High Court refuses interlocutory injunction against mortgagee due to inadequate damages remedy and lack of undertaking.

APPROVED

[2025] IEHC 666

THE HIGH COURT

2025 969 P

BETWEEN

PAUL COYLE

PLAINTIFF

AND

EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY [TRADING AS

LINK FINANCIAL]

and

JOHN BOLAND

and

BIDX1 IRELAND LIMITED

and

TAILTE EIREANN

And

THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Mr Justice Nolan delivered on the 28th day of November 2025

Introduction

1. The Plaintiff seeks interlocutory injunctive relief restraining the First, Second and Third Defendants from taking possession of, or selling, a property known as Claddagh Cottage, Naas, Co. Kildare, which is comprised in Folio 47312F of the Register of Freeholders Co. Kildare (“the Property”), pending the trial of the action. The application was brought on an ex parte basis on the 7th of March 2025 and is now before the Court on notice.

2. The Plaintiff makes many allegations against the Defendants all to the effect that the First and Second Defendants (“the relevant defendants”) have no legal right to execute a charge registered against the Property. In particular he alleges that the mortgage was unlawfully assigned, that the relevant Defendants have no contractual entitlement to enforce a loan he took out years ago, that the three defendants trespassed on the Property, and that any sale would amount to unjust enrichment. He also refers to ongoing complaints before the Financial Services and Pensions Ombudsman (FSPO) and to alleged breaches of the Central Bank’s Tracker Mortgage Examination.

3. The Defendants oppose the application on the grounds that:

(i) the Plaintiff is in admitted default on the loan.

(ii) the mortgage was lawfully assigned and is registered.

(iii) the Plaintiff’s interest is purely financial and compensable in damages.

(iv) the Plaintiff has not and cannot give the required undertaking as to damages;

and

(v) the balance of convenience favours the refusal of relief.

4. The Plaintiff has alleged that he has a diagnosis of ADHD and requested accommodation which the Court has afforded him. He was given full opportunity to be heard and no procedural step was taken that would unfairly prejudice him. However, the diagnosis has no bearing on the substantive legal issues or the equitable test to be applied.

Background

5. In 2005, the Plaintiff and his wife remortgaged their home with IIB Home Loans Limited (“IIB”) in order to purchase the Property, which adjoins the family home. The two properties share a common driveway.

6. To do so he borrowed the sum of €460,000. There is now due and owing on the original mortgage the sum of €560,387.00. He also has significant other liabilities. In Re Decobake Limited [2024] IECA 67, a case involving the Plaintiff and Dublin City Council, the Court of Appeal repeated the views of Cregan J. in the High Court, that he was “– apparently – impecunious”, and that there was no reasonable prospect of the liquidator or Dublin City Council recovering their costs.

The Mortgage History

7. The Property was mortgaged by the Plaintiff to IIB and the mortgage was executed on the 5th of August 2005. It was duly registered as a charge on the folio on the 1st of November 2005.

8. On the 30th of September 2008, by special resolution, IIB was converted into an unlimited company and changed its name to KBC Mortgage Bank. It, in turn, transferred its entire banking business to KBC Bank Ireland PLC.

9. Pursuant to an Irish law Deed of Transfer of the 30th of November 2018, KBC assigned its rights, title, interest and benefits, past, present and future to Beltony Property Finance DAC (“Beltony”).

10. On the 7th of August 2020, Beltony assigned its interest under the loan facility and mortgage of the Property to Pepper Finance Corporation Ireland DAC (“Pepper”).

11. Finally on the 19th of May 2023, Pepper assigned its rights, title, interest and benefit past, present and under the loan facility and mortgage to the First Named Defendant, Everyday Finance DAC (“Everyday”).

12. As I noted above, the Plaintiff and his wife defaulted in their repayment obligations to Pepper and on the 9th of June 2021, a receiver was appointed. When the transfer of the loan facility and mortgage from Pepper to Everyday occurred, Pepper executed a Receiver Novation Deed, pursuant to which Everyday was substituted in place of Pepper as a party to the instrument of appointment of the receiver.

13. On the 20th of January 2025, Everyday appointed Mr. Boland, the Second Named Defendant, as agent in respect of the Property. He was granted authority to exercise powers conferred on Everyday under the mortgage and statute, for the purposes of taking possession of the Property, marketing and letting it or selling it, and the performance of the matters ancillary to those functions.

Legal Test for Injunctive Relief

14. The applicable principles for seeking injunctive relief are those set out in Campus Oil v Minister for Industry and Commerce [1983] I.R. 88 and affirmed in Okunade v Minister for Justice [2012] 3 I.R. 152 and more recently Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65 (“Merck”).

15. As Twomey J. noted in Perfect Stripe Ltd t/a Grafter v Fennell [2025] IEHC 585, it is clear that for the Plaintiff to be granted an interlocutory injunction, he must establish that there is a fair issue to be tried and if so, that the balance of justice (or balance of convenience) favours the grant of an injunction pending the trial.

16. Merck makes clear that the primary task of the court is to do justice between the parties pending the trial and the most important element is usually, but not always, the question of the adequacy of damages.

17. However, the Supreme Court also noted that in commercial disputes, a court should be robustly sceptical of a claim that damages are not an adequate remedy.

18. O’Donnell J (as he then was) said: “(4) The most important element in that balance is, in most cases, the question of adequacy of damages;

(5) In commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy;

(6) Nevertheless, difficulty in assessing damages may be a factor which can be taken account of and lead to the grant of an interlocutory injunction, particularly where the difficulty in calculation and assessment makes it more likely that any damages awarded will not be a precise and perfect remedy. In such cases, it may be just and convenient to grant an interlocutory injunction, even though damages are an available remedy at trial.

(7) While the adequacy of damages is the most important component of any assessment of the balance of convenience or balance of justice, a number of other factors may come into play and may properly be considered and weighed in the balance in considering how matters are to be held most fairly pending a trial, and recognising the possibility that there may be no trial;

(8) While a structured approach facilitates analysis and, if necessary, review, any application should be approached with a recognition of the essential flexibility of the remedy and the fundamental objective in seeking to minimise injustice, in circumstances where the legal rights of the parties have yet to be determined.”

19. The onus rests on the applicant, who seeks the discretionary equitable remedy of an injunction, to satisfy the court that the relief should be granted and most importantly must give a sworn undertaking as to damages and be in a position to honour such an undertaking.

Fair Question to Be Tried

20. As I set out above, the Plaintiff makes many complaints in relation to the activities of the Defendants. At the outset Mr. O’hUiginn BL, counsel for the relevant Defendants, has conceded that the Plaintiff has raised a fair issue to be tried in regard to the transfer of the mortgage to the various financial institutions, bearing in mind the documentation exhibited and the low threshold that must be meet. I applaud this approach, since it means the Court does not have to go through all the documents for the purposes of ascertaining whether, in fact, the issues which the Plaintiff has raised amount to be a fair question to be tried.

21. That being the case the Court must move to the issue of the adequacy of damages.

Adequacy of Damages

22. The Plaintiff argues that he is a consumer within the meaning of the consumer legislation and that damages cannot be an adequate remedy. He alleges that the terms of the mortgage are unfair and that by allowing the mortgage or the right to sell property to any other party on whatever terms “it may Think fit”, as quoted in the mortgage, harm could be inflicted upon him. To that extent he relies upon European law and in particular the Court of Justice of the European Union decision in the case of GR Real s. r. o. v PO and RT Case C-351/23. However, he does not specify what precise harm he is referring to.

23. That was a decision of the Court of Justice in relation to the interpretation of Articles 6(1) and 7(1) of the Council Directive 93/13 ECC of the 5th of April 1993 (“the Directive”). In that case a bank called in a loan and attempted to sell the defendants’ home. A court in Slovakia ordered the sale and then directed them to vacate the Property. They alleged that they were consumers and had a right to accommodation. The court took the view that the acceleration clause which led to the extrajudicial auction, may not have complied with the principles of transparency, particularly in circumstances where the bank’s general conditions did not bring it to the knowledge of the defendants.

24. At para. 60, it is clear that the court's focus is on protecting a dwelling which constitutes a family home; the right to accommodation being a fundamental right guaranteed under Article

7 of the Charter of Fundamental Rights of the European Union. The court said at para. 92, that Article 7(1) of the Directive required that the consumer is not deprived of the possibility of obtaining an injunction where the validity of a contractual term, which maybe unfair is being challenged, because, to quote the judgment “since in the absence of that suspension a decision on the substance of the action finding that that term is unfair would afford that consumer only subsequent protection of a purely compensatory nature, which would be incomplete and insufficient and therefore would not be an adequate or effective means of preventing the continued use of that term”.

25. However, it is clear from the judgment that the court was focused upon the sale of a family home. It is also clear from para. 79 that the court took into consideration that the referring court expressed doubts as to whether the acceleration clause which led to the enforcement complied with the requirement of transparency. None of those circumstances apply in this case.

26. The Plaintiff also relies upon the decision of Costea v SC Volksbank Romania SA Case C-110/14. In that case the referring court asked whether Article 2(b) of the Directive must be interpreted as meaning that a natural person who practises as a lawyer and concludes a credit agreement with a bank, in which the purpose of the credit is not specified, was a consumer. At para. 16 the court said: - “16. a ‘consumer’ is any natural person who, in contracts covered by the directive, is acting for purposes which are outside his trade, business or profession. Likewise, a ‘seller or supplier’ is any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.…

18. That criterion corresponds to the idea on which the system of protection implemented by that directive is based, namely that the consumer is in a weaker position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms.…

20. At the same time, it should be noted that one and the same person can act as a consumer in certain transactions and as a seller or supplier in others.…

21. The concept of ‘consumer’, within the meaning of Article 2(b) of Directive 93/13, is…objective in nature and is distinct from the concrete knowledge the person in question may have, or from the information that person actually has.”

27. The reason why these issues of European law are relevant in the context of the adequacy of damages lies in para. 92 of the GR Real case. The court said: - “In that regard, as is apparent from the case-law cited in paragraph 59 of the present judgment, Article 7(1) of Directive 93/13 requires that the consumer is not deprived of the effective possibility of obtaining the suspension of enforcement proceedings brought pursuant to an enforceable instrument based on a contractual term the validity of which is challenged before the courts on the ground that it is unfair, since, in the absence of that suspension, a decision on the substance of the action finding that that term is unfair would afford that consumer only subsequent protection of a purely compensatory nature, which would be incomplete and insufficient and therefore would not be an adequate or effective means of preventing the continued use of that term.”

28. The Plaintiff’s argument being that if he is a consumer, European law dictates that damages are not an adequate remedy as set out in the cases referred to above.

29. In regard to his submission that the terms of the mortgage are unfair, because it allows the mortgagor to sell on whatever terms “it may Think fit”, as quoted in the mortgage, harm could be inflicted upon him. I find that this is only a theoretical proposition for which there is no evidence.

30. Ultimately the facts of the case are the crucial determinant of whether or not the plaintiff is a consumer. To that end he also relies upon Gruber v Bay Wa AG Case C-464/01, a case I shall return.

The Mortgage and Letters of Offer

31. The Plaintiff says that the Property was never an investment property and was purchased as part of a family plan to provide a home for his children. In what is described as an “amended letter of offer”, dated the 4th of July 2005, IIB approved lending the sum of €460,000 to the Plaintiff and his wife, secured on the Property, subject to special conditions. In the special conditions there are certain matters which were specifically said to be “For the attention of solicitor”. The Plaintiff accepts that at all material times he was advised by his solicitor.

32. Under the heading “Matters for the attention of Broker/Client”, the word “Advisory” appears. There are seven specific matters set out. Clause 333 says as follows: - “The Borrower warrants to the Lender that in accepting this loan facility, he is acting within his business, trade or profession and is thereby not a “consumer” within the meaning of the Consumer Credit Act 1995-Section 2.”

33. This is one of the terms which the Plaintiff says is unfair, together with the terms of the contract which allow the lender to transfer the benefit of the mortgage to a third party. At Clause 34, the lender consented to a tenancy in respect of the Property under certain terms.

Decision on Whether the Plaintiff is a Consumer

34. It seems to me that this clause causes the Plaintiff serious difficulties. On the one hand, he argues that he is a consumer, with all the protection that EU law gives to him, on the other he warranted that he was not a consumer. The difficulty from the Plaintiff’s perspective is that it was on the basis of the warranty he gave to IIB that he got the loan. These were special conditions which were brought to his attention and to the attention of his solicitor. Bearing in mind the EU case law is intended to protect consumers who do not have the benefit of legal advice, it is clear to me that EU law does not give him any protection on this issue. To that extent therefore, it seems to me about the decision of Gruber is particularly to point.

35. At para. 36 the court repeated that the concept of consumer must be strictly construed, saying: - “reference being made to the position of the person concerned in a particular contract, having regard to the nature and aim of that contract and not to the subjective situation of the person concerned, since the same person may be regarded as a consumer in relation to certain supplies and as an economic operator in relation to others.”

36. The facts of the case are ultimately the crucial determinant of as to whether or not the Plaintiff is a consumer. However, I find as a fact that he was not a consumer at the time he made his warranty to IIB with the benefit of legal advice and therefore his EU law argument does not place him in a position in which damages would not be an adequate remedy, in the context of seeking injunctive relief.

Further Submissions

37. In the course of his submissions, he stated that Everyday and the previous financial institutions never had a power of sale and that was the reason he had not made payments. On enquiry from the Court, he was hesitant in identifying when he had at last made a payment. He thought it was in or around 2017. In point of fact, it would seem clear from the statements that he has not made any payments since 2011.

38. That was a time when the original lender IIB still held the mortgage, albeit under a different name, KBC. On that basis this argument rings hollow. He clearly did not withhold payments because of a transfer of ownership of the mortgage to the various other financial institutions. In truth he has not made any payments for over 14 years.

39. While he says the relevant defendants will not be damaged by any delay because the property prices are going up, that is not a basis for granting an injunction. He believes that a forced sale now will mean that the Property is lost to his family or unrecoverable as he says.

40. To that extent he relies upon the Court of Appeal decision in Ooi v Ireland [2025] IECA 40, Baínne Aláinn Ltd v Glanbia plc [2014] IEHC 482 and Sammom v Tyrell and Everyday Finance DAC [2021] IEHC 6.

41. The Ooi case is a different case to the case before the Court and does not help the Plaintiff. It was an appeal from the Order of Cahill J. where she refused an injunction. Indeed, when you read the judgment, it is clear that the learned High Court Judge considered carefully where the balance of justice lay, and refused the injunction sought. The Court of Appeal upheld her.

42. The Plaintiff however relies upon two sentences at para. 34, where Meenan J. says: - “Apart altogether from the absence of any evidence, the Trial Judge, in my view, gave too little weight to the failure of the appellant to give any undertaking as to damages. It is an essential quid pro quo for the grant of an injunction, even if the applicant for the injunction may not in reality be able to make good their undertaking. The stance taken by the appellant in effect invites the Court to waive the undertaking as to damages on the bare assertion that the litigant will not be able to meet any award of damages on foot of the undertaking. To accede to the submission would be to drive a coach and horses through this ancient and vitally important requirement and I would therefore disagree to that extent with the careful judgment of the High Court.”

43. Why the Plaintiff relies upon this case I do not know. Not only does it not assist him, but in fact it highlights a serious issue in this case. As Meenan J. noted, it is an essential quid pro quo that an undertaking as to damages be given, unless in unusual or limited circumstances. In this case the Plaintiff has given an undertaking, but only late in the day and as I will set out below, there is a serious question as to whether what is being offered could be regarded as an undertaking or whether it has any validity.

44. In the Baínne Aláinn case Barrett J. dealt with a commercial dispute between the defendant and the plaintiff’s creamery. It is a decision which was delivered before Merck and indeed Ooi and therefore is of limited value.

45. In the Sammon case the court was also dealing with an application for an interlocutory injunction restraining the registered owners of a charge from selling the property. The issue before the Court was whether or not extended liabilities arising out of Mr Sammons’ construction business, could be recovered by the sale of lands bought for a different purpose, and most importantly subsequent borrowings which were ultimately repaid.

46. It is clear from the judgment that there was serious dispute as to whether there was a fair question to be tried, on the basis of the correct construction of the charge. The status quo was that the plaintiffs were in possession of the property. In all the circumstances, the court came to the view that the lesser risk of injustice lay with granting the order.

47. This case simply shows that each case must be decided upon its own facts. To the lay litigant, some cases may be precisely in line with the facts of their case, as they see it, but in point of fact that may not be the case.

48. While the Plaintiff may not have initially purchased the Property for commercial purposes, it has been used for such purposes and indeed is still being used for such purposes. The cases to which he refers do not assist him.

Balance of Justice

49. The Supreme Court noted in Merck that, in commercial disputes, a court should be robustly sceptical of a claim that damages are not an adequate remedy.

50. The Plaintiff referred to a number of different decisions, not all of them particularly relevant. While I appreciate that he is a litigant in person, it does not help the Court to take sentence is out of context to try and fashion an argument. Among the cases mentioned were Philpot v Pepper Finance Corporation DAC [2025] IEHC 199, Ryan v Deangrove [2021] IECA 38, and Charlton v Scriven [2019] IESC 28 where Clarke C.J. noted the role of the court is to fashion an order which runs the least risk of injustice.

51. The court must take all matters into consideration. In this case the financial institution has conceded that a fair issue has been raised. But that is very different to conceding that an injunction should be granted.

52. The Plaintiff’s arguments in relation to the Property are contradictory. On the one hand, he says it was never an investment or commercial property but was to provide a home for his daughter and to protect the privacy of his home, given its location adjacent to his home. On the other, in his submissions and affidavits he asserts that the Property is “vital to his business and family life” and that a sale would cause irreparable harm. However, the evidence before the Court shows that the Property is used in connection with his business activity. Indeed, the photographs of the Property exhibited in the affidavits show commercial activity.

53. Further he says that the various financial institutions did not and do not have a right to enforce the debt, yet he complains that they will not talk to him about proposals which he wishes to make to discharge it. In the meantime the indebtedness is growing.

54. The Court must consider what is the reality of his arguments succeeding. At this remove, the Court cannot determine those arguments with finality but nonetheless it seems to me that he is not a consumer, within the context of EU law and I have so found. Therefore, he cannot get the benefit he argues for namely that damages would not be an adequate remedy. Further the Property does not form part of his family home and was warranted as a commercial purchase.

55. The Plaintiff has made no payments for 14 years. If the order were granted, I believe that the Defendant would suffer financial loss. On the face of it the receiver was validly appointed. The Defendants hold registered title as mortgagees, and the Folio is prima facie conclusive evidence of title. (Tanager DAC v Kane [2019] IESCDET 80)

56. The cases to which he refers do not assist him since read in their entirety they do not make any point in his favour. Accordingly, I find that damages would be an adequate remedy for him, if he were to succeed. In my view, the balance of justice clearly rests with refusing the injunction. As Clark J. pointed out the court is attempting to fashion an order which runs the least risk of injustice.

Undertaking as to Damages

57. In the event that I am incorrect in relation to the analysis which I have set out above, there is one further matter which requires to be considered. The Plaintiff first swore his grounding affidavit in March of 2025. In it he did not give undertaking as to damages. He swore another affidavit in April of 2025 but again gave no undertaking. It was only in a recent affidavit sworn in June 2025 at para. 32, referring to himself in the third person, that he said as follows: - “For the avoidance of doubt, the plaintiff confirms that he offers all undertakings required for the grant of interlocutory injunctive relief, including an undertaking as to damages”.

58. When questioned on this issue, bearing in mind his significant indebtedness, he pointed to certain lands (four acres) shown in a photograph, which he said were unencumbered. He said that they fronted the road and therefore were prime development land which would generate a sale value of something between €20,000 to €25,000 per acre. To emphasise this point, he marked up the photograph.

59. In response Mr. ÓhUigínn says it is not for the court or indeed his client to try and ascertain whether there is any merit to this submission. I agree. The Plaintiff had ample opportunity to give an appropriate undertaking as to damages, and it was only when it was pointed out to him that he decided to deal with the issue. Pointing to land in a photograph and asserting that it is unencumbered is not enough to satisfy the legal requirement of giving an undertaking as to damages. As noted in Re Decobake Limited he is “– apparently – impecunious”.

60. While he is adamant that he will never lose, I do not share his optimism. He is hopelessly in debt and is attempting to cling onto a remaining asset. Therefore, I do not accept that the Plaintiff is in a position to give an undertaking as to damages as Meenan J. pointed out in the Ooi case.

Conclusion

61. While there is an arguable case, the Plaintiff has failed to discharge the burden of demonstrating that damages would be inadequate or that the balance of convenience lies in favour of injunctive relief.

62. The application for an interlocutory injunction is therefore refused.