High Court refuses preliminary issue trial on warrant validity due to lack of factual clarity and no cost savings.

APPROVED [2025] IEHC 392

THE HIGH COURT

Record No.: 2025/1553 P

BETWEEN:

YEOKSEE OOI Plaintiff

-and-

IRELAND AND THE ATTORNEY GENERAL, THE COURT SERVICES OF COUNTY WICKLOW, JOSEPH BURKE, PROMONTORIA SCARIFF DESIGNATED ACTIVITY COMPANY, BLACKWATER ASSET MANAGEMENT and THE COUNTY REGISTRAR OF WICKLOW Defendants

JUDGMENT of Mr Justice Rory Mulcahy delivered on 11 July 2025

Introduction

1. On 24 February 2025, the fourth defendant took possession of a property known as Dromin House in County Wicklow (“the Property”) on foot of a warrant of execution issued by the seventh defendant. The fourth defendant then handed over possession to the fifth defendant (“Promontoria”). The plaintiff claims that, until possession was taken, she lived in the Property with her adult children and had done so for almost twenty years. These proceedings concern her challenge to the validity of the warrant pursuant to which possession was effected.

NO REDACTION REQUIRED

2. On 25 March 2025, the plaintiff issued a plenary summons in which she sought a variety of reliefs arising from her claim that the warrant pursuant to which the fourth defendant had acted was invalid. In particular, she sought orders that Promontoria and its agent, the sixth defendant (“Blackwater”), be removed from the Property and that she and her family be permitted re-entry.

3. On the day following the issuing of proceedings, 26 March 2025, the plaintiff issued the motion the subject of this judgment, which seeks an order pursuant to Order 25, rule 1 and/or Order 34, rule 2 of the Rules of the Superior Court (“the Rules”) directing a trial of a preliminary issue of law on “the validity of the warrant issued by the Third Named Defendant on the 16th of October 2024 and applied by the Fourth Named Defendant on the 24th of February 2025 to evict the Plaintiff and her family from their place of dwelling known as Dromin House” in County Wicklow.

4. For the reasons set out below, I decline to direct the trial of a preliminary issue.

Background facts

5. There has been a protracted litigation history in respect of the Property, which has been explained in judgments of the High Court and the Court of Appeal. I set out here a brief summary which can be discerned from those earlier judgments and from the affidavits filed in respect of this motion.

6. In 2005, Mr Brian McDonagh, the plaintiff’s partner, purchased the Property in his sole name with the benefit of a loan obtained from First Active plc in the amount of €3,000,000.

This loan was secured by a mortgage over the Property, which was registered in the Registry of Deeds. In 2007, this loan was restructured, resulting in Mr McDonagh obtaining a new loan facility of €5,009,750, which was secured by a second mortgage on the Property. This subsumed and cleared the original loan. The second mortgage deed is dated 3 August 2007.

This mortgage was also registered in the Registry of Deeds.

7. In the context of the second mortgage, Mr McDonagh completed a statutory declaration under the Family Home Protection Act 1976 on 28 July 2007 to the effect that the Property

was not a family home for the purpose of that Act and no other person had an interest in the property.

8. No repayments have been made in respect of the second loan since 2013.

9. The plaintiff and Mr McDonagh commenced a relationship, and the plaintiff moved into the Property in 2006. Since 2006, Ms Ooi and Mr McDonagh have had three children together, who also reside in the Property. The plaintiff has never had an established legal interest in, or title to, the Property. It has been found by the High Court and the Court of Appeal that the Property is not a ‘family home’ within the meaning of the Family Home Protection Act 1976 (see Ulster Bank Ireland DAC v Brian McDonagh & Ors [2023] IECA 265).

10. Promontoria is the successor to, and holds the rights of, First Active plc under the two mortgages. Owing to the default by Mr McDonagh, Promontoria issued proceedings in the Circuit Court on 18 May 2021 to obtain possession of the Property (the “Possession Proceedings”). Following a contested hearing, an order for possession was made by the Circuit Court sitting in Bray, County Wicklow on 18 January 2023, with a stay on the order for possession for a period of 18 months from the date of service of that order (the “Possession Order”). The plaintiff was represented at that hearing.

11. Mr McDonagh appealed the Circuit Court Order which appeal was heard on 15 February 2024 (the “Possession Appeal”). By judgment delivered on 12 March 2024 (the “Possession Judgment”), Bradley J refused the appeal and granted the order for possession sought by Promontoria.

12. The stay that was imposed by the Circuit Court expired on 7 September 2024. An execution order was issued by the seventh defendant, the Country Registrar for County Wicklow on 25 September 2024 (“the Execution Order”).

13. The County Registrar sent an order for ejectment to Mr McDonagh on 14 October 2024. On the same day, she issued a warrant of execution (“the warrant”) to the fourth defendant, the Dublin City Sheriff, requiring him to take possession of the Property. The circumstances leading to the Wicklow County Registrar’s decision to appoint the Dublin City Sheriff to execute the possession order are disputed.

14. By notice dated 15 October 2024 to Mr McDonagh, the fourth defendant confirmed his appointment to execute the Execution Order and take possession of the Property and required the occupier(s) of the Property to vacate the property by midnight on 22 October 2024.

15. On 13 February 2024, two days before the hearing of the Possession Appeal was scheduled to take place, the plaintiff issued proceedings challenging the constitutionality of the Family Home Protection Act 1976 (“the Constitutional proceedings”). She sought an adjournment of the Possession Appeal by reference to these proceedings, but that application was refused.

16. The defendants to the Constitutional proceedings issued a motion seeking to have them struck out as disclosing no reasonable cause of action. The plaintiff sought an injunction restraining her eviction from the Property pending determination of those proceedings. In a judgment dated 19 November 2024 ([2024] IEHC 663), the High Court (Cahill J) refused the application to strike out the proceedings, but also refused the application for an injunction. The plaintiff appealed the refusal of the injunction, and in a judgment of the Court of Appeal (Meenan J) dated 21 February 2025 ([2025] IECA 40), that appeal was refused. Leave to appeal that decision was refused by the Supreme Court on 26 May 2025 ([2025] IESCDET 70).

17. Following the refusal of the appeal by the Court of Appeal, the fourth defendant wrote to Mr McDonagh advising that he had been instructed to immediately execute the warrant and notifying him that he must vacate the Property by midnight on 23 February 2025.

18. The fourth defendant attended at the Property on 24 February 2025 for the purpose of executing the warrant. The warrant was executed on that day in what appear to have been contentious circumstances. It seems that Mr McDonagh was arrested arising from the events of that day and criminal proceedings have issued against him. The fourth defendant, having taken possession of the Property on foot of the warrant, handed over possession to Promontoria, who, in turn, retained Blackwater to secure and monitor the property on its behalf.

19. As noted above, the plaintiff issued these proceedings on 25 March 2025 challenging the validity of the warrant pursuant to which the fourth defendant had acted in taking possession and this motion seeking leave to try a preliminary issue was issued the following day. The parties exchanged affidavits; the plaintiff has sworn a total of five affidavits, Mr Donal O’Sullivan has sworn three affidavits on behalf of Promontoria and Blackwater, and Ms Aisling Mahon has sworn an affidavit on behalf of the first, second, fourth and seventh defendants (the “State defendants”). Ms Ooi has sworn several affidavits. Proceedings have been discontinued against the third defendant and the seventh defendant was added as a party to the proceedings. The reference in Ms Ooi’s motion to the third defendant should be understood, therefore, as a reference to the seventh defendant.

20. This motion was heard on 27 June 2025.

Applicable principles – trial of a preliminary issue

21. The principles by which the question of whether it is appropriate to direct a preliminary trial should be decided are as set out by the Supreme Court in Campion v South Tipperary County Council [2015] IESC 79; [2015] 1 IR 716:

“[35] The following therefore is a summary of the legal position before O. 25 of the Rules of the Superior Courts can be successfully invoked:-

• there cannot exist any dispute about the material facts as asserted by the relevant party: such can be agreed by the moving party or accepted by him or her, solely for the purposes of the application;

• there must exist a question of law which is discrete and which can be distilled from the factual matrix as presented;

• there must result from such a process a saving of time and cost, when the same is contrasted with any other suggested method by which the issues may be disposed of: in default with a unitary trial of the entire action. In the absence of admissions, appropriate evidence will usually be necessary in this regard:

impressions of what might or might not be will not be sufficient;

• the greater the impact which a decision on the preliminary issue(s) is likely to have on the entire case, the stronger will be the argument for making the requested order;

• conversely if irrespective of the court's decision on that issue(s), there should remain for determination a number of other substantial issues or issue(s) of a substantial nature, the less convincing will be the argument for making such an order;

• exceptionally however, even if the follow on impact will not dispose of any other issue, the process may still be appropriate where the subject issue is substantial in its own right and where its determination will clearly benefit the action in an overall sense;

• as an alternative to such a process in such circumstances, some other method or mode of proceeding, such as a modular trial may be more appropriate;

• it must be ‘convenient’ to make such an order: at one level this consideration of itself, can be said to incorporate all other factors herein mentioned, but for the purposes of clarity it is I think more helpful to retain the traditional separation of such matters;

• ‘convenience’ therefore should be understood as meaning that the process will enhance in an overall way the most efficient, timely and cost effective method of disposing of the entire litigation;

• the making of such an order must be consistent with the overall justice of the case, including of course fair procedures for all parties;

• the court at all times retains a discretion whether or not to make such an order:

when so deciding it should exercise caution so as to make sure that if an order is made, it will meet the purposes intended by it; finally

• subject to giving due and proper weight to the decision of the trial judge, the appellate court can substitute its own views for those of the High Court where it thinks it is both necessary and appropriate to so do.”

Arguments

22. The plaintiff’s position is straightforward. She says that the question of the validity of the warrant is a question of law which can be determined in isolation from the facts of the case. Moreover, she says that if the warrant is deemed to be valid, then that disposes of her claim. In other words, she accepts that she will have no cause of action. Although not expressed in these terms, it seems that she suggests that there will, therefore, be a saving in time and costs if the question of the validity of the warrant is tried as a preliminary issue.

23. The defendants object for a variety of reasons. The validity of the warrant, they say, is not simply a question of law, but can only be determined in light of all the relevant facts.

There is no agreement about those facts and therefore, there is no basis for trying a preliminary issue.

24. They also contend that the validity of the warrant is not the first issue to be addressed in these proceedings. The State defendants contend that the plaintiff’s challenge in these proceedings is to an administrative measure, the issuing of the warrant of execution, which should more properly challenged by way of judicial review. Although they accept that this does not operate as a barrier to commencing proceedings by way of plenary summons – that there is no jurisdictional exclusivity – especially where, as here, there are facts in dispute, they contend that the plaintiff is still bound by the time limits applicable to judicial review.

In those circumstances, they contend that the plaintiff should have issued proceedings within three months of being advised that the fourth defendant had been appointed to execute the Possession Order. They will, therefore, contend that the proceedings are out of time. They say that this is the first issue which will require to be addressed before any consideration of the validity of the warrant.

25. The sixth and seventh defendants identify another issue which they say will require to be determined before consideration of the validity of the warrant. They deny, or at least will put the plaintiff on proof of, the plaintiff’s plea that, at the time of execution of the warrant, the Property was the plaintiff’s dwelling. If it was not her dwelling, the sixth and seventh defendants argue, then she has no standing to maintain these proceedings.

26. In addition to those objections, the defendants argue that even if the warrant were determined to be invalid, that will not dispose of the proceedings. Consideration will still have to be given as to what remedy, if any, is appropriate in those circumstances. They refer to the decision of the Supreme Court in Moore v Dun Laoghaire Rathdown County Council [2016] IESC 70; [2017] 3 IR 42, a case which the plaintiff has indicated in her affidavits that she intends to rely. In that case, the court envisaged that a technical defect in a warrant

– in that case a warrant for possession issued in local authority possession proceedings – might not, as of right, entitle a person dispossessed pursuant to that warrant to repossess the property. In those circumstances, the defendants argue, it will be necessary to hear evidence regarding all the circumstances surrounding the issuing of the warrant of execution. On their case, since Promontoria has the benefit of the Possession Order, and Ms Ooi has no legal interest in the Property, even if the warrant is invalid, this could not entitle her to re-possess the Property. There will thus be no saving in time and costs even if the warrant was, for some reason, determined to be invalid as a matter of law.

Dispute regarding admissibility of evidence

27. At the outset of the hearing of this motion, the State defendants raised an objection to the reliance by Ms Ooi on an affidavit filed by her just prior to the hearing which exhibited a statement of a named individual who had been involved in taking possession of the Property on 24 April 2025. It appeared that the statement was taken from the book of evidence served on Mr McDonagh in his prosecution arising from the repossession of the Property by the fourth defendant. The State defendants objected that Ms Ooi did not have the required consent to deploy the contents of a book of evidence in these proceedings (see Breslin v McKenna [2008] IESC 43; [2009] 1 IR 298). Ms Ooi was not able to satisfy the court that she had sought, still less obtained, the consent of the trial court to the use of any materials from the book of evidence. In the circumstances, I excluded the affidavit, observing that it was difficult to see what relevance anything contained therein could have to the question to be determined on this application, whether to direct the trial of a preliminary issue.

28. On 8 July 2025, Ms Ooi made an application for short service of a motion seeking liberty to rely on the excluded evidence. I granted her short service of that motion returnable to 2pm on 9 July 2025.

29. When the application came back before the court, the defendants all indicated that they had no objection to the court receiving and considering the document for the purpose of this application, but that it was a matter for the court as to whether the appropriate consent had been obtained, and they reserved their position as to any further reliance on the document in the proceedings. Their position remained that Ms Ooi had not proved that she had obtained the appropriate consent.

30. The affidavit grounding the motion exhibited a letter from the solicitor for Mr McDonagh to Mr McDonagh. In the letter, the solicitor records that Mr McDonagh had asked him to obtain a copy of the statement and that it was required for use in his wife’s case challenging the repossession. The solicitor writes that he told Mr McDonagh that it would be included in the book of evidence to be served upon him but that Mr McDonagh said that it was required urgently, and the solicitor therefore undertook to try and get a copy of the document before service of the book of evidence. The solicitor then refers to the fact that on his application to the court on 9 June 2025, Bray District Court ordered that he be provided with a copy of the statement. He records that he advised the court that the statement was required for Mr McDonagh’s wife’s case.

31. The content of the solicitor’s letter were not verified by affidavit. However, as this is an interlocutory application, some regard could be had to hearsay evidence. It appeared from the contents of the letter that permission was sought and obtained to permit use of the statement in these proceedings. The letter had been written by a solicitor, an officer of the court. It remained difficult to see what relevance the document might have, but equally it was difficult to see what interest might be harmed by having the court consider the additional evidence. Despite some misgivings, in order to afford Ms Ooi every opportunity to advance her application to the fullest, I agreed to admit the statement for the purpose of this application only and permitted the parties to make submissions by reference to it.

32. The statement is by a person who describes himself as an agent of the seventh defendant and gives his occupation as a court messenger. He describes the events of 24 April 2025. The person is not identified on the warrant the subject matter of these proceedings.

33. Ms Ooi sought to rely on the statement in support of her case that there some issue about the execution of the warrant. When I pointed out to her that her reliance on the statement only tended to support the defendants’ argument that there was a dispute of fact between the parties which required to be resolved in order to determine the validity of the warrant, Ms Ooi argued that the statement supported her case and that the defendants’ objection to her application was for the purpose of delay to enable the Property to be sold.

She advised the court that she had received a letter from solicitors for Promontoria that morning indicating that the Property had, in fact, been sold.

34. The defendants didn’t make any submissions by reference to the statement which they had at all times contended was irrelevant. The solicitor for Promontoria reiterated the commitment each set of defendants had made at the original application, that they would facilitate an expedited hearing of Ms Ooi’s action and there was no intention to delay resolution of the proceedings.

Discussion

35. It is clear that this is not an appropriate case for the trial of a preliminary issue. Having regard to the factors identified in Campion, it would be wholly inappropriate to do so.

36. The first obvious issue is that the plaintiff has not identified with sufficient clarity the question of law which she wants determined. Her claim is that the warrant is invalid, but it is not clear what the legal basis for that contention is. The fourth defendant is the Dublin City Sheriff. It is not clear from her pleadings or her motion whether the plaintiff contends that it was impermissible for the seventh defendant to authorise the fourth defendant to execute the warrant because he is the Dublin City Sheriff, or whether her objection is to the form of warrant pursuant to which he was so authorised, in which he appears to be described as one of the seventh defendant’s “court messengers and bailiffs”. Had the matter otherwise been suitable for trial of a preliminary issue, there might have been some benefit in exploring with the parties whether a discrete question of law could be distilled relating to the validity of the warrant. However, in light of all other relevant factors, this would not have served any useful purpose.

37. The second and most important issue is that the absolute prerequisite for a trial of a preliminary issue is that there are no facts in dispute. A moving party can accept the facts as pleaded for the purpose of trying a preliminary issue only, but there must be an agreed factual matrix against which the identified legal question can be addressed. There is no such agreement here.

38. Somewhat unusually, the application to try a preliminary issue is made by the plaintiff in this case. Even more unusually, it issued before any exchange of pleadings had taken place, which would have enabled the issues in dispute between the parties to be identified. However, there has been a full exchange of affidavits and it is clear that the plaintiff does not accept the factual matters asserted by the defendants.

39. By way of example, in response to the affidavit sworn on behalf of the State defendants, which purported to explain the circumstances in which the seventh defendant issued the warrant the subject of these proceedings, the plaintiff avers that she rejects the averments in the affidavit. She then goes on to suggest:

“I say full disclosure of everything which occurred leading to the events of the 24th of February 2025 ought to have been disclosed. I say with regret, based upon the Affidavit of Donal O’Sullivan that there was collusion and interference on the part of Promontoria Scariff and James Burke with the Statutory Duties of the County Registrar, resulting in what I believe to be a defective warrant of execution.”

40. The plaintiff describes the particular circumstances in which the warrant was issued by the seventh defendant as a “distraction from the warrant”, by which she presumably means a distraction from the argument regarding the validity of the warrant. However, her own submissions suggest otherwise. The plaintiff’s legal submissions are directed principally to the merits of the preliminary issue rather than whether it is appropriate to direct the trial of the preliminary issue. In so doing, the plaintiff engages in detail in factual matters which are disputed in the affidavits and asserts that certain facts should be taken as established which the defendants dispute, not least that there was some improper collusion between Promontoria and the County Registrar.

41. The additional statement which Ms Ooi went to some lengths to have admitted in this application only serves to highlight that there are factual controversies which require to be resolved in order to determine the validity of the warrant. At best, the statement is irrelevant, but if anything it tends to undermine Ms Ooi’s application.

42. The defendants contend that any question regarding the validity of the warrant cannot be decided divorced from any factual matrix. In the absence of agreement on those facts, the validity of the warrant cannot be addressed. This is very likely correct: at the very least, the plaintiff has not shown that the warrant’s validity can be addressed without reference to any of the factual matters in dispute. In those circumstances, there can be no question of directing the trial of a preliminary issue.

43. The plaintiff accepts that if the warrant is determined to be valid, that is the end of her claim in these proceedings. Thus, on her case, a determination of that ‘discrete’ issue is capable of determining the whole proceedings and thus could potentially lead to a saving in time and costs.

44. The defendants do not, however, accept the converse: that a decision that the warrant is not valid determines the case in favour of the plaintiff. On the contrary, they say, it is clear that there is a valid order for possession in these proceedings, and a valid execution order. The plaintiff has no entitlement to possession of the Property and, therefore, even if there was some technical defect in the process of execution, that does not displace the fifth defendant’s entitlement to possession of the Property, still less entitle the plaintiff to possession. They call in aid the decision in Moore v Dun Laoghaire Rathdown County Council as authority for the proposition that a mere technical defect in a warrant – in that case a warrant for possession issued in local authority possession proceedings – would not, as of right, entitle a person dispossessed pursuant to that warrant to possession of a property.

45. In addition, as highlighted above, the defendants will advance arguments – that these proceedings are out of time, that the plaintiff has no standing to maintain these proceedings

– such that the validity of the warrant need never be addressed by the court.

46. Accordingly, argue the defendants, a preliminary trial on the issue of the warrant will not lead to any saving in time and costs even if the plaintiff is successful in showing that it is not valid.

47. The defendants are clearly correct when they suggest that, if the preliminary issue is decided in the plaintiff’s favour, that will not dispose of the proceedings. It will frequently be the case that a preliminary issue, if ordered, will only be determinative of proceedings, if decided in a particular way. The fact that that is the case here is not, of itself, a reason for refusing to try a preliminary issue. However, in this case, the plaintiff faces the unusual difficulty that there is not likely to be any saving in time and costs if the preliminary issue is decided in her favour. The plaintiff has not identified any such potential savings. Rather, it seems costs may be increased by addressing the validity of the warrant independently of all other issues in the proceedings – even if that were possible – since it would involve some duplication of effort and may involve the court in addressing issues which it is ultimately determined did not need to be addressed.

48. Accordingly, even if the other difficulties with the application could be overcome, the court is faced with the unusual situation that there would be no saving in time and costs if the preliminary issue – insofar as it can be identified – was determined in favour of the moving party. There could only be a saving in time and costs if the defendants – who oppose this application – succeed in a preliminary hearing in showing that the warrant was valid.

49. It seems that the plaintiff is seeking to ‘road test’ the merits of her case on a step-bystep basis, in a manner convenient to her but which the defendants oppose. This may enable her to minimise the risk to herself of maintaining these proceedings, but deprives the defendants of the opportunity to put their whole case in a unitary hearing, the default position in litigation. In those circumstances, the making of an order directing a preliminary trial would not, to use the language of Campion, “be consistent with the overall justice of the case, including of course fair procedures for all parties.”

50. For all the foregoing reasons, the trial of the preliminary issue identified by the plaintiff in her notice of motion is not an appropriate means of progressing these proceedings.

Conclusion

51. The plaintiff seeks the trial of a preliminary issue without adequately identifying the legal issue which she seeks to have determined.

52. Critically, the legal issue apparently in issue – whether the warrant of execution issued by the seventh defendant to the fourth defendant was valid – cannot be determined divorced from the factual circumstances giving rise to the warrant being issued. There is no agreement on those factual circumstances, and therefore, no agreed basis on which the legal question could be addressed.

53. Even if the legal issue could be identified with sufficient clarity and facts agreed, a preliminary trial will not lead to a saving in time and costs unless the parties who oppose this application succeed in that preliminary hearing. The validity of the warrant is only one of several issues which will require to be addressed in this case if Ms Ooi is to establish an entitlement to a remedy. Directing the trial of a preliminary issue would not, therefore, serve the overall justice of the case.

54. The application for trial of a preliminary issue is refused.

55. As previously advised, I will list the matter for mention on 18 July 2025 at 10.30 am in order to deal with any consequential orders, any directions necessary to ensure these proceedings progress to trial in early course, and the question of costs. I encourage the parties to liaise in advance of that date in order to agree a timetable for the exchange of pleadings.