Court of Appeal dismisses appeal where plaintiff's fraudulent misrepresentations to receiver bar adverse possession claim.

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THE COURT OF APPEAL

Court of Appeal Record No.: 2025 208

High Court Record No.: 2023 4017 P

Neutral Citation No.: [2026] IECA 18

Faherty J. Binchy J. Pilkington J.

BETWEEN/

JUERG VON GEITZ

APPELLANT/

PLAINTIFF

- AND -

TOM O’BRIEN AND MAZARS

RESPONDENTS/

DEFENDANTS

JUDGMENT of Mr. Justice Binchy delivered on the 20th day of February 2026

1. This is the plaintiff’s appeal from the judgment and order of the High Court (Nolan J.) of 3rd July 2025 whereby the High Court, on the application of the defendant, the respondent to this appeal, dismissed the within proceedings pursuant to O. 19, r. 28 of the Rules of the Superior Courts (“RSC”) on the basis that they are bound to fail.

2. The proceedings are concerned with the property known as 42 Percy Lane, Dublin 4 (hereafter “the Property”). In 2007, the then owner of the Property namely a Mr. Ronan Murtagh, granted a mortgage and charge to the Governor and Company of the Bank of Ireland (“the Bank”), by way of security for liabilities of the order of €1.95 million. The mortgage and charge was registered in the registry of deeds on 22nd August 2007.

3. Within a short period thereafter, Mr. Murtagh ran into financial difficulties and relocated to the United Kingdom where he applied, successfully, to have himself declared bankrupt. The adjudication order is dated 10th September 2012.

4. At around this time the bank appointed a Mr. Maurice G. Lyons, solicitor, receiver over the Property. It is unknown, what steps, if any, Mr. Lyons took as receiver but in any case, the respondent, Mr. O’Brien, was subsequently appointed as receiver over the Property by way of deed of appointment dated 24th January 2019. The appellant, however, contests the validity of the respondent’s appointment of receiver.

5. Following upon his appointment as receiver of the Property, Mr. O’Brien, on 26th March 2019, sent a letter addressed to the occupants of the Property advising them of his appointment and requesting information and documentation regarding the basis of their occupation of the same. He received no reply to this letter and several further letters to the same effect sent to the Property during April and May 2019 also went unanswered.

6. On 6th September 2019, Mr. O’Brien received an email from a firm of solicitors namely Benjamin J. Higgins Solicitors attaching a copy of a letting agreement dated 2nd May 2011 purportedly entered into between Mr. Murtagh and a company registered in Gibraltar known as Skrambel Ltd. Pursuant to this agreement, Mr. Murtagh purportedly let the Property to Skrambel Ltd. for a term of 21 years commencing on 2nd May 2011 at a monthly rent of €800. Particulars of the landlord’s bank account at Bank of Ireland Private Banking are provided for the purpose of payment of rent. However, there is provision for the waiver of rental for a period of five years to enable the tenant to implement works of refurbishment at an estimated cost of €48,000. According to the respondent, the grant of such a lease or letting agreement (which I hereafter refer to as “the Lease”) over the Property would have required the consent of the Bank which was neither sought nor obtained by Mr. Murtagh. It is common case that Skrambel Ltd. was struck off the register of companies in Gibraltar on 20th April 2016.

7. On 6th December 2019, the Bank sold certain loan assets, including the benefit of the security granted by Mr. Murtagh over the Property to Link ASI Ltd. By deed of novation entered into by the Bank, Bank of Ireland Mortgage Bank, Link ASI Ltd. and the respondent, it was agreed that Link ASI Ltd. would be substituted in place of the Bank and Bank of Ireland Mortgage Bank Ltd. as a party to the receiver agreements whereby the respondent was appointed as receiver over the Property, and it was confirmed that the respondent would continue to act as receiver of the same. In his grounds of appeal, the appellant contested the validity of this mechanism for continuing the receivership following the sale of the loan. However, at the hearing of this appeal he acknowledged that receivership could in principle be continued through the mechanism of a novation agreement, but he contested the respondent’s appointment as receiver on other grounds which I address below.

8. In 2019 the respondent issued proceedings (the “2019 proceedings”) with a view to seeking injunctive relief against the appellant, requiring him to vacate the Property. The 2019 proceedings were not pursued to a conclusion, and were adjourned generally with liberty to re-enter. That this is so is apparent from a replying affidavit (and the exhibits thereto) sworn by the respondent in response to the appellant’s replying affidavit sworn in this application. While the 2019 proceedings are of no relevance to the issues raised by these proceedings, the appellant contends that the respondent never actually issued proceedings seeking injunctive relief, and that the result is that any proceedings taken to enforce the deed of mortgage are statute-barred. The appellant also makes other allegations regarding the 2019 proceedings which it is not necessary to address here, although I will address them as needs be below.

9. In the course of 2022, the office of the receiver had correspondence with the appellant whereby the receiver sought access to the Property, asserting that what he referred to as “the purported lease” of the Property was not recognised and that any occupation of the Property on the part of the appellant constituted trespass. The appellant replied denying those assertions and on 8th April 2022, he sent to the office of the respondent an email attaching what he described as an amended lease, i.e. an amended version of the Lease between Mr. Murtagh and Skrambel Ltd. The only amendment is to purport to add the appellant as a cotenant to the Lease.

10. In his cover email attaching this document, the appellant says that the amendment was executed soon after the creation of the lease. However, in his affidavit sworn in opposition to this application and in the course of the hearing in the court below the appellant accepted that this was not so and that he had generated this document for negotiation purposes. In his judgment, the trial judge took a dim view of this conduct and dealt with it robustly in his judgment. He described it as a “fraudulent attempt by the [appellant] to try to improve his negotiations with the receiver for his own ends.”

11. In an open letter to the receiver sent by email of 31st May 2022, the appellant put forward what he describes as four possibilities in relation to the Property. These were: - “1. You dispose of the freehold on the open market with our tenancy in situ, as confirmed by the Mazars property agent Marian McQuillan from Quillsen auctioneers.

2. We go to binding arbitration and/or the PRTB, as suggested.

3. You purchase our leasehold interest.

4. We purchase your freehold interest.”

12. This correspondence did not lead to a resolution. The Property was sold by the receiver on 24th November 2022 by way of a private sale. The purchaser’s solicitors were expressly put on notice that the appellant was making a claim for adverse possession of the Property.

13. Finally, so far as the background is concerned, on 4th October 2022 the appellant made an application to the Property Registration Authority (which was subsequently amalgamated with other agencies and is now known and will hereafter be referred to as Tailte Éireann) to have himself registered as owner of the Property on the grounds of adverse possession. Objections were made to this application, supported by affidavits, contesting the factual basis for the application relied upon by the appellant in support of the same. Since the application was contested it was refused by Tailte Éireann in a ruling dated 21st July 2023. Although Tailte Éireann notified the appellant that there is a procedure providing for an appeal of such rulings to the Court, for reasons best known to himself he did not avail of that procedure.

The Proceedings

14. The within proceedings commenced by way of plenary summons issued on 15th August 2023. A statement of claim was delivered on 30th July 2024, and an amended statement of claim was delivered on 24th September 2024. There are five headings of claim as follows:

“A. Damages for negligence, breach of fiduciary duty, duty of care and negligent misstatement

B. An order confirming the Plaintiffs’ Adverse Possession of 42 Percy Lane

C. An order confirming the conveyance of 42 Percy Lane void

D. Direct court costs arising from and incidental to these proceedings

E. Such further or other Order as this Honourable Court may deem appropriate”.

15. On 12th November 2024 the respondent issued a motion to dismiss the proceedings pursuant to O. 19, r. 28 of the RSC on the basis that the appellant’s claim amounts to an abuse of process and/or is bound to fail and/or that the appellant’s claim has no reasonable chance of succeeding. The motion was grounded upon an affidavit of the respondent of 8th November 2024.

16. Having set out the background to the proceedings and the nature of the appellant’s claim, the respondent proceeds to explain that the Property was sold on 24th November 2022 and that the purchaser’s solicitors were expressly put on notice of the appellant’s claim for adverse possession. The respondent then addresses evidence which he claims undermines the appellant’s claim for adverse possession. This included the appellant’s claim to occupy the Property pursuant to the terms of a lease, and the offer made by the appellant to purchase the freehold interest in the Property, both of which the respondent claims are inconsistent with a claim for adverse possession. The respondent relies upon the contents of the correspondence referred to above, which he exhibits.

17. The appellant filed a replying affidavit sworn on 24th February 2025. In this affidavit he avers that the Property has been his home for nearly 15 years. He avers that the respondent had not issued or served proceedings against the appellant, with the result that any claim that might be brought by the respondent is statute-barred. He referred to the sales pack prepared by the sales agents appointed by the respondent in connection with the sale of the Property which included what the appellant described as “non-issued and imagined interlocutory injunction proceedings against the [appellant]”. This is a reference to the 2019 proceedings.

18. The appellant avers that Mr. Murtagh actively encouraged him to take over the Property as his home so as to enable him to claim adverse possession. He refers to his constitutional right of access to the courts. He then proceeds to accuse the respondent of perjury in averments made in his affidavit of 10th December 2019 sworn in the 2019 proceedings. It is unnecessary to address all of these allegations, but by way of example he takes issue with an averment made by the respondent that the appellant is “a former purported tenant in the property”. The appellant denies that he was a tenant, but acknowledges that he “stretched his negotiating position” in discussions with the respondent. Other averments of the respondent which the appellant claims constitute perjury amount to nothing more than an explanation of the reasons why, at the time that the 2019 proceedings were issued, the respondent required interlocutory relief, and the appellant takes issue with these averments because the respondent did not proceed to a conclusion with that application.

19. The respondent swore a replying affidavit on 1st April 2025. In this affidavit he explained that proceedings had issued in 2019 and while not ultimately heard by the court they were adjourned generally with liberty to re-enter. He explains that the proceedings were not ultimately progressed due to several factors including the onset of the Covid-19 pandemic and also that matters had moved on resulting in the reliefs sought no longer being necessary. The respondent exhibited the amended lease provided by the appellant to the respondent by email dated 8th April 2022 and placed reliance on the appellant’s claim to be a tenant of the Property pursuant to the same.

20. The appellant swore a supplemental affidavit on 20th May 2025, in which he makes additional points of opposition to the application to dismiss. I will address the matters raised by the appellant in this affidavit as needs be, when addressing the submissions made by the appellant in this appeal.

21. The appellant issued a motion for judgment in default of defence which was returnable before the court on the same date as the respondent’s strike out motion. The High Court judge did not address the former motion in his judgment, in light of his conclusion on the latter, i.e. that the proceedings should be struck out. This gave rise to a ground of appeal, which at the hearing of this appeal the appellant acknowledged was misconceived.

Judgment of the High Court

22. The motions came on for hearing before the High Court on 30th June 2025. Judgment was delivered on 3rd July 2025.

23. In the discussion part of the judgment, Nolan J. first considered some of the authorities on adverse possession. He referred to Dunne v. Iarnród Éireann [2016] IESC 47 and quoted the following passage from the judgment of the Supreme Court in that case: - “The circumstances constituting possession will inevitably be various, but fundamental is that the new possessor takes occupation of the land or premises, or a defined portion thereof, with a view to the exclusion of all others. Such possession must not be by force, deception or with the permission of the owner of the legal title; nec vi, nec clam, nec precario.”

24. Nolan J. also referred to the more recent decision of the High Court (Simons J.) in McLoughlin and McLoughlin v. Fennell and others [2024] IEHC 178 and quoted from para.

27 of that judgment in which Simons J. observed that it is trite law that adverse possession cannot occur if a person has gone into possession or occupation of lands with the consent or permission of the landowner.

25. Applying the foregoing principles, Nolan J. held that it was clear that the appellant’s claim for adverse possession is untenable in circumstances where, in the appellant’s own words, Mr. Murtagh gave him permission to reside in the Property. The judge also observed that the appellant has not been in occupation of the Property since it was sold in 2019. This appears to have been an error; the appellant says that he left the Property at the end of 2022, after the sale of the Property had been completed, having found that the locks had been changed upon his return from holidays. However, as will be seen, nothing turns on this discrepancy. As it was the appellant’s case that he assumed possession of the Property with the owner’s consent, the judge said that he found it is very hard to understand how the appellant could possibly argue that he was still in some shape or form in adverse possession.

26. The judge then proceeded to consider the law relating to strike out applications, and specifically the provisions of O. 19, r. 28 of the RSC and the judgment of the High Court (Simons J.) in O’Malley v. National Standards Authority of Ireland and another [2024] IEHC 500. The judge recited the provisions of the order and quoted the following passage from the judgment of Simons J. in O’Malley: - “[t]he court may have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application. … by analogy with the pre-amendment case law, that the court hearing a strike out application may, to a limited extent, consider the underlying merits of the case. If it can be established that there is no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, then the proceedings can be struck out pursuant to the amended rule.”

27. The judge also referred to an observation of Simons J. that: - “The court hearing the strike out application must be confident that there is no credible basis for suggesting that it may, at trial, be possible for the plaintiff to establish the facts which are asserted in the pleadings, and which are necessary for success in the proceedings.”

28. The judge referred to the allegations of fraud made by the appellant against the defendants noting that the authorities make it clear that where an allegation of fraud is relied upon by a party to proceedings, it is necessary to plead such an allegation. The judge also referred to the recent decision in this Court of O’Moore J. in the case of Howley v. McClean [2025] IECA 77 in which O’Moore J. deprecated the making of groundless allegations.

29. So far as concerns the appellant’s claim for damages on the basis of the negligent misstatement of the respondent, the judge referred to the decision of Noonan J. in this Court in Keane v. Ulster Bank Ireland DAC [2024] IECA 293 in which Noonan J. held that a claim for negligent misstatement cannot succeed in circumstances where no loss is proven or pleaded.

30. At para. 49 of the judgment under appeal, the High Court judge stated that: - “The Plaintiff accepts that these proceedings cannot confirm that he has an adversary

(sic) title to the property. But even if he did not make that concession, it is patently clear from his own correspondence and emails, that at all material times he was in occupation of the premises with the permission of Mr. Murtagh and that he has not occupied the property since 2019.”

31. The judge noted that the appellant had held himself out as a tenant and that the email correspondence produced shows that the appellant was a tenant of the Property. That, the judge held, did not give him adverse possession.

32. The judge noted that the Property was sold in 2022 and that the appellant no longer resides in it. He held that any claim in relation to his alleged adverse possession of the Property should be made against those involved in the transaction whereby the Property was sold “including the new purchaser but not against these Defendants”. He expressed the view that the appellant’s claim of adverse possession was simply a “ruse” to thwart the sale or gain advantage over the respondent. The judge concluded that the reliefs sought by the appellant and in particular the orders to confirm the appellant’s adverse possession of the Property, and an order declaring the conveyance of the Property void, were unsustainable in the proceedings.

33. The judge then considered the claim for damages. He held that in order for a claim in negligence and breach of duty, including breach of fiduciary duty, to succeed there must be a duty of care. He held that the respondent did not owe the appellant a duty of care as receiver of the Property, and that there was no contractual relationship or any other relationship between the parties. Therefore, the claim for damages under these headings was bound to fail.

34. The judge also rejected the appellant’s claim for negligent misstatement. This claim was based upon an affidavit sworn by the respondent in 2019 in connection with the 2019 proceedings. The judge held that there was no evidence that the respondent had stated anything that could be categorised as a negligent misstatement. Even if there was evidence of such a character, there was no evidence that the appellant had suffered any loss as a consequence of the same.

35. Finally, the judge considered whether or not the proceedings could be saved by an amendment, but concluded that there was no amendment which could possibly save the proceedings, in circumstances where the appellant had failed to demonstrate any cause of action at all.

36. The judge did not address the appellant’s motion for judgment, presumably because he saw no need to do so having taken the decision to strike out the proceedings. As will become apparent, this forms the basis of one of the appellant’s grounds of appeal.

Notice of Appeal

37. In his notice of appeal, the appellant advanced five main grounds of appeal:

(i) He contended that the respondent had failed to establish that he had been validly appointed as receiver of the Property, and that the respondent had relied upon redacted and unauthenticated documents and misled the court. He contended that this conduct amounts to a fraud on the part of the respondent.

(ii) He contended that all rights under the mortgage executed by Mr. Murtagh in favour of the Bank were statute-barred. Hence, by December 2022, any “purported sale” was legally impossible because the rights of the mortgagee had been extinguished and the appellant had been in continuous exclusive possession of the Property for over 12 years.

(iii) He claimed that the respondent was in procedural default in filing his strikeout motion in circumstances where no defence had been filed.

(iv) He claimed that the respondent and “associated parties” engaged in dishonest interference with the adjudication process of Tailte Éireann in connection with his application to be registered as owner of the Property on the grounds of adverse possession. He claimed that the respondent had assisted in opposing his application for registration by “falsely asserting that the property had been sold, while failing to register the alleged sale or exhibit the deed of transfer, thereby concealing the basis of their claimed title”. He also advanced other grounds under this heading but it is not necessary to set them all out here.

(v) Under the heading of “Pattern of Fraud, Perjury and Misuse of Process” the appellant claimed, amongst other things, that the respondent had filed false affidavits, fabricated a “novation” theory and attempted to obtain ex parte injunctive relief without having issued proceedings.

38. Before proceeding further, I would note that in his notice of appeal, the appellant addresses the judgment under appeal just once, at para. 4.4, where he claims that the High Court erred in entertaining the respondent’s motion to dismiss while he remained in procedural default, i.e. without having filed a defence. Otherwise, the notice of appeal does not engage with the judgment under appeal at all.

Submissions

39. A great deal of the appellant’s submissions are concerned with an allegation that the respondent was not properly appointed as receiver of the Property. He alleges that the deed of appointment of receiver exhibited by the respondent has not been signed by him and that it was not registered as he claims, is required by s. 35(1) of the Registration of Deeds and Title Act, 2006. In his written submissions, he submitted that the novation of the receiver’s appointment following the sale of the loan to Link ASI Ltd. was a legal fantasy, although he withdrew that submission at the hearing of this appeal. He submitted that the respondent had not demonstrated that the receiver originally appointed, Mr. Lyons, had been discharged.

40. The appellant claimed that any rights accruing under the deed of mortgage and charge became statute-barred by September 2022, i.e. 12 years after the bankruptcy of Mr. Murtagh, and that as a result any powers vested in a receiver appointed pursuant to the mortgage deed expired at the same time. Accordingly, the appellant claims that after 2022 the respondent was not a receiver in law at all, but a trespasser.

41. The appellant accused the respondent of abuse of process for having falsely asserted a lawful receivership by unlawfully arranging a sale of the Property.

42. The also appellant submitted that the High Court judge had erroneously described his conduct in submitting the amended lease as “fraudulent”, in circumstances where the amended lease had never been executed and was no more than a without prejudice proposal that was fully disclosed on oath and never used to mislead the court.

43. Insofar as it is claimed by the respondent that the appellant’s occupancy of the Property was with the consent of the owner, the appellant submitted that where an owner ceases contact, withdraws or fails to assert rights and the occupier remains in exclusive possession without renewed permission, possession becomes adverse as a matter of law. In support of this proposition the appellant relied upon the decision of the House of Lords in J.A. Pye (Oxford) Ltd v. Graham [2003] 1 AC 419 (“Pye”) and the judgment of the High Court in Feehan v. Leamy [2000] IEHC 118, and the decision of the Supreme Court in Dunne v. Iarnród Éireann [2016] IESC 46, although he did not refer to any passages from those judgments.

44. In his submissions, the respondent relies upon para. 49 of the judgment of the High Court, in which Nolan J. held that the appellant had accepted that his claim for adverse possession could not succeed as against the respondents because they are not in possession of the Property. The respondent submits that the appellant in his legal submissions has failed to address this insurmountable difficulty.

45. The respondent submits that, according to himself, the appellant had the permission of the registered owner to occupy the Property. While the appellant now submits that once an owner ceases to assert dominion permission is not presumed, and relied upon Pye and the other authorities referred to above, the respondent says that the appellant did not make this argument in the High Court. Moreover, there is no evidence as to when the appellant claims permission ceased such that the clock could begin running for the purposes of adverse possession.

46. The respondent relies upon the appellant’s own claim, as made to the respondent, that he was a tenant of the Property and also on the appellant’s offer to purchase the Property from the respondent, and submits that the High Court judge was correct in relying upon these matters in reaching his conclusions.

47. In response to the appellant’s claim that he had not exhibited a duly completed deed of his appointment, the respondent refers to the copy deed of appointment of receiver exhibited to his grounding affidavit which the trial judge found to be perfectly clear and valid.

48. The respondent submitted that it is entirely a matter for the borrower, Mr. Murtagh, to challenge the Bank and the receiver’s actions, and that the appellant, who was not a party to the mortgage has no standing to involve himself in any challenge to the actions of either the bank or the receiver. It thus follows that the appellant has no standing to assert that the enforcement of any rights accruing to the bank under the deed of mortgage statute-barred.

Discussion

49. I start this discussion by repeating the observation already made above, namely that there is no dispute between the parties as to the principles applicable to applications to dismiss proceedings on the grounds that they are bound to fail. Nor does the appellant argue that the trial judge failed to identify the correct principles. The appellant acknowledges that the Court may, to a limited extent, consider the underlying merits of the case in order to decide whether or not there is a credible basis for the facts relied upon in the pleadings, and which are necessary for success in the proceedings. However, he argues that determining whether permission was adverse or permissive requires a factual inquiry and cannot be resolved in a strike out motion, and, in this regard, refers to the decision of the Supreme Court in Dunne v. Iarnód Éireann, but without referring the Court to any particular part of that judgment.

50. I will return to the issue of adverse possession presently. I will first address the appellant’s arguments regarding the validity of the respondent’s appointment as receiver of the Property. The appellant devoted a very significant amount of time to this issue, asserting, amongst other things that the respondent relied on an undated and incomplete deed of appointment, that he had not accepted his appointment by his signature, that he had failed to register it with Tailte Éireann, and that he had not produced the original in the High Court. He also submitted that the respondent had failed to demonstrate the discharge of Mr. Lyons from his appointment as receiver. For all of these reasons, the appellant contended that the respondent has failed to demonstrate that his appointment as receiver of the Property is valid. This issue is, in my view, a red herring.

51. The question as to whether or not the appellant could successfully establish his entitlement to ownership of the Property on the basis of a claim of adverse possession is entirely independent of the validity of the respondent’s appointment as receiver. These are the appellant’s proceedings, not the respondents’, and if the appellant cannot establish the asserted entitlement to ownership of the Property by reason of adverse possession, then it is of no consequence at all to him whether or not the receiver has been duly appointed.

52. In any case, whilst the appellant, in advancing his arguments under this heading relied upon an incomplete copy of the deed of appointing the respondent as receiver (there being no signature of the respondent thereon), he simply ignored the copy actually exhibited by the respondent in his grounding affidavit in the within proceedings. The incomplete copy had been an exhibit to the respondent’s grounding affidavit sworn by him in the 2019 proceedings. Even if the deed of appointment had not been signed by the respondent at the time those proceedings issued, he would have been entitled to execute the same at any time thereafter. More to the point for present purposes, the copy of the deed of appointment which the respondent has exhibited with his grounding affidavit is both dated and signed by him and was before the High Court. The appellant made much of the fact that the original of the deed of appointment had not been produced in the High Court. However, in answer to a question from the Court, he confirmed that he had not sought production of the original in the court below. The High Court judge was clearly satisfied that the deed of appointment exhibited by the respondent was valid, and that it had been duly executed by the Bank. I can see no error in this conclusion.

53. I turn now to address what is the central pillar of the appellant’s proceedings, i.e. his claim for adverse possession. If the proceedings go to trial, and he fails to establish that he had, at least at the time that the sale of the Property was completed, acquired title to the Property by way of adverse possession, then all other elements of his claim would fail also. It follows therefore that if the appellant’s claim to have acquired title to the Property by way of adverse possession is bound to fail, then so too are all other elements of his claim.

54. The respondent’s position is that the appellant’s claim to title on the basis of adverse possession is bound to fail because, inter alia, he has sued the wrong defendant. He submits that the appellant is not in possession of the Property and has no interest in it, and that any claim that the appellant wishes to make to title of the Property should be advanced against the purchaser. This, the respondent submits, is a fundamental flaw in the proceedings, and on this basis alone the proceedings should be struck out as bound to fail.

55. As already noted above, para. 49 of the High Court judgment records that the appellant accepts that these proceedings cannot result in an order declaring that he has acquired title to the Property by adverse possession. The appellant did not take issue with this statement in this appeal. This begs the question what he hopes to achieve in seeking the reliefs that he does at paras. (b) and (c) of the statement of claim. Paragraph (b) seeks just such an order and para. (c) seeks an order declaring the conveyance of the Property void, which, leaving aside that it could not be made in these proceedings because the purchaser of the Property is not a party, could only be made if the appellant succeeded in establishing title by adverse possession.

56. However, taking a very broad view of the appellant’s case, it may be that if he could marshal sufficient probative evidence, he could persuade a court that that at the time that the respondent disposed of the Property, he (the appellant) had been in adverse occupation thereof for the preceding 12 years or more and that he was at the time of the sale entitled to be registered as owner. If he succeeded in so doing, he might then be able to sustain a claim for damages against the respondent on the basis that the respondent was aware of the appellant’s claim to ownership of the Property at the time that he disposed of the same, and in spite of that knowledge proceeded to dispose of the Property without the consent of the appellant and without accounting to him for the proceeds of sale. Of course, the proceedings are not phrased in this way, and significant amendment to the statement of claim would be required to re-formulate the claim in these terms.

57. However, regardless as to how the claim is formulated, and even taking the broad view outlined above, the appellant faces several insuperable obstacles to his adverse possession claim. This is because from the very outset of his engagement with the respondent, he characterised his interest in the Property as being one of two kinds, either that of a tenant or alternatively as a person occupying the same Property with the permission of the owner – effectively as a licensee of the owner, Mr. Murtagh.

58. I have already addressed above the correspondence in which reliance was placed upon the Lease, and the purported amendment of the Lease so as to join the appellant as a tenant thereto (see paras. 6, 9 and 10 above).

59. In his email of 8th April 2022, in addition to attaching the “amended” Lease, the appellant offers to purchase the Property from the respondent for the sum of €400,000, cash, noting that this is an increase from an earlier offer of €360,000. He goes on to say that he will “request and receive” a rent rebate and for the same to Mazars, and he adds: “However, please note R Murtagh slightly reduced the monthly rent.”

60. In the same email, the appellant continues: -

“Should you wish, in a sincere endeavour to avoid litigation, I confirm I will also engage in binding arbitration on the lease. I controlled Skrambel Ltd and authorised the transfer of the company’s rights and obligations to myself.”

61. If, together with Skrambel Ltd., the appellant was a co-tenant of the Property from May 2011, that significantly undermines the appellant’s claim to adverse possession of the Property, at the very latest from the date of the lease, and up to the date of dissolution of the Company in 2016. It is trite to say that possession taken pursuant to a lease cannot constitute adverse possession. It may be that the appellant realised this when he received the respondent’s grounding affidavit, because it was in his replying affidavit to this application that explained that he had added his own name to the original lease document in order to enhance his negotiating position with the respondent. He confirmed that explanation in the course of submissions both in the court below and again before this Court.

62. At the hearing of this appeal, it was put to him that if Skrambel Ltd. was the only tenant of the Property pursuant to the May 2011 lease, that too was inconsistent with his assertion that he was in adverse possession of the Property from that time onwards, at least until Skrambel Ltd. was dissolved in 2016. This is because, as he had asserted in his email of 8th April 2022 to the respondent, Skrambel Ltd. was in his control, and he had transferred all of the company’s rights and obligations to himself. In reply to this question from the Court, the appellant stated that the assertion to the respondent that Skrambel Ltd. was within his control was made to enhance his negotiating position with the respondent, and that the company had not in fact been in his control at the relevant time.

63. I have already set out above the proposals sent by the appellant to the respondent by email of 31st May 2022 but for convenience I will set them out again. It will be recalled that the appellant put forward four proposals to the respondent, as follows:

(i) that the respondent “dispose of the freehold on the open market with our tenancy in situ, as confirmed by the Mazars property agent Marion McQuillan from Quillsen auctioneers”;

(ii) that the dispute be referred to “binding arbitration and/or the PRTB” (now the RTB);

(iii) that “you purchase our leasehold interest”;

(iv) that “we purchase your freehold interest”.

64. The use of the first person plural makes it clear that the appellant was claiming that he and at least one other party were the owners of a leasehold interest in the Property. This is consistent with the previous email of 8th April 2022 attaching the amended lease. Even allowing for the doctoring of the lease so as to insert the name of the appellant as a tenant, it is clear that the case made by the appellant to the respondent was that Mr. Murtagh had, in May 2011, granted a lease of 21 years to Skrambel Ltd., and that the respondent would have to address this interest in order to deal with the Property. This is conduct is completely at odds with the concept of adverse possession.

65. So too is the appellant’s offer to refer the dispute to the Residential Tenancies Board (“the RTB”). This is a further acknowledgement of the Company’s leasehold interest in the premises. In fact, the Company had previously made a reference of the dispute to the Private Residential Tenancies Board (now the RTB), which it abandoned. This is apparent from the affidavit sworn by the respondent in the 2019 proceedings, which the appellant attached to his statement of claim.

66. Finally, the appellant’s offer to buy the freehold of the Property from the respondent is also consistent with the existence of the leasehold interest asserted by the appellant, and entirely inconsistent with an entitlement to ownership by way of adverse possession.

67. On 28th September 2022 the appellant sent the respondent an email in which he took issue with the authority of the respondent as receiver, and in which he informed the respondent that he had sworn and lodged in Tailte Éireann a Form 5 seeking to convert “the possessory title”. In other words, the appellant had made an application to Tailte Éireann to be registered as owner of the Property based on his adverse possession of the same. This represented a significant change of tack on the part of the appellant. Instead of contending that he was a tenant of the Property, or that Skrambel Ltd. was a tenant, he now contended for the first time that he was entitled to be registered as owner on the grounds of his adverse possession of the Property.

68. However, at para. 5 of his affidavit of 24th February 2025 (sworn in opposition to the respondent’s application to strike out the proceedings), under the heading “Equity and Estoppel against the Legal Owner and Receiver”, the appellant avers that: - “Mr. Murtagh actively encouraged the plaintiff, and his business partner and financial advisor, to take over the Percy Lane property as his home and enabled his adverse possession. Such may sound bizarre to the Court; however, some wealthy people think and act differently, especially when the bank is malevolently hounding Mr. Murtagh.” This makes it plain that the appellant entered the Property with the consent of the owner, Mr. Murtagh.

69. Having regard to all of the information provided by the appellant himself, it is unsurprising that the High Court judge concluded that the appellant’s claim to title based on adverse possession was bound to fail for two reasons. Firstly, the appellant’s own evidence established that he had been permitted to occupy the Property by the owner, Mr. Murtagh. This was not disputed by the appellant – indeed he could hardly have disputed that

conclusion having regard to what he deposed to at para. 5 of his own affidavit. Secondly, the judge noted, the appellant had also held himself out as a tenant, and that occupancy as a tenant is inconsistent with adverse possession.

70. Each of these conclusions of the judge, based on the evidence of the appellant himself, is consistent with the authorities on adverse possession (about which there was no disagreement between the parties) and is unimpeachable, and the appellant offered no argument to the contrary. In fact, he did not even contest them in his grounds of appeal, other than in a general way, stating at para. 3.3.3. thereof that “[t]he appellant had been in continuous exclusive possession for over 12 years”. Nor did he address them in his submissions to this Court.

71. However, as I mentioned above, at the hearing of this appeal the appellant argued for the first time that where: - “the paper owner ceases contact, withdraws, or fails to assert rights, and the occupier remains in exclusive possession without renewed permission, possession becomes adverse as a matter of law. Once the owner stops asserting dominion, permission is not presumed.” In advancing this argument, the appellant relied upon the decision of the House of Lords in J.A. Pye (Oxford) Ltd. v. Graham [2003] 1 AC 419, the judgment of the High Court in Feehan v. Leamy [2000] IEHC 118, and the decision of the Supreme Court in Dunne v. Iarnród Éireann [2016] IESC 47. He argued that determining whether permission was permissive or adverse required a factual enquiry and could not be resolved on a strikeout motion.

72. The first and fundamental difficulty with this argument is that it was not advanced in the court below, and it is well established that, save with the permission of this Court (and no such permission was sought), it is not open to a party to advance, for the first time on appeal to this Court, an argument that could have been advanced at first instance in the High Court.

73. But even if this were not so, there are other difficulties with it. Firstly, unlike a situation where there is a dispute about permission between the owner of property and the person claiming title by way of adverse possession, in this case it was the claimant, i.e. the appellant who placed the evidence before the court that his possession of the Property was, in the appellant’s own words “actively encouraged” by the owner, Mr. Murtagh. There was no suggestion at all that consent was withdrawn or lapsed, or that Mr. Murtagh had stopped asserting dominion over the Property. Indeed, had the last proposition been asserted, it would have run into the significant difficulty that it was inconsistent with the grant by Mr. Murtagh of the Lease to Skrambel Ltd. in May 2011.

74. Secondly, even if Mr. Murtagh’s consent may be deemed to have lapsed upon his bankruptcy (a point not argued at all by the appellant), that would not impact upon the 2011 lease. The appellant made no argument that that lease in its original form lacked validity. This lease makes it plain that Skrambel Ltd. was entitled to occupation of the premises from the time of the granting of that lease. Moreover, it is clear that any occupancy the appellant enjoyed from that time onwards could only have been with the assent of that company. While at the hearing of this appeal he sought to resile from his claim that he controlled Skrambel Ltd., the appellant cannot approbate and reprobate. He cannot deny something he previously asserted to gain an advantage, when it becomes apparent it no longer suits his purposes.

75. At the hearing of this appeal the appellant also submitted that he had not come to court expecting to be required to establish his claim for adverse possession, and that it is not the function of the court in a summary application such as this to determine the issue. He submitted that the authorities established that the determination of such a complex issue is unsuited to summary disposal, and that this Court should refer the matter back to the High Court for a full trial on all issues. However, as previously mentioned, the appellant did accept that in considering whether a proceeding is bound to fail, the Court is entitled to consider the underlying merits of the case. The High Court judge did so and was correct to do so. In my opinion the conclusion that he reached was open to him on the basis of the evidence adduced: it was beyond any doubt the correct conclusion. For all of the foregoing reasons the appellant’s claim to adverse possession of the Property was bound to fail.

76. The remaining grounds of appeal may be dealt with in short order. The appellant claims that the exercise of all rights accruing under the deed of mortgage and charge executed by Mr. Murtagh in favour of the Bank are statute-barred. There is no express determination of the High Court judge on this issue. The respondent submits that the appellant has no standing to make this point, it being a matter arising out of the contract made between Mr. Murtagh and the Bank. The respondent also makes the point that the appellant’s claim is primarily one for adverse possession of the Property, and that if he did not adversely possess the Property then his case must fail.

77. The respondent is correct on both counts. If it is the case that the respondent is precluded by the Statute of Limitations from taking any action arising out of his contract with the Bank then that is a matter that can be raised only by the borrower, Mr. Murtagh, or in this case perhaps also the official receiver in the United Kingdom (being the equivalent office to that of the official assignee in this jurisdiction). Moreover, as with the issues arising in relation to the deed of appointment of the receiver, the question as to whether or not the appellant has occupied the Property adversely for the requisite statutory period is entirely independent of the question as to whether or not any action taken pursuant to the deed of charge executed by Mr. Murtagh as mortgagor is precluded by the Statute of Limitations.

78. In his notice of appeal, the appellant had claimed that the High Court erred procedurally in entertaining the respondent’s motion to dismiss while the respondent was in procedural default, having filed no defence to the proceedings. The appellant had maintained that a party who is in procedural default may not seek interlocutory relief without first regularising its position. However, at the hearing of this appeal the appellant acknowledged that the latter point is not correct, but he maintained his position that the judge should have adjudicated upon his notice of motion for judgment in default of defence.

79. The appellant is correct in his submission that the judge did not adjudicate on his motion. However, once he had decided that the proceedings should be struck out, the notice of motion for judgment in default of defence was moot. From a procedural point of view, the judge was correct to address the motion to strike out the proceedings first, not just because it was the first motion issued in time, but also because the determination of that motion may, depending on the outcome, render it unnecessary to address the motion for judgment, as occurred in this case.

80. The appellant’s next ground of appeal is that the respondent engaged in an abuse of process in interfering with his application made to Tailte Éireann for registration as owner of the Property. Specifically, he claims that the respondent falsely asserted that the Property was being sold and deliberately withheld the deed of transfer for over 15 months. It is unclear if this issue was the subject of a submission in the court below, and it is not referred to in the judgment under appeal. No evidence was put before the Court by the appellant as to the submissions made by the respondent to Tailte Éireann, but in any case this is another red herring. Where an application is made to Tailte Éireann by a person to be registered as owner of a property on the basis of adverse possession, there is a process enabling other interested parties to object. In that event Tailte Éireann will not adjudicate upon the dispute and the matter must await determination by the court. Even if the appellant had exercised his right to appeal the decision of Tailte Éireann (he chose instead to issue these proceedings), the outcome of the application for registration would have been the same given the objections raised. There is no basis for this ground of appeal.

81. Finally, the appellant accuses the respondent of having engaged in “a pattern of fraud, perjury, and misuse of process”. Two of the grounds upon which he makes these allegations relate to the deed of appointment of the respondent as receiver and I do not propose to go into that issue any further. The third ground is that the respondent advanced “a fabricated novation theory” relating to the continuation of the receivership following the sale of the loan to Link ASI Ltd. The appellant withdrew this ground at the hearing of this appeal, acknowledging that he misunderstood the concept of novation. The fourth ground is that the respondent attempted to obtain ex parte injunctive relief without issuing proceedings. This concerns the 2019 proceedings issued by the respondent which were adjourned generally with liberty to re-enter and requires no further comment. The fifth ground is that the respondent leaked private correspondence to solicitors for third parties, but no evidence of this was provided, and it was not developed in any way.

Fraudulent Conduct of the Appellant

82. In his judgment, at para. 36, the High Court judge referred to the furnishing by the appellant to the receiver of the amended lease. The judge rejected the characterisation of the creation of this document as an attempt to “stretch his negotiating position”, and concluded that this conduct was in fact fraud. The judge held: - “This was a fraudulent attempt by the Plaintiff to improve his negotiations with the receiver for his own ends. The Plaintiff seems to have a disconnect with the truth, so that he believes that it is appropriate to tell lies in order to further his financial goals.” There was no appeal brought by the appellant from these conclusions, although he did make submissions to this Court that there were erroneous, because he had merely been exaggerating in order to strengthen his bargaining position.

83. At the hearing of this appeal, the appellant informed the Court that his statement to the receiver that he was in control of Skrambel Ltd. was untrue and that he had said this to the receiver also to improve his negotiating position. Notwithstanding the strong comments made by the High Court judge, and the period of time between the delivery of his judgment and this appeal during which one might have thought the appellant would have had time to reflect on the comments made by the judge and the seriousness of his efforts to mislead the respondent, he persisted with the idea that there is nothing wrong with telling lies to another person with a view to extracting money. This is all the more remarkable in circumstances where the appellant himself has, during the course of these proceedings, both at first instance and again on appeal, advanced completely unfounded allegations of fraud and misconduct on the part of the respondent. In my view the comments of the High Court judge in relation to the appellant’s conduct were justified. At the very least, the appellant seeks to invoke the doctrine of adverse possession in respect of a specific time period when his own documentation discloses that he enjoyed some form of tenancy. The fact that he now admits that some were drawn up for “negotiating purposes”, can in my view only mean that he actively misrepresented the position. He cannot now seek to resile from the contents of this documentation in order to advance his present claim for adverse possession.

Conclusion

84. For all of the reasons discussed above, I am satisfied that there was no error on the part of the High Court judge, and that he was correct to accede to the respondent’s application to dismiss the proceedings. I would therefore dismiss the appeal.

85. Since the respondent has been entirely successful in resisting this appeal, my preliminary view is that he is entitled to an order for the costs incurred by him in connection with the same. If the appellant wishes to contend for a different order he may do so by making submissions in writing, not to exceed 1,500 words, within 14 days from date of delivery of this judgment. If he chooses to do so, then the respondent shall have a further 7 days within which to reply to the submission of the appellant.

86. Since this judgment is being delivered electronically, Faherty J. and Pilkington J. have authorised me to indicate their agreement with the same.