High Court dismisses motion to set aside judgment mortgage and extend time for appeal due to procedural delays and lack of merit.

APPROVED

REDACTED

THE HIGH COURT

AN ARD-CHÚIRT

[2025] IEHC 460

Record No. 2024/215HCA

BETWEEN/

ALAN GAFFNEY AND DEREK GAFFNEY

PLAINTIFFS (RESPONDENTS)

-AND-

PHILIP GAFFNEY AND TERESA GAFFNEY

DEFENDANTS (APPELLANTS)

Judgment of Mr. Justice Conleth Bradley delivered on the 7th day of August 2025 CONTENTS

INTRODUCTION.................................................................................................................... 3 Background ........................................................................................................................... 3 High Court Record No. 2016/1010S/Court of Appeal Record No. 2022/160 ..................... 4 High Court Record No. 2016/1010S/Court of Appeal Record No. 2022/162 ..................... 5 High Court Record No. 2017/3234P/Court of Appeal Record No. 2022/161 ..................... 5 The Property & Judgment Mortgage ................................................................................... 6 Circuit Appeal ....................................................................................................................... 7 THE MOTIONS BROUGHT BY THE FIRST NAMED DEFENDANT......................... 10 The First Named Defendant’s Motion dated 30th October 2024 ....................................... 10 The motion seeking to set aside the High Court Order & to take up the DAR................. 20 Order of the High Court dated 14th November 2024 ......................................................... 20 The First Named Defendant’s application to remove the Judgment Mortgage ............... 24 The First Named Defendant’s Notice of Motion dated 28th January 2025 ...................... 28 The First Named Defendant’s Written Submissions ......................................................... 30 The Notice of Motion .......................................................................................................... 32 THE PLAINTIFFS’ MOTION TO EXTEND TIME/INTENTION TO VARY ............. 34 CIVIL BILL FOR WELL-CHARGING RELIEF DATED 22ND JANUARY 2024 ........ 47 The Civil Bill ....................................................................................................................... 47 Folio 3976............................................................................................................................ 52 Occupation by persons other than the Defendants ............................................................ 56 The Second Named Defendant ........................................................................................... 57 The Legislative Provisions .................................................................................................. 60 Judgment Mortgage Stands Well-Charged ........................................................................ 63 Conditional Sale & Inquiries into Incumbrances and Priorities ...................................... 68 Proposed Orders in the substantive appeal ........................................................................ 81 The costs of the application to defer judgment .................................................................. 83

CONCLUSION ...................................................................................................................... 86

INTRODUCTION

Background

1. For a number of years, Philip Gaffney (the First Named Defendant) has been engaged in the production of Irish souvenirs and had previously developed a business relationship with a company in the United States, Quality Value Choice Corporation, which ran a shopping channel on American television networks and also had an online presence.

2. In or around 2015, the First Named Defendant secured a substantial contract to supply Irish-themed products for a U.S. shopping channel for broadcasting, which was to be aired in or around St. Patrick’s Day, 2016.

3. For this purpose, the First Named Defendant required funding, but funding from traditional bank sources in Ireland or the United States was not available to him. In those circumstances Philip Gaffney sought the assistance of his brothers – Alan and Derek Gaffney (the First and Second Named Plaintiffs). The contract between the Plaintiffs and the Defendants was an oral one which was apparently concluded during the course of a telephone conversation in or around October 2015. The contract was not reduced to writing. In the event, Alan Gaffney supplied US$272,043.00 and Derek Gaffney supplied US$100,000.00 to the Defendants.

4. The U.S. shopping channel, however, terminated the contract in February 2016.

5. The Plaintiffs and the Defendants both issued proceedings: High Court Record No.2016/1020S between Alan Gaffney and Derek Gaffney v Philip Gaffney and Teresa Gaffney and High Court Record No. 2017/3234P Philip Gaffney v Alan Gaffney and Nicole Gaffney. The two actions were heard together before the High Court (Barr J.) for approximately four days. One judgment was delivered by the High Court in both actions on 29th April 2022: [2022] IEHC 251.

6. In summary, the High Court held that the reason why the contract between Philip Gaffney and the US shopping channel was cancelled was that Philip Gaffney was not in a position to fulfil the order for 67,000 souvenirs by the date in question and the court also rejected the arguments made by him that the funding from the First and Second Named Plaintiffs was a form of investment in his business. The High Court determined that the monies were repayable to the Plaintiffs in April 2016 independent of whether or not payment was made by the US shopping channel at that time. The High Court held that Teresa Gaffney was not a party to the contract and gave judgment as against Philip Gaffney in favour of Alan Gaffney in the sum of US$272,043.00 and also against Philip Gaffney in favour of Derek Gaffney in the sum of US$100,000.00. The court made an order for two and a half days’ costs in favour of the First and Second Named Plaintiffs in that case.

7. Three appeals were brought to the Court of Appeal (before Whelan, Binchy and Allen JJ.).

High Court Record No. 2016/1010S/Court of Appeal Record No. 2022/160

8. In proceedings with High Court Record No. 2016/1010S/Court of Appeal Record No. 2022/160, the Court of Appeal, on 25th May 2023, allowed the appeal of Alan Gaffney and Derek Gaffney (the Plaintiffs in these proceedings) against the finding of the High Court that Teresa Gaffney (the Second Named Defendant in these proceedings and Philip Gaffney’s spouse) was not a party to the 2015 contract. The Court of Appeal held that Teresa Gaffney had been an active participant in the business1 and awarded judgments against both Philip Gaffney and Teresa Gaffney. (In its determination [2024] IESCDET 52, the Supreme Court refused the Defendants leave to appeal that decision of the Court of Appeal and further refused an application to vary or rescind that order in its ruling dated 7th February 2025).

High Court Record No. 2016/1010S/Court of Appeal Record No. 2022/162

9. The Court of Appeal on 25th May 2023 dismissed Philip Gaffney’s appeal against the

decision of the High Court2 for want of prosecution. To recap, the High Court had given judgment as against him in favour of Alan Gaffney in the sum of US$272,043.00 and also against Philip Gaffney in favour of Derek Gaffney in the sum of US$100,000.00. In circumstances where there had been no appearance by or on behalf of Philip Gaffney on the morning that the appeal came on for hearing, the Court of Appeal was satisfied that he had been notified on numerous occasions as to the hearing date and was aware of it, and it was appropriate in those circumstances to dismiss the appeal in his absence. The Supreme Court refused Philip Gaffney leave to appeal this decision in [2024] IESCDET 50, which decision was confirmed in the Supreme Court’s ruling on 7th February 2025 pursuant to Practice Direction SC17. High Court Record No. 2017/3234P/Court of Appeal Record No. 2022/161 Court of Appeal Record No.: A:AP:IE:2022:000160. High Court Record No: 2016 No. 1020 S.

10. In the High Court proceedings bearing Record No. 2017/3234P between Philip Gaffney v Alan Gaffney and Nicole Gaffney (Court of Appeal Record No. 2022/161) and Supreme Court Neutral Citation [2024] IESCDET 51, Philip Gaffney had commenced proceedings in 2017 as against the First Named Plaintiff (and his spouse Mrs. Nicole Gaffney) and claimed that they had agreed to invest US$400,000.00 in his business.

11. As referred to above, however, the High Court had held that the funding provided was a short-term loan by Alan Gaffney and Derek Gaffney, rather than some form of investment by Derek Gaffney and Nicole Gaffney in the defendants’ business and dismissed Philip Gaffney’s action and made no order as to the costs of the proceedings. The Court of Appeal on 25th May 2023 allowed the appeal of Derek Gaffney and Nicole Gaffney against the costs order and awarded them the costs of the proceedings. The Supreme Court refused Philip Gaffney leave to appeal this decision of the Court of Appeal in its determination [2024] IESCDET 513 which decision was confirmed in the Supreme Court’s ruling on 7th February 2025 on the application by the First Named Defendant pursuant to Practice Direction SC17.

The Property & Judgment Mortgage

12. The Defendants are the registered owners of property comprised in Folio 3976 County Meath, situated in the townland of Naul in Duleek, County Meath. It comprises approximately 1.4 acres (0.75 hectares) and comprises what is described as a substantial family home at one end connected by a roadway to the other side which has a workshop Supreme Court Record No.: S:AP:IE:2023:000089.

of around of 557 sq.m. (which together is also referred to in this judgment as “the property”).

13. The Court of Appeal did not place a stay on the entry and execution of its order made on 25th May 2023. As described later in this judgment, the judgments of the High Court and the Court of Appeal have been registered as a judgment mortgage against the Defendants’ interests in the property. The Defendants have not paid any monies to date towards the judgment debt and the entire sum set out above remains due and owing to the Plaintiffs together with interest. It is this background which forms the immediate context to these proceedings. (I will return to the further applications made to the Court of Appeal earlier last month (July 2025) by the First Named Defendant at the end of this judgment).

Circuit Appeal

14. By Civil Bill For Well Charging Relief (“the Civil Bill”) issued on 22nd January 2024, the Plaintiffs sought to enforce the security which they held over the Defendants’ interests in the property.

15. The principal application before me is an appeal to the High Court from the Circuit Court (Record No. 2024/215HCA), which was initiated by both Defendants but prosecuted before me by the First Named Defendant, Mr. Philip Gaffney only, against the orders of the Circuit Court (His Honour Judge Patrick Quinn) in Circuit Court Record No. 2024/00023 made on 24th July 2024 in proceedings entitled The Circuit Court, Alan Gaffney and Derek Gaffney v Philip Gaffney and Teresa Gaffney where the Circuit Court inter alia granted the relief sought at paragraph (1) of the Civil Bill for Well Charging Relief, being an Order declaring that the Plaintiff’s Judgment Mortgage registered as a burden on Folio 3976 County Meath in respect of the judgment obtained by the Plaintiffs against the Defendants by Order of the Court of Appeal made on 25th May 2023 (as amended pursuant to the slip rule on 26th July 2023) entering judgment in favour of the First Named Plaintiff against the Defendants in the sum of US$272,043.70 and in favour of the Second Named Plaintiff against the Defendants in the amount of US$100,000.00, together with interest at the rate prescribed by the Courts Act 1981, stands well charged against the Defendants’ interests in the said property.

16. The second relief sought by the Plaintiffs in the Civil Bill was an Order for the taking of an account of other incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances.

17. The third relief sought by the Plaintiffs in the Civil Bill was that in default of the Defendants discharging the Judgment Debt of US$272,043.70 in favour of the First Named Plaintiff and US$100,000.00 in favour of the Second Named Plaintiff, together with ongoing interest on the Judgment Debt within three months of the date thereof, the court would order the sale of the property and the application of the proceeds of sale in discharge of the Defendants’ debt to the Plaintiffs and in satisfaction of the Plaintiffs’ Judgment Mortgage registered against the said property.

18. The Circuit Court did not at that stage grant the second and third reliefs sought but gave the Plaintiffs time to seek those reliefs on foot of further motions. The Circuit Court directed that its order be stayed for a period of 10 days (from 25th July 2024) and that in the event of an appeal to the High Court, this stay was to continue pending the determination of the appeal. The Circuit Court reserved the costs and gave the First Named Defendant liberty to take up the transcript of the DAR on the condition that he pay the costs incurred for doing so.

19. Both Defendants appealed the orders of the Circuit Court, and several ancillary applications have been brought by the First Named Defendant and one by the Plaintiffs. The Defendants lodged a notice of appeal in the Central Office of the High Court on 1 st August 2024. A copy of the Notice of Appeal was served on Crowley Millar LLP Solicitors for the Plaintiffs on 9th August 2024.

20. As just mentioned, arising from the aforesaid matters, several ‘interlocutory’ applications (motions) have been brought by the First Named Defendant and one application has been brought on behalf of the Plaintiffs.

21. Arising from the directions of the High Court (Bolger J.) on 3rd April 2025 the following motions and applications were listed for hearing (in no particular order) for three days, commencing on Tuesday 8th April 2025: the Plaintiffs’ Motion seeking an extension of time to deliver notice to the Defendants pursuant to Order 122, rule 7 of the Rules of the Superior Courts 1986, as amended (“the RSC 1986”); the First Named Defendant’s Motion seeking leave to file a defence and/or to seek discovery; the First Named Defendant’s motion seeking to set aside an Order of the High Court (Gearty J.) dated 10th October 2024; the First Named Defendant’s motion seeking to remove the judgment mortgage; the First Named Defendant’s motion regarding submissions and reference material; the Defendants’ appeal from the Circuit Court.

22. These matters were set out in the letter from Crowley Millar Solicitors, for the Plaintiffs, sent to the First Named Defendant on 3rd April 2025.

23. Insofar as the appeal from the orders of the Circuit Court (His Honour Judge Patrick Quinn) in Circuit Court Record No. 2024/00023 made on 24th July 2024 are concerned, this appeal constituted a de novo re-hearing before me.

24. This is the judgment addressing all applications and in the circumstances separate orders in relation to each application will issue.

THE MOTIONS BROUGHT BY THE FIRST NAMED DEFENDANT

The First Named Defendant’s Motion dated 30th October 2024

25. By Notice of Motion dated 30th October 2024, the First Named Defendant issued the following Motion, stating that:

“I Philip Gaffney, a litigant in person will apply to … this Honourable Court to present a Defence in relation to the Trim Circuit Court, Record No. 2024/00023, which was denied to me by Trim Court. I also ask this Honourable Court to allow me to respond to the 60 pages of documents presented to me while in Court after the hearing had started, which is an abuse of process and contrary to proper procedure. I also ask … [this] Honourable Court to allow me seek discovery in relation to the assertions made in the claim before the Court which was also denied to me during the Trim action. This is again an abuse of process and contrary to proper procedure. An order for costs and any other orders the court may deem appropriate.”

26. Order 5B of the Rules of the Circuit Court addresses “Actions for Possession and Wellcharging Reliefs (S.I. No. 264/2009)”.

27. Order 5B, rr. (5)(1)-(3) states as follows:

“(1) There shall be served with a Civil Bill a copy of an Affidavit which shall conform to the requirements of Form 54 in the Schedule of Forms (and copies of any exhibits to that Affidavit) sworn by or on behalf of the Plaintiff, verifying and supporting the claim endorsed on the Civil Bill.

(2) Where the agreement for a Mortgage on foot of which proceedings to which this Order relates have been commenced is or was at the material time or times one to which a code drawn up by the Central Bank of Ireland in accordance with Section 117 of the Central Bank Act 1989 applies, the Affidavit shall identify the code concerned.

(3) A Defendant intending to defend proceedings to which this Order applies shall enter an Appearance in the office in Form 5 in the Schedule of Forms within ten days of the service upon him of the Civil Bill and shall defend the Plaintiff’s claim by filing a Replying Affidavit to the Plaintiff’s Affidavit setting out the Defendant’s Defence and serving a copy of that Affidavit (and copies of any exhibits to that Affidavit) on the Plaintiff not later than four days before the return date”.

28. Order 5B, rule (7)(1) provides:

“On the return date of the Civil Bill (or any adjournment from such date), the County Registrar may, in addition to any other Order which the County Registrar has power to make:-

(a) Order service of the Civil Bill on any other person;

(b) Make an Order enlarging the time for entry of an Appearance;

(c) Give directions and fix time limits for the filing and delivery of any further Affidavits by any party or parties;

(d) Give any other directions for the preparation of the proceedings for Trial;

(e) Where an Appearance has not been entered or an Affidavit in

accordance with Rule 5(2) setting out a Defence has not been

filed and delivered, make an Order for Possession in accordance

with paragraph (xxxiii) or (xxxiv) of the Second Schedule to the

Courts and Courts’ Officers Act 1995;

(f) Where the parties are sui juris, make an Order to receive a

consent and make the same a rule of Court.”

29. Order 5B, rule (8)(2) provides:

“The Judge may, where he considers it appropriate, adjourn a Civil Bill listed before him under this Order for Plenary Hearing as if the Proceedings had been organised otherwise that in accordance with this Order, with such directions as to pleadings or discovery as maybe appropriate”.

30. In accordance with the aforesaid Rules of Court, by an “Entry of Appearance” dated 12th February 2024, both the First and Second Named Defendants entered an Appearance.

31. Further, both Defendants have signed these Appearances, i.e., there was a signature from Philip Gaffney and separately a signature from Teresa Gaffney. During the hearing before me, Mr. Philip Gaffney confirmed that the signature of the First Named Defendant on the Entry of Appearance was in fact his signature.

32. Additionally, by joint Replying Affidavit, dated 2nd April 2024, both the First and Second named Defendants stated as follows:

“This action stems from an oral agreement which is still in dispute and is currently before the Supreme Court … Record No. 2023/88 … and we are confident of success in this matter. There are also two related cases 89 and

90. We would refer the Court to the statement by Court of Appeal Judge Justice Whelan who chaired the Court of Appeal Hearing on 26th July 2023 when she stated that ‘nobody is infallible and I don’t suggest I am … certainly, so it is important you know your rights to seek leave to appeal…’” (the middle section of the Affidavit was not being pursued by the First Named Defendant).

33. The Affidavit continued:

“On points of law and procedure the value of the Court’s jurisdiction according to the Courts and Courts’ Officers Act is €38,092.14 are they are abandoning the rest of the claim. It is also contrary to the Family Home Protection Act 1976 of which they are fully aware and are misleading the Court by stating “we have an interest” it is our family home. Therefore what they are seeking is unenforceable in law. They must provide an approved Judgment to validate their Order and this has not happened. We are extremely confident of success in the Supreme Court. Given that there are interlocutory matters outstanding, and the Stay put [on] the Judgment of the High Court, this action is premature and is frivolous and vexatious and we would ask the Court to dismiss the action with no liberty to re-enter and award us costs.”

34. On 5th April 2024, the First Named Defendant (Mr. Philip Gaffney) swore a Supplementary Affidavit where he inter alia stated as follows:

“I say and believe the reason the other side never provided the Judgment in registering this action is due to the fact they realise that under law this action is unenforceable under the [Statute of Frauds 1695] [sic.], which will be confirmed once we are before the Supreme Court. The Act states:

‘Oral Agreement

An oral agreement which is not reduced to writing or evidence in

writing. Certain oral agreements are unenforceable because they

are required to be by Deed (qv) or are required to be evidenced

in writing under the Statute Of Frauds (qv).’

The requirement contained in Section 2 of the 1695 Statute is now reflected in Land and Conveyancing Law Reform Act 2009, section 51(1), which states that no action shall be brought to enforce any contract for the sale of or other disposition of land unless the agreement on which such action is brought or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person’s authorised agent. I would also raise the point that the judgment was made in reference to our position as directors of a company, this is contrary to company law and pierces the veil of corporate protection. We were not put on notice that we were being tried as directors. The judgment also referred to other cases as case law, which is standard. This is of course assuming that this case has followed the same procedure and law, which is not correct. I beg to refer to the errors of the Court of Appeal in relation to procedures which denied us due process. I beg to refer to the attached letter sent to the Court of Appeal and contains [an] extract from the DAR highlighting the errors of the Court, which I have marked with the letter A. These are just some of the many points before the Supreme Court, however, they are very clear. I have the Supreme Court file with me in Court today if the Court wishes to examine it, however, I do understand this is a matter for the Supreme Court. I say and believe these points I have raised in procedure and law make this action unenforceable. I would ask the Court to dismiss the action without liberty to re-enter it and award us costs”.

35. The Defendants have therefore raised a number of matters which they consider to be relevant in their Joint Replying Affidavit and in the Supplemental Affidavit of the First Named Defendant in their defence of these proceedings.

36. Having regard, therefore, to the Rules of the Circuit Court and Order 5B, rule (5)(3), the means by which well charging applications are defended is by the service of a Replying Affidavit setting out a defence. This is also confirmed when consideration is given to the provisions of Order 5B, Rule (8)(2), which provides that “The Judge may, where he considers it appropriate, adjourn a Civil Bill listed before him under this Order for Plenary Hearing as if the proceedings had been originated otherwise and in accordance with this Order, with such directions as to pleadings or discovery as may be appropriate.”

37. Accordingly, the First Named Defendant has not established any basis to present a defence other than in the manner in which it has been done in this case, which is in accordance with the Rules of Court. A Defendant who seeks to defend actions for well charging relief must do so in the manner prescribed by the Rules of Court and Order 5B, rule 5(3) refers to the filing of a Replying Affidavit which sets out the Defendant’s defence.

38. The second relief sought in the Notice of Motion dated 30th October 2024 is an Order allowing the Defendants “to respond to the 60 pages of documents presented to them while in Court after the hearing had started”.

39. The First Named Defendant has failed to identify any basis for the making of such an Order.

40. The documents referred to consisted of photocopied extracts from the relevant provisions of the Circuit Court Rules together with the applicable sections of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”) and a relatively small number of legal authorities which were referable to the matters at issue. These documents have been in the possession of the First Named Defendant for a period of in or around 7 months.

41. It appears from the First Named Defendant’s application on this motion that he may not appreciate that his appeal from the Order of His Honour Judge Patrick Quinn results in a de novo re-hearing of the action: see section 37 of the Courts of Justice Act 1936 and the

decision of Clarke J. (as he then was) in Fitzgibbon v The Incorporated Law Society of Ireland [2013] 1 I.R. 516 at page 552.

42. In my view, there is no prejudice to the First Named Defendant from the fact that the copies of these documents were furnished to him on the morning of 24th July 2024 (i.e., the hearing in the Circuit Court) and have been in his possession since then.

43. Further, the Civil Bill for well charging relief sets out the various legal provisions upon which the Plaintiffs seek to rely. For example, paragraph 11 of the Civil Bill For Well Charging Relief issued from the Circuit Court, Trim, on 22nd January 2024, stated inter alia as follows:

“the Plaintiffs now seek Orders pursuant to Sections 31 and 117 of the Land and Conveyancing Law Reform Act 2009 as follows:-

11.1 An Order for the taking of an account of the other

incumbrances affecting the land, if any, and the making of

enquiries as to the respective priorities of any such

incumbrances, pursuant to Section 117(2)(a) of the 2009

Act;

11.2 An Order for the sale of the land and distribution of the

proceeds of sale, pursuant to Section 117(2)(b) of the 2009

Act;

11.3 Any further Orders required under Section 31 of the 2009

Act;

11.4 Such other Order for enforcement of the Judgment Mortgage

as the Court thinks appropriate;

11.5 An Order for payment to the Plaintiffs out of the proceeds of sale of the property of sufficient monies to discharge their Judgment against the Defendants, which is in the amounts of US$272,043.70 in favour of the first named Plaintiff and US$100,000.00 in favour of the second named Plaintiff together with ongoing interest.

12. The property, the subject matter of the claim for well

charging relief, is situated within the jurisdiction of the

Honourable Court and the same property is worth less than

€3,000,000.00 and accordingly this Circuit Court has

jurisdiction to hear this claim.”

44. The third limb of the First Named Defendant’s application in this Notice of Motion dated 30th October 2024 seeks an order for “discovery in relation to the assertions made in the claim before the Court.”

45. As referred to earlier, Order 5B, rule (8)(2) of the Circuit Court Rules provides that “the Judge may, where he considers it appropriate, adjourn a Civil Bill listed before him under this Order for Plenary Hearing as if the proceedings had been originated otherwise and in accordance with this Order, with such directions as to pleadings or discovery as may be appropriate.”

46. Accordingly, a right to discovery is not automatically available. In this case, the First Named Defendant has failed to refer to any further factual matters which would necessitate an adjournment of the application for well charging relief in order to process any discovery application.

47. I shall therefore make an Order in relation to what can be referred to as the First Named Defendant’s Motion of 30th October 2024 “seeking leave to file a defence and/or to seek discovery” refusing the reliefs sought in that Notice of Motion.

48. Whilst this is an application to the High Court, as it arises in the context of an appeal from the Circuit Court, I am of the view that it is appropriate to apply Order 61, r.12 of the RSC 1986. My provisional view is that as the Plaintiffs have been entirely successful in opposing the First Named Defendant’s application, the default position under section

169 of the Legal Services Regulation Act 2015 applies and they are entitled to recover such measured legal costs as against the First Named Defendant as may be agreed, or adjudicated upon in default of agreement, by the County Registrar for the County of Meath in accordance with the provisions of O. 61, r. 12 of the RSC 1986. However, in the event that any of the parties seek a different form of costs order that matter can be addressed before me at the ‘for mention’ date below.

49. I shall therefore put the matter in for mention at 9:00am on Thursday 2nd October 2025 to address final orders in this and the other applications.

The motion seeking to set aside the High Court Order & to take up the DAR

50. By a further Notice of Motion dated 30th October 2024, the First Named Defendant seeks an Order setting aside the Order of the High Court (Gearty J.) dated 10th October 2024 and also an Order granting him liberty to take up a transcript of the digital audio recording (DAR) of the ‘For Mention’ hearing listed on 10th October 2024 before the High Court.

Order of the High Court dated 14th November 2024

51. On 14th November 2024, after hearing from the parties, the High Court (Gearty J.) made a conditional order that the First Named Defendant have liberty to take up a transcript of the DAR of the hearing in Trim Circuit Court and of various High Court hearings, as follows:

“(1) On 8th April 2024 from 10:54:32 to 11:04:43 in Circuit Court proceedings bearing Record No. 2024/0023;

(2) A transcript of the DAR of the hearing in Trim Circuit Court 3 on 24th June 2024 from 11:12:32 to 11:24:33 in Circuit Court proceedings bearing Record No. 2024/0023;

(3) A transcript of the DAR of the hearing in High Court 6 on 10th October 2024 from 11:38:10 to 11:58:40 and 12:13:48 to 12:14:44, bearing Record No. 2024/215CA;

(4) A transcript of the DAR of the hearing in High Court 6 on 31st October 2024 from 11:15:35 to 11:35:02, bearing Record No. 2024/215CA;

(5) A transcript of the DAR of the hearing in High Court 6 on 14th November 2024 from 11:09:43 to 11:37:02, bearing Record No. 2024/215CA.”

52. The Order was made on the condition that the First Named Defendant directly contact EPIQ Global, the service provider, and discharge any costs incurred arising for this purpose and make copies of the transcript of the DAR available to the Plaintiffs. On that day also, the Court vacated the ‘For Mention’ date of 11th December 2024 and listed the matter For Mention on 4th March 2025 and further directed that the Defendants file legal submissions of up to 10,000 words by 4th February 2025 and the Plaintiffs file legal submissions of up to 5,000 words by 18th February 2025. The Court further directed that all outstanding Motions be adjourned to a Non-Jury List for hearing on 4th March 2025 at 11:00am and listed for three days.

53. The dates and times of the transcripts for the various hearings set out in the order of Gearty J. dated 14th November 2024 (perfected on 17th December 2024), confirm that the Court had already made an Order directing the access to the transcripts on the conditions set out and therefore the relief sought by the First Named Defendant in the second relief of the Notice of Motion, dated 30th October 2024, has already been addressed in that part of the Order of Gearty J which directed “a transcript of the digital audio recordings of the hearing in High Court 6 on 10th October 2024 from 11:38:10 to 11:58:40 and 12:13:48 to 12:14:44 and bearing Record No. 2024/215CA.” The times referred to therein between 11:38:10 and 11:58:40 is referable to the ‘for mention listing’ which was before the High Court (Gearty J) and in relation to which the First Named Defendant was present in Court.

54. The second time period, namely between 12:13:48 and 12:14:44 refers to the application made later that day, after the initial directions hearing, by counsel for the Plaintiffs (Alan Gaffney and Derek Gaffney) where leave was sought to issue and serve a Notice of Motion on both the Defendants in respect of the Plaintiff’s Motion to extend time to serve the Notice to Vary.

55. On 15th October 2024, the Plaintiffs’ solicitor (Crowley Millar Solicitors) had written to the Defendants in relation to the appearance before the High Court (Gearty J.) in Court 6 on 10th October 2024.

56. The letter that was issued to the Second Named Defendant, for example, stated as follows:

“We refer to the above entitled matter and our Appearance before Ms. Justice Gearty in Court 6 on 10th October last.

Please be advised that following Ms. Justice Gearty’s directions we reappeared before the Court in order to apply for leave to issue a Motion extending time for service of our Notice of Intention to cross appeal the terms of Judge Quinn’s Order of 24th July 2024. The Court granted us leave to file this Motion to be made returnable for 31st October in the same terms as the other Motion to be filed by Mr. Gaffney and instructed that we write to you setting out the position.”

57. Having regard to these matters, there is no basis for the reliefs in this motion sought by the First Named Defendant in relation to the Orders made by the High Court on 10th October 2024. Additionally, I have no appellate function from an Order made by a court of equal jurisdiction. Insofar as the application seeks to set aside the Order of the High Court, the application is, in any event, misconceived for the reasons already referred to. Further, the First Named Defendant is not prejudiced in any way and the Plaintiffs wrote to both Defendants in the matter, as directed by the Court, informing them that leave had been granted to file the Motion, which was made returnable to 31st October 2024 in the same terms as the other Motions.

58. I shall, therefore, make an Order dismissing the reliefs sought in the Notice of Motion dated 30th October 2024 seeking: (i) an order setting aside the Order of the High Court dated 10th October 2024; and (ii) an order granting the Defendants liberty to take up a transcript of the DAR of the for mention listing on 10th October 2024.

59. Again, while this application is also one made to the High Court, as it arises in the context of an appeal from the Circuit Court, I am of the view that it is appropriate to apply O. 61, r. 12 of the RSC 1986. My provisional view, therefore, is that as the Plaintiffs have been entirely successful in opposing the First Named Defendant’s application, the default position under section 169 of the Legal Services Regulation Act 2015 applies and they are entitled to recover such measured legal costs as against the First Named Defendant as may be agreed, or adjudicated upon in default of agreement, by the County Registrar for the County of Meath in accordance with the provisions of O. 61, r. 12 of the RSC 1986. However, in the event that any of the parties seek a different form of costs order that matter can be addressed before me at the ‘for mention’ date.

60. I shall therefore put the matter in for mention at 9:00am on Thursday 2nd October 2025 to address final orders in this and the other applications.

The First Named Defendant’s application to remove the Judgment Mortgage

61. By Notice of Motion dated 13th November 2024, the First Named Defendant sought an Order removing the Judgment Mortgage placed on the property of the First and Second Named Defendants.

62. The First Named Defendant alleged that this was done in contravention of the Family Home Protection Act 1976 and an Order of the High Court and was contrary to law.

63. In Pepper Finance Corporation (Ireland) DAC v Robert Foley [2024] IEHC 562, the High Court (Mulcahy J), by reference to the decision of the Court of Appeal in Doyle v Houston [2020] IECA 86, set out the law in relation to well charging orders and orders for sale, beginning at paragraph 24 of his judgment as follows:

“Well Charging Order and Order for Sale

(24) Pepper relies on the conclusiveness of the register, and in

particular the register recording its ownership of the judgment

mortgage, to ground its claim for well charging relief. In Doyle v Houston [2020] IECA 86, the Court of Appeal (Costello J)[4] upheld a decision of the High Court declaring judgment mortgages well charged on the defendant’s property. She explained that the Court could not look behind the judgment mortgages registered on the folios at issue in those proceedings, in light of section 31 of the Registration of Title Act 1964 which confirms that the register is conclusive evidence of the Title of the owner of the land as appearing on the register:

“(55) The judgment mortgages, the subject of these

proceedings were registered, by the PRA on the folio. Section

31 of the Registration of Title Act 1964 provides that:-

‘31(1) The register shall be conclusive evidence of

the title of the owner as appearing on the register and

of any right, privilege, appurtenance or burden as

appearing thereon; and such title shall not, in the

absence of actual fraud, be in any way affected in

As she then was.

consequence of such owner having notice of any

deed, document, or matter relating to the land; but

nothing in this Act shall interfere with the jurisdiction

of any court of competent jurisdiction based on the

ground of actual fraud or mistake, and the court may

upon such ground make an order directing the

register to be rectified in such manner and on such

terms as it thinks just…”.

(56) It follows that unless and until the entries of the

judgment mortgages are cancelled this court cannot look

behind the folio. Ms. Houston said that she applied to the

PRA to vacate the entries but was informed that she must

obtain an order of court. That was in 2017. To date, she has

not obtained such an order. It follows that neither the High

Court, nor this court could, or may, engage with her

argument regarding the validity of the costs Orders, or the

validity of the judgment mortgages, and the appropriateness

of the registration of same on the folio. To do so would be to

seek to go behind the register, which is not possible in the

circumstance of this case.”

64. It follows, therefore, that if the Defendants in this case wish to remove the judgment mortgage, that would have to have been done by way of a separate set of proceedings involving Tailte Éireann as the Property Registration Authority in the State: see also Start Mortgages v Ramseyer [2024] IEHC 329 per the High Court (Simons J.) at paragraph 13).

65. Further, as addressed later in this judgment, by operation of law, the registration of title and burdens on this folio (Folio 3976 County Meath) are conclusive evidence of the judgment mortgages registered therein.

66. In the circumstances, therefore, I shall refuse the First Named Defendant’s application seeking an order removing the Judgment Mortgage placed on the property of the First and Second Named Defendants.

67. Again, while this application is also one made to the High Court, as it arises in the context of an appeal from the Circuit Court, I am of the view that it is appropriate to apply O. 61, r. 12 of the RSC 1986. My provisional view, therefore, is that as the Plaintiffs have been entirely successful in opposing the First Named Defendant’s application, the default position under section 169 of the Legal Services Regulation Act 2015 applies and they are entitled to recover such measured legal costs as against the First Named Defendant as may be agreed, or adjudicated upon in default of agreement, by the County Registrar for the County of Meath in accordance with the provisions of O. 61, r. 12 of the RSC 1986. However, in the event that any of the parties seek a different form of costs order that matter can be addressed before me at the for mention date.

68. As with the other matters referred to in this judgment, I shall therefore put the matter in for mention at 9:00am on Thursday 2nd October 2025 to address final orders.

69. At the hearing of the First Named Defendant’s application before me on Monday 28th July 2025 to defer the delivery of this judgment (and on the date of my ruling on that application on 31st July 2025), the First Named Defendant stated that he had issued separate proceedings recently (after the matters had been heard in April) seeking to challenge and remove the judgment mortgage. Again, apart from being informed of this latest development, this was clearly a matter which post-dates the matters which were heard before me in April 2025.

The First Named Defendant’s Notice of Motion dated 28th January 2025

70. By Notice of Motion dated 28th January 2025 (in proceedings with Record No. 2024/0000215), the first named Defendant/Appellant issued a Notice of Motion which inter alia stated as follows:

“I Philip Gaffney a Litigant in person will apply to … this Honourable Court for an extension of time to lodge submissions. I will also ask the Court to consider the effects of the Motion by the other side in relation to a cross appeal. This Motion is listed to be heard on 4th March 2025, however, there have been no dates given for submissions in relation to this motion or time given for a response to their submission. This may lead to the date having to be vacated to a later date. An order to direct the other side to provide all and any reference material they intend to use two weeks in advance of the hearing date. An Order directing the other side to be honest with the court and verify statements before they are made in light of the statement made by Counsel stating hardship on behalf of clients when they are operating at a level similar to [third named persons mentioned] developing $60 million developments in America with just one of the companies while holding shares and directorship in many other companies, one of which is valued at $12bn and making questionable political donations. Derek Gaffney also stated under oath that he owned over 150 properties in America. Also stating this is a family dispute, it is between two companies. An Order for Costs and any other Orders the Court may deem appropriate.”

71. On 30th January 2025, the First Named Defendant succeeded in vacating the first hearing date of the substantive appeal and was afforded further time to put in written legal submissions by or before 11th March 2025. The First Named Defendant did not comply with that direction and delivered outline written legal submissions at 5:00pm on Wednesday 2nd April 2025, explaining that he had not received, at that time, the digital audio recording (DAR) transcripts.

72. Insofar as there was an application for an extension of time to lodge the First Named Defendant’s outline written legal submissions, an extension of time had been granted three times previously and Mr. Philip Gaffney’s written submissions dated 2nd April 2025 were submitted as part of the application before me.

The First Named Defendant’s Written Submissions

73. These submissions consist of 31 pages of written submissions divided into the following: pages 2-3 set out an introduction; pages 3-15 set out the chronology of events; pages 16-

21 refers essentially to the First Named Defendant’s application that the Supreme Court revisit matters; pages 22-23 raised points of law; pages 24-32 is the First Named Defendant’s response to the Plaintiffs.

74. At the hearing of this appeal, the First Named Defendant also sought to introduce a significant quantum of documentation by way of submission, notwithstanding the fact that there was no application by the Defendants during the currency of the appeal – i.e., from the decision of the Circuit Court to the hearing of the matter before me – to adduce new evidence.

75. Leaving aside the First Named Defendant’s attempt to refer to irrelevant matters (and, as stated, bearing in mind that there was no application to adduce new evidence) and the fact that some of his written submissions which, if repeated in pleadings, would amount to prolix and scandalous pleas, his main contention was that section 2 of the Statute of Frauds 1695 and section 51 of the 2009 Act, were a bar to the Plaintiffs’ well-charging application.

76. Section 51(1) of the 2009 Act provides that subject to section 51(2), no action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person’s authorised agent. Section 51(2) of the 2009 Act provides that section 51(1) does not affect the law relating to part performance or other equitable doctrines. Section 51(3) provides that for the avoidance of doubt, but subject to an express provision in the contract to the contrary, payment of a deposit in money or money’s worth is not necessary for an enforceable contract.

77. Contrary to the First Named Defendant’s submission, the express wording of section 51 of the 2009 Act relates to contracts for the sale of land or other disposition of the land which is not what is being sought in the Plaintiffs’ application before me. In summary, the Plaintiffs’ application in these proceedings is for an order declaring that the judgment mortgage which was registered stands well-charged and as a consequence – by operation of law qua sections 31, 116 and 117 of the 2009 Act – the plaintiffs, as judgment mortgagees of a validly registered judgment mortgage, are entitled to apply to Court for the orders as pleaded in the Endorsement of Claim of the Civil Bill and which are statutorily provided for.

78. In addition to the fact that the First Named Defendant has misconstrued the application of section 51 of the 2009 Act (evidence in writing), section 51(1) of which repeals and re-enacts section 2 of the Statute of Frauds 1695 only insofar as it relates to contracts for the sale of land, the invocation by the First Named Defendant in his Affidavit of 5th April 2024 of the Statute of Frauds 1695 and section 51 of the 2009 Act, and in his written submissions, is an attempt, as stated by him, to challenge the registration of the judgment mortgage. To seek to do so also constitutes an impermissible collateral challenge in these proceedings to the registration of the judgment mortgage. Further, as just stated, the provisions of inter alia sections 31, 116 and 117 of the 2009 Act confirm an entitlement on the Plaintiffs in these proceedings to apply to court for an order declaring the registered judgment mortgage to be well-charged and the other reliefs sought (including inquiries into other incumbrances and their priority status and in default of the discharge of the debt, the sale of the lands in question) consequent upon the registration of the judgment mortgage in accordance with law.

The Notice of Motion

79. Returning to the Notice of Motion dated 28th January 2025, the first relief sought in relation to written submissions, therefore, does not arise.

80. Similarly, insofar as the First Named Defendant seeks an order requiring the Plaintiffs to provide all reference material that they wish to rely on two weeks prior to the date of the trial date, the Defendants did not comply with the original direction made on 30th January 2025 but chose to deliver submissions on 2nd April 2025, prior to the hearing before me, and consequently the Plaintiffs were not in a position to know the case they were going to have to meet until that time. The First Named Defendant’s submissions were delivered at approximately 5:00pm on Wednesday 2nd April 2025.

81. Further, this is the Defendants’ appeal. It is a de novo re-hearing where apart from some legal authorities, the documentation was already in the possession of the First Named Defendant. The documents which Mr. Philip Gaffney had in the hearing before the Circuit Court included extracts from the Circuit Court Rules, the relevant provisions of the Land and Conveyancing Law Reform Act 2009 and authorities that the Plaintiffs were intending to rely upon. In addition to having this material in his possession from the previous hearing before the Circuit Court, the First Named Defendant had these and some additional materials from the Friday prior to the hearing before me. This appeal hearing took place over three days from 8th April 2025 to 10th April 2025. There is, therefore, no prejudice to the First Named Defendant in the consideration of this material before the Court.

82. In addition, there is no basis to the First Named Defendant’s application which effectively sought an a priori or ex ante type order “directing the other side to be honest with the Court and to verify statements” when inter alia matters have been deposed to on Affidavit in the applications and the immediate background and context to this application have been the subject of decisions, determinations and rulings of the Superior Courts (as outlined at the beginning of this judgment). Additionally, accepting that the First Named Defendant is a litigant in person, he has nonetheless not sought to invoke any of the procedures which are available under the Rules of Court to test further the veracity of any of the Statements made on Affidavit by the Plaintiffs.

83. In the circumstances, therefore, I shall refuse the reliefs sought by the First Named Defendant in the Notice of Motion dated 28th January 2025.

84. As with the other applications and motions referred to in this judgment that have been brought in the High Court, as this application arises in the context of an appeal from the Circuit Court, I am of the view that it is appropriate to apply O. 61, r.12 of the RSC 1986. My provisional view, therefore, is that as the Plaintiffs have been entirely successful in opposing the First Named Defendant’s application, the default position under section 169 of the Legal Services Regulation Act 2015 applies and they are entitled to recover such measured legal costs as against the First Named Defendant as may be agreed, or adjudicated upon in default of agreement, by the County Registrar for the County of Meath in accordance with the provisions of O. 61, r. 12 of the RSC 1986. However, in the event that any of the parties seek a different form of costs order that matter can be addressed before me at the for mention date.

85. As with the other matters referred to in this judgment, I shall therefore put the matter in for mention at 9:00am on Thursday 2nd October 2025 to address final orders.

THE PLAINTIFFS’ MOTION TO EXTEND TIME/INTENTION TO VARY

86. As referred to earlier in this judgment, the Order of His Honour Judge Patrick Quinn dated 24th July 2024 stated as follows:

“THE COURT DOTH ORDER

(1) Extend time for the Defendants to appeal the Order of the

County Registrar dated the 8th April 2024.

(2) Strike out the Defendants’ Appeal of the Order of the County Registrar dated the 8th April 2024.

(3) Grant the reliefs sought at paragraph 1 of the Civil Bill for Well-Charging Relief being an Order declaring that the Plaintiffs’ Judgment Mortgage registered as a burden on Folio 3976 County Meath (“the Property”) in respect of the Judgment obtained by the Plaintiffs against the Defendants by Order of the Court of Appeal made on 25th May 2023 (as amended pursuant to the slip rule on 26th July 2023) entering Judgment in favour of the first named Plaintiff against the Defendants in the sum of $272,043.70 and in favour of the second named Plaintiff against the Defendants in the amount of $100,000.00, together with interest at the rate prescribed by the Courts Act 1981 stands wellcharged against the Defendants’ interest in the said property.

(4) The Court being mindful that different considerations apply

when a Family Home is at issue, therefore the Court will not, at

this stage, grant the reliefs sought at paragraphs 2 and 3,

although the Court does give the Plaintiffs time to seek reliefs

and liberty to bring Motions seeking the reliefs as sought at

paragraphs 2 and 3.

(5) Direct that this Order be stayed for a period of 10 days from this date. In the event of an Appeal to the High Court, such stay to continue pending the determination of said Appeal should same be so lodged.

(6) Reserve costs.

(7) The first named Defendant be at liberty to take up the

transcript of the digital audio recording (DAR) for today’s

hearing only on condition that the first named Defendant contact

EPIQ directly at dublinoffice@epiqglobal.ie and pay any costs

incurred arising therefrom and further direct the first named

Defendant to provide copies of the DAR transcript to the

Plaintiffs’ solicitors.”

87. This appeal is the Defendants’ appeal of the aforesaid Order of His Honour Judge Patrick Quinn made on 24th July 2024.

88. By operation of law (section 37 of the Courts of Justice Act 1936) the appeal is a de novo re-hearing of the action: see the decision of Clarke J. (as he then was) in Fitzgibbon v The Incorporated Law Society of Ireland [2013] 1 IR 516 at page 552. Accordingly, the Order of His Honour Judge Patrick Quinn dated 24th July 2024 is referred to in the context of assessing the points made by the Plaintiffs and the First Named Defendant in the context of the ancillary interlocutory applications made by both parties.

89. At the hearing of this particular motion before me, for example, counsel for the Plaintiffs submitted that a judgment call had been made on behalf of the Plaintiffs not to initiate their own appeal against the Order of the Circuit Court dated 24th July 2024, stating that it was clear from the face of the Order that the Circuit Court had given effect to the Plaintiffs’ entitlement to seek the further reliefs sought, albeit at a later date – i.e., first, an order for the taking of account of other incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances; and, second, in default of the Defendants discharging the judgment debt of US$272,043.70 in favour of the First Named Plaintiff and US$100,000.00 in favour of the Second Named Plaintiff, together with ongoing interest on the judgment debt within three months of the date hereof, the seeking of an order for the sale of the property and the application of the proceeds of sale in discharge of the Defendants’ debt to the Plaintiffs and in satisfaction of the Plaintiffs’ judgment mortgage registered against the said property – and pending (at that point in time) a possible appeal that may or may not be brought against the

decision that found that the judgment mortgage was well-charged against the Defendants’ interest in the said property. It appears from the Order of His Honour Judge Quinn that the Circuit Court Judge was satisfied to declare the judgment mortgage was well-charged but was not prepared at that juncture to take the extra steps of taking account of, or making inquiries, in relation to other incumbrances or to make a conditional order directing the sale of the property.

90. Accordingly, by Notice of Motion dated 29th October 2024 the Plaintiffs issued a Motion seeking inter alia an order pursuant to O. 122, r. 7 of the RSC 1986 extending the time, for the purposes of O. 61, r. 5 of the RSC, within which the Plaintiffs may serve their letter notifying the Defendants of their intention to apply to vary certain parts of the Order of His Honour Judge Patrick Quinn, dated 24th July 2024.

91. The application was grounded upon the Affidavit of Alan Gaffney (the first named Plaintiff) sworn on 26th October 2024.

92. The application sought an extension of time within which the written notice of the Plaintiffs’ intention to apply to vary certain parts of the Order of his Honour Judge Patrick Quinn, dated 24th July 2024, could be served.

93. The Affidavit of Alan Gaffney acknowledges that the substantive appeal had been brought by the Defendants arising from the Order of His Honour Judge Quinn, dated 24th July 2024. The Defendants had lodged the Notice of Appeal in the Central Office of the High Court on 1st August 2024.

94. Subsequent to the lodging of the Notice of Appeal by the Defendants, it was served by the Defendants on Crowley Millar LLP, the solicitors for the Plaintiffs, and received by them on 9th August 2024.

95. The Affidavit of Alan Gaffney sworn on 26th October 2024 states that “having received the Notice of Appeal advices were sought from Counsel and owing to the long vacation and the taking of holidays, on his return from holidays Counsel advised the Plaintiffs that they would need to write to the Defendants setting out their intention to apply to the High Court to have certain aspects of the Circuit Court Order varied as part of the within Appeal.”

96. By letter dated 19th August 2024, Crowley Millar Solicitors LLP wrote to the first named Defendant (and to the second named Defendant) and stated as follows:

“Dear Mr. Gaffney,

We note that you have issued a Notice of Appeal in respect of the Orders made by his Honour Judge Pat Quinn at Trim Circuit Court on the 24th July 2024. Please be advised that as part of this Appeal, it is our clients’ intention to apply to the High Court to vary the terms of Judge Quinn’s Order of the 24th July 2024. Specifically, our clients intend to apply to vary points 4 and 6 of the Order namely:-

1. Judge Quinn’s refusal to grant the reliefs sought at paragraphs 2 and 3 of the prayer for relief in Civil Bill;

2. Judge Quinn’s decision to reserve the cost of the application. We trust that you will note the position.

Yours faithfully, etc.”

97. Order 61, r. 5 of the RSC 1986 states, inter alia, as follows:

“It shall not in any circumstances be necessary for a party served with notice of appeal to lodge or serve a notice by way of cross appeal, but, if such party intends upon the hearing of the appeal to apply that the judgment or order appealed from shall be varied, he shall, within four days from such service upon him, give notice of such intention to any party who may be directly affected by such application.”

98. Whilst the Plaintiffs had written to the Defendants to notify them of their intention to apply to vary certain discrete aspects of the Order of His Honour Judge Patrick Quinn dated 24th July 2024, the letter was not in fact served within the four day period prescribed under O. 61, r. 5 of the RSC 1986.

99. It was in those circumstances, therefore, that an order was sought by the Plaintiffs pursuant to O. 122, r. 7 of the RSC 1986 extending the time for the purpose of O. 61, r.

5 of the said RSC 1986, within which the Plaintiffs could serve their letter notifying the Defendants of their intention to apply to vary certain parts of the Order of His Honour Judge Patrick Quinn, dated 24th July 2024.

100. Separately, O. 61, r. 2(4) of the RSC 1986 provides that: “Subject to any provision to the contrary in any enactment or European Union Instrument, which applies to the particular category of Appeal, and to the provisions of this Order, the Notice of Appeal shall be lodged for issue not later than 28 days from the date on which the judgment or order appealed from was pronounced in open Court.”

101. Order 61, r. 2 of the RSC 1986 was substituted by Article 3 of the Rules of the Superior Courts (Order 61) 2024 (S.I. No. 161 of 2024) with effect from 26th April 2024. This extends the time for the issuance of Appeals, generally from ten days to twenty-eight days in appeals from the Circuit Court to the High Court. In this case, the initial Circuit Court hearing was on 24th July 2024 after the date in which the change to the Statutory Instrument came into force on 26th April 2024.

102. Furthermore, O. 61, r. 15 of the RSC 1986 provides that “[t]he mode of effecting service of any Notice of Appeal, or other Notice or document, on a party who shall not have appeared by a solicitor as aforesaid, shall be by serving it personally on such party, or by leaving it at the residence of such party, with a clerk, servant, wife or child, or other person therein over the age of 16 years, or by posting it in a registered letter addressed to such party at his last known residence.”5

103. In the context of the Plaintiffs’ application to extend time for the notice to vary, the Affidavits of Colm Shalvey, trainee solicitor, on behalf of the Plaintiffs comply with Order 61 of the RSC 1986. In Mr. Shalvey’s Affidavit dated 11th November 2024, he states that he served a Notice of Motion and the Grounding Affidavit of Alan Gaffney under letter dated 31st October 2024 on the First Named Defendant Philip Gaffney at The

O. 61, r. 16 of the RSC 1986 provides that: “In case the mode of service aforesaid shall not be reasonably possible, the Court shall have power to deem any other service sufficient.” O. 61, r. 17 of the RSC 1986 provides: “When it shall be necessary to prove such service, it may be proved by Affidavit of the person effecting such service or otherwise as the Court shall direct.”

Forge, Naul, Co. Dublin, by registered post at the General Post Office, O’Connell Street, Dublin, on 31st October 2024 advising Philip Gaffney of the adjournment date of the Motion. He further exhibits the letter dated 31st October 2024, the Notice of Motion, Grounding Affidavit of Alan Gaffney, registered post slip and proof of delivery. He confirms that the envelope had not been returned undelivered to the sender. The proof of delivery has a signature, which is the same signature that Mr. Philip Gaffney confirmed was his in an earlier document. This confirms the delivery date as 6th November 2024 at 09:24.

104. Mr. Shalvey swore a second Affidavit on 11th November 2024 in similar terms confirming service of these documents on the Second Named Defendant, Ms. Teresa Gaffney. The proof of delivery document exhibited does not bear the signature of the Second Named Defendant but bears the signature of the First named Defendant, Mr. Philip Gaffney, with the delivery date of 6th November 2024 at 09:24.

105. The initial letter dated 19th August 2024 (quoted above) clearly referred to the Plaintiffs’ intention to apply to vary points 4 and 6 of His Honour Judge Quinn’s Order. It is unfortunate that the subsequent letter dated 15th October 2024, sent by the Plaintiffs’ solicitors to the Defendants referred to their application on 10th October 2024 before Gearty J, seeking leave to issue a Motion extending time for the service of what was described as “a Notice of Intention to Cross Appeal the term of Judge Quinn’s Order of the 24th July 2024.”

106. I accept that this latter reference to “cross appeal” is in error when in fact the letter dated 19th August 2024 clearly referred to the Plaintiffs’ intention to apply to the High Court to vary the terms of Judge Quinn’s Order of 24th July 2024 in two specific respects in relation to points 4 and 6 of the order, namely Judge Quinn’s refusal to grant the reliefs sought at paragraphs 2 and 3 of the prayer for relief in the Civil Bill and Judge Quinn’s

decision to reserve the costs of the application.

107. The reference to “cross-appeal” appears to have been introduced on behalf of the Plaintiffs, not the Defendant. This adds somewhat to the confused situation and it is therefore understandable why the First Named Defendant referred to the term “crossappeal” as it had been a term introduced on behalf of the Plaintiffs. In the application before the High Court (Gearty J.) on 10th October 2024, the appeal on behalf of the First and Second Named Defendants is described by Counsel on behalf of the Plaintiffs as a cross-appeal, where the Defendants were appealing all of the reliefs granted to the Plaintiffs. It was also submitted that the Plaintiffs wrote to Mr. Philip Gaffney “setting out our cross-appeal in respect of the decision of the Circuit Court and we have indicated that we are seeking to appeal the Order refusing an Order for the sale of the property”, and also to the order reserving costs.

108. That said, I do not believe that the Defendants are prejudiced in any way by the extension of time being granted in circumstances where the solicitors for the Plaintiffs had written to the Defendants in clear terms on 19th August 2024, confirming their intention to apply to vary the Order (albeit that the letter of 15th October 2024 confused matters somewhat and I have also had regard to the fact that the First Named Defendant is a litigant-inperson).

109. I accept that the vacation period intervened and that the delay was a modest delay; and that once the Plaintiffs had been advised of the necessity to write to the Defendants, in accordance with the provisions of O. 61, r. 5, the correspondence was sent in the letters dated 19th August 2024 to both Defendants.

110. The refusal to grant the reliefs sought at paragraphs 2 and 3 of the prayer for relief relate to the Plaintiffs seeking an Order for taking an account of all incumbrances and an Order for the conditional sale of the property with the final matter relating to the decision of the Circuit Court to reserve the costs of the application.

111. In circumstances where the Plaintiffs’ solicitors, Crowley Millar LLP, received the Notice of Appeal from the Defendants on 9th August 2024, and owing to the long vacation, received advice from Counsel on 19th August 2024 and on that date wrote to the Defendants notifying them of the Plaintiffs’ intention to apply to vary two discrete aspects of the Order previously made by His Honour Judge Patrick Quinn on 24th July 2024, the First Named Defendant is not be prejudiced in any way by the making of an Order pursuant to O. 122, r. 7 (1) RSC 1986 deeming the time for the making of the Notice of Intention to seek to vary the Order of His Honour Judge Patrick Quinn on 24th July 2024 as being extended.

112. Arising from O. 61, r. 5 of the RSC 1986, there is no requirement on a putative respondent to an appeal to lodge or serve a notice by way of cross appeal but rather, where such a respondent wishes to apply to vary the terms of the order of the Circuit Court, the respondent is required to notify the Appellant of his or her intention to do so. The time for doing so is a period of four days from the date on which the appeal has been served.

In this case, the time differential is between 9th August 2024 and 19th August 2024. Order 122, r. 7(1) of the RSC 1986 allows for the enlargement or abridgement of the time periods prescribed by the Rules of Court and for doing any act or taking any proceeding upon such terms (if any) as a Court may direct; and any such enlargement may be ordered although the application for same is not made until after the expiration of the time appointed or allowed.

113. These are the circumstances which apply in this case with the Notice of Appeal being furnished on 9th August 2024 and the letter of intention seeking to vary being sent on 19th August 2024. In Kavanagh v Healy [2015] IESC 37 (albeit a judgment dealing with a judicial review) Clarke J. (as he then was) stated, in the context of O. 122, r. 7, that: “It is absolutely clear from the wording of Rule 7 that an extension of time can be given even after the original time limit has expired.”

114. To recap, in this case the Notice of Appeal was lodged by the Defendants on 1st August 2024 seeking to appeal the Order of His Honour Judge Patrick Quinn, previously made on 24th July 2024. The appeal before me is a de novo re-hearing of the matters pursuant to section 37 of the Courts of Justice Act 1936. Order 61, r. 5 of the RSC 1986 does not require a respondent to lodge or serve a notice by way of cross appeal which is not surprising given that section 37 of the 1936 Act provides that the appeal is a de novo rehearing of the proceedings. In this case the notice to vary was communicated to the Defendants ten days after the Notice of Appeal had been served on the Plaintiffs, rather than four days. The Notice of Appeal dated 1st August 2024 was served on the Plaintiffs’ solicitor, Crowley Millar LLP, on 9th August 2024. Consequent upon receipt of the Notice of Appeal, advices were sought from Counsel and due to the intervening long vacation/holiday period, those advices were received on 19th August 2024 when on the same date,, written notification of the Respondents’ intention to apply to vary certain parts of the Order of the Circuit Court was communicated to the Defendants on that date. Accordingly, there is, in my view, no prejudice to the First Named Defendant in my deeming the time for the notice to vary to have been extended and I shall make an order to that effect.

115. It was submitted on behalf of the Plaintiffs that the true purpose of requiring a notification to the Defendants (in this case) of the Plaintiffs’ intention to apply to vary the Order of the Circuit Court was to ensure that such a party was aware of the position that the Respondent to an Appeal was adopting. In fact, the First Named Defendant was made aware of this on 19th August 2024.

116. That rationale aside, as this appeal is a de novo re-hearing, it is at least open to question whether there is any real effect to my deeming the time for the Plaintiff’s notice to vary to have been extended. I will, however, leave to a future case where the matter is fully argued as to what the significance is of a Notice to Vary in the context of an appeal pursuant to Section 37 of the Courts of Justice Act 1936, which involves a de novo rehearing of the entire matter. There is no prejudice to the First Named Defendant by this application and as stated the appeal before me proceeded on the basis of the entire matter being the subject of a de novo re-hearing.

117. In the decision of the Supreme Court in Fitzgibbon v The Incorporated Law Society of Ireland [2013] 1 IR 516 at page 551, Clarke J. (as he then was) distinguished between the various categories of Appeals including: (a) a de novo appeal; (b) an appeal on the record; (c) an appeal against error; and (d) an appeal on a point of law. In relation to a de novo appeal, Clarke J. observed that whilst the decision taken by the first instance body against whose decision an appeal is brought is largely irrelevant, that is not necessarily always the case, as the first instance process (including the pleadings and affidavits) may have narrowed the issues. The appeal body is, however, required to come to its own conclusions, and exercise its own judgment, on the evidence and materials properly available to it and evidence given in the first instance proceedings will not, necessarily, be entirely irrelevant to the process of appeal.

118. In a Circuit Court appeal, therefore, if a party to that appeal wishes to introduce new evidence, an application to admit new is required pursuant to O. 61, r. 8 of the RSC 1986. No such application was made in this appeal. In this case, the pleadings set the parameters of the hearing. It is that matter – the substantive appeal – which I now address.

119. This application was brought on what was described by counsel for the Plaintiffs as a ‘belt and braces’ approach. As with the other applications and motions, I am of the view that it is appropriate to apply O. 61, r.12 of the RSC 1986. Whilst I have acceded to the application and shall make an order deeming the time for the notice to vary to have been extended, having regard to fact that the First Named Defendant’s appeal has resulted in a de novo re-hearing of the matter and bearing in mind the differences between the initial letter of 19th August 2024 (which explained the application to vary) and that sent on 15th October 2024 (which mistakenly referred to a notice of intention to cross-appeal), I shall, in the exercise of my discretion, award the Plaintiffs 50% of the measured legal costs of their application against the First Named Defendant, as may be agreed, or adjudicated upon in default of agreement, by the County Registrar for the County of Meath in accordance with the provisions of O. 61, r. 12 of the RSC 1986. However, in the event that any of the parties seek a different form of costs order that matter can be addressed before me at the for mention date.

120. Again, as with the other applications referred to in this judgment, I shall put this matter in for mention at 9:00am on Thursday 2nd October 2025 to address final orders.

CIVIL BILL FOR WELL-CHARGING RELIEF DATED 22ND JANUARY 2024

The Civil Bill

121. As referred to earlier in this judgment, the Plaintiffs’ Civil Bill For Well Charging Relief (“the Civil Bill”) issued on 22nd January 2024 in which they seek to enforce the security which they hold over the Defendants’ interests in the property, i.e., that comprised in Folio 3976 County Meath, described as the property shown in red as Plan 3976 on the Registry map situate in the townland of Naul in the Barony of Duleek Upper in the Electoral Division of Stamullin, County Meath. The Defendants are the registered owners of the property.

122. At paragraphs 11 to 11.5 of the Civil Bill, the Plaintiffs seek orders pursuant to sections

31 and 117 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”), including inter alia the following reliefs:

(a) An order for the taking of an account of the other incumbrances affecting the land, if any, and the making of enquiries as to the respective priorities of any such incumbrances, pursuant to section 117(2)(a) of the 2009 Act;

(b) An order for the sale of the land and distribution of the proceeds of sale pursuant to section 117(2)(b) of the said 2009 Act;

(c) Any further orders required pursuant to section 31 of the 2009 Act;

(d) Such other order for enforcement of the judgment mortgage as the Court thinks appropriate;

(e) An order for the payment to the plaintiffs out of the proceeds of the sale of the property of sufficient monies to discharge their judgment against the Defendants which is in the amounts of US$272,043.70 in favour of the First Named Plaintiff and US$100,000,00 in favour of the Second Named Plaintiff, together with ongoing interest.

123. The Civil Bill was issued from the Circuit Court, Trim, County Meath on 22nd January 2024 to the defendants Philip Gaffney and Teresa Gaffney of the Forge, Naul, County Meath. The Civil Bill stated as follows:

“The Plaintiffs’ claim against you is set out in the section of the Civil Bill headed the ‘Special Indorsement of Claim’. If you wish to attend and to be heard, you should, within ten days after the service of this Civil Bill upon you:-

(1) Detach and complete the two forms (headed ‘Entry of

Appearance’) attached to this Summons,

(2) Give or send by post one of those forms to the Circuit Office, Trim Courthouse, Market Street, Trim, County Meath, and

(3) Give or send by post the other form to the Plaintiffs or to the solicitor for the Plaintiffs at the address set out in the Entry of Appearance.”

124. The Civil Bill also stated:

“If you intend to defend the proceedings on any grounds, as well as entering an Appearance as indicated above you must, not deliver them four days before the day mentioned above for the hearing of this Civil Bill:-

(1) Set out in a sworn statement (a ‘Replying Affidavit’), the nature and grounds of your defence to the claim,

(2) File the Replying Affidavit in the Circuit Court Office above mentioned, and

(3) Give or send by post a copy of the Replying Affidavit to the

Plaintiffs’ solicitor.

PLEASE NOTE that unless you file an Appearance with the County

Registrar and file the Replying Affidavit as set out above, you will be held to have admitted the said claim and the Plaintiffs may proceed with the claim against you and judgment may be given against you in your absence without further notice.”

125. Paragraph (3) of the Special Indorsement of Claim in the Civil Bill describes the issues between the parties as follows:

“By proceedings issued in the High Court between the Plaintiffs herein as plaintiffs and the Defendants herein as defendants, bearing Record No. 2016/1020S, the Plaintiffs sought judgment against the Defendants in respect of loan monies lawfully due and owing by the Defendants to the Plaintiffs and in those proceedings judgment was obtained against the Defendants by order of the Court of Appeal made on the 25th May 2023 (as amended pursuant to the slip rule on the 26th July 2023) entering judgment in favour of the First Named Plaintiff against the Defendants in the sum of USD$272,043.70 and in respect of the Second Named Plaintiff against the Defendants in the amount of USD$100,000 together with the costs of the proceedings in the High Court and the Court of Appeal (“the Judgment).”

126. Paragraph (4) of the Special Indorsement of Claim pleads that interest continues to accrue on the said sums at the rate prescribed by the Courts Act 1981.

127. At paragraph (8) of the Special Indorsement of Claim, it is pleaded that the Defendants have not paid any monies towards the judgment debt in the period since judgment was entered against them and the entire sum remains due and owing from the Defendants to the Plaintiffs, together with ongoing interest. It is further pleaded at paragraph (9) that the debt continues to increase as Courts Act interest increases to accrue and it is pleaded that there appears to be no prospect of the debt being discharged otherwise than by the sale of the property.

128. At paragraph (10) of the Special Indorsement of Claim, it is pleaded that despite demand in writing, the Defendants have failed, refused and neglected to discharge the judgment debt and the entire sum remains due and owing.

129. By Land Registry Form 60 sworn by John Carroll, solicitor for the Plaintiffs and on their behalf, on 11th August 2023, an application was made for registration of the judgments of the High Court and the Court of Appeal as a judgment mortgage (Rule 110) in favour of the Plaintiffs against the Defendants’ interests in the property in Folio 3976.

130. The application for registration referenced in the application included The High Court Record No. 2016/1020S & Court of Appeal Ref 2022/160 Between Alan Gaffney and Derek Gaffney (the Plaintiffs/Appellants) v. Philip Gaffney and Teresa Gaffney (the Defendants/Respondents) and the High Court Order made on 18th May 2022 and the Court of Appeal Order made on 25th May 2023.

131. Mr. Carroll’s Affidavit inter alia recorded that the Plaintiffs, on 18th May 2022, obtained an order from the High Court (Barr J.) that the First Named Plaintiff recover against the First Named Defendant the sum of US$272,043.70 and the Second Named Plaintiff recover against the First Named Defendant the sum of US$100,000.00.

132. The Affidavit records that this order was appealed by the Plaintiffs in Appeal Reference 160/2022 in relation to inter alia the dismissal of the claim against the Second Named Defendant by a Notice of Appeal filed on 22nd June 2022. The Affidavit states that the appeal came before the Court of Appeal for hearing on the 25th May 2023, on which date the Court of Appeal allowed the Plaintiffs’ appeal from the dismissal of their claim against the Second Named Defendant and in lieu thereof ordered that judgment be also entered against the Second Named Defendant for the same sums that judgment had been entered against the First Named Defendant.

133. Mr. Carroll then makes the following averment at paragraph 3 of his Affidavit: “Accordingly, by virtue of the foregoing the High Court Order made on 18th May 2022 and Court of Appeal Order made on the 25th May 2023 and perfected on the 6th July 2023, the First Named Plaintiff has the benefit of a judgment against the Defendants and each of them for the sum of USD$272,043.70 and the Second Named Plaintiff has the benefit of a judgment against the Defendants and each of them for the sum of USD$100,000. I therefore say that my clients, the Plaintiffs in the High Court action and Appellants in the appeal are “creditors” of the Defendants within the meaning of section

115 of the Land and Conveyancing Law Reform Act 2009.”

134. In McGuinness v The PRA of Ireland & Ors [2021] IECA 25, the Court of Appeal (Costello J. (as she then was), Donnelly and Murray JJ) in the judgment of Murray J. (at paragraphs 10, 20, 21 and 22) confirmed, by reference inter alia to sections 115 and 116 of the Land and Conveyancing Law Reform Act 2009, that an authorised agent may apply for registration of the judgment mortgage which in this case was Mr. Carroll Solicitor who swore the Land Registry Form 60.

Folio 3976

135. Part 3 of the Land Registry folio for Folio 3976 (“the property”) sets out the burdens and notices of burdens as follows:

No. Particulars

3 26-JUL-1999

D1999XS006231J – Charge for present and future advances stamped over £100,000 repayable with interest. Irish Life Home Loans Limited in the owner of this charge.

Certificate of charge issued. Rule 157

Note:- The ownership of this charge has been transferred. See Entry No. 6

4 01-AUG-2008

D2008NL043764M – An office copy of an affidavit by Michael Lacey of a Judgment obtained by Premier Credit Union Limited against Philip Gaffney on the 13.09.2007 in the Circuit Court in a matter or cause of Premier Credit Union Limited (Plaintiff) v. Philip Gaffney (Defendant) has been deposited in the Registry as a mortgage against the interest of Philip Gaffney, The Forge, Naul, Co. Dublin in the property herein. The amount owing on the said Judgment is stated to be €21,187.73. Note:- As between this burden and any lien on the property created by deposit of the Land Certificate prior to the date of registration this burden ranks in priority after such lien.

5 10-MAY-2018

D2018LR057787R – Proceedings affecting the interest of Philip Gaffney and Teresa Gaffney in the property are pending in the High Court, Record Number 2018/3592P in a cause or matter of Alan Gaffney and Derek Gaffney (Plaintiffs) and Philip Gaffney and Teresa Gaffney (Defendants).

6 03-MAY-2022

D2022LR060314W – PEPPER FINANCE CORPORATION (IRELAND) DESIGNATED ACTIVITY COMPANY is the owner of the charge registered at Entry No. 3

7 28-AUG-2023

D2023LR129975X – A judgment mortgage in respect of a Judgment obtained by Alan Gaffney and Derek Gaffney against Philip Gaffney, Teresa Gaffney on 6th July 2023 in the High Court Record Number 2016/1020S AND Court of Appeal Record 2022/160 in a cause/matter/action of Alan Gaffney, Derek Gaffney v. Philip Gaffney, Teresa Gaffney against the interest of Philip Gaffney, Teresa Gaffney in the property.

136. Item number 7 records the burden as being that on 28th August 2023, a Judgment Mortgage in respect of a Judgment obtained by Alan Gaffney and Derek Gaffney against the First and Second Named Defendants on 6th July 2023 in the High Court (Record No. 2016/1020S) and in the Court of Appeal (Record No. 2022/160) in a cause/matter/action of Alan Gaffney and Derek Gaffney v Philip Gaffney and Teresa Gaffney against the interest of Philip Gaffney and Teresa Gaffney in the property.

137. Having regard to the fact that the Register is conclusive of the matters referred to therein, this burden has not been removed from the Register by the First Named Defendant. The registering of the judgment mortgage in the Register was dated 28th August 2023 when all of the substantive appeals to the Court of Appeal had been determined in a manner which was not favourable to the First Named Defendant.

138. These proceedings were grounded upon Affidavits sworn by the Plaintiffs. After having served the proceedings and affidavits on the Defendants, an appearance was entered by both Defendants by Memorandum of Appearance dated 12th February 2024.

139. In a jointly sworn affidavit dated 2nd April 2024, the Defendants set out their defences to the Plaintiffs claim.

140. In hearing before me the First Named Defendant has at times sought to relitigate issues in the separate proceedings which had already been determined by both the High Court and the Court of Appeal. The Defendants had also sought to defend those (previous) proceedings on the basis that they had issued three separate applications for leave to appeal to the Supreme Court which said applications have not been determined at the date of the issuing of the Civil Bill (but since then have been determined and a ruling made by the Supreme Court 7th February 2025).

141. In the application before me, the First Named Defendant has sought to argue that the Circuit Court’s jurisdiction in proceedings seeking inter alia a well-charging order and the other reliefs sought is limited to €38,092 and that the Plaintiffs’ application should be dismissed by reason of the Family Home Protection Act, 1976 and also having regard to the Statute of Frauds 1695 and section 51 of the 2009 Act.

142. These proceedings came first before the County Registrar sitting in Trim, County Meath on 8th April 2024. On the morning of the hearing, the First Named Defendant produced a further supplemental affidavit sworn by him on 5th April 2024. As the Plaintiffs needed time to consider this Affidavit, the matter was adjourned to the Civil Call-Over on 24th June 2024. After having considered this Affidavit, the Plaintiffs chose not reply to same.

Occupation by persons other than the Defendants

143. By a Memorandum of Appearance dated 7th May 2024 an appearance was entered by “the occupants”.

144. The replying and supplemental Affidavits that have been filed on behalf of the First and Second Named Defendants did not address the occupation of the property by any other persons and no such evidence was before me to the effect that there were other persons living in the property. In this regard, O. 5B, r.(7) of the Rules of the Circuit Court (S.I. No. 264/2009) which sets out the procedure in certain actions for possession or sale of land in actions for well-charging relief, provides that:

“On the return date of the Civil Bill (or any adjournment from such date), the County Registrar may, in addition to any other order which the County Registrar has power to make:-

(a) Order service of the Civil Bill on any other person;

(b) Make an Order enlarging the time for entry of an Appearance;

(c) Give directions and fix time limits for the filing and delivery of any further Affidavits by any party or parties;

(d) Give any other directions for the preparation of the Proceedings for Trial;

(e) Where an Appearance has not been entered or an Affidavit in

accordance with Rule 5(2) setting out a Defence has not been

filed and delivered, make an Order for Possession in

accordance with paragraph (xxxiii) or (xxxiv) of the Second

Scheduled to the Courts and Courts’ Officers Act 1995;

(f) Where the parties are sui juris, make an Order to receive a

consent and make the same a rule of Court”.

145. On behalf of the Plaintiffs, it is submitted that when the matter was before the County Registrar, an application was made to serve “the occupants” of the property. This was done and in consequence, as just stated, an Entry of an Appearance dated 7th May 2024 was furnished on behalf of “the occupants” and apparently signed and dated 7th May 2024. It is not clear who in fact signed it, but an Appearance is clearly entered on behalf of “the occupants”. The evidence before me is that there has been no further correspondence from “the occupants” of the property, no replying Affidavit from “the occupants” of the property, no participation by “the occupants” in the proceedings when the matters where before the County Registrar or at the call-over listing in June 2024, or at the subsequent hearing before the Circuit Court on 24th July 2024. It does not appear that either the First or Second named Defendants have sought to serve the Notice of Appeal on “the occupants” despite the fact that the First Named Defendant’s submission relied on arguing inadequate service.

The Second Named Defendant

146. The Second Named Defendant, Ms. Teresa Gaffney, also issued a Notice of Appeal (Form under O. 61, r. 2) in this case. The Notice of Appeal is date stamped as being filed in the Central Office of the High Court on 1st August 2024 and is an appeal on behalf of Philip Gaffney and Teresa Gaffney and is signed by Philip Gaffney and Teresa Gaffney.

147. The Plaintiffs’ solicitors have corresponded extensively with both Philip Gaffney and Teresa Gaffney.

148. It appears that while both Defendants had initiated this appeal, the Second Named Defendant, Ms. Teresa Gaffney has not in fact participated during the appeal process and including at the hearing before me.

149. The First Named Defendant has contended that there was “no certification of service” requiring the presence of the Second Named Defendant. I am satisfied that the First Named Defendant is not correct in his contention.

150. As referred to earlier in this judgment, in accordance with the aforesaid Rules of Court, an “Entry of Appearance” dated 12th February 2024 was entered on behalf of, and signed by, both the First and Second Named Defendants and their response to the Civil Bill issued by the Plaintiffs was by way of joint Replying Affidavit, dated 2nd April 2024 by both the First and Second named Defendants.

151. Further, the Second Named Defendant had been notified previously of the ‘for mention’ listings before the High Court (Gearty J.) in the Non-Jury list where the matter was fixed for hearing and directions were made inter alia that both the Defendants would deliver written legal submissions. The solicitors for the Plaintiffs had corresponded with the Second Named Defendant and had put her on notice on a number of occasions of the fact that the matter was listed for hearing, beginning on 8th April 2025. I am satisfied that the Second Named Defendant has been properly served with all documentation in relation to this appeal.

152. As referred to earlier in this judgment, in their initial response to this application the Defendants inter alia stated in their Joint Replying Affidavit dated 2nd April 2024 “On points of law and procedure the value of the court’s jurisdiction according to the [C]ourts and [C]ourts [O]fficers Act is €38,092 are they abandoning the rest of the claim”.

153. It is incorrect for the First Named Defendant to assert that the Circuit Court’s jurisdiction in proceedings seeking inter alia a well-charging application made under the 2009 Act is so limited. The reliefs claimed in these proceedings are pursuant to the provisions of the Registration of Title Act 1964 and inter alia the provisions of section 31, 116 and

117 of the Land and Conveyancing Law Reform Act 2009 are expressly statutorily provided for.

154. Further, the Special Indorsement of Claim pleads at paragraph 12 that the property which is the subject of the claim for well-charging relief is within the jurisdiction of the Circuit Court and that the property is worth less than €3 million and that, accordingly, the Circuit Court has jurisdiction to hear the claim. Section 53A(1) of the Civil Liability and Courts Act 2004 (“the 2004 Act”) deals with ‘presumption as to market value’ and provides that “Where (a) in any enactment a monetary amount is specified for the market value of land for the purpose of (i) conferring or limiting the jurisdiction of the Circuit Court in civil proceedings, or (ii) requiring or authorising the Circuit Court to transfer civil proceedings to the High Court, and (b) the plaintiff or applicant in any such proceedings alleges that the market value of the land concerned does not exceed such monetary amount, it shall, in the proceedings concerned, be presumed, until the contrary is proved, that the market value of such land does not exceed the foregoing amount. A rebuttable presumption applies and where, as is the case here, the Plaintiffs plead that the property is worth less than €3 million, it is for the Defendants to adduce evidence to the contrary and this has not been done in this case.

155. Additionally, section 45(1) of the 2004 Act amends the definition of “market value” in section 2(1) of the Courts (Supplemental Provisions) Act 1961 with the following definition “‘market value’ means, in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the bringing of the proceedings concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land.”

156. Section 45(2) of the Civil Liability and Courts Act 2004 amends the Third Schedule to the Courts (Supplemental Provisions) Act 1961 in column (3), by the substitution of (a) “market value” for “rateable valuation” in each place that it occurs, and (b) “€3,000,000” for “£200” (inserted by section 2(1)(d) of the Act of 1981) in each place that it occurs.

The Legislative Provisions

157. Section 31(1) of the 2009 Act provides that any person having an estate or interest in land, which is co-owned whether at law or in equity, may apply to the Court for an Order under this Section.

158. Section 31(4)(a) of the 2009 Act provides that in this section (i.e., section 31) “Person having an estate or interest in land” includes a Mortgagee or other secured creditor, a Judgment Mortgagee or a Trustee. The Plaintiffs in this application come within that definition. The Plaintiffs are judgment mortgagees on foot of the judgment mortgage registered in August 2023. Further, section 31(2)(b) of the 2009 Act provides that an order under section 31 includes an Order for the taking of an account of incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances. Section 31(2)(c) of the 2009 Act provides that an order under section

31 includes an order for the sale of the land and distribution of the proceeds of sale as the Court directs. Section 31(2)(f) of the 2009 Act provides that an order under section 31 of the 2009 Act includes such other order relating to the land as appears to the Court to be just and equitable in the circumstances of the case.

159. Dealing with the registration of mortgages and their effect, section 117(1) of the 2009 Act provides that registration of a judgment mortgage under section 116 of the 2009 Act operates to charge the judgment debtor’s estate or interest in the land with the judgment debt and entitles the judgment mortgagee to apply to court for an order under section 117 or section 31 of the 2009 Act.

160. Section 117(2) of the 2009 Act provides that on such application the Court may make:

(a) an order for the taking of an account or other incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances; (b) an order for the sale of the land, and where appropriate, the distribution of the proceeds of sale; (c) such other order for enforcement of the judgment mortgage as the Court thinks appropriate.

161. Section 117(3) of the 2009 Act provides that the judgment mortgage is subject to any right or incumbrance affecting the judgment debtor’s land, whether registered or not, at the time of its’ registration.

162. The previous decisions of the High Court and the Court of Appeal have confirmed the sums that are due and owing by the Defendants to the Plaintiffs. The Plaintiffs are entitled by law to register the judgment mortgage and to make an application for the reliefs prescribed, pursuant to section 31 and section 117 of the 2009 Act.

163. Section 31 of the 2009 Act therefore is clear in terms of its effect. Section 31(4) of the 2009 Act confirms that a person having an estate or interest in land includes inter alia a judgment mortgagee, i.e., the Plaintiffs in this case.

164. Section 116 of the 2009 Act provides that a creditor who has obtained a judgment against a person may apply to the Property Registration Authority to register a judgment mortgage against that person’s estate or interest in land and that a judgment mortgage shall be registered in the Registry of Deeds or Land Registry as appropriate.

165. I am satisfied that these proceedings which inter alia seek orders that the registered judgment mortgage stands well-charged against the Defendants’ interests in the subject property, an account of other incumbrances and their priority affecting the property, and in default of the Defendants discharging the judgment debt due, an order directing the sale of the property and that the monies be distributed to discharge the debts due and owing in satisfaction of the judgment mortgage registered against the property, were validly issued and served on both the Defendants and all relevant parties and that appearances were entered on behalf of these Defendants and all relevant parties and that the Defendants have opposed the reliefs sought in the manner prescribed by the Rules of Court.

Judgment Mortgage Stands Well-Charged

166. The Plaintiffs firstly claim an order declaring their judgment mortgage registered as a burden on Folio 3976, County Meath, the property in respect of the Judgment Mortgage obtained by the Plaintiffs as against the Defendants by Order of the Court of Appeal made on 25th May 2023 (as amended pursuant to the slip-rule on 26th July 2023) entering Judgment in favour of the First Named Plaintiff against the Defendants in the sum of US$272,043.70 and in favour of the Second Named Plaintiff against the Defendants in the sum of US$100,000.00, together with interest at the rate prescribed by the Courts Act 1981, stands well-charged against the Defendants interests in the said property. An Order is required because whilst a Judgment Mortgage can be registered, it cannot be acted or moved upon until the Court has directed that it stands well-charged under sections 31 and

117 of the 2009 Act.

167. Section 31 of the Registration of Title Act 1964 (“the 1964 Act”) provides for the conclusiveness of the Register.

168. Section 31(1) of the 1964 Act provides that “The Register shall be conclusive evidence of the Title of the owner to a land as appearing on the Register and of any right, privilege, appurtenance or burden as appearing thereon; and such Title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any Deed, document, or matter relating to the land; but nothing in this Act shall interfere with the Jurisdiction of any Court of competent Jurisdiction based on the ground of actual fraud or mistake, and the Court may upon such ground make an Order directing the Register to be rectified in such manner and on such terms as it thinks just.”

169. Section 31(2) of the 1964 Act provides that the validity of registration of ownership of unregistered land “shall not be affected by reason that the person thereby shown to be registered as owner was then dead and any person who proves to the satisfaction of the authority that he is entitled to the land may be registered as owner thereof.”

170. No allegations of fraud have been asserted by the First Named Defendant and the Second Named Defendant in any Replying Affidavit.

171. Further, as set out earlier in this judgment in Pepper Finance Corporation (Ireland) DAC v Robert Foley [2024] IEHC 562, Mulcahy J.) referred to the nature of the “wellcharging” relief and “order for sale” as follows, beginning at paragraph 24 of his judgment:

“(24) Pepper relies on the conclusiveness of the register, and in particular the register recording its ownership of the judgment mortgage, to ground its claim for well charging relief. In Doyle v Houston [2020] IECA 86, the Court of Appeal (Costello J) upheld a

decision of the High Court declaring judgment mortgages well charged on the defendant’s property. She explained that the court could not look behind the judgment mortgages registered on the folios at issue in those proceedings in light of section 31 of the Registration of Title Act 1964 which confirms that the register is conclusive evidence of the title of the owner of the land as appearing on the register:

“55. The judgment mortgages, the subject of these

proceedings, were registered by the PRA on the folio.

Section 31 of the Registration of Title Act 1964 provides

that:- “31.(1) The register shall be conclusive evidence of

the title of the owner to the land as appearing on the

register and of any right, privilege, appurtenance or

burden as appearing thereon; and such title shall not, in

the absence of actual fraud, be in any way affected in

consequence of such owner having notice of any deed,

document, or matter relating to the land; but nothing in this

Act shall interfere with the jurisdiction of any court of

competent jurisdiction based on the ground of actual fraud

or mistake, and the court may upon such ground make an

order directing the register to be rectified in such manner

and on such terms as it thinks just…”.

56. It follows that unless and until the entries of the

judgment mortgages are cancelled this court cannot look

behind the folio. Ms. Houston said that she applied to the

PRA to vacate the entries but was informed that she must

obtain an order of court. That was in 2017. To date, she

has not obtained such an order. It follows that neither the

High Court, nor this court could, or may, engage with her

argument regarding the validity of the costs orders, or the

validity of the judgment mortgages, and the

appropriateness of the registration of same on the folio. To

do so would be to seek to go behind the register, which is

not possible in the circumstances of this case.”

(25) In addition to the foregoing, the plaintiff relies on the provisions of sections 116 and 117 of the Land and Conveyancing Law Reform Act 2009.

(26) Section 116 of the 2009 Act provides as follows:

(1) A creditor who has obtained a judgment against a

person may apply to the Property Registration Authority to

register a judgment mortgage against that person’s estate

or interest in land.

(2) A judgment mortgage shall be registered in the Registry

of Deeds or Land Registry, as appropriate.

(3) For the avoidance of doubt it is and always has been

the case that—

(a) there is no requirement to re-register a judgment

mortgage in order to maintain its validity or enforceability

against the land or a purchaser of the land,

(b) a judgment mortgage may be registered—

(i) notwithstanding that the judgment debtor has obtained

an order of the court granting a stay of execution, unless

the court orders otherwise,

(ii) against the interest of a beneficiary under a trust for

sale of land.

(27) Section 117 of the 2009 Act states that:

(1) Registration of a judgment mortgage under section 116

operates to charge the judgment debtor's estate or interest

in the land with the judgment debt and entitles the judgment

mortgagee to apply to the court for an order under this

section or section 31.

(2) On such an application the court may make—

(a) an order for the taking of an account of other

incumbrances affecting the land, if any, and the making of

inquiries as to the respective priorities of any such

incumbrances,

(b) an order for the sale of the land, and where

appropriate, the distribution of the proceeds of sale,

(c) such other order for enforcement of the judgment

mortgage as the court thinks appropriate”.

172. Insofar as the first relief is concerned, therefore, the registration, as described above, is conclusive “of the title of the owner of the property as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon.” I am satisfied, therefore, that the judgment mortgage in relation to this property in Folio 3976 was correctly and validly registered pursuant to section 31 of the Registration of Title Act 1964 of the conclusiveness of the Register in this regard. The judgment mortgage is validly registered and therefore the Plaintiffs are entitled to an order declaring the Plaintiffs’ judgment mortgage registered as a burden on Folio 3976 County Meath in respect of the judgment obtained by the Plaintiffs against the Defendants by Order of the Court of Appeal made on 25th May 2023 (as amended pursuant to the slip-rule on 26th July 2023) entering Judgment in favour of the First Named Plaintiff against the Defendants in the sum of US$272,043.70 and in favour of the Second Named Plaintiff against the Defendants in the amount of US$100,000.00, together with interest at the rate prescribed by the Courts Act 1981 stands well-charged against the interests of Philip Gaffney and Teresa Gaffney (the Defendants) in the said property.

Conditional Sale & Inquiries into Incumbrances and Priorities

173. An order directing the conditional sale of the property (which is sought at paragraph 3 of the Plaintiffs’ Indorsement of Claim) is provided for in sections 31 and 117 of the 2009 Act. It was accepted by counsel on behalf of the Plaintiffs that I have a discretion on the application for the order for sale and it was accepted that I can have regard to the concept of proportionality when considering these matters.

174. As set out previously, sections 31, 116 and 117 of the 2009 Act also envisage applications being made to Court for the ascertainment of other incumbrances and their priority status against the property in question and for the conditional sale of a property to meet the debts which are due and owing. Consequent upon my declaring that the judgment mortgage stands well-charged in relation to the property, the Plaintiffs are also entitled for the following reasons, in my view, to ascertain the incumbrances and burdens, and the relative priorities of any such applicable interests over the said property and also, in default of payment of the outstanding sums being made, to an order granting the conditional sale of the property and such consequential orders which may arise.

175. The issues which arise in the sale of a property were also addressed, for example, by the High Court (Twomey J.) in his ex tempore in D & D v S & S [2017] IEHC 584 which involved a family home and by the High Court (Keane J.) in Quinns of Baltinglass Limited v Jill Smith and June Smith [2017] IEHC 461. The question of the sale of family home was also addressed by the Supreme Court (Baker J.) in Trinity College Dublin v Kenny and Kenny [2020] IESC 77, beginning at paragraph 53 of that judgment.

176. For example, in D & D v S & S [2017] IEHC 584, the facts in that case involved a judgment of €118,626.98 which was registered against the family home of the defendants. Twomey J. stated that he did not believe that a party which is owed a debt properly due should effectively be the party who suffers from the business mistakes of the defendants (in the sense that they over-borrowed in the past and therefore could not pay the debt).

177. Further, and in contrast to the facts of this case, Twomey J. recorded that an open offer of €75,000.00 had been made by the defendants and that this was rejected by the Plaintiffs who were seeking a well-charging order and an order for sale of the defendants’ family home. Similar to the facts of this case, there was no dispute between the parties that the defendants owed the debt to the plaintiffs and the only issue was whether they should be granted a well-charging order and an order for sale. Twomey J. referenced the decision of Quinn v Smith [2017] IEHC 461, that unless there was “good reason” not to, the Court should grant a sale of the property. The gravamen of the decision of Twomey J. was set out in paragraph 10 of his judgment where he made the order sought and granted a stay of nine months, and observed as follows:

“This Court is mindful that different considerations apply when a family home is at issue. However, as noted in this judgment, this does not mean that ‘innocent’ third parties such as the Plaintiffs have to suffer for business mistakes made by the Defendants. Nonetheless, in recognition of the fact that it is the family home, this Court will but a stay of nine months on the Order. This is in recognition of the fact an open offer has been made of €75,000.00, which is only €43,000.00 short of the debt owed of €118,000.00 (excluding any additional interest). Bearing in mind that the other debt secured on the property is a maximum of €153,000.00 and is from friends of the Defendants, it may well be that the Defendants may be able to secure the extra €43,000.00 needed to make up the shortfall from some other sources, which additional borrowing could be secured on a property worth €4,00,000.00, which they would not then have to sell.”

178. Returning to the facts of this case, the principal sums here are also substantial and increasing due to interest plus the associated costs.

179. In contrast to the Gaffney case before me, the facts of Trinity College Dublin v Kenny and Kenny [2020] IESC 77 addressed elderly defendants and the concept of the ‘innocent spouse’ whereby Mr. Kenny (and not his wife Mrs. Kenny) was the sole party who had the various previous orders for costs made against him in a series of litigation which spanned a number of years. At paragraphs 53 to 54 of her judgment, Baker J. referred to the factors (by reference to case law) which informed the exercise of a court’s discretion to order a sale as including inter alia (i) whether the “innocent”, i.e., non-debtor co-owner might be rendered homeless as a result of the sale; (ii) as a corollary, whether the proceeds of sale available to the non-debtor co-owner might be enough to accommodate that person or both owners following a sale; (iii) while it must be a factor, the fact that the sale would not provide sufficient funds to discharge the judgment creditors debt was not in itself a factor that would be determinative; (iv) whether the non-debtor co-owner got value for the loan or other debt; (v) the court will look at the living arrangements of a non-debtor co-owner, be that a spouse, a civil partner, a parent, sibling or child, and whether the order for sale might lead to hardship; (vi) the age and means of the parties could be material, and it would seem relevant to take into the account the ages of both the debtor and non-debtor co-owner as the justice of the case requires; (vii) an offer to make a payment in reduction of a liability would be a factor; and (viii) the likely financial consequences of the making of an order for sale were relevant and perhaps sometimes even central to the discretionary exercise.

180. At paragraphs (55) to (57) of her judgment, Baker J. examined the somewhat unique circumstances of that case in the context of the Family Home (Protection) Act 1976. On the facts of that case, Baker J. (beginning at paragraph 76 of her judgment) affirmed the order for sale (“thus protecting the interest of Trinity”), but stayed the operation of that sale upon conditions which protected the interests of Mrs. and Mr. Kenny and “relieved the harshness of an immediate order for sale” (which conditions inter alia included a condition that a separate property in Donegal be sold and the proceeds (minus the costs of the sale) be paid to Trinity).

181. In my view, the Defendants in the case before me, have failed to discharge the onus or burden of showing why an order for sale should not be made: Pepper Finance Corporation (Ireland) DAC v Foley [2024] IEHC 562 per Mulcahy J. at paragraph 96; Flynn v Crean [2019] IEHC 51 per Baker J. at paragraphs 64 and 65; Quinns of Baltinglass Limited v Smith & Smith [2017] IEHC 461 per Keane J. at paragraph 45.

182. In contrast, the Plaintiffs have in their Affidavits set out how the reliefs which they seek in these proceedings are proportionate in all of the circumstances of the case and the following matters also inform the exercise of my discretion when considering the question of making a conditional order directing the sale of the property in the event of a default in the discharge of the debt which is due and owing (and the consequent distribution of any monies received).

183. Alan Gaffney, for example, in his Affidavit sworn on 22nd December 2023, avers that the First and Second named Defendants have not paid any monies towards the judgment debt in the period since judgment was entered against them by the Court of Appeal by order dated 25th May 2023 and the entire sum remains due and owing from the Defendants to the Plaintiffs together with ongoing interest.

184. By letter dated 21st November 2023 to the Defendants, the Plaintiffs’ solicitors, Crowley Millar Solicitors LLP, notified the Defendants that judgment had been obtained on behalf of their clients, Alan Gaffney, Derek Gaffney and Nicole Gaffney in the sums of US$272,043.70 and $100,000.00, together with costs. The letter stated that in relation to the costs that were awarded, and were due and owing, the files had been sent to a costs accountant to consider same and draft up the necessary bills and that they would revert to the Defendants in due course in respect of same. The letter added “[w]ith respect to the judgments’ amounts, whilst I appreciate these are significant sums, please forward your proposals for immediate discharge of same within seven days, failing which, we will begin judgment mortgage well-charging proceedings against you”.

185. By letter dated 29th November 2023, the First Named Defendant wrote to the Solicitors on behalf of the Plaintiffs and stated inter alia that “[w]ith reference to your recent correspondence, as you are fully aware a stay was put on the judgment of the High Court until the outcome of the appeal’s process, which is still ongoing. I refer to Cases 89 and

90 in the Supreme Court. Any action taken by you or your clients will bear the costs for you and your clients and waste more of the Court’s time.”

186. The Order of the Court of Appeal dated 25th May 2023, confirmed that any previous stay had expired and in the Supreme Court Determinations (referred to in the First Named Defendant’s letter of 29th November 2023) leave to appeal had been refused and the Supreme Court had further refused an application to vary or rescind its previous determinations in its ruling dated 7th February 2025.

187. At paragraph 10 of the Affidavit of Mr. Alan Gaffney sworn on 22nd December 2023, he avers in the context of the property in Folio 3976 County Meath, that there was a judgment mortgage registered against the property on 1st August 2008 in respect of a judgment obtained by Mr. Michael Lacy on 13th September 2007 and avers that this judgment mortgage is now statute barred. At paragraph 11 of his Affidavit, Mr. Alan Gaffney states that in addition there was a judgment registered as a burden on the property in Folio 3976 in favour of Pepper Finance Corporation (Ireland) DAC who are the current owners of the Irish Life Home Loans Limited Charge dated 26th July 1999. He states that the within proceedings will be served upon Pepper Finance Corporation (Ireland) DAC. In this regard, the Affidavit of Sean Doherty dated 17th July 2024, states that on 13th June 2024 he served a copy of a letter, advising Pepper Finance Corporation (Ireland) DAC of these “judgment mortgage well-charging proceedings”, wherein the following was inter alia stated:

“We are writing this letter to you at this time to put you on notice of the aforesaid Judgment Mortgage Well-Charging Proceedings and of the fact that they will be listed before the County Registrar for County Meath on 24th June 2024.

Please find enclosed a copy of the Civil Bill for Possession and the Grounding Affidavits of Alan Gaffney and Derek Gaffney by way of service. Arising from the foregoing, please confirm that you have no objection to our clients obtaining an Order declaring their Judgment to stand well-charged against the property and to the Court making an Order for the sale of the property. If you are objecting, please set out your grounds of objection in a Replying Affidavit to the aforesaid Judgment Mortgage Well-Charging Proceedings. We would be obliged to hear from you within seven days of the date hereof.”

188. Mr. Alan Gaffney also exhibited the certificate of posting and the proof of delivery was signed by Daniela Melin and the delivery date is confirmed as 14th June 2024 at 09:41. I am satisfied therefore that Pepper Finance Corporation (Ireland) DAC were properly served in respect of this application. (The other burdens registered on folio 3976 are properly matters for the County Registrar, in due course).

189. As set out earlier in this judgment, the decisions of the High Court and the Court of Appeal have determined the sums of money that are due and owing to the Plaintiffs by the Defendants. The Affidavits of Alan Gaffney and Derek Gaffney sworn on 22nd December 2023 set out the impact on the Plaintiffs and their families of the failure by the Defendants to discharge any of the sums due and owing.

190. For example, at paragraph 13 of the Affidavit of Alan Gaffney sworn on 22nd December 2023, he avers that the advancing of loan monies in the amount of US$272,043.70 to the Defendants imposed a great burden upon him. He states that he borrowed against the security of his own family home because the Defendants informed him that they could not obtain loan finance for the commercial venture (referred to at the beginning of this judgment).

191. Mr. Alan Gaffney states that he and his brother, Derek Gaffney, are aggrieved by the fact that the Defendants have chosen not to repay them despite the court judgments. He states that the Defendants continue to trade, are the owners of a substantial home and have a substantial workshop/factory at the 1.4 acre property. He avers that the only way that the judgment debt and the costs awarded against the Defendants can be discharged is by the sale of the property.

192. Mr. Alan Gaffney avers that the loan monies borrowed by the Defendants from Alan Gaffney and Derek Gaffney have been a great source of stress and tension for him and his wife Noelle Gaffney. He states that in addition to taking a second mortgage on their family home to secure a loan of US$185,000.00 (which he states was paid to the Defendants as part of the loan) they had depleted their savings, which they had set aside for their children’s college fund and at the time of the loan their three children were in primary school in the United States with one about to go to Secondary School (High School) which meant the incurring of school tuition fees.

193. Mr. Alan Gaffney avers that when it became clear that the loan was not going to be paid back they were in turmoil about it and did not know what they were going to do. He states that his wife, Noelle Gaffney, who up to that point had stayed at home to look after their three children, had to find a job. He stated that this was necessary so that they could make the additional mortgage payments on the loan secured on their family home to fund the commercial loan to the Defendants (which the Defendants have not repaid) and to try to save money for a college education for their children. He avers that University fees and student living expenses are expensive in the United States and that this unpaid loan to the Defendants has impacted on them significantly.

194. Mr. Alan Gaffney states that the unpaid loan caused great disruption to their family life; that it impacted not only on him and his wife but also their three children who could not understand why their mother was not around as she had been previously. He states that the amount of stress and hardship placed on their family was immeasurable. He stresses that they still require the benefit of the monies because living in the United States they do not receive any State pension and they also have expensive healthcare/health insurance payments and similarly expensive tuition payments for their children. He states that if they do not get this money back, he is not sure when they will be able to retire.

195. Mr. Alan Gaffney avers that the Defendants have made no proposal to discharge the debt and the legal costs and have not proposed to sell the property or any part of their 1.4 acres in the property. He states that he believes the Defendants’ property may be worth approximately €1.2 million or possibly more. He offers the view that the Defendants would be able to sell that property, purchase a more modest house if they wished, but they have not done so. Mr. Alan Gaffney states that it was with regret that the claims in the within proceedings was now the only option that was open to them to secure repayment of the monies.

196. Mr. Alan Gaffney further avers that the property comprised in Folio 3976 County Meath is the family home of the Defendants and that his solicitor confirmed that personal service would be attempted on any other persons in actual occupation of the property. As set out in the Special Indorsement of Claim, Mr. Alan Gaffney avers that the property comprised in folio 3976 County Meath is situate within the jurisdiction of the Circuit Court and that it is worth less than €3 million and he avers that the Circuit Court has jurisdiction in the matter.

197. The Affidavit of Derek Gaffney further addresses issues that touch on the question of the proportionality of making a conditional order for the sale of the property. In his Affidavit (sworn on 22nd December 2023), Mr. Derek Gaffney states that both he and his brother, Alan Gaffney, were incredibly disappointed that their brother Philip Gaffney and his wife Teresa Gaffney borrowed the net sum of US$372,043.70 by instalments over period of months in 2015-2016 and have refused to pay any of those sums back. He states that this was a commercial loan agreement and it was always agreed that it would be repaid.

198. Mr. Derek Gaffney (at paragraph 6 of his Affidavit sworn on 22nd December 2023) states that the sum of US$372,043.70 was spent by the Defendants inter alia upgrading the workshop at the subject property, improving the roadway between their house and the workshop and the purchasing of raw materials to fulfil a 67,000 unit order for St. Patrick’s Day “fairy door” order for QVC, the shopping channel (which was being produced at their workshop where they had approximately 20 people working). Mr. Derek Gaffney avers that it transpired that the Defendants had only ever produced 6,000 units of which only 1,000 units had been painted. They, however, kept the money and the products they purchased and he states that the Defendants presumably used the raw materials to fulfil other contracts. He states that they have retained the benefit of the upgrade to their workshop, roadway and any money spent by them on their house and land and have repaid nothing back to the Plaintiffs since the Court entered judgment.

199. Mr. Derek Gaffney avers (at paragraph 7 of his Affidavit sworn on 22nd December 2023) that instead of proposing an instalment payment plan to discharge the debt, the Defendants defended the High Court Proceedings (Record No. 2016/10120S) in a lengthy trial in the High Court which took four days and further were heard before the Court of Appeal on 22nd February 2023. Mr. Derek Gaffney states that both he and his brother, Mr. Alan Gaffney, have incurred costs and expenses in this litigation which ultimately resulted in findings in their favour and the entering of the judgment against the First and Second Named Defendants. He states that unfortunately neither of the Defendants, Philip Gaffney and Teresa Gaffney, have made any proposal to discharge the judgment debt and regrettably the only option to secure the discharge of the judgment debt is for the sale of the Defendants’ property and lands.

200. Mr. Derek Gaffney states that they became aware that the Defendants’ products featured on the Late Late Toy Show television programme in 2023. He states that this high profile television placement was galling as the Defendants were clearly still in business and selling the products they design and manufacture. He states that this television appearance featured prominently in the Defendants’ website and that while refusing to pay them anything, the Defendants were continuing to trade in the last eight years since they took the loan monies and they continued to ignore the legal and moral obligation to repay the loan and honour their debt to the Plaintiffs.

201. Mr. Derek Gaffney (in his Affidavit of 22nd December 2023) states that the actions of the Defendants have caused serious issues in his relationship with his wife. He said that he had wished that the short-term commercial loan given by him and his brother, Alan Gaffney, to their other brother Philip Gaffney would give them real assistance. He said the Defendants had told them they would get the same security that the bank would have received if a bank had loaned them the money and he says that when they sought reassurance they were informed by the First Named Defendant (Philip Gaffney) that he could sell his house to repay them. Mr. Derek Gaffney states that either the First Named Defendant never meant it when he said it at the time or he changed his mind and the current position was that the Defendants were refusing to pay anything under any circumstances. Mr. Derek Gaffney states that at the time the Defendants asked for a loan in 2015, the funds which he advanced were monies that he and his wife had saved to put into a college fund for their two children. He states that to the date of the swearing of his Affidavit (22nd December 2023), at that time eight years later, the loan remained outstanding and the Defendants had no proposals to repay the monies. He states that he has to avoid having any conversations about the Defendants in front of his wife because of the stress it has caused. He says that both he and his wife cannot get over the fact that they helped the Defendants in their most desperate time, when they were getting on their feet themselves. He states that it is with regret that he has now no option but to pursue the within proceedings.

202. At the hearing before, the First Named Defendant sought to introduce material (which was not exhibited) in seeking to make a point that the Plaintiffs are successful businessmen in the U.S.. Apart from the procedural objection to the introduction of such material which was correctly made by counsel on behalf of the Plaintiffs, when the matters averred to by the Plaintiffs (as just set out) are considered and balanced against the impact that a sale of the property, in default of discharging the debt which is due and owing, would have on the Defendants and the arguments which were made by the First Named Defendant in opposing this application (addressed earlier in this judgment), I am of the view that the Plaintiffs are entitled to the reliefs which they seek and that such orders are proportionate in all of the circumstances. If the matter arises, it will be for the County Registrar in County Meath to ultimately conduct the sale of the subject property and this may include the appointment of an auctioneer and/or solicitor.

203. The approach in the case law in relation to the granting stays on any order for sale appears to be on the basis of offering one last opportunity for the parties to engage to see if matters can be resolved in some way which is acceptable to those parties involved in the litigation. These are matters which can be addressed in the final orders after the delivery of this judgment.

Proposed Orders in the substantive appeal

204. For the reasons set out in this judgment, I propose to make the following orders in relation to the substantive appeal:

(1) An order declaring the plaintiffs judgment mortgage registered as a burden on Folio 3976 County Meath (“the property”) in respect of the judgment obtained by the Plaintiffs against the Defendants by order of the Court of Appeal made on the 25th May 2023 (as amended pursuant to the slip rule on 26th July 2023) entering judgment in favour of the First Named Plaintiff against the Defendants in the sum of US$272,043.70 and in favour of the Second Named Plaintiff against the Defendants in the amount of US$100,000 together with interest at the rate prescribed by the Courts Act, 1981 stands well charged against the Defendants interests in the said property;

(2) An Order for the taking of an account of other incumbrances affecting the property and the making of enquiries as to the respective priorities of any such incumbrances pursuant to sections 31 and 117(2)(a) of the Land and Conveyancing Law Reform Act 2009;

(3) In the event of the Defendants failing to discharge the judgment debt of US$272,043.70 in favour of the First Named Plaintiff and US$100,000 in favour of the Second Named Plaintiff together with such ongoing interest on the judgment debt at the rate prescribed by the Courts Act 1981 within six months from the date hereof, the County Registrar for the County of Meath shall take all such appropriate steps, and execute all such necessary documentation, to effect the sale of the property and the distribution of the proceeds of sale, pursuant to sections 31 and 117(2)(b) of the Land and Conveyancing Law Reform Act 2009 and in discharge of the Defendants’ debt to the Plaintiffs and in satisfaction of the Plaintiffs’ judgment mortgage registered against the said property;

(4) My provisional view is that as the Plaintiffs have been entirely successful in their application, the default position under section 169 of the Legal Services Regulation Act 2015 applies and they are entitled to recover such measured legal costs (including reserved costs, if any) against the Defendants as may be agreed, or adjudicated upon in default of agreement, by the County Registrar for the County of Meath in accordance with the provisions of O. 61, r. 12 of the RSC 1986.

However, in the event that any of the parties seek a different form of costs order that matter can be addressed before me at the for mention date.

(5) I shall discuss with the question of any stay and, if applicable, over which of the proposed orders outlined above, including the length of any such stay.

(6) Again, as with the other matters referred to in this judgment, I shall put the matter in for mention at 9:00am on Thursday 2nd October 2025 to address final orders.

The costs of the application to defer judgment

205. In my ruling on 31st July 2025, I refused Mr. Philip Gaffney’s application that I postpone the delivery of this judgment and, after hearing from the parties on the question of costs, I reserved my decision on the costs of that application to the delivery of this judgment.

206. The parties had been informed at the beginning of July that I intended to deliver this judgment on 15th July 2025. As it happens this apparently coincided with an application which had been brought by the First Named Defendant on or about 19th June 2025 with a return dated of 4th July 2025 to the Friday list before the President of the Court of Appeal.

207. When the matter was mentioned briefly before me on the following Monday, the 8th July 2025, I vacated the delivery date of 15th July and the matter was put in for further mention in order to clarify the position. I understand from the parties that Costello P. has directed that Mr. Philip Gaffney’s initial motion, together with other motions which have since been issued by him, be listed for hearing on Monday 10th November 2025 before the Court of Appeal panel which had heard the appeal from the initial judgment of the High Court (Barr J.).

208. A short hearing took place on Monday 28th July 2025 on the question of whether the delivery of this judgment should be deferred until sometime after 10th November 2025. Mr. Philip Gaffney’s application to defer the delivery of this judgment was opposed by the Plaintiffs’ counsel, Mr. Canny BL (who appears for the Plaintiffs in the matters which are before the Court of Appeal) and Mr. O’Mahony BL (who appeared for the Plaintiffs in the matters which were heard before me). I delivered a ruling on 31st July 2025 refusing Mr. Gaffney’s application. As mentioned, after hearing from the parties on the costs of the application, I indicated that I would address the matter in this judgment.

209. For the following reasons, I am of the view that as the Plaintiffs have been entirely successful in resisting Mr. Philip Gaffney’s application that I postpone the delivery of this judgment, the default position under section 169 of the Legal Services Regulation Act 2015 applies and they are entitled to recover such measured legal costs against the First Named Defendant as may be agreed, or adjudicated upon in default of agreement, by the County Registrar for the County of Meath in accordance with the provisions of O.61, r. 12 of the RSC 1986. (As with the previous applications connected with this case, I am of the view that costs of this application should also be dealt with pursuant to the provisions of O. 61, r. 12 of the RSC 1986.)

210. My initial focus was to clarify that the motions which have been listed before the Court of Appeal for 10th November 2025, which occurred after the hearing of the matters before me but before judgment had been delivered, did not affect the matters which I had previously heard in April.

211. I was satisfied that they did not affect those matters, for the following reasons:

(i) first, Mr. Philip Gaffney had stated that his application/motion to extend time in relation to Record No. 2017/3234P (which now has a Court of Appeal Record No. CA 2025/167) was not seeking to revisit any previous order and was an entirely new application. These are in any event separate proceedings to the matters which were heard before me in April 2025;

(ii) second, in proceedings bearing Record No. 2022 162 Gaffney & Anor v Gaffney & Anor (Slip Rule motion), this is a ‘slip rule’ application by the First Named Defendant. The First Named Defendant has stated that he intends to seek a further application – to re-enter the matter – after this slip-rule application has been addressed, and that he cannot do so until the matter has been addressed. That may or may not be so but the slip rule application which currently stands before the Court of Appeal is simply that and does not affect the matters which were heard before me in April;

(iii) third, a motion to extend time has been issued in an application with Court of Appeal Record No. 2025 195 Gaffney & Anor v Gaffney & Anor (Motion to extend time to appeal) and this appears to be in relation to a costs ruling in proceedings bearing record numbers 2016/1020S and 2017/3234P. The application in relation to the costs ruling does affect the matters which were heard before me in April;

(iv) fourth, at the hearing of the application before me on Monday 28th July 2025, the First Named Defendant stated that he had issued separate proceedings recently (and after the matters had been heard in April) seeking to challenge and remove the Judgment Mortgage. Again, apart from being informed about development on Monday 28th July 2025, this is clearly a matter which post-dates the matters which were heard before me.

CONCLUSION

212. At a general level, the circumstances which arose in this case can be summarised as follows:

(i) first, the High Court and Court of Appeal have determined that monies are due and owing by the Defendants to the Plaintiffs;

(ii) second, by operation of law the Plaintiffs are entitled to register this debt as a judgment mortgage over the Defendants interests in the subject property, and have lawfully done so;

(iii) third, there has been a continuous refusal by the Defendants to repay the debt which they owe to the Plaintiffs despite same being demanded;

(iv) fourth, the Plaintiffs are entitled by operation of law to apply to the court and seek a declaration that the registered judgment mortgage stands well-charged against the Defendants’ interests in the subject property and to seek an account of other incumbrances and their priority affecting the property and in default of the Defendants discharging the judgment debt due, to ask the court for an order directing the sale of the property and that the monies be distributed to discharge the debts due and owing in satisfaction of the judgment mortgage registered against the property.

213. As indicated earlier, I shall put the matter in for mention at 11:00am on Thursday 2nd October 2025 to address final orders.

CONLETH BRADLEY

7th August 2025