Injunction refused as plaintiff failed to prove lawful recovery of possession under Order 5B rules.

THE HIGH COURT

[2025] IEHC 626

[H.P. 2025. 3667]

BETWEEN

EVERYDAY FINANCE DAC

PLAINTIFF

AND

ANTHONY CARROLL AND HILARY CARROLL

DEFENDANTS

JUDGMENT of Ms. Justice Siobhán Stack delivered 14th November, 2025.

Introduction

1. This is an application by the plaintiff (“Everyday”) to restrain trespass by the defendants on lands in respect of which the County Registrar for the County of Wicklow made an order for possession on 11 February, 2019. That Order was granted in Wicklow Circuit Court in proceedings bearing Record Number 691/2011 (“the Possession Proceedings”), and its specific terms were that the plaintiff's predecessor-in-title, Promontoria (Oyster) DAC (“Promontoria”), should recover possession from the defendants of the property known as 13 Rocky Valley Crescent, Glencap Drive, Kilmacanogue, County Wicklow (“the Property”). There was a stay on execution of that Order for possession for a period of 10 months, and that stay was to become permanent in the event that the defendants commenced making payment of €5,168 per month, said payments to commence 28 days after service of the Order and monthly thereafter. Those payments were not made and the 10 month stay obviously has long since expired.

2. On the date that the Order for possession was made, the defendants had entered an appearance but had not filed or delivered an affidavit disclosing a defence, as required by Order 5B, r. 5(3) of the Rules of the Circuit Court. The first defendant claims (erroneously) that the County Registrar did not have jurisdiction to make the Order for possession as an appearance had been entered, but this is incorrect and I will just set out briefly why that is so.

3. Order 5B of the Rules of the Circuit Court deals with, inter alia, summary applications for recovery of possession of land on foot of a mortgage or charge and was originally introduced by the Circuit Court Rules (Actions for Possession and Well-Charging Relief) 2009, S.I. 264 of 2009.

4. It has been amended on several occasions. Order. 5B, r. 7 (1)(e) of the Rules of the Circuit Court, as introduced by the Circuit Court Rules (Actions for Possession and Well- Charging Relief) 2012, S.I. No. 358 of 2012, which are still in force, conferred jurisdiction on the relevant County Registrar to grant an Order for possession: “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.” [Emphasis added.] The effect of this amendment was, in essence, to permit County Registrars to make the relevant Orders for possession where the application was not being defended.

5. S.I. 358 of 2012 also amended Order 5B to substitute the following for r. 5(2): “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 ….”

The requirement to deliver an affidavit setting out the defence is important, as it is a simple matter to enter an appearance. Failure to permit mortgagees to recover possession of mortgaged lands on a summary basis, where an appearance has been entered but no basis for a defence has been set out on affidavit, would allow defendants to delay the recovery of possession even though they had not put forward any basis on which possession should be refused.

6. In 2015, Order 5B, r. 5 was substituted by regulation 2 of the Circuit Court Rules (Actions for Possession and Well-Charging Relief) 2015, S.I. 346 of 2015, which came into effect on 17 August, 2015. Thereafter, the requirement to enter an appearance and to set out a defence on affidavit was contained in Order 5B, r. 5(3), rather than Order 5B, r. 5(2). Order 5B, r. (7)(1)(e) was not amended and continued to refer to this requirement as if it was still contained in Order 5B, r. 5(2).

7. However, this apparent oversight does not give rise to any difficulty as, by reason of s.

26 (2)(f) of the Interpretation Act, 2005, the reference in Order 5B, r. (7)(1)(e) – and indeed the similar reference in Order 5B, r. 7(2), referred to further below - to Order 5B, r. 5(2), is now to be read as a reference to Order 5B, r. 5(3).

8. In this case, as the defendants had not filed an affidavit disclosing a defence, as they were required to do if they wished to resist the application for possession, the Wicklow County Registrar had jurisdiction to make the Order for possession which was made on 11 February, 2019. Had the defendants set out their defence on affidavit, Order 5B, r. 7(2) would require that the application for possession be transferred to the judge’s list. But, as no such affidavit was ever filed, the County Registrar had jurisdiction to make the Order herself.

9. The defendants, largely through the efforts of the first defendant, have for many years contended in correspondence that that Order was made without jurisdiction, and have asserted that once an appearance was entered, the County Registrar was obliged to transfer the application for possession to the judge’s list. The defendants, who only retained legal representation on the day prior to the hearing of the injunction, have restated that position on affidavit in this application.

10. However, that position is clearly erroneous. The County Registrar has jurisdiction to make an order for possession where there has been a failure either to enter an appearance or to file and deliver an affidavit in accordance with rule 5(3) setting out a defence to the application. The first of those possibilities did not arise in this case as an appearance had been entered. However, the County Registrar had jurisdiction to make an Order for possession of the Property in the Possession Proceedings as the defendants had not filed and delivered an affidavit setting out a defence, as required by the Rules. The position of the defendants on this point is, therefore, misconceived and it is not necessary to deal with it further.

11. At the commencement of the application, counsel for the defendants applied for an adjournment on the basis that he and his solicitor had only been instructed the day before. I refused that adjournment on the basis that the defendants had been served with the application on 1 August, 2025, and had been served on 13 October, 2025, with various affidavits of verification sworn in September. The first defendant replied to those affidavits by affidavits sworn 17 October, 2025, almost two weeks before the hearing. Furthermore, the first defendant was aware of the hearing date, as the first defendant were present in court on 24 October, 2024, when it was listed for hearing. Parties cannot be allowed to frustrate proceedings by obtaining legal advice at the eleventh hour. I therefore refused the adjournment.

12. I should add that it seems from the booklets that no appearance had, as of the date of the hearing, been entered on behalf of the second defendant and it seems from the affidavit of service sworn on 25 August, 2025, that it was the first defendant who signed for the registered post by which both the plenary summons and the application for injunctive relief was served on the defendants. There must be some doubt, therefore, as to when the second defendant became aware of the proceedings. Counsel stated that he appeared for both defendants but I omitted to require an undertaking to file an appearance on behalf of both. If that has not yet been done as of the date of delivery of this judgment, it needs to be done forthwith.

13. The plaintiff brings the application on the basis that it is a mortgagee in possession, the Order for possession having been executed on 25 April, 2025. Shortly after execution of the Order for possession, the defendants went back into possession of the Property.

14. Where a mortgagee has been put in possession by lawful execution of an Order for possession, the legal status quo is that the mortgagee is entitled to possession and, if unlawfully ousted by the mortgagor (or indeed anyone else), can bring an application to restrain that trespass. In circumstances where the mortgageee’s right to enter into possession has already been recognised by execution of an Order for possession, this is regarded as a prohibitory injunction, rather than a mandatory one: Start Mortgages DAC v Rogers [2021] IEHC 691.

15. I would add that, as the mortgagee’s title, i.e., its right to go into possession, has already been determined, the mortgagee for the time being is entitled to an interlocutory injunction as of right and the balance of justice does not require to be considered: Keating v. Jervis Shopping Centre Ltd [1997] 1 I.R. 512. That latter principle is easily satisfied in a case where possession has previously been recovered on foot of an Order for possession as the making of the Order represents a determination of the parties’ respective legal rights.

16. In most cases, therefore, the grant of an Order for possession and the execution of that Order by the relevant Sheriff (in Dublin or Cork) or County Registrar (in any other county) means that the injunction should issue as of right.

17. However, in this case, questions arose at the hearing as to the lawfulness of the process whereby possession of the Property was recovered on behalf of the County Registrar and handed over to the plaintiff. In reliance on Start Mortgages v. Kavanagh [2025] IECA 127, the first defendant questioned the authority of the person who recovered possession and sought to resist the injunction. Furthermore, since the date of the Order for possession, Promontoria’s interest has apparently been transferred to the plaintiff.

18. The lawfulness of the process of execution in this case and the ability of the plaintiff to rely on the Order for possession are the only issues raised at the hearing which could, in my view, raise any issue as to the mortgagee’s entitlement to possession in this case.

Lawfulness of recovery of possession

19. The Order for possession was granted in favour of Promontoria. However, it is said that Promontoria subsequently conveyed the mortgage to the plaintiff. There is no direct evidence of that because the plaintiff relies, for the purposes of this application, on the Orders of the County Registrar, which include not only the Order for possession, but a subsequent Order of

9 October, 2023, which grants leave to the plaintiff to execute the Order for possession and which is discussed further below.

20. If the plaintiff is to rely on the Order for possession granted in favour of its predecessorin-title for the purposes of this application, it must show that it is entitled to the benefit of that Order. The Rules of the Circuit Court envisage that the person entitled to the benefit of such an Order can change after it is granted. Prior to their substitution by the Circuit Court Rules (Order 36) 2024, S.I. 107 of 2024, with effect from 29 March, 2024, Order 36, rr. 9 and 10 of the Rules of the Circuit Court provided: “9. Every decree of the court, and every judgment in default of appearance or defence, shall be in full force and effect for a period of 12 years from the date thereof, and an execution order based on any such decree or judgment may be issued in the office within the said period, but not after the expiration of six years from the date of such decree or judgment without leave of the court. An application for such leave shall be made by motion on notice to the party sought to be made liable.

10. If, at any time during the period of 12 years, any change has taken place, by death, assignment or otherwise, in the parties entitled or liable to execution, the party claiming to be so entitled may apply to the court on notice for leave to issue execution, and the original decree or judgment may be amended so as to give effect to any order made by the court on the application.”

21. It seems that, rather than apply to amend the Order for possession, as contemplated by Order 36, r. 10 of the Rules of the Circuit Court in cases where the person entitled to execute such an order has changed by reason of assignment, it was instead decided to amend the Possession Proceedings, even though these had concluded on 11 February, 2019, with the making of final Orders. Accordingly, by Order dated 9 October, 2023, the Wicklow County Registrar made a further Order in the Possession Proceedings, as follows: “1. An Order pursuant to Order 22, rule 4 of the Circuit Court Rules substituting the applicant; Everyday Finance Designated Activity Company into the within proceedings in the stead of the plaintiff subject to any arrangements, negotiations and agreements that exist between the parties

2. That all future proceedings herein be carried on between Everyday Finance Designation Activity Company as Plaintiff and Anthony and Hillary Carroll Defendants herein.

3. An order granting leave to issue execution on the Order for possession dated 11th February 2019 with a stay on execution until 8 January 2024.”

22. That Order does not, as can be seen from its terms, amend the Order for possession dated 11 February, 2019, so as to name the plaintiff in this application as the beneficiary of that Order for possession in place of Promontoria. Instead, as is clear from the reference to Order 22, r. 4, the application made was one to amend the proceedings so as to substitute the plaintiff for Promontoria – an application which would have been appropriate had Everyday taken an assignment of Promontoria’s interest while the Proceedings were still ongoing, though it might possibly be useful even after the conclusion of proceedings if for any reason the proceedings were capable of being re-entered and such re-entry was required.

23. In any event, even though the Order for possession of 11 February, 2019, was never amended as seems to be required by O. 36, an Order was nevertheless granted giving leave to Everyday to issue execution on the order for possession. The plaintiff relies on that leave, granted on 9 October, 2023, as proof in this application of its entitlement to possession.

24. The Order of the County Registrar of 9 October, 2023, was never appealed or judicially reviewed by the Defendants, and, accordingly, notwithstanding that it gives leave to the plaintiff to execute an Order made in favour of the plaintiff’s predecessor-in-title, rather than the plaintiff itself, it stands as a valid order: see Crowley v. Ireland [2022] IEHC 596. (This aspect of the judgment was not appealed: [2023] IECA 847.)

25. In reliance on that third paragraph of the Order of 9 October, 2023, the plaintiff through its solicitors, applied for an execution order, and this issued on 26 April, 2024. This execution order is issued in terms of Form 23 of the Schedule of Forms annexed to the Rules of the Circuit Court. In accordance with the prescribed form, it is addressed to “the several Sheriffs and County Registrars”. The endorsement on the execution order, which appears to deal with the authority of court messengers, is likewise in the printed form and makes provision for signature by: “Sheriff or County Registrar of the said County”.

26. For the reasons explained by Allen J. in a Start Mortgages v. Kavanagh [2025] IECA

127 at paras. 27-28, it is only Dublin and Cork that there is a county sheriff. In all other counties, including County Wicklow, the officer responsible for execution of possession orders is that County Registrar. The prescribed form is designed to apply in all counties, and is properly understood in this case as being addressed to the Wicklow County Registrar.

27. However, County Registrars, as one might expect given their many other significant responsibilities, do not themselves attend at properties to recover possession. Section 4 (1) of the Enforcement of Court Orders Act, 1926, as amended by s. 29 of the Courts Service Act, 1998, provides that every County Registrar shall, subject to the approval of the Courts Service, appoint such number of persons (who shall be styled and are referred to as “court messengers”) as the Courts Service shall sanction to act for the County Registrar and otherwise assist him or her in the execution orders under the 1926 Act. Para. 563 of the Law Reform Commission Consultation Paper on Personal Debt Management and Debt Enforcement (LRC CP 56-2009) states that court messengers are salaried civil servants, while at para. 28 of the Sheriff Review Group Report, (Department of Justice, 2024), it is stated that court messengers are members of staff of the Courts Service.

28. Persons appointed as court messengers can then be authorised pursuant to s. 5 of the Enforcement of Court Orders Act, 1926, to give effect to a particular execution Order. Section

5 of the 1926 Act provides that the County registrar shall authorise “the court messenger by name to execute or assist in the execution of that particular execution order, and no court messenger shall execute or take part in the execution of any execution order unless duly authorised so to do by such warrant as aforesaid.”

29. Pursuant to s. 5(2) it is then the duty of every court messenger executing or assisting in the execution of an execution order, at any time after entering on any lands or premises under such execution order and before removing there from any property, to produce on demand to the person in apparent possession of such lands or premises the warrant issued to him under this section by the County Registrar. That is a fundamental and important provision requiring any court messenger to prove their authority by production of the relevant warrant when asked to do so.

30. On 14 April, 2025, the County Registrar issued a Warrant on Order Lodged for Execution “to my court messenger and bailiffs whose names and addresses are set out in the first schedule hereto for this purpose”. This is the Warrant required by s. 5 of the 1926 Act and it refers to proceedings between Everyday and the Defendants and identifies the Property. Confusingly, the record number is not the record number of the Possession Proceedings but apparently relates to the issue of the execution Order itself. That Warrant has been exhibited, and it commands the person named in the First Schedule to enter on the lands set out in the Order lodged for execution. The argument at hearing largely concerned the identity of that person and whether they were a duly appointed court messenger to whom such a Warrant could be addressed.

31. The First Schedule names Fergus Gallagher, describes him as “special bailiff”, and gives his address as “Dublin”. It appears that Mr. Gallagher is the Sheriff for County Dublin and the defendants question his authority to act as court messenger for the Wicklow County Registrar. Everyday says that the Warrant is sufficient and that the presumption omnia praesumuntur rise esse acta applies.

32. The question of whether that presumption applies on the facts of this case or whether a serious question has been raised as to Mr. Gallagher’s authority, must be considered against the background of the relevant statutory provisions, already referred to above. Two separate points emerged from argument.

33. First, it was said by Everyday that the Warrant alone constituted sufficient authority for Mr. Gallagher to act and he did not need to be first appointed as a court messenger. This submission was based on the repeal by s. 7 of the Private Security Services (Amendment) Act, 2021, of s. 4 (4) of the 1926 Act, which had provided that the County Registrar should cause a correct list of the names and places of residence of the persons for the time of holding the office of court messenger in the relevant bailiwick to be kept posted in the County Registrar’s office and in every courthouse in his or her bailiwick. While subs. (4) was repealed by s. 7 of the 2021 Act, the remainder of the section was left intact.

34. It was submitted at hearing that the repeal of subs. (4) meant that it was not necessary to produce in evidence proof of the appointment of any particular individual as court messenger. Insofar as this submission went beyond reliance on the presumption omnia praesumuntur rise esse acta and suggested that a court messenger need only have a Warrant authorising him or her to execute a particular order on an ad hoc basis and was not required to have been appointed to the position of court messenger as such, I disagree. Subsection (4) relates to the publication of the identities of persons lawfully appointed as court messengers, but the appointment of individuals to act as court messengers pursuant to subs. (1) is a prior step which must be taken with the approval of the Courts Service.

35. Indeed, the 2021 Act, although repealing the requirement for publication of the identities and addresses of court messengers in public buildings, also (by virtue of s. 2) amends the Private Security Services Act, 2004, to insert a definition section. That in turn provides that “court messenger” means a person appointed as such under s. 4 of the 1926 Act, a clear reference to appointment of certain individuals to this position. (It also, interestingly, introduces the concept of an “enforcement guard” which is defined as “a person other than a sheriff, county registrar or court messenger who for remuneration, as part of his or her duties, is authorised to perform [certain functions defined in the Act].”) Although removing the publication requirement, therefore, the 2021 Act envisages the formal appointment of court messengers as required by s. 4 (1) of the 1926 Act.

36. In my view, the legislation contemplates the appointment of court messengers who can then be authorised to execute particular orders by the issue to them of warrants relating to those particular orders. But warrants can only be issued to named individuals who have first been appointed as court messengers.

37. The second issue is whether the plaintiff needs to prove that Mr. Gallagher has been appointed as a court messenger by the Wicklow County Registrar with the approval of the Courts Service, or whether this can be presumed on the basis that everything has been done which ought to have been done.

38. Before considering that, I should say that it was suggested on behalf of the defendants at hearing that the fact that Mr. Gallagher was the Sheriff for County Dublin meant he could not be the court messenger for Wicklow. No authority was cited for that proposition, which seems to be based on an assumption that the person in question can only act in one particular bailiwick. Certainly, s. 12 (6) of the Court Officers Act, 1945, which establishes the office of sheriff, provides that the same person can be appointed as sheriff or neighbouring counties.

39. However, it does seem the Sheriffs are specifically appointed as such by the Government: see s. 12 (3) of the Courts Officers Act, 1945, and then only where the Minister for Justice, Home Affairs and Migration has, with the consent of the Minister for Finance, made an order declaring that certain powers and functions of the County Registrar for a particular county should no longer be vested in him or her.

40. That is quite a different process from that envisaged for the appointment of court messengers pursuant to s. 4 of the 1926 Act where the appointment is made by the County Registrar with the consent of the Courts Service. Therefore, it is not so much that a person appointed to execute court orders in one county could not be appointed to do so in another, but that the process by which a sheriff is appointed is so different from that by which court messengers are appointed, that it seems somewhat unlikely that the sheriff for County Dublin was formally appointed as court messenger to assist the Wicklow County Registrar.

41. To return to the reliance on the presumption, that applies where it appears on the face of the various documents that everything has been done which ought to have been done. However, in this case, Mr. Gallagher is described in the Warrant as “special bailiff” rather than as a “court messenger”. This suggests that he was not regarded by the County Registrar as a court messenger appointed under s. 4 of the 1926 Act. If Mr. Gallagher had been described as “court messenger” on the face of the Warrant, then everything appearing regularly on its face, the presumption would apply and it would be up to the defendants to tender evidence suggesting that Mr. Gallagher had not in fact been appointed as court messenger.

42. However, Mr. Gallagher is referred to as a “special bailiff” which suggests that neither the Wicklow County Registrar nor Mr. Gallagher himself thought Mr. Gallagher had been appointed to act as a court messenger but in fact suggests that Mr. Gallagher was acting on an ad hoc basis in lieu of a court messenger. I say this for two reasons.

43. First, the word “special” indicates that it is an ad hoc or extraordinary delegation of the execution process.

44. Secondly, court messengers are intended to have all of the powers of bailiffs which had previously been employed by Sheriffs: see para. 7 of (LRC 27-1988), Report on Debt Collection: (1) The Law Relating to Sheriffs. The reference to Mr. Gallagher being a “special bailiff” therefore suggests that it was intended that he would carry out the functions of a court messenger but the deliberate use of the word “bailiff” suggests that it was not intended to represent to anyone that Mr. Gallagher had been appointed as court messenger.

45. In addition, the endorsements on the Execution Order (order of possession) showing that possession of the Property was handed over to the plaintiff’s agent on 25 April, 2025, one of which is signed by Mr. Gallagher himself and one of which is signed by the plaintiff’s agent, refer to Mr. Gallagher as “sheriff” and "sheriff of the county of Dublin”, respectively.

46. In those circumstances, the relevant documents suggest that Mr. Gallagher has never been appointed as court messenger by the Wicklow County Register and acted on an ad hoc basis. That raises a serious question to be tried as to the lawfulness of the execution process in this case.

47. I note that in Kavanagh, the Court of Appeal upheld the decision of the High Court to refuse interlocutory relief where there were doubts about the lawfulness of the execution process. In those circumstances, following the authority of Kavanagh, there is a serious question to be tried as to whether possession was recovered by a person lawfully authorised.

Whether relief can be granted on other grounds

48. Notwithstanding the possible defects in the process of execution in this case, I cannot ignore the fact that the Wicklow County Registrar granted what seems to be a perfectly valid Order for possession of the Property as long ago as 11 February, 2019, and in respect of which the initial 10 month stay on execution expired approximately six years ago.

49. It should not be forgotten that the relevance of a lawful execution process is to bring a plaintiff within the category of a mortgagee in possession, and that the injunction is therefore to be regarded as attracting a lower threshold and that the status quo for the purposes of the balance of justice is that the mortgagee is lawfully entitled to be in possession, even if it has been ousted by the mortgagor. Alternatively, the conclusion of a lawful process of execution means that an injunction must issue as of right, without consideration of the balance of convenience at all, in accordance with Keating v. Jervis Shopping Centre Ltd. (I would suggest that it is in fact the latter analysis which is correct, although it does not seem to have been argued in Rogers.)

50. Either way, the significance of the lawfulness of the process of execution is that it can justify the grant of an injunction on those principles. It is not, however, the only route which a mortgagee can take in order to secure injunctive relief. It remains the position that the defendants are obliged to give up possession on foot of the Order for possession and this raises the question as to whether the plaintiff should nevertheless be granted an injunction on that basis, whether by reference to the Maha Lingham test or the principle in Keating v. Jervis Shopping Centre Ltd. In my view, the plaintiff would easily meet either of these tests if it were named as the beneficiary of the Order for possession.

51. The plaintiff could demonstrate that it was the beneficiary of that Order if it had applied to amend the Order so as to become named as the person entitled to the benefit of it. However, it has not done so. Alternatively, while I do not need to determine whether this is correct, it could perhaps demonstrate that it has taken an assignment of the benefit of the Order by way of Deed from Promontoria. However, that Deed has not been put in evidence.

52. As a result, there is a serious question to be tried as to whether possession was lawfully recovered and the plaintiff is not in a position to prove its right to the benefit of the Order for possession by other means. I will therefore refuse the application for an interlocutory injunction so as to put the plaintiff into possession pending trial.

53. I would add that, if it is ultimately found at trial that possession has not been lawfully recovered to date, the Order for possession is not spent and can be subject to a fresh process of execution. That is the logical consequence of the reasoning in Carlisle Mortgages Ltd. v. Costello [2018] IECA 334 as applied to a case where the execution process is subsequently found to be defective. As the plaintiff has the benefit of the Order of the County Registrar of 9 October, 2023, giving it leave to execute, it could reapply for an Execution Order and the process of execution could recommence.

54. I will list the matter in early course to deal with costs and to make such further directions as are necessary.