Court dismisses injunction against mortgage sale due to prior settlement barring father's claim and lack of standing for daughter.

THE HIGH COURT

[2025] IEHC 568

Record No. 2025/878P

BETWEEN

OLIVER DONLON and NICOLA DONLON

PLAINTIFFS

AND

PROMONTORIA (ARAN) LIMITED, DAMIEN HARPER, AENGUS BURNS, MICHAEL

MCATEER and GRANT THORNTON

DEFENDANTS

JUDGMENT of Mr. Justice Liam Kennedy delivered 30 October 2025

1. The Plaintiffs (Oliver & Nicola Donlon, together “the Donlons”) seek an interlocutory order to restrain a mortagee sale on the basis that the mortgagee, the first Defendant (“Promontoria”), has no power of sale, being the legal owner of the charge but not its equitable owner. As the parties’ roles alternated in related proceedings, I will generally refer to them by name rather than by their role in these proceedings so as to avoid confusion.

2. While not conceding that the Donlons have raised a fair issue, the Defendants’ submissions focussed on their preliminary objections that the Donlons are precluded from taking that issue due to a previous settlement and by virtue of their delay and conduct. They also invoke the doctrines of estoppel, laches and acquiescence. Since, for this application, the Defendants did not vigorously contest the point, this judgment will focus on the preliminary objections, assuming a fair issue for trial on the beneficial ownership point (subject to those objections) and it will not rehearse the evidence and submissions on the beneficial ownership issue.

3. As explained below, I am satisfied that the objections are well made and that, irrespective of the merits of the beneficial ownership point, the settlement agreement previously entered into by Mr Donlon precludes his claim (and the associated injunction application). His delay and acquiescence would be further reasons to refuse the application as would the absence of any meaningful undertaking. Even leaving aside those factors, the balance of justice would not favour the granting of reliefs in any event. As for Ms Donlon, taking her evidence at its height and accepting the pleadings on the fact, I am not satisfied that she has established a cause of action. Accordingly, there is no basis for her to seek interlocutory relief on her own behalf. However, even if she did have such standing to assert a cause of action and to seek interlocutory relief in her own right, then her application would be likely to suffer the same fate as her father for the same reasons unless she could point to distinguishing factors. As matters stand, I doubt that there would be any basis for her to do so.

Background

4. The following points appear undisputed on the current evidence: a. The Donlons are father and daughter. Mr Donlon is the registered owner of c.8.27 acres of farmland in Co. Westmeath (“Clare Hill”). In 2004, he mortgaged Clare Hill to Ulster Bank Ireland Limited (“Ulster”). These and other mortgages granted by him were transferred by Ulster to Promontoria. The Donlons dispute the validity of the transfer and Promontoria’s title to enforce the charges. b. The Second, Third, and Fourth Defendants are insolvency professionals, and the Fifth Defendant is their firm (collectively, “the Receivers”). c.

Previous litigation following the mortgage transfer culminated in High Court and Court of Appeal decisions that the Receivers’ appointments were void, awarding Mr Donlon €30,000 for trespass. d. Mr Donlon issued six other proceedings against Promontoria. Four were issued between 2013 and 2025 in respect of Clare Hill; the other two in 2019 concerning other lands in Moate, (“the Moate Lands”). All six proceedings were compromised by agreement dated 25 March 2024 (“the First Settlement”). e. Mr Donlon failed to make payments due under the First Settlement so Promontoria twice unsuccessfully put the Moate Lands up for auction. f.

Mr Donlon and a company associated with him then entered into a revised agreement dated 27 August 2024 (“the Revised Agreement”) which Ms Donlon executed on her father’s behalf under a power of attorney (and no issue was raised in that regard). It required Mr Donlon to pay €700,000 plus certain conveyancing costs by 11 October 2024, including a non-refundable deposit of €70,000 on signing. g. Mr Donlon paid the deposit but failed to pay the balance by the due date. Accordingly, Promontoria’s solicitors informed the Donlons on 1 November 2024 that they would auction the Moate Lands and Clare Hill. h.

Mr Donlon did not dispute Promontoria’s right to sell the lands following the 1 November 2024 correspondence but subsequently sought to restrain the sale more than three months later, writing on 17 February 2025 and querying Promontoria’s right to sell the lands. By that time, the Moate Lands had already been sold at auction for €187,000 (the Donlons say they were worth more) and Promontoria had already accepted an offer of €370,000 for Clare Hill nearly three weeks before, on 28 January 2025. i. Ms Donlon explains her father’s delay in objecting on the basis that it was only at the end of 2024 that the Donlons learnt that Promontoria were not the beneficial owners of the mortgages.

The Revised Settlement Agreement

5. The following provisions are pertinent: a. Promontoria was identified as the Lender and Mr Donlon (and his company) as the Borrowers. b. Recital B provided that: “Pursuant to the terms of an agreement with Ulster Bank Ireland Limited (now known as Ulster Bank Ireland DAC) (the Assignor), the Lender acquired all the rights, title and interest to the Facilities, the Security and the Guarantee.”

c. Clause 2.3 states: “The Lender and the Borrowers hereby agree any and all active proceedings issued will be discontinued on completion of this agreement with each party to bear their own costs, to include Record No. 2013/1313P, 2019/72, 2019/112S, 2019/988P, 2024/1430P and 2024/1456P” d. Clause 6 confirmed the Borrowers’ “full right, power, and authority to execute, deliver and perform the agreement in accordance with the laws of the territory under which it has been incorporated”. e. Clause 6.2 noted Mr Donlon’s representation and warranty to Promontoria: ‘that the security is valid and enforceable and constitutes continuing security for the payment and discharge of the secured liabilities". f. Clause 26 stated: “The Borrowers hereby agree not to sue, commence… prosecute … against the Lender or the Assignor …any action or proceedings relating to the facilities, the security and the guarantee, this Agreement or any other associated documentation relating to the Borrowers relationship”.

The Donlons’ Submissions

6. The Donlons submit that: a. two fair questions arise for trial - whether Promontoria has the power of sale and whether the terms of the Revised Agreement or the doctrines of estoppel, laches and acquiescence prohibit the Donlons from raising that argument. (Since I am assuming a fair issue for trial on the first point, there is no need to address the beneficial interest issue or the authorities cited on that issue, such as Permanent TSB Plc & Ors v Donohoe [2024] IEHC 467 and Bexhill UK Limited v Abdul Razzaq [2012] EWCA Civ 1376. b. Recital B of the Revised Agreement is factually incorrect - Promontoria did not have had an equitable interest in the loans or the security). Accordingly, the recital was a misrepresentation rendering the agreement void. c. Citing Minister for the Environment & Ors v Damiens & Ors [2018] IEHC 627 (“Damiens”), the Donlons argued that there was a fair issue to be tried in respect of their contention that they were not debarred by delay or laches. In McKenna, although the applicants missed opportunities to bring their injunction application, causing delay, that was not fatal to the application in the absence of prejudice to the respondents or the purchaser of the lands. d. Interlocutory relief would not prejudice the Defendants because of the proposed closing date and because Clause 5 of the Special Conditions of the contract stipulated that the purchaser bought the property “on full notice” of the proceedings and associated risks, with Promontoria making no representations or warranty as to the outcome or merits of the Proceedings, a provision more consistent with ongoing proceedings than with issues having been settled. e. The balance of justice favours the injunction as a temporary suspension of any rights, the Defendants suffer no real prejudice and the Donlons undertook to get the plenary hearing on as soon as possible. f. Damages would not be an adequate remedy as the farm had been in the Donlons’ family since the 1930s (the Donlons’ affidavits say the 1970s), citing para 6.12 of Clarke CJ’s judgment in Charleton and Cotter v Scriven [2019] IESC 28:

“… a receiver who wished to obtain possession of residential property or a family farm so that it could be sold would need to make out a strong arguable case for it to be appropriate, having regard to the greatest risk of injustice test, to allow such an order to be made. On the other hand, where the matters are essentially financial or where there are strong grounds for believing that a receiver is necessary to ensure that property is properly managed and maintained pending a trial, very different considerations may apply”.

g. Clare Hill is being sold at an undervalue, prejudicing the Donlons. (They exhibit a report valuing it at more than twice the proposed sale price).

The Defendant’s Submissions

7. The Defendants’ submitted that: a. the Revised Agreement renders the Donlons’ objections to the loan sale a matter of “historical interest”. They are in default under the Revised Agreement. These proceedings are only before the Court because Mr Donlon failed to meet his obligations under the Revised Agreement. He cannot hold up the purchaser. He did not object to the sale of the Moate Lands and delayed bringing this application. Indeed, the Clare Hill sale would also have already completed but for the failure of the auction attempts. b.

The Revised Agreement reflects the position agreed by the parties and prevents the Donlons from agitating the issues which they seek to raise. Its meaning and effect is clear, obliging Mr Donlon to pay by agreed dates. c. The Promontoria’s solicitors emailed the Donlons’ solicitors, copying Ms Donlon, on 1 November 2024 noting that payment of the balance due had not been received and that Promontoria was not willing to extend further time “especially given the exceptional delays there have been to date”. The Donlons did not object to Promontoria’s notification that it would sell the lands. d.

The Defendant cited McCaughey v Anglo Irish Bank Corporation Limited [2012] 4 IR 417 (“McCaughey”) Peekay Intermark Limited & Or v Australia and New Zealand Banking Group Limited [2006] EWCA Civ 386, [2006] 1 CLC 582 (“Peekay”), and Skymist Holdings Limited v Groundlane Developments Limited [2018] EWHC 3504 (“Skymist Holdings”) and Helsingor Limited v Walsh [2020] IEHC 54 (“Helsingor”) and Credit Suisse International v Stichting Vestia Group [2014] EWHC 3103 (Comm) and The Barge Inn Limited v Quinn Hospitality Ireland Operations 3 Limited [2013] IEHC 387, as authority for the respective propositions that: (i) the Revised Agreement precluded the reassertion of settled claims (unless the plaintiff was entitled to seek recission on the basis of fraud), the Donlons were not entitled to argue that Recital B was a misrepresentation; (ii) Mr Donlon was not entitled to approbate and reprobate the Revised Agreement, failing to object to the sale of the Moate Lands in December 2024 but subsequently objecting to the Clare Hill sale although, if valid, any such objection would apply to both transactions and that (iii) the Donlons were bound by the agreement, including Recital B and it was irrelevant whether they knew or could reasonably have discovered the state of affairs was not as agreed therein.

An estoppel arose because, by entering the Revised Agreement, the Donlons demonstrated their unequivocal intention to accept the validity of the transfer to Promontoria. The agreed terms requiring Mr Donlon to discontinue all active proceedings created such a contractual estoppel. e. Mr Donlon’s acceptance of the terms of the Revised Agreement was an unambiguous representation and that his resiling would be unconscionable, particularly in view of Mr Donlon’s acquiescence in the Moat Hill sale and his delay in objecting to the Clare Hill sale. f.

Mr Donlon had the benefit of legal advice at all stages when agreeing the Settlement and the Revised Agreement. He acquiesced to Promontoria’s power of sale. That barred the Donlons from seeking equitable relief, citing Archbold v Scully (1861) 9 HL C 360 at p.383 (“Archbold”). g. Mr Donlon is guilty of delay by failing to challenge Promontoria’s power of sale until after the Revised Agreement was signed and by failing to object immediately following notification of Promontoria’s intention to sell the land on 1 November 2024 or prior to the sale of the Moate lands, the first auction attempts the Clare Hill contract.

The delay resulted in Promontoria entering into binding contracts for sale with third parties in respect of Clare Hill and Moate Lands. The doctrine of laches bars his attempt to unravel the Revised Agreement and deny its legal effect and/or resile from it. h. The defendants relied upon the Supreme Court’s rejection of a similarly belated attempt to stop a sale (where the delay amounted to approximately 18 months before the issuance of the injunction application) to in analogous circumstances in Dowling v Minister for Finance [2013] IEHC 299; [2013] 4 IR. 576. i.

The Revised Agreement prevented the Donlons from issuing further proceedings against Promontoria and thus barred the Donlons from the interlocutory relief sought. Clause 26 is to be read in the context of Clause

6.2. Clause 26 as a negative promise, citing Kirwan, Injunctions, Law and Practice, (3rd ed., Round Hall, 2020) and Priyanka Shipping Limited v Glory Bulk Carriers Pte Ltd [2019] EWHC 2804 (Comm). j. The Court’s discretionary jurisdiction would instead favour granting Promontoria injunctive relief restraining the Donlons from prosecuting these proceedings since their institution is a breach of the Revised Agreement. k. The Donlons are not in a position to offer a meaningful undertaking as to damages, citing Minister for Justice v Devine [2012] 1 IR 326 (“Devine”). In the absence of a real undertaking as to damages and where there is no basis to contend that the interlocutory relief sought by the Donlons is “highly warranted”, the reliefs sought by the Plaintiff’s ought to be decisively refused.

The Law

8. I have considered each of the authorities cited by the parties, including:

• McKenna v Pepper Finance Corporation (Ireland) DAC & Anor [2024] IECA 285, (and particularly Faherty J’s comments at paras. 99-105 and 108-109), a case with certain parallels to the present one.

• Springwell Navigation Corp v JP Morgan Chase Bank & Ors [2010] EWCA Civ 1221, [2010] 2 CLC 705 which confirms that, in principle, contracting parties may agree to be bound by a statement of affairs stipulated to exist in a contract and precluded from subsequently contending for an alternative state of affairs. Such provisions ensure that “parties know precisely the basis on which they are entering into their contractual relationship”. See also McCaughey v Anglo Irish Bank Corporation Limited [2012] 4 IR 417, as to the effect of contractual provisions precluding a plaintiff from pursuing claims other than those based on fraud. That

decision also cited the Supreme Court decision in Kennedy v. Allied Irish Banks plc. [1998] 2 IR 48. See also Credit Suisse International v Stichting Vestia Groep [2014] EWHC 3103 (Comm) and Peekay at paragraph 56.

• Archbold v Scully (1861) 9 HLC 360 and Watson v Croft Promosport Limited [2008] 3 All ER 1185 in relation to the doctrine of acquiescence.

• Dowling v Minister for Finance [2013] 4 IR 576, in relation to delay in seeking injunctive relief.

• Damiens (which itself cited Cahill v. Irish Motor Traders Association [1966] IR 430) in relation to delay and laches).

• The Court was also referred to Keane: Equity and the Law of Trusts in Ireland (3rd ed. Bloomsbury Professional, 2017) and to Halsbury's Laws of England , (Volume 47, 2014) para. 253 in respect of the equitable defence of laches).

• Skymist Holdings Limited in respect of the doctrine of approbation and reprobation as election or estoppel.

• The Barge Inn Limited v Quinn Hospitality Ireland Operations Limited [2013] IEHC 387, National Asset Loan Management Limited v McMahon [2015] 2 IR 385, Bank of Scotland plc v Kennedy [2013] IEHC 420,Furey v Lurgan-Villa Construction Company Limited [2012] 4 IR 655 and Helsingor Limited v Walsh [2010] IEHC 54 as to estoppel.

• Minister for Justice v Devine [2012] 1 IR 326, as to the requirement for an undertaking as to damages on an application for interlocutory relief.

Discussion

Ms Donlon’s Claim

9. At the outset I should note that I have not identified any stateable cause of action as having been articulated on Ms Donlon’s behalf in the Statement of Claim or in her affidavits. I do not understand how it could be asserted that she has standing to bring a claim or seek relief. The following points arise from the statement of claim: a. it confirms that Ms Donlon’s father is the registered owner and mortgagor of the lands and that she operates a cattle farm thereon, but those pleas go nowhere near far enough to articulate a cause of action against Promontoria. b. It seeks a declaration that the Mr Donlon “and/or” Ms Donlon are the beneficial owner of the land. It is extraordinary that, after years of litigation and settlement agreements beneficial ownership should be baldly asserted in the alternative in this way, with no explanation in the pleading or on affidavit. The prayer for such a declaration is not anchored on any facts alleged in the statement of claim (or on affidavit). There is no other reference in the statement of claim or on affidavit to any such beneficial interest, nor any evidence as to how and when she supposedly acquired it (particularly since the land had been mortgaged since 2009).

10. Ms Donlon’s affidavits also criticise the revised settlement agreement and the payment made thereunder. However, they ignore the fact that she was not a party to that contract in her own right. She has not asserted any contractual or other basis to assert a claim against Promontoria. There is no evidence that she has a legal or beneficial interest in the land or that she was party to any relevant agreement.

11. The fact that Ms Donlon signed the Revised Settlement Agreement is irrelevant. She did so on her father’s behalf and in his name, pursuant to a power of attorney. In the absence of a cause of action which she, rather than her father, can assert, there can be no basis for her to seek interlocutory relief. Accordingly, I will immediately dismiss the application insofar as it relates to her.

12. Following on from the foregoing conclusion, I note with misgivings the absence of affidavit evidence from Mr Donlon, being the party asserting a cause of action which I am assuming to be potentially statable. As the principal, the contracting party, he rather than his daughter should have testified about the relevant issues. While that point alone might be fatal to the application, it was not canvassed in argument so this judgement will not address that issue further.

The Revised Settlement Agreement

13. It is unnecessary to recount the history of the original settlement and the subsequent issues. It suffices to note that the original 25 March 2024 settlement agreement was documented in correspondence between the plaintiffs then solicitors and Promontoria’s solicitors on 25 & 26 March 2024 but, following further discord, those terms were amended by the Revised Agreement dated 22 August 2024. No credible issue has been raised as to whether the Mr Donlon and Promontoria entered into the Revised Settlement Agreement dated 22 August 2024 or as to its enforceability nor is there any suggestion of any ambiguity or lack of clarity in respect of the terms of that agreement.

Defendants’ Preliminary Objections

14. Even assuming, without deciding, a fair issue to be tried in respect of the beneficial interest point, I agree that the express terms of the Revised Agreement preclude Mr Donlon’s attempt to raise that issue, or to seek interlocutory relief. That agreement eclipsed his earlier objections to the loan sale. He acknowledged (in the recitals) that Promontoria acquired the mortgagor’s rights, title and interest to the Facilities, Security and Guarantee. He also acknowledged represented and warranted (in Clause 6.2) that the security was valid and enforceable and constituted continuing security for the payment and discharge of the secured liabilities. Accordingly, the Revised Agreement reflects the position accepted, however reluctantly, by Mr Donlon. It prevents him from agitating the issues which he now seeks to raise. Its meaning and effect is clear, obliging him to pay agreed sums by agreed dates, commitments. However, he has failed to honour those commitments.

15. Absent fraud (and there is no suggestion of fraud here), the Revised Agreement precludes the reassertion of settled claims and also precludes any attempts by Mr Donlon to resile from the agreement, including Recital B. Having freely entered into the Revised Agreement for valuable consideration and with the benefit of legal advice, he has established no basis to reopen the point he effectively conceded in the recital or to assert that the agreement was void.

16. As far as Mr Donlon’s access to legal advice is concerned, I note that the solicitors then representing Mr Donlon were experienced in mortgage disputes. Counsel were also involved at various points. They would presumably have appreciated the distinction between beneficial and legal ownership. The court is entitled to infer that Mr Donlon was fully advised in respect of all relevant issues pertaining to the agreement and that, before entering into the Revised Settlement Agreement, he obtained or received all necessary legal advice as to its implications and effect. However, if there was any deficiency in that regard (and I am not suggesting that there was) it would scarcely be a matter between him and the defendants. In fact, it appears likely that Mr Donlon was advised to enter into the agreement because he and his legal advisors were satisfied that it was in his best interest to do so. It is easy to see why they might have reasonably reached such a conclusion at the time based on their assessment of the strength or weakness of his position on the various issues. However, if Mr Donlon’s legal advisors had not had the information or documents which they required in order to satisfy themselves as to the first defendant's title or to advise their client, then they would presumably have requested such material and advised their client to reserve his rights until it was forthcoming. There is no suggestion that this is what happened. To the contrary, Mr Donlon entered the Revised Settlement Agreement, with the benefit of legal advice, compromising issues previously raised such as Promontoria’s title to enforce the debt. Having entered the agreement with his eyes open, Mr Donlon cannot now resile from his commitments and cannot resurrect points previously conceded. That war is over.

17. Settlement agreements are, by definition, compromises. Parties may have different views as to the factual and legal merits of counterclaims and defences. There may or may not be substance to such points and parties may always wonder what would have happened if they continued to pursue a point rather than compromising it. However, by freely entering into a settlement agreement, parties agree to resolve any such issues as outlined in the agreement. Absent fraud, the courts almost invariably hold parties to such commitments. There is certainly no basis to unwind a settlement because Mr Donlon has failed to make the payments to which it committed him, which seems to be the reality of the current application, notwithstanding the way it is presented.

18. In the absence of evidence to the contrary, the Court is entitled to assume that Mr Donlon was duly and properly advised. There is no suggestion that his legal advisors were under any misapprehension or that they wrongly advised him when he entered into the Revised Agreement. In any event, that would be a matter between them and him. However, he has not established an arguable case that he or his advisors could not reasonably have identified the beneficial ownership point before acceding to the Revised Agreement. That would not be the point in any event. He remains bound by the agreement to which he committed, including Recital B, whether or not he knew (or could reasonably have discovered) that the state of affairs was not as set out in the recital. Having entered into the Revised Agreement with the benefit of legal advice, Mr Donlon is estopped from disputing the validity of the transfer to Promontoria or its title to enforce the security. At the end of the day, the agreement to which Mr Donlon acceded states at Clause 6 that the Borrowers had “the full right, power, and authority to execute, deliver and perform the agreement in accordance with the laws of the territory under which it has been incorporated”. The Donlons cannot resile from that confirmation.

19. I also consider that there is a strong case that by not objecting to the sale of the Moate Lands or to the two attempts to auction Clare Hill, the Donlons have acquiesced to Promontoria’s power of sale. Their continued inaction at the end of December 2024 (even when they say they first became aware of the beneficial interest point) reinforces this conclusion - it was during that period of inaction on Mr Donlon’s part that Promontoria entered into a contract for the sale of Clare Hill.

20. In the light of the foregoing conclusions there is no need to consider whether Mr Donlon was impermissibly seeking to approbate and reprobate the Revised Agreement.

Delay, Acquiescance & Laches

21. The explanation for the delay in objecting to the sale is unsatisfactory. Ms Donlon says that she and her father only learnt at the end of 2024 that Promontoria were not the beneficial owners of the mortgages. Even leaving aside her failure to disclose what their legal advisors knew or advised when they entered the Revised Agreement, the difficulties with that explanation include the fact that: (i) it is inconsistent with the position reflected in the Revised Agreement; (ii) Ms Donlon does not say how or exactly when the Donlons learnt of the beneficial ownership issue nor does she explain why they could not have established the position in that regard immediately after the 1 November 2024 notification (or, indeed, prior to entering into the Revised Agreement); (ii) nor does she explain the further delay until 17 February 2025 in ventilating the issue, having become aware of it in 2024.

22. In accordance with its November 2024 advice to the Donlons and during the period in which the Donlons were aware of the equitable issue, but before they took any point in that regard, Promontoria entered into the agreement for the sale of Clare Hill. The explanation for the Donlon’s delay is unsatisfactory, a delay which clearly impacted on the plaintiff.

23. The analysis and outcomes in Dowling, Damiens and McKenna illustrates the fact that considerations of delay, acquiescence and laches turn on the particular facts. (For example, while the facts of McKenna resemble the current situation in some respects, including as to delay and the doubts as to the undertaking, the decisive factors in the Court’s decision to grant interlocutory relief differed from the current case. Firstly, the relief was to be granted for a very short time because the pleadings were closed, discovery complete and trial imminent. That is not the case here. Secondly, the Court was not satisfied that there was any prejudice to the lender, whereas I am not so satisfied since the Donlons have allowed Promontoria to spend months conducting auctions and seeking to sell the property only to object to such a sale after it had finally secured a buyer. Furthermore, in view of the difficulty experienced by Promontoria in finding a buyer with multiple failed efforts in that regard, it could be prejudiced if the sale is halted by virtue of the existence of that order.

24. Most importantly, if Mr Donlon wished to seek an interlocutory injunction, he should have taken appropriate action on being notified of the sale. He failed to do so for several months. It would be wrong to grant the relief sought in circumstances in which Mr Donlon failed to promptly dispute Promontoria’s right to sell the lands following the 1 November 2024 correspondence, only raising the issue three months later, on 17 February 2025 by which time, the Moate Lands had been sold and Promontoria had accepted an offer for Clare Hill.

25. I agree that the institution of these proceedings clearly contravenes Clause 2.6 pursuant to which Mr Donlon agreed not to commence any action or proceedings against Promontoria “relating to the facilities, the security and the guarantee, this Agreement or any other associated documentation relating to the Borrowers relationship”. The fact that the institution and continuation of the proceedings was itself a breach of contract would weigh against the exercise of the Court’s discretion on an injunction application and would be a factor in any balance of justice assessment. Although Promontoria asserted its own entitlement to restrain the Donlons from prosecuting these proceedings, that would be an argument for another day.

26. There is no evidence to suggest that the Donlons are in a position to offer a meaningful undertaking as to damages. The evidence is to the opposite effect. Although the requirement for an undertaking should not be mechanically applied, on the facts of this case, the absence of any substance to the undertaking as to damages is in itself a reason to refuse the interlocutory relief particularly since, there is no basis to assert that the reliefs sought are “highly warranted”, to borrow the phrase employed by Fennelly J in Devine.

Balance of Justice

27. The defendants have raised a strong defence which is likely to succeed at trial that the Revised Agreement precludes these proceedings irrespective of the merits of the beneficial ownership point. In any event, the balance of justice would not favour the reliefs sought because; (i) Promontoria has been seeking for so long to enforce his security; (ii) Mr Donlon has not honoured his payment commitments; (iii) the very initiation of these proceedings contravenes Mr Donlon’s commitments in the Revised Agreement; (iv) Mr Donlon’s delay and acquiescence and the doctrine of laches preclude this belated application; (v) contrary to the Donlons’ submissions, I am satisfied that the Defendants could be prejudiced by any delay; (vi) I am sceptical of the Donlons undertaking to get the plenary hearing on as soon as possible in view of the history of the litigation as a whole.

28. Delaying the proposed sale would undoubtedly be prejudicial both to the defendants and the purchaser particularly in view of the delay that has already arisen as a result of the previous litigation Mr Donna's failure to honour previous payment commitments whether under the original loan facilities or under the previous settlement agreement.

29. I also disagree with the suggestion that the defendants and the proposed purchaser would not be prejudiced by an injunction because the transaction the proposed sale was on the basis that the purchaser was buying on full notice of these proceedings and associated risks. Firstly, the existence of such a provision does not imply that the Revised Settlement Agreement was anything other than legally effective. The provision evidently reflected the contentious background and the risk that, notwithstanding the settlement, further issues might arise. The plaintiff was making clear to the buyer that could not be held responsible. Such provisions are not unusual in such circumstances. They do not assist Mr Donlon nor are they relevant to the balance of justice assessment.

30. I have sympathy for the plaintiffs’ contention that the farm had been in their family since the 1970s (according to Ms Donlon’s first affidavit). However, Mr Donlon chose to mortgage the land notwithstanding his attachment to it and repeatedly failed to honour his debts. I have considered para. 6.12 of Clarke CJ’s judgment in Charleton and Cotter v Scriven [2019] IESC 28 but consider that in the circumstances of this long running saga the transaction must be seen as essentially financial in all the circumstances, and I would also have regard to the observations of Murray J in Ryan v Dengrove [2021] IECA

36 to the effect that

“Generally in a purely commercial dispute of this kind where the parties' interests are exclusively financial, the law adopts the position that they are best left to their respective remedies in damages. The cases of this kind in which there is a particular factor tilting the balance in favour of the claimant such as would justify the making of orders restricting the creditor's freedom of action pursuant to agreed security instruments, tend to be the exception”. The history of the matter and the application of the greatest risk of injustice test outweighs the importance of the Donlons’ undoubted attachment to the land.

31. Although the plaintiffs are unhappy at the proposed sale price, that issue was not vigorously raised in submissions, and I do not consider that they have made out a fair question to be tried to halt the sale on that basis. The defendants have hardly rushed the sale; to the contrary the difficulties experienced in selling the property seem inconsistent with the plaintiffs’ hopes and expectations as to what the property might realise.

32. While it is unfortunate that the Plaintiffs should lose possession of the land, the Defendants’ submission that the current situation has arisen because Mr Donlon failed to meet his obligations under the Revised Agreement, following on from earlier issues. In the circumstances he and his daughter cannot obstruct the sale or prejudice either the plaintiffs or the purchaser. It would be inequitable for them to do so in the circumstances. The only real basis for intervention at this stage, the family’s attachment to the land, is decisively outweighed by the countervailing considerations which I have referenced.

Conclusion

33. I will dismiss the application. The defendants appear presumptively entitled to their costs. If either party wishes to contend for any other order, then they may file written submissions (maximum 2500 words) within 14 days, following which the other party may respond within the same period. If necessary, the matter will then be listed for mention, failing which a final order will issue without further ado.

APPEARANCES

Brendan Donelon BL, instructed by John Feahney & Co, for the Donlons Eamon Marray SC, instructed by Keoghs Ireland LLP, for the Defendants