High Court dismisses appeal to set aside possession order after defendant failed to appeal and property taken.

THE HIGH COURT

[2025] IEHC 616

Record No. 2025 193 CA

BETWEEN

MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY

PLAINTIFF

AND

ULTAN O’BRIEN

DEFENDANT

EX TEMPORE JUDGMENT delivered by Mr. Justice Sean Gillane on 10 November 2025

1. This matter comes before the Court by way of Circuit Appeal.

2. The defendant seeks to appeal the order of Her Honour Judge Mary Morrissey dated the 1st of July 2025, wherein she refused the defendant’s application by way of notice of motion to set aside an order for possession of premises at Roselawn, Tramore, County Waterford made by His Honour Judge Simon McAleese on the 20th of February 2024.

3. The background to the matter is that repossession proceedings commenced before the Circuit Court on the 20th of June 2014, some eleven years ago now.

4. The matter was listed before the Circuit Court from time to time and on the 20 th of February 2024, the plaintiff was granted possession of the property, the subject matter of the proceedings, subject to a stay on execution for a period of six months.

5. It appears on the face of the order that the defendant was in attendance when the order for possession was granted, and that he was heard by the court as a litigant in person.

6. No appeal was filed by the defendant against the possession order at that time nor has any appeal been filed since.

7. The evidence before me appears to be that the execution order of possession issued from the Circuit Court office on the 7th of October 2024.

8. On the 12th of March 2025, possession of the property was handed over to the plaintiff’s nominated agent.

9. I am informed that the plaintiff issued separate High Court proceedings against the defendant for trespass in relation to the same property on the 27th of March 2025. That matter is currently listed before Cregan J. I am also informed that the matter stands adjourned pending the outcome of this application.

10. By notice of motion dated the 17th of June 2025, the defendant sought an order vacating and setting aside the order obtained by the plaintiff on the 20th of February 2024.

11. On the 1st of July 2025, this application was refused, and the motion was struck out. The order again reflects that the defendant appeared before the Circuit Court as a litigant in person.

12. It is this order which is the subject of the appeal. The defendant, who again appeared as a litigant in person, asks this Court to vacate and set aside the order for possession.

13. The defendant argues that, as there were jurisdictional difficulties in respect of the original application before the Circuit Court, the possession order should never have been made and is therefore void ab initio. He says that jurisdictional challenges can be brought at any stage of the proceedings and must be addressed. In particular, he relies on Dellway Investments v. NAMA [2011] 4 I.R. 1 to say that constitutional protections and jurisdictional safeguards cannot be overridden by procedural doctrines.

14. I am satisfied that this application is misconceived.

15. In Start Mortgages v. Kavanagh [2023] IEHC 37, Simons J. made the following remarks at paragraph 29 in the context of the exceptional jurisdiction to set aside: “The Supreme Court held in In the matter of Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514 that there is an exceptional jurisdiction to reopen a final judgment. The principles governing this exceptional jurisdiction have been most recently considered by the Supreme Court in Student Transport Scheme Ltd v. Minister for Education and Skills [2021] IESC 35. The nature of the jurisdiction is summarised as follows (at paragraph 2.13 of the judgment):

‘There is, therefore, a clear and consistent line of authority on this topic. A high weight has to be attached to the principle of finality. The reason behind this is clear. Where proceedings have reached an end, the parties are entitled to expect that they will not have to continue to litigate the issues which have been finally determined. However, there may be exceptional circumstances where a failure to reopen may itself amount to a clear and significant breach of the fundamental constitutional rights of a party, going to the very root of fair and constitutional administration of justice, such that the decision sought to be reopened can properly be considered to be a nullity and not merely arguably in error. Where such a situation arises through no fault of the party concerned, then it follows that the limited jurisdiction to reopen the case can be exercised.’”

16. He went on to say at paragraph 30: “The Supreme Court in Student Transport Scheme Ltd v. Minister for Education and Skills endorsed the following two principles which are of immediate relevance to the present proceedings. First, the party seeking to have a final order set aside must clearly establish a fundamental denial of justice against which no other remedy, such as an appeal, is available (L.P. v. M.P. [2001] IESC 76, [2002] 1 I.R. 219 (at page 229 of the reported judgment)). Secondly, the exceptional jurisprudence does not exist to allow a party to re-argue an issue already determined (Murphy v. Gilligan [2017] IESC 3 (at paragraph 138)).”

17. The approach of Simons J. was endorsed by the Court of Appeal in Start Mortgages DAC v. Kavanagh [2023] IECA 251.

18. A feature of the application being appealed in the present case is that it was brought before a judge other than the one who made the original order.

19. In hearing the matter de novo, it seems clear to me that the defendant seeks to re-litigate or re-agitate a jurisdictional argument that was rejected by Her Honour Judge Mary Morrissey, and the exceptional jurisdiction to set aside does not provide for such a course to be taken. The defendant was present when the order was made and elected not to appeal. In that regard, I am of the view that Dellway Investments turned on a right to be heard.

20. A further factor of relevance in this case, and one which speaks to the desirability of finality in litigation once a case has been determined, is that the impugned order in this case has already been given effect to. The plaintiff’s agents have taken possession of the property.

21. I make no comment on the view expressed by the plaintiff that the present application is an attempt to frustrate the parallel High Court proceedings seeking to restrain the defendant’s trespass. However, I am of the view that the application to set aside is an inappropriate attempt to make a collateral attack on the order for possession dated the 20th of February 2024 which ought to have been appealed if the defendant was unhappy with the legal basis on which it was made.

22. As Simons J. put it at paragraph 38 of Kavanagh:

“Having failed to appeal the judgment and order of 18 July 2016 to the Court of Appeal, the moving party cannot seek to challenge the merits of same through the back door by inviting the High Court to overturn the judgment and order itself.”

23. For all of these reasons, I refuse the application.