. There was no evidence to suggest it would not be honoured. The defendant’s oral submissions belatedly queried the plaintiff’s ability to support the undertaking, but she had not previously raised the issue. There was no evidence before the Court to call into question the plaintiff’s means and it would be inappropriate for the Court to entertain such a belated submission without evidence, particularly since it would not necessarily be fatal even if the plaintiff lacked the means to satisfy such an undertaking.

In McGuinness v AIB & Ors [2025] IEHC 180, having reviewed the authorities, Dignam J and concluded that “the likely inability of an applicant to satisfy their undertaking as to damages is not a disqualifying factor (for an application for an interlocutory injunction) 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”. I have no reason to doubt the plaintiff’s ability to honour her undertaking, the issue not having previously been raised, but, even if there was an issue it would not in my view be determinative and the balance would still favour the relief sought. b.

As in Rogers, damages would not be an adequate remedy for the plaintiff if the injunction was refused both because the defendant is already significantly indebted to the plaintiff and she has offered no undertaking as to damages. She has failed to comply with judgments and final orders for years and has obstructed lawful enforcement steps. Accordingly, damages would not be an adequate remedy as the plaintiff has had enormous difficulties enforcing awards in her favour and it is unlikely that the defendant would recompense her for losses occasioned as a result of further delays since she has not discharged her existing cost liabilities. c.

The defendant’s unhappiness with the judgment mortgages, the Well Charging Order, the Vacant Possession Order and the enforcement thereof does not go to the balance of justice; she has had ample opportunity to challenge orders with which she disagrees. However, they remain in force and must be enforced. d. The fact that the Property had been the defendant’s family home would normally feature prominently in any balance of justice or proportionality assessment and Courts considers the proportionality of any order involving a family home. However, that bridge was crossed with the Vacant Possession Order and the failure of the attempts to appeal that order.

The order was lawfully executed, so the defendant’s current status is that of trespasser. Accordingly, as Rogers (and, indeed, the antecedent authorities referenced therein, Daire v Wise Finance Company Limited and Ors [2018] IECA 126 and Carlisle Mortgages v Costello [2018] IECA 334) show, the Property cannot be regarded as the defendant’s family home post eviction, nor can her attempts to ventilate, yet again, her objections to the judgment mortgages and orders affect the balance of justice assessment. e. the compelling balance of justice consideration here is that the defendant’s actions have delayed and frustrated the lawful enforcement of the Court’s orders.

She became liable to pay court costs as long ago as 2015/2017. She consented to crucial orders and others were imposed by the Court, but she has never discharged her liabilities. She has instead repeatedly initiated proceedings which have been dismissed as frivolous, vexatious and an abuse of process, resulting in the recent Isaac Wunder order made by Sanfey J. She refused to cooperate with the original cost orders, the Well Charging Order or the order for possession and she has unlawfully reoccupied the Property following its lawful seizure by the duly authorised Court officer.

In those circumstances, the balance of justice supports the granting of the relief sought ex debito justitiae.

Proportionality

66. Although it is open to debate whether a proportionality assessment is required here, I have undertaken such an assessment de bene esse. In my view, the relief sought is proportionate as the defendant has failed to discharge her debt to the plaintiff, a debt comprising legal cost awards in the plaintiff’s favour, several of which were made with the defendant’s consent. The defendant has had ample opportunity to challenge the cost orders or their quantum but has been unsuccessful and the orders must be enforced. I have seen no reason to doubt the legitimacy or proportionality of the vacant possession order or the steps to enforce it. As matters now stand, the plaintiff is clearly lawfully entitled to possession of the Property. The defendant is a trespasser who has demonstrated her unwillingness to comply with the Court’s orders.

Conclusion

67. In Rogers, Butler J observed that:

“for historical reasons, it can be difficult to approach issues concerning eviction dispassionately in Ireland. Nonetheless, the courts cannot ignore the legal consequences which flow when the law has taken its course and a lender becomes a mortgagee-inpossession. In this case, the plaintiff is seeking, as a mortgagee-inpossession, interlocutory relief requiring the defendants to vacate property which was previously their family home and in which the plaintiff alleges they are now trespassers. As is frequently the case, there is a long and involved history to the issues between the parties going back to the making of an order for possession by the High Court (Dunne J.) on 14th July, 2008”.

68. Although in this case the plaintiff’s title is based on judgment mortgages and well charging proceedings, the sentiments expressed by Butler J appear equally applicable and the Plaintiff is entitled to the order sought for the same reasons. As in Rogers, once the County Sheriff entered the Property in accordance with the FiFa and delivered possession to the plaintiff, anything the defendant did thereafter she did as a trespasser. I appreciate that it is a disastrous outcome from the defendant’s perspective. While it is unfortunate that she should have lost her house as a result of the ill-fated litigation campaign which she has pursued over the years, I would not endorse her evident perception of herself as the victim of events. She repeatedly instituted unjustified legal proceedings and pursued meritless appeals from such orders or judgments. As a barrister she must understand the legal consequences of such tactics. Furthermore, although she has complained about the effect of the proceedings and the various judgements on her reputation, she has cynically used the proceedings as a forum to ventilate allegations against the plaintiff, the plaintiff's lawyers, and others.

69. Over the years the defendant has delayed and obstructed the plaintiff's attempts to enforce the recovery of the costs awarded to her so long ago. This has increased the defendant’s own cost exposure. While it is regrettable that the defendant’s failure to comply with a litany of judgments and court orders has brought her to this point, the plaintiff has established her lawful entitlements and is entitled to redress - the defendant has not established a fair issue to be tried in support of her contention that she should be permitted to remain in the Property.

70. In human terms, this litigation has been traumatic for all involved, including the defendant. Unfortunately, and unwisely, she has exacerbated her legal and financial predicament by failing to comply with orders and judgments and by seeking to resurrect issues which have already been determined, generally with disastrous consequences. If she had complied with the original cost orders, she would have avoided her present predicament.

71. There is no evidence before me which would offer a basis to conclude that, notwithstanding the plaintiff being entitled to possession, less injustice would be caused by permitting the defendant to remain in situ, despite her being a trespasser since the execution of the FiFa. I am conscious of the exhortation of O’Donnell J (as he then was) that, in considering the balance of justice, the fundamental objective is to minimise injustice where the parties’ legal rights have yet to be determined. However, in this instance the parties’ legal rights have been established in the various proceedings to date. Injustice would be minimised by restoring the position achieved as a result of the execution of the FiFa, whereas greater injustice would arise if the Court’s orders could be flouted with impunity.

72. Maintaining the status quo means maintaining the lawful status quo which prevailed when the defendant was evicted from the Property and the plaintiff lawfully took possession, rather than the current position, which reflects the defendant’s unlawful breaking into and occupying the Property thereafter. I am prepared to grant the plaintiff the orders sought.

73. Subject to any appeal, this judgment and the resulting order, once perfected, confirm the plaintiff’s lawful entitlement to immediate possession of the Property without further order. The defendant’s occupation constitutes a continuing trespass and, in addition to her obligation to comply with the order which I propose to make, she would be acting unlawfully if she was to continue to resist the plaintiff’s steps to secure the Property. An Garda Siochana will presumably facilitate the plaintiff’s exercise of her lawful entitlements if necessary. However, the defendant has indicated her intention to appeal this ruling and related rulings in these proceedings. Her appeal, apparently concerning rulings which I made at the hearing of proceedings, is listed for directions on 18 July 2025 and she anticipates that a further notice of appeal will issue shortly. The plaintiff objected to a stay on the basis of the further delay it would involve in circumstances in which the defendant’s trespass has been continuing for almost a year. I have considerable sympathy with that submission in view not only of that delay but also the many years delay in circumstances in which so many years have elapsed since the original costs orders have been made. Furthermore, I have reservations about granting a stay in circumstances in which the defendant has persistently demonstrated her unwillingness to comply with Court orders or judgments with which she disagrees (and although the defendant is of course entitled to exercise her rights to appeal or challenge a judgment or order, in the absence of a stay she is not entitled to simply disregard them). However, in circumstances when the matter is due to be before the Court of Appeal for directions on 18 July, I consider that it is appropriate that I should offer a stay until that date. It will be entirely a matter for the Court of Appeal to determine whether any further stay should be granted pending the determination of the defendant’s appeal(s).

74. Having heard submissions, I have determined that the plaintiff is entitled to the costs of these proceedings, to be adjudicated in default of agreement and to be assessed on a legal practitioner and client basis but I declined the plaintiff’s application for an immediate assessment of the quantum of such costs. I will explain the reasons for my costs adjudication in a separate ruling.