Landlord appeal dismissed; statutory new tenancy granted despite prior forfeiture and re-entry.

APPROVED [2026] IEHC 124

THE HIGH COURT

CIRCUIT APPEAL

2024 281 CA

IN THE MATTER OF THE LANDLORD AND TENANT (AMENDMENT) ACT

1980

BETWEEN

VERBENAGROVE LTD

PLAINTIFF

AND

SIMON EVANS

MAUREEN GRIFFIN

DEFENDANTS

JUDGMENT of Mr. Justice Garrett Simons delivered on 6 March 2026

INTRODUCTION

1. This matter comes before the High Court by way of an appeal from the Circuit Court. The proceedings take the form of an application for a new tenancy pursuant to Part II of the Landlord and Tenant (Amendment) Act 1980.

2. The principal issues addressed in this judgment are as follows. The first issue is whether a landlord has the right to take possession of premises which are being NO REDACTION REQUIRED occupied by a tenant pursuant to statute pending the adjudication by a court of an application for a new tenancy. More specifically, the question is whether a landlord can take possession of the demised premises—without any necessity for a court order—by reliance upon a right of re-entry or forfeiture under the expired lease. This requires consideration of section 28 of the Landlord and Tenant (Amendment) Act 1980.

3. The second issue only properly arises if the first issue is resolved in favour of the Landlords. A question would then arise as to whether the taking of possession by the Landlords and/or the termination of the period of statutory occupation disentitles the Tenant to a new tenancy.

4. This judgment also addresses the consequences of the Landlords’ failure to appeal the judgment and order of the Circuit Court fixing the terms of the new tenancy. The Circuit Court had determined the proceedings by way of a modular trial. The first module addressed the question of whether the Landlords had effected a valid forfeiture of the (already) terminated tenancy. The second module addressed all remaining issues. The only appeal taken to the High Court is in respect of the first module.

PART I

PRELIMINARY MATTERS AND FINDINGS OF FACT

PROCEDURAL HISTORY

5. The proceedings take the form of an application for a new tenancy pursuant to Part II of the Landlord and Tenant (Amendment) Act 1980. Proceedings of this type commence in the Circuit Court, with a right of appeal thereafter to the High Court. The right of appeal arises under Part IV of the Courts of Justice Act 1936 and the appeal takes the form of a rehearing of the action, i.e. a de novo appeal.

6. The application for a new tenancy is in respect of premises at Donnybrook, Co. Dublin (“the demised premises”). The demised premises had been operated as a restaurant known as “Mulberry Garden”. The demised premises had been held pursuant to a lease for a term of four years and nine months. The lease expired by effluxion of time on 24 July 2020.

7. The expired lease had contained a proviso for re-entry which read, in relevant part, as follows:

“5.1 If: –

5.1.1. the said rent or any interest on arrears of rent or any

sum payable hereunder or any part thereof shall be

unpaid for 14 days after any of the days hereinbefore

appointed for payment whether the same shall have

been lawfully demanded or not; or

[…]

THEN and in any of the said cases and at any time thereafter

it shall be lawful for the Landlord or any person or persons

authorised by the Landlord to enter upon the demised

premises or any part thereof in the name of the whole and to

repossess the same and enjoy the same as if this Lease had

not been executed but without prejudice to any right of action

or remedy of either party in respect of any antecedent breach

of any of the covenants by the other herein contained.”

8. Having regard to a dispute which subsequently arose between the parties in respect of the issuance of VAT invoices, it is appropriate to recite clause 3.29 of the expired lease as follows:

“To pay to the Landlord the stamp duty on this Lease and the

Counterpart and all Land Registry or Registry of Deeds

charges thereof and to pay all Value Added Tax (if any)

payable in relation to the demised premises on the delivery

hereof or on any rent or any other payment to be made

hereunder and to indemnify the Landlord against same. In

this regard, the Landlord is exercising its option to tax this

agreement so that the Tenant will be liable to pay to the

Landlord VAT on the Rent. The Landlord will furnish the

Tenant with a VAT invoice upon payment of the Rent as

provided in the Second Schedule, Part Four.”

9. The expired lease had prescribed (at clause 8) a number of methods by which service of notices might be effected on the Tenant. One such method had been to leave the notice addressed to the Tenant at the demised premises. Another had been to serve the Tenant’s servants or agents.

10. The expired lease will be referred to in this judgment as “the terminated tenancy” to mirror the statutory language. The plaintiff and defendants to the proceedings will be referred to throughout this judgment as “the Tenant” and “the Landlords”, respectively, to reflect their roles under the terminated tenancy.

11. On 3 June 2020, the Tenant served a notice of intention to claim a new tenancy. Thereafter, on 1 October 2020, the Tenant instituted proceedings before the Circuit Court under Part II of the Landlord and Tenant (Amendment) Act 1980.

12. For reasons which have never been properly explained, the Landlords delayed for two years and four months before delivering their formal defence to the proceedings on 30 January 2023. The initial stance of the Landlords had been to admit that the Tenant was entitled to a new tenancy on such terms as the Circuit Court shall deem fit. The Landlords subsequently changed their stance. This change arose as follows.

13. The Tenant had stopped paying rent in February 2023. This occurred following the closure of the restaurant and in the context of an ongoing dispute between the parties in relation to the issuing of VAT invoices.

14. The Landlords purported to serve a forfeiture notice dated 1 August 2023. It should be explained that the Tenant did not have sight of the forfeiture notice until after the Landlords attempted to effect a physical re-entry.

15. Having regard to the legal issues which arise in the proceedings, it is useful to set out the operative part of the forfeiture notice as follows:

“AND TAKE NOTICE that the Landlord hereby requires

you Verbenagrove Limited within 14 days from the date

hereof to remedy the said breach of covenant, by paying to

the undersigned on behalf of the Landlord the said sum of

€25,215 outstanding on foot of the Lease.

AND FURTHER TAKE NOTICE that should you

Verbenagrove Limited fail to remedy the said breach of

covenant by paying the amounts due under the Lease as

aforesaid, the Lease shall be forfeited and the Landlord or

any person or persons authorised by the Landlord will, in

exercise of the rights contained in the said Clause 5.1 of the

Lease, enter into and upon the demised premises or any part

thereof in the name of the whole and to repossess and enjoy

the same together with the Landlord’s fixtures and fittings in

and about the demised premises (more particularly set out in

the Fourth Schedule of the Lease) as though the Lease had

not been executed.”

16. As appears, the forfeiture notice is misconceived in that it is predicated upon ending the tenancy, the term of which had expired years earlier in July 2020.

17. One of the Landlords (Maureen Griffin) attended at the demised premises on

17 August 2023 together with her daughter and a locksmith. The precise circumstances are addressed at paragraphs 32 to 38 below. For present purposes, it is sufficient to observe that the Landlord arranged for a sliding bolt to be fitted to a wooden gate at the boundary of the premises and for the locks on the main door of the premises to be removed by the use of an angle grinder and replaced.

18. The Tenant re-entered the premises the following week, on 25 August 2023, and has been in occupation of same since that date.

19. Thereafter, the Landlords applied to amend their formal defence to the claim for a new tenancy. The Circuit Court granted leave to amend, on consent, on

28 November 2023.

20. The amended defence, in relevant part, reads as follows:

“The expiry of the term of the Lease on the 24th July 2020 is

admitted. Between the expiration of the Lease on 24th July

2020 and 17th August 2023 the Plaintiff continued to hold the

Premises under the terms of the Lease (including the terms

as to payment of rent together with Value Added Tax thereon

at the prevailing rate – ‘the Rent’) in accordance with

Section 28 of the Landlord and Tenant (Amendment) Act

1980 as amended.

Without prejudice to the foregoing plea, it is denied that the

Defendant (sic) continued to pay the Rent due and owing on

each gale day as alleged or at all. The Plaintiff ceased paying

the Rent in February, 2023.

Further without prejudice to the foregoing, because of non-

payment of rent and in reliance on the terms of the Lease, the

Defendants entered and re-possessed the Premises on the

17th August 2023 and the Lease was thereby forfeited and

the tenancy terminated.*

By reason of the foregoing matters the Plaintiff is not entitled

to a new tenancy (or lease) under Part II of the Landlord and

Tenant (Amendment) Act 1980 (including Section 13

thereof) or is not entitled in the alternative to compensation

for disturbance.

The Defendants deny that the Plaintiff is entitled to a new

tenancy in respect of the Premises under the provisions of the

Landlord and Tenant (Amendment) Act 1980 either as

alleged or at all.”

* An application to delete the words in italics above was

made on 3 December 2025.

21. As part of the case management of the proceedings, the trial judge (His Honour Judge O’Connor) directed on 12 February 2024 that the application for a new tenancy be heard in two modules. The first module addressed the question of whether the Landlords had effected a valid forfeiture of the terminated tenancy. The second module was to address all remaining issues.

22. The Circuit Court delivered judgment on the first module on 29 October 2024. The judgment held that the purported forfeiture was invalid on a number of grounds. These included the following. First, the forfeiture notice was invalid by reason of the Landlords’ failure to furnish VAT invoices as required under the lease. Second, service of the forfeiture notice was invalid by reason of, inter alia, the use of the incorrect post box and the failure to give any adequate preor post-service warning. Third, the re-entry was not peaceable by reason of the fact that the Landlords’ agents had cut through locks on the door of the premises (Wallace v. Davey [2022] IEHC 120 applied).

23. The Landlords lodged an appeal to the High Court against the judgment in respect of the first module. The Landlords then applied to the High Court to restrain the Circuit Court from hearing the second module, pending the determination of the appeal in respect of the first module (“the stay application”). The High Court refused the stay application for the reasons set out in a reserved judgment delivered on 14 March 2025: Verbenagrove Ltd v. Evans [2025] IEHC 151 (Barry O’Donnell J.).

24. The transcript of the hearing of the stay application (6 March 2025, page 11) indicates that counsel on behalf of the Landlords had accepted that the Tenant would have been entitled to relief against the (supposed) forfeiture for the asking:

“There was no attempt to obtain relief or seek relief against

forfeiture, all they had to do was just simply say, we are

seeking relief against forfeiture and I had advised my clients

that if that happens, they are going to have to give it, but they did not do that.”

25. This statement was made against a factual background whereby the Tenant, upon learning of the forfeiture notice and the (supposed) forfeiture, had immediately made arrangements to pay the outstanding rent into an escrow account.

26. The second module came on for hearing before the Circuit Court prior to the hearing of the appeal to the High Court in respect of the first module. Crucially, the Landlords did not contest the Tenant’s entitlement to a new tenancy at the hearing of the second module. The only issues in controversy were in respect of certain terms of the new tenancy. The Circuit Court delivered its judgment on the second module on 12 May 2025. The Circuit Court’s order fixing the terms of the new tenancy was drawn up on the same date. The Landlords did not lodge an appeal in respect of the second module and are now well out of time to do so.

27. The appeal to the High Court in respect of the first module came on for hearing in October 2025. The evidence was heard over four days. The proceedings were then adjourned to allow the parties time to prepare supplemental written submissions. The parties were requested to address the judgment in Crofter Properties (cited below). The submissions were duly filed. The hearing resumed on 3 December 2025 and I heard legal argument over two days. I carried out a site inspection on 21 January 2026 in the company of the parties’ respective solicitors.

28. Notwithstanding that they never sought to appeal the outcome of the second module, the Landlords have nevertheless insisted upon pursuing their appeal to the High Court in respect of the first module. The Landlords invite the High Court to make a finding that they effected a valid re-entry on 17 August 2023. It seems that, armed with such a finding, the Landlords intend to return to the Circuit Court and apply to have the unappealed order on the second module set aside.

29. The correctness of this approach is very much open to question. It is difficult to conceive how any party could ever invoke the exceptional jurisdiction to set aside a final and unappealed order in circumstances where the supposed grounds for setting aside the order are ones which could have—and should have—been advanced at the original hearing. I will return to this point at paragraphs 141 to 149 below.

FINDINGS OF FACT

30. The compass of the factual controversies which require to be adjudicated upon by the court is very narrow. There are two reasons for this. First, much of the

factual background is agreed between the parties. Second, many of the factual controversies which were canvassed in evidence are irrelevant to the legal issues arising on the appeal. For example, evidence was adduced on the question of whether the use of part of the upstairs of the demised premises as a bar or waiting area constituted a breach of the planning legislation and the fire safety legislation. This is not an issue which falls for determination in the proceedings in circumstances where the Landlords did not seek to resist the new tenancy by reference to these matters.

31. Much of the evidence at the hearing of the appeal had been directed to the manner in which the purported re-entry on 17 August 2023 had been carried out. This evidence went to the question of whether the re-entry had been peaceable and whether the Landlords had already taken possession of the premises—by dint of their having fixed a sliding bolt to the garden gate—prior to the removal and replacement of the locks on the doors of the restaurant building. It is not now necessary to address these legal issues in circumstances where the focus of the legal argument shifted dramatically as a result of the court inviting submissions on the implications of the judgment in Crofter Properties (cited below). As will become apparent from the discussion which follows, it is not now necessary for the court to make any legal determination in relation to the events of 17 August 2023. This is because, even on the working assumption that the physical re-entry had been peaceable, the occurrence of same would not represent a good defence to the claim for a new tenancy.

32. For completeness, and lest there be an appeal, the evidence establishes the following. One of the Landlords (Maureen Griffin) attended at the demised premises on 17 August 2023 together with her daughter and a locksmith. There is a wooden gate at the boundary which opens into what is most accurately described as a very small garden or courtyard. The wooden gate was unlocked. Ms Griffin arranged for the locksmith to fit a sliding bolt to the inside of the wooden gate. No padlock was attached at that time.

33. Ms Griffin’s evidence was unsatisfactory in that she sought to frame it with an eye to the legal issues then in controversy in the proceedings. Rather than assist the court with a factual narrative of events, the witness often resorted instead to rehearsed legalese. The witness was very anxious to recite the formula that she considered herself to have taken “possession” of the premises once the sliding bolt had been affixed to the wooden gate, i.e. prior to the removal of the locks from the restaurant building itself.

34. If and insofar as it is necessary to reach a finding of fact on this issue, I have concluded that the affixing of the sliding bolt did not constitute the taking of possession of any part of the demised premises. I am satisfied, on the balance of probabilities, that Ms Griffin and her party would have retreated from the demised premises immediately had any representative of the Tenant arrived prior to the removal of the locks from the restaurant building. Ms Griffin’s daughter had remained in the garden/courtyard area. The purpose of her doing so appears to have been to alert Ms Griffin to the arrival of any representative of the Tenant.

Ms Griffin disavowed any suggestion that her daughter was acting as a sentry, i.e. as barring access to the premises. The witness also suggested that her daughter may have been taking photographs.

35. Importantly, Ms Griffin stated that she had been instructed, presumably by her legal advisors, to avoid confrontation (Transcript, 8 October 2025, page 169): “I don’t, actually. I was very conscious, all the time, that if there was, I had been instructed that if there was anybody present, that it was not just a case of you would just barge on, you remove yourself.”

36. Ms Griffin had emphasised throughout her evidence that she wished to avoid any confrontation. Whereas this is understandable, it is inconsistent with the suggestion that she regarded herself as having retaken possession of the premises as soon as the sliding bolt had been affixed. A person who regarded themselves to be in lawful possession of premises would not immediately withdraw if another person sought to enter the premises. Rather, a person in possession would verbally challenge a person who sought to enter the premises without their permission. Of course, the person in possession would seek to avoid any physical altercation. Ms Griffin’s evidence indicates that until such time as she had secured access to the restaurant building itself, she regarded her presence on the premises as precarious and intended to retreat immediately if any representative of the Tenant arrived.

37. The failure to attach a lock to the sliding bolt is inconsistent with having taken possession. It is apparent from the site inspection that an adult of average height could easily reach over the top of the gate and open the sliding bolt.

38. Ms Griffin arranged for the locks on the main door of the premises to be broken by the use of an angle grinder, removed, and replaced. This exercise caused damage to the original locks.

39. The principal factual controversy remaining, which is of relevance to the resolution of the legal issues arising on the appeal, centres on the circumstances surrounding the service of the purported forfeiture notice and the intention of the Landlords.

40. The Landlords took steps in August 2023 to effect a forfeiture of the tenancy of the demised premises. It is apparent from the contemporaneous documentation—and from their subsequent approach to the court proceedings— that the Landlords were labouring under the misconception that it was lawfully possible to forfeit the tenancy notwithstanding that the contractual period of same had expired as long ago as July 2020. This mistake was belatedly acknowledged in December 2025, by way of a further application to amend the formal defence.

41. Notwithstanding that the Landlords were purporting to forfeit the tenancy for non-payment of rent (as opposed to some other breach of covenant), they elected to serve a forfeiture notice. This was not, strictly speaking, necessary. The Landlords, however, regarded it as an important procedural step and it was seen as such by their locksmith. More specifically, the evidence establishes that the locksmith, who removed and replaced the locks at the demised premises on behalf of the Landlords on 17 August 2023, had requested that the Landlords have a copy of the forfeiture notice available on the date of the physical re-entry (Transcript, 8 October 2025, page 139).

42. Before turning to consider in detail the method adopted for the service of the forfeiture notice, it is necessary to say something about the logistical arrangements made for the receipt of letters or small packages at the premises.

The summary which follows has been prepared on the basis of the oral evidence, the agreed engineer’s report, and the site visit on 21 January 2026.

43. There are two receptacles at the demised premises as follows. First, there is what is most accurately described as a “letter slot” or “letter plate”. This consists of a hinged metal plate set into the front wall of the premises. When pushed from the outside, the hinged plate rotates approximately ninety degrees, revealing an aperture in the wall capable of receiving letters or small packages. The aperture does not lead to a box or basket designed to catch a letter or package. Any letter or package inserted through the letter slot would land upon a desk which has been placed against the inside of the wall.

44. Second, there is a secure post box supplied by An Post under the trade name “DeliveryBox”. This consists of a large metal box affixed to the front wall of the premises. The metal box is locked and it is necessary to unlock the box in order to insert a letter or package inside. Only An Post and the owner/occupier hold keys to same. It is not possible for a third party, such as, for example, Amazon, to insert a letter or package inside the metal box.

45. The evidence before the court establishes the following. The Landlords’ solicitor, David Frawley, attended at the premises on the evening of 1 August 2023 and inserted an envelope containing the forfeiture notice through the letter slot. Mr Frawley averred that he had noticed that there were some flyers or leaflets visible through the letter slot. Mr Frawley would not have been able to place the letter in the secure post box supplied by An Post by reason of the fact that it was locked.

46. If and insofar as it is necessary to make a finding on the issue, I am satisfied that the forfeiture notice was served in accordance with the terms of the terminated tenancy. Clause 8 had prescribed a number of methods by which service might be effected on the Tenant. One such method had been to leave the notice addressed to the Tenant at the demised premises. The insertion of the forfeiture notice through the letter slot complied with this method. The letter slot is readily visible from the outside of the demised premises: it is located in a prominent position, underneath a glass case which had been used to display the restaurant’s menu. There is nothing to suggest that the letter slot is inoperative. There is no sign, for example, indicating that it is not in use and stating that any correspondence should be directed elsewhere. The presence of An Post’s metal box does not imply that the letter slot is not in use. As explained, An Post’s metal box is not intended for use by any entity other than An Post. It was necessary, therefore, that there be an alternative receptacle.

47. I hasten to add, of course, that the question of the legal effect of the forfeiture notice and its implications, if any, for the outcome of the proceedings is an entirely separate matter. I simply address the service issue now, to ensure that this court has made findings of fact in relation to this issue, lest there be an appeal.

48. The choice of the method of service is relevant to a separate and distinct issue in the proceedings, namely, whether the late payment of the rent might represent a “good and sufficient reason” to refuse to grant a new tenancy. This issue is considered in detail at paragraphs 128 to 140 below. The following paragraphs record the findings of fact germane to that issue.

49. It is common case between the parties that no representative of the Tenant had been aware of the delivery of the forfeiture notice until after the Landlords had purported to re-enter the premises on 17 August 2023. One of the Landlords (Maureen Griffin) confirmed in her evidence that she observed the letter, which contained the forfeiture notice, lying unopened when she attended the premises.

50. It should be explained that the principals and solicitors had been in regular communication in the weeks prior to the service of the purported forfeiture notice. Indeed, there had been a series of interactions on 31 July 2023, the day immediately prior to the service of the purported forfeiture notice.

51. Ms Griffin had attended at the premises on 31 July 2023 for the purpose of a proposed drainage survey. In the event, the survey did not go ahead on that date. Ms Griffin spoke to the Tenant’s representative, Laura Peat. Their discussion was confined to arranging alternative times for the survey. Ms Griffin accepted in her evidence before the High Court that she did not disclose to Ms Peat that instructions had already been given to prepare and serve a forfeiture notice. Ms Griffin further accepted that, at the hearing before the Circuit Court, she had sought to justify this omission by saying that she was not obliged to inform the Tenant.

52. The Tenant’s then solicitors wrote to the Landlords’ solicitor later the same day to record that their client had attended the premises as arranged, but the survey could not proceed because the Landlords’ surveyor was unavailable.

53. The Landlords’ solicitor replied by email late that evening explaining that the surveyor had “let them down” and that alternative dates for the survey would be provided. This email contained no reference whatsoever to the arrears of rent, still less to any intention to serve a forfeiture notice.

54. The manner in which the Landlords chose to serve the forfeiture notice gives rise to the irresistible inference that their true intention was to contrive a forfeiture rather than to secure payment of the arrears of rent. Had the Landlords genuinely wished to secure payment of the arrears of rent, the obvious thing to have done would have been to make a request directly to the Tenant and the Tenant’s solicitor. As outlined above, the parties had been in regular communication up to and including the eve of the service of the forfeiture notice. There were also ongoing court proceedings between the parties in respect of the claim for a new tenancy. All previous communications between the parties had been through formal channels, by way of email or post. The forfeiture notice was served by hand against a backdrop where the restaurant had ceased trading and at a time of the year, August, when many people are away on holidays.

55. Having regard to all of the foregoing, the decision to serve the forfeiture notice by way of hand delivery to the premises, to the exclusion of any of the habitual methods of communication between the parties, is only consistent with an intention to effect service in a form which was technically compliant, but which presented the least likelihood of the forfeiture notice being seen by the Tenant in sufficient time to remedy the failure to pay the rent before the fourteen-day period prescribed for payment had expired.

56. Mr Frawley has never properly explained why he failed to take the obvious step of sending a copy of the forfeiture notice to the Tenant’s solicitors. The parties’ respective solicitors engaged in voluminous correspondence: the booklet of inter partes correspondence runs to in excess of five hundred pages. Yet the forfeiture notice appears to be the only document not sent by email or post to the solicitors on record. The forfeiture notice was directly relevant to the ongoing litigation between the parties. If the Landlords’ objective had been to secure the payment of the arrears of rent, then the most obvious thing to have done would have been to write to the Tenant’s solicitors. This offered the best prospect of securing a prompt payment. Mr Frawley confirmed in evidence that he had been aware that the terms of the terminated tenancy allowed for a number of alternative methods of service, including, relevantly, service on an agent.

57. The inference that the actual intention was to contrive a forfeiture, with a view to achieving what the Landlords, mistakenly, thought would be a litigation advantage, is further supported by reference to the Landlords’ subsequent conduct. As explained earlier, the Tenant had offered, in the immediate aftermath of the attempted forfeiture, to pay the arrears of rent, subject only to the proviso that the Landlords issue the requisite VAT invoices. This offer was not accepted. This is so notwithstanding that the Landlords conceded in evidence that they had no reason not to issue the VAT invoices.

58. To elaborate: the Landlords had ceased issuing VAT invoices in respect of the rent in or about July 2020. This was done on the basis of legal advice to the effect that the Landlords should not accept any rent for any period following the expiration of the lease. It seems that as of July 2020 the Landlords intended to resist the claim for a new tenancy and the concern was that the acceptance of rent might prejudice their position. The Landlords subsequently changed their stance in June 2022. The Landlords sought to negotiate the terms of a new tenancy and delivered a formal defence in January 2023 admitting that the Tenant was entitled to a new tenancy.

59. The Landlords’ evidence was to the effect that, notwithstanding this change in stance, they continued not to issue VAT invoices. This was said to be by way of an oversight. Having regard to this evidence, the Landlords could have had no objection, as of August 2023, to issuing the VAT invoices. If the Landlords’ true intention had been to secure payment of the arrears of rent, then one would have expected them to issue the VAT invoices immediately, with a view to releasing the money held in escrow by the Tenant’s solicitor. The Landlords’ failure to do so until February 2024 supports the inference that their actual objective had always been to contrive a forfeiture.

60. In summary, the Landlords considered that the service of a forfeiture notice was important, and their locksmith had expressly asked for a copy of same. The only reasonable inference to be drawn from (i) the method of service, (ii) the failure to notify the solicitors or any principal directly, and (iii) the Landlords’ subsequent failure to take up promptly the offer to pay the arrears of rent, is that the Landlords’ intention was to effect service in a form which was technically compliant, but which presented the least likelihood of the forfeiture notice being seen by the Tenant in sufficient time to remedy the failure to pay the rent.

COSTS ESTIMATES

61. I made a direction, pursuant to Order 99, rule 7 of the Rules of the Superior Courts that the parties produce to the court and exchange between themselves estimates of the costs respectively incurred by them to date in relation to what was then anticipated to be a five-day hearing before the High Court. The following items were to be included in the estimates: (i) general instructions fee;

(ii) brief fees; and (iii) refresher fees.

62. The aggregate figure (exclusive of VAT) for each party is as follows:

Landlords €116,050

Tenant €192,636

63. The principal fee items in the Landlords’ estimate of costs are as follows:

EURO

General instructions fee 32,500

Brief fee for senior counsel 30,000

Daily refresher 4,000

Brief fee for second senior counsel 30,000

Daily refresher 4,000

Brief fee for junior counsel 20,000

Daily refresher 3,000

Aggregate fee for written submissions 19,500

64. The principal fee items in the Tenant’s estimate of costs are as follows:

EURO

General instructions fee 45,750

Brief fee for senior counsel 25,000

Daily refresher 4,250

Brief fee for junior counsel 17,000

Daily refresher 2,800

65. All figures are exclusive of VAT. It should be explained that the estimates of costs are confined to the appeal hearing before the High Court (which took place over six days). The figures above do not include any amount in respect of the lengthy hearings before the Circuit Court nor the stay application before the High Court in March 2025.

66. There must be a real risk that the aggregate legal fees will exceed the value of the demised premises, the subject of the legal proceedings. The Landlords’ valuer (Barry Smyth), in a report dated 28 April 2022, had estimated the capital value of the demised premises (with the lease in situ) as €725,000.

APPLICATION FOR LEAVE TO AMEND DEFENCE

67. On the penultimate day of the hearing, counsel for the Landlords applied for leave to amend the formal defence. The proposed amendment sought to delete the words “and the Lease was thereby forfeited and the tenancy terminated”. The relevant passages of the formal defence are set out at paragraph 20 above.

68. The principles governing an application to amend pleadings are well established. The leading judgment remains that of the Supreme Court in Croke v. Waterford Crystal Ltd [2005] 2 IR 383, [2005] 1 ILRM 321. An authoritative restatement of the principles is to be found in the judgment of the Court of Appeal in Stafford v. Rice [2022] IECA 47.

69. The principles of most immediate relevance to the amendment application in the present proceedings are as follows: (a). A proposed amendment must raise or relate to an issue between the parties arising from the subject matter of the proceedings. (b). Where the amendment can be made without prejudice to the other party, or where any prejudice can be addressed by the imposition of appropriate terms (such as terms as to costs), the amendment should be allowed. (c). Delay is not per se a basis for refusing leave to amend: rather, the question is whether the delay gives rise to any prejudice.

70. Applying these principles to the circumstances of the present proceedings, leave to amend will be allowed. The proposed amendment assists in bringing a sharper focus to the real questions in controversy between the parties. The Landlords’ defence to the proceedings narrowed during the course of the appeal hearing. The Landlords now accept the logic that a tenancy, the term of which has expired by effluxion of time, cannot be forfeit. The proposed amendment is simply intended to reflect the acceptance of that logic.

71. It is correct to say, as counsel for the Tenant does, that the amendment application has been brought at the eleventh hour. The amendment application was first articulated on the penultimate day of the six-day hearing, at a time when the evidence had closed and the parties were making their closing legal submissions. I am satisfied, however, that any prejudice caused by the delay can be met by an appropriate costs order. The reality is that both parties’ positions evolved during the course of the appeal hearing. The logical flaw in the Landlords’ formal defence—and their revised position—had emerged during the first part of the hearing. The Tenant had, therefore, been on notice of the revised position since October 2025 and had ample time to prepare a response to same in advance of the resumed hearing in December 2025. The issue is essentially a question of law and not one in respect of which any additional evidence is required.

72. The court’s order will, therefore, recite that leave to amend the defence has been allowed. The order will further recite that the amended defence will be deemed to have been delivered by virtue of its having been handed into court on

4 December 2025. The Plaintiff/Tenant is relieved from any requirement to serve an amended reply. The permitted amendment consists merely of the deletion of a plea and does not, therefore, require to be replied to.

73. The costs consequences, if any, of the amendment application will be addressed at a later date.

PART II

THE SUBSTANCE OF THE APPEAL

CIRCUMSTANCES IN WHICH OCCUPATION MAY BE TERMINATED

74. Section 28 of the Landlord and Tenant (Amendment) Act 1980 confers a temporary right upon a tenant to continue in occupation of the demised premises pending the determination of an application for a new tenancy. The shorthand “statutory occupation” will be used throughout this judgment to describe this right to continue in occupation.

75. The right of statutory occupation has been characterised in the case law as a personal, unassignable right which does not confer any estate, interest or other proprietary right in the premises. This is so notwithstanding that—in the event a new tenancy is granted—same is deemed to be a continuation of the tenancy previously existing and shall for all purposes be deemed to be a graft upon that tenancy.

76. Section 28 of the Act provides that the tenant, while continuing in statutory occupation, shall be subject to the terms (including the payment of rent) of the terminated tenancy. As illustrated by the case law discussed below, however, not all of the terms of the terminated tenancy will be appropriate and relevant to the period of statutory occupation. This reflects the fact that the tenant has no proprietary interest in the premises during this period, and the fact that a tenancy, which has already terminated by reason of the expiration of the contractual period, is not capable of being brought to an end a second time.

77. The essence of the Landlords’ case is that their contractual right of re-entry survived the termination of the tenancy in July 2020, and could be relied upon in August 2023 to bring the period of statutory occupation to an end by effecting a physical re-entry. The Landlords accept that the Tenant’s statutory right to claim a new tenancy is not extinguished by the act of re-entry itself.

78. The Landlords have been unable to offer a convincing explanation as to how the contractual right of re-entry can be interpreted as authorising the termination of a period of statutory occupation in the absence of a court order. The wording of the contractual right of re-entry has been set out at paragraph 7 above. In brief, the operative part of the clause provides that, upon re-entry, the Landlords may repossess the demised premises and enjoy the same as if the lease had not been executed. Counsel for the Landlords, very properly, accepts that the clause cannot be interpreted as having this consequence in circumstances where a physical re-entry is effected after the expiration of the lease. Were it otherwise, the re-entry would defeat the statutory right to claim a new tenancy. The terminated tenancy, upon which the claim for a new tenancy is grounded, would have to be regarded as never having been executed. This would fall foul of the prohibition on “contracting out” of the Landlord and Tenant (Amendment) Act 1980.

79. The Landlords’ position is more measured. The Landlords submit that the consequence of a physical re-entry is to bring the period of statutory occupation to an end prospectively, while leaving intact the Tenant’s statutory right to continue to pursue its claim for a new tenancy. This measured position is, presumably, intended to ward off any allegation of “contracting out”. The difficulty with the Landlords’ analysis is that it cannot be accommodated within the wording of the contractual right of re-entry. The wording of the proviso for re-entry purports to treat the lease as not having existed. Once it is accepted— as the Landlords accept—that this cannot be done where a physical re-entry is effected after the expiration of the lease, then at least this much of the proviso for re-entry is inapplicable to a period of statutory occupation.

80. The essential features of a contractual right of re-entry are such that they are incapable of being applied, without modification, to a period of statutory occupation. The right to physically re-enter and take possession of the demised premises is not a freestanding right, separate and distinct from a right to forfeit the underlying lease. Rather, the two limbs of a forfeiture clause operate together to provide a mechanism whereby a landlord may recover possession of the demised premises prior to the expiration of the contractual period. The landlord effects re-entry, either by way of a physical re-entry or court proceedings for possession, and the leasehold interest is thereby forfeit. The tenant’s leasehold interest is extinguished and the landlord’s reversion falls into possession.

81. This mechanism cannot be mapped directly on to circumstances where the leasehold interest has already expired by effluxion of time and a claim for a new tenancy has been instituted. In such a scenario, the landlord is not kept out of possession by reason of the existence of a leasehold interest, but rather by reason of the existence of a statutory right on the part of the tenant to remain in occupation pending the adjudication by a court upon the claim for a new tenancy. As discussed next, the case law indicates that the remedy which exists for the non-payment of rent is to apply for a court order terminating the period of statutory occupation. The contractual right of re-entry, which had existed under the expired lease, applies in modified form only. The modifications are necessary to reflect the fact that the tenant enjoys a statutory right of occupation.

82. The question of the extent to which a term, which provides for a right of re-entry or forfeiture, applies to a period of statutory occupation has been expressly addressed by the High Court in Crofter Properties Ltd v. Genport Ltd [2007] IEHC 80, [2007] 2 ILRM 528 (Finlay Geoghegan J.). On the facts of Crofter Properties, the tenant had applied for a new tenancy under the Landlord and Tenant (Amendment) Act 1980 and continued in occupation of the demised premises pending the determination of that application. The tenant failed to pay the rent specified under the terminated tenancy. Prior to the hearing and determination of the Circuit Court proceedings in respect of the application for a new tenancy, the landlord instituted parallel proceedings before the High Court seeking to recover possession of the premises for non-payment of rent. The landlord sought to rely, inter alia, on the existence of a contractual right of reentry under the terms of the terminated tenancy.

83. The wording of the proviso for re-entry in Crofter Properties is broadly similar to that in the present proceedings. In brief, the proviso for re-entry allowed the landlord to enter into or upon the demised premises or any part thereof in the name of the whole, and to hold and enjoy the demised premises thenceforth as if “these presents had not been made”, i.e. as if the expired lease had not been executed. This was stated to be without prejudice to any right of action or remedy of the landlord in respect of any antecedent breach by the tenant.

84. The High Court summarised the legal effect of the proviso for re-entry as follows:

“This clause gives to [the landlord] a right of re-entry and

then provides upon re-entry that the Lease is forfeited. This

is sometimes referred to as forfeiture by re-entry. The

purpose of such a clause is to secure compliance with the

terms of the Lease and ultimately the sanction of re-entry and

forfeiture if this cannot be achieved.”

85. The court went on to state as follows:

“[…] Not all terms of the Lease will be relevant to

occupation under s. 28 [of the Landlord and Tenant

(Amendment) Act 1980] by reason of the absence of any

proprietary interest in the property. By so providing, the

Oireachtas must have intended that the tenant would remain

subject to such terms including payment of rents as are

appropriate and relevant to the bare right of occupation

conferred by s. 28. The right of re-entry under clause 4 still

appears relevant. However, the consequential forfeiture is

no longer relevant by reason of the absence of any present

proprietary interest in the property as distinct from the right

to claim a new tenancy under s. 21 of the Act of 1980.”

86. The court summarised its conclusions on the status of a contractual right of reentry during a period of statutory occupation as follows:

“Accordingly, I have concluded that whilst s. 28 of the Act

of 1980 prima facie gives a tenant a right to remain in

occupation pending the determination of the application to

the Circuit Court (including on appeal), it also makes a tenant

subject to the terms of the tenancy, that where the relevant

tenancy includes a right of re-entry, the right to remain in

occupation may be terminated by the court. The court must

retain a discretion to determine whether or not to so

terminate. The right of re-entry under the Lease is subject to

the discretion of the court to grant relief against forfeiture.

This construction of s. 28 confirms the view already formed

that it cannot be construed as automatically bringing to an

end a tenant’s right of occupation by reason of a breach of

the terms of the tenancy.

The next question is what circumstances would warrant the

court exercising its discretion to terminate a tenant’s right to remain in occupation under s. 28. This must be determined in the context of the scheme in Part II of the Act of 1980.

There is no provision in Part II of the Act of 1980 which

expressly envisages that a tenant who has an application for

a new tenancy pending before the Circuit Court, might at the

time of such determination not be in occupation of the

tenement. On the contrary, the statutory scheme appears

premised on an assumption that a tenant remains in

occupation after the termination of the old tenancy, and

where a new tenancy is granted, there is a seamless transfer

from holding under the old tenancy to holding under the new

tenancy in such a way as to avoid disruption to a tenant while

ensuring the rights of the landlord are respected. The new

tenancy commences on the termination of the old tenancy

(s. 16) and is a graft on the previous tenancy (s. 27). The

court may under s. 23(7) require a tenant to expend a

specified sum in the execution of specified repairs and

postpone the grant of the new tenancy until that requirement

has been complied with.

Accordingly, it appears to me that in the context of the above

statutory scheme a right of occupation under s. 28 should

only be terminated in exceptional circumstances where there

appears a risk of a serious injustice to the landlord if the

tenant is permitted to remain in occupation whilst continuing

to act in breach of the terms of the tenancy. This approach is

also confirmed by the temporary nature of the bare right of

occupation conferred by s. 28.”

87. The approach in Crofter Properties has since been expressly endorsed in at least two other High Court judgments as follows: Wintertide Ltd v. Córas Iompair Éireann [2010] IEHC 494 and K.W. Investment Funds v. Lorgan Leisure [2020] IEHC 132. It has not been suggested in submission by the Landlords that Crofter Properties was incorrectly decided, still less that it should not be followed. Even if such had been suggested, the criteria, by reference to which one judge of the High Court may decline to follow a reasoned judgment of another judge of the same court, have not been met. (See, generally, Re Worldport Ireland Ltd (in liquidation) [2005] IEHC 189 and A. v. Minister for Justice and Equality [2020] IESC 70, [2021] 3 IR 140).

88. The judgment in Crofter Properties recognises that not all of the terms of the terminated tenancy will be appropriate and relevant to a period of statutory occupation. The judgment holds that a right of re-entry can apply to statutory occupation in modified form only. The first modification relates to the legal effect of re-entry; the second relates to the mode of re-entry.

89. It may assist the reader in better understanding the necessity for these modifications to pause briefly to consider how forfeiture operates in the context of an existing tenancy. The concept of forfeiture describes the contractual entitlement of a landlord to terminate a tenancy upon the occurrence of an event of default on the part of the tenant. The re-entry may only be effected in one of two ways, i.e. by physical re-entry or by the issue and service of proceedings for recovery of possession of the premises (Bank of Ireland v. Lady Lisa Ireland Ltd [1992] 1 IR 404). Once the re-entry is effected, the tenancy is “forfeit”, the landlord’s reversion falls into possession, and the landlord is accordingly entitled to repossess the demised premises.

90. A proviso for re-entry is, typically, prospective in nature: whereas it will state that the tenancy/lease has ceased or is to be regarded as not having been executed, this is usually subject to a saver to preserve any existing rights or remedies which have accrued in respect of any antecedent breaches. A saver of this type is to be found in the forfeiture clauses in both Crofter Properties and the present proceedings.

91. The point which is made—correctly—in Crofter Properties is that a tenancy, which has already terminated by reason of the expiration of the contractual period, is not capable of being brought to an end a second time. Put otherwise, an expired lease cannot be forfeit. The Landlords have since accepted this logic and applied to amend their formal defence to remove the reference to forfeiture: see paragraphs 67 to 73 above.

92. The Landlords contend that Crofter Properties does not decide the specific question which has arisen in the present proceedings, namely, whether or not a landlord may rely on a proviso for re-entry to terminate a period of statutory occupation in the absence of a court order. They further contend that the reasoning of the judgment is consistent with such a right. The essence of the contention is summarised as follows in their supplemental written submissions:

“Termination by physical entry was not an issue before the

court in Crofter Ltd. v. Genport Ltd., and was not the subject

of any consideration. However, the reasoning adopted —

that the tenant remains bound by the re-entry clause and that

the landlord’s rights continue to have effect during s. 28

occupation — applies equally to the question of physical re-

entry. If the High Court retains jurisdiction to terminate

occupation in equity or by injunction, it can equally follow

that the landlord likewise retains the corresponding

proprietary right to re-enter for non-payment of rent or

breach of covenant. The statutory protection of s. 28 was

never intended to deprive the landlord of that right; it merely

ensures that such re-entry, like judicial termination, is

exercised within the framework of the tenant’s continuing

subjection to the terms of the tenancy pending an application

to the Circuit Court.”

93. The Landlords submit that a tenant remains bound by the obligation to pay rent, and that a landlord retains the correlative right to re-enter for non-payment of rent. This interpretation of section 28 of the Landlord and Tenant (Amendment) Act 1980 is commended to the court as follows: “In practical terms, this interpretation preserves the intended balance of the statutory scheme. The landlord’s proprietary right to re-enter for non-payment of rent remains exercisable, ensuring that the tenant cannot rely on s. 28 to occupy rentfree or in breach of covenant. At the same time, the tenant’s statutory rights are not extinguished by the act of re-entry itself: the tenant may still pursue its application in the Circuit Court, where the Court can determine whether a new tenancy should be granted and, if so, on what terms. Thus, the Act fully accommodates both the landlord’s right to recover possession and the tenant’s right to have its claim adjudicated within the statutory process.”

94. These submissions were elaborated upon in oral argument before me. Counsel submitted that the right of re-entry is an important right and asked, rhetorically, why should a landlord have to undertake the cost and delay of issuing court proceedings rather than exercising a contractual right that it has. The right of reentry was characterised as a “contractual right freely entered into by both parties”. Counsel emphasised that a right of re-entry or a right of forfeiture are identical, citing, by way of example, section 14 of the Conveyancing and Law of Property Act 1881.

95. Counsel further submitted that to construe section 28 as ruling out the right of physical re-entry—by conferring exclusive jurisdiction upon the courts to terminate a statutory period of occupation—would be to add words which are not in the section and would take away a “valuable right” enjoyed by the landlord.

96. With respect, the core contention advanced on behalf of the Landlords cannot be reconciled with the rationale of Crofter Properties. The judgment holds that the court must retain a discretion to determine whether or not to terminate a period of statutory occupation, and that same will only be terminated in exceptional circumstances where there appears to be a risk of a serious injustice to the landlord. The “exceptional circumstances” threshold was posited by the court to adhere with the assumption underlying the statutory scheme, namely that there should generally be a “seamless transfer” from holding under the old tenancy to holding under the new tenancy in such a way as to avoid disruption to a tenant, while ensuring the rights of the landlord are respected.

97. It follows, as a corollary of the finding that a period of statutory occupation can only be ended where a court is satisfied that exceptional circumstances exist, that a landlord cannot enjoy a unilateral right to re-enter in the absence of a court order. The contended-for right would defeat the procedural safeguards prescribed in the judgment. There would have been no point in fixing the threshold of “exceptional circumstances” were it the position that a landlord could sidestep judicial scrutiny by effecting a physical re-entry. The judgment in Crofter Properties implicitly finds that the right of re-entry is narrowed under section 28, and instead of there being two routes, i.e. physical re-entry or court proceedings, only the latter remains. A period of statutory occupation can only be lawfully terminated by court order.

98. It is inaccurate to suggest—as the Landlords do—that the rationale of Crofter Properties is that a landlord enjoys the same rights and remedies in respect of a period of statutory occupation as they did during the currency of the tenancy. The judgment makes it clear that the right to re-enter applies in modified form only in the context of statutory occupation and is subject to judicial control. As observed in Wintertide Ltd (cited above), by reference to the judgment in Crofter Properties, the bare right of occupation gives limited rights to the applicanttenant and restricts the normal rights available to the landlord in respect of breach of covenant in the expired lease.

99. It is a non sequitur to suggest that it follows, as a corollary of the court enjoying discretion to terminate a period of statutory occupation, that a landlord must also enjoy a “proprietary right to re-enter” for non-payment of rent or breach of covenant. Again, the judgment in Crofter Properties makes it clear that the right to re-enter applies in modified form only in the context of statutory occupation and is subject to judicial control.

100. I have also closely considered the Landlords’ submission that the judgment in Crofter Properties is concerned solely with the “interplay” between the High Court and the Circuit Court’s respective jurisdictions in landlord and tenant matters, and does not address the question of a landlord’s right of physical reentry. With respect, that submission invites a reductionist reading of the judgment. The judgment examines, in detail, the nature of the right of statutory occupation and the circumstances in which it might be terminated. It is apparent from the recital of the arguments in the judgment that the parties had staked out extreme positions on the operation of section 28 of the Landlord and Tenant (Amendment) Act 1980. The proper adjudication upon these arguments necessitated the court engaging in a careful analysis of the statutory scheme. It does a disservice to this careful analysis to suggest that the judgment was solely concerned with the proper allocation of jurisdiction as between courts in landlord and tenant matters. The judgment goes much further than this and contains a series of holdings on the operation of section 28. Moreover, this is how the judgment has been understood in subsequent case law.

101. Having regard to all of the foregoing, it follows that the Landlords were not entitled to physically re-enter the premises in the absence of a court order. The events of August 2023 did not have the legal effect of terminating the period of statutory occupation.

THE LANDLORDS’ SUBMISSIONS ON STATUTORY INTERPRETATION

102. In reaching the foregoing conclusions, I have carefully considered the very detailed submissions made on behalf of the Landlords on the principles governing statutory interpretation. For ease of exposition, however, the discussion of these principles has been deliberately postponed to this point of the judgment. This has been done in the hope that the discussion will be more intelligible now that the reader has a full appreciation of the legal issues arising. Of course, I had to consider and adjudicate upon these submissions as part of my overall assessment of the case and prior to reaching the conclusions set out above. Put otherwise, it is merely the record of my decision on these issues which has been deferred to this point of the judgment; the decision itself was made earlier as part of the overall assessment of the case.

Interpretation does not result in an absurdity

103. The Landlords submit that an interpretation of section 28 of the Landlord and Tenant (Amendment) Act 1980 which would preclude a landlord from effecting a physical re-entry in the absence of a court order would be “absurd”. It is submitted that such an interpretation would confer a higher level of protection during a period of statutory occupation than had pertained during the currency of the terminated tenancy. It is said that it is difficult to see why a tenant with a bare right of occupation should enjoy a “statutory shield” against physical reentry which had been unavailable to them during the currency of the terminated tenancy.

104. Reliance is placed on section 5 of the Interpretation Act 2005 in support of these submissions. The effect of this section has recently been explained as follows by the Supreme Court in Heather Hill Management Company v. An Bord Pleanála [2022] IESC 43, [2024] 2 IR 222 (at paragraphs 131 and 132): “[…] two phrases in s. 5 — the ‘plain intention’ of the Oireachtas and ‘the Act as a whole’ — should be viewed as combining to define the object of the exercise of interpretation envisaged by the provision, requiring that the intent ultimately settled on be reconcilable with the Act as a whole, but as leaving the specific matters that may otherwise be taken into account in identifying that intent to be addressed by the courts on a case by case basis and in accordance with the pre-existing jurisprudence. In other words, the language of the provision requires that the ‘plain intention’ be evident from the legislation as a whole but does not in itself limit the other matters to which regard can be had in identifying and confirming that intention.

That construction of s. 5 implements the purpose of the

provision which was, simply, to make it clear that the plain

intention of the Oireachtas in promulgating an Act is

ascertained by its language viewed in context having regard

to the object of the legislation. While the meaning of the

language used in a provision remains the focal point of any

exercise in statutory interpretation, textual or contextual

ambiguity or obscurity as well as the production of absurdity

or undermining of an identifiable legislative intent will

enable the taking into account of broader considerations to

ascertain and implement the legislator’s intention. To that

extent, s. 5 is of assistance in providing legislative grounding

for and confirmation of the approach that is today taken by

the courts (and had been taken by some judges for a very

long time). […]”

105. The difficulty with the Landlords’ submissions is that they cannot be reconciled with the finding in Crofter Properties that the conferral of a higher level of protection during the period of statutory occupation is consistent with the intention underlying the statutory scheme. The position is put as follows at page 541 of the reported judgment:

“[…] the statutory scheme appears premised on an

assumption that a tenant remains in occupation after the

termination of the old tenancy, and where a new tenancy is

granted, there is a seamless transfer from holding under the

old tenancy to holding under the new tenancy in such a way

as to avoid disruption to a tenant while ensuring the rights of

the landlord are respected. The new tenancy commences on

the termination of the old tenancy (s. 16) and is a graft on the

previous tenancy (s. 27). The court may under s. 23(7)

require a tenant to expend a specified sum in the execution

of specified repairs and postpone the grant of the new

tenancy until that requirement has been complied with.

Accordingly, it appears to me that in the context of the above

statutory scheme a right of occupation under s. 28 should

only be terminated in exceptional circumstances where there

appears a risk of a serious injustice to the landlord if the

tenant is permitted to remain in occupation whilst continuing

to act in breach of the terms of the tenancy. This approach is

also confirmed by the temporary nature of the bare right of

occupation conferred by s. 28.”

106. As appears, the judgment holds that a statutory right of occupation should only be terminated in “exceptional circumstances”. This is a higher threshold than that which pertains during the currency of a tenancy.

107. It is obvious from the Landlords’ comprehensive supplemental written submissions that they regard the self-help remedy of being able to effect a physical re-entry as an “essential right” and a “fundamental incident of property ownership”. The Landlords also regard the preclusion of same during a period of statutory occupation as “absurd”. With respect, these submissions are predicated upon an extravagant conception of a landlord’s rights. It is suggested, for example, that the right of re-entry allows for some force short of violence, especially where no one is present. One of the cases cited is to the effect that a landlord would be entitled to take the roof off the demised premises in circumstances where a tenant is overholding: Jones v. Foley [1891] 1 Q.B. 730. Such a scornful view of a tenant’s rights has no place under the modern law of landlord and tenant.

108. Insofar as the Landlords had enjoyed a right of re-entry during the currency of the since terminated tenancy, same had been a contractual right. The right of reentry had been governed by the express terms of the tenancy (the existence of which terms replaced any residual common law right which might otherwise have applied).

109. The Oireachtas has chosen, as is its prerogative, to regulate the contractual relationship of landlord and tenant in the common good. As elaborated upon under the next heading below, the complained-of loss of a right of physical reentry during a period of statutory occupation is one of the least significant incursions upon a landlord’s rights brought about by the landlord and tenant legislation.

110. The nature and extent of the remedies provided to a landlord pending the hearing and determination of an application for a new tenancy is quintessentially a matter for the Oireachtas. Whereas there might be differing views as to whether a policy of affording a higher level of protection during the interregnum is the most appropriate, it cannot be said that an interpretation of the Act which identifies this as the legislative intent is absurd or fails to reflect the plain intention of the Oireachtas. As appears from the passage cited at paragraph 105 above, the judgment in Crofter Properties identifies a statutory objective to ensure a “seamless transfer”.

111. In summary, the position of a tenant during a period of statutory occupation is distinguishable from that which they enjoyed during the currency of the since terminated tenancy. There are rational policy reasons by reference to which the Oireachtas could lawfully decide upon this policy. One has already been identified in Crofter Properties. Another is that a court will, by definition, have seisin of landlord and tenant proceedings between the parties. The right of statutory occupation under section 28 of the Landlord and Tenant (Amendment) Act 1980 is only triggered where there are court proceedings pending. It is not unreasonable, still less absurd, to say that during the pendency of such court proceedings, a court order is required. The future relationship between the parties is being adjudicated upon by the courts and it was open to the Oireachtas to preclude any unilateral action by the parties until the adjudication is complete.

112. The Landlords’ submissions are predicated on a bleak assessment of the ability of the court system to hear and determine applications to terminate a period of statutory occupation in an efficient and cost-effective manner. This bleak assessment is unwarranted. There is no reason why an application to terminate a period of statutory occupation cannot be heard promptly within the context of a claim for a new tenancy pending before the Circuit Court.

113. More generally, the period of time during which a tenant will be in statutory occupation will typically be short. The present proceedings are very much an outlier in this regard. A claim for a new tenancy would typically be heard and determined in a fraction of the time which the present proceedings have taken. The delay here has been caused largely by the Landlords’ tardiness. For example, it took them two years and four months to deliver their formal defence.

Presumption against unclear or radical changes in the law

114. There is a general presumption that the legislature does not intend to make any radical amendment to the law beyond what it declares, either in express terms or by clear implication. Invoking this presumption, the Landlords submit that an amendment which entails the removal of the right of physical re-entry during a period of statutory occupation would represent a “radical and far-reaching change in the law”. It is further submitted that there is nothing in the wording of the Landlord and Tenant (Amendment) Act 1980 which supports an interpretation which would produce such a change in the law.

115. Before turning to address the detail of these submissions, it is salutary to recall the parameters of the presumption invoked. The presumption is considered in detail in Heather Hill (cited earlier). Murray J., writing for a unanimous Supreme Court, characterised the presumption as follows (at paragraph 164 of the reported judgment):

“I cannot but think that this principle is sometimes now

applied beyond its proper limits. One would expect that

every statute ‘changes’ the law, and the limitations of

language are such that it often happens that it can be said a

law lacks clarity. Few statutes do not in some shape or form

impinge upon rights (and in particular property rights) or

effect alterations to the general law that cannot be described

from someone’s perspective as significantly departing from

the pre-existing legal assumptions. There is no presumption

against any of this. What there is, as the quoted passage

shows, is a presumption that imprecise language will not be

interpreted so as to impose significant changes to the pre-

existing law particularly ‘where the change is contrary to the

actual objects of the Act’. To that might be added a related

presumption that legislation will be strictly construed when

it interferes with vested rights.”

116. The judgment in Heather Hill goes on to hold (at paragraph 166) that the presumption is simply of no application where a major change in the law is clearly envisaged by the language used in the legislative provision in question. I turn next to apply these principles to the circumstances of the present case.

117. It should be explained that the notion of a statutory period of occupation had first been introduced under the Landlord and Tenant Act 1931. The language is broadly similar to that now found under section 28 of the Landlord and Tenant (Amendment) Act 1980. It is appropriate, therefore, to consider the intent of the earlier legislation. The discussion which follows will refer principally to the 1931 Act. Many of its provisions were re-enacted under the 1980 Act.

118. The precise purpose of the Landlord and Tenant Act 1931 had been to effect a radical change in the law. Indeed, as much is accepted in the Landlords’ supplemental written submissions. The submissions explain that statutory renewal rights for tenants were first introduced by the Landlord and Tenant Act 1931. The Act established that a qualifying tenant could claim a new tenancy on specified grounds and was entitled to remain in occupation pending the determination of that claim.

119. The purpose of section 38 of the Landlord and Tenant Act 1931 (the precursor to section 28 of the 1980 Act) is then described in the submissions as follows:

“Section 38 of the 1931 Act was accordingly enacted to

bridge the gap between the expiry of the lease and the Circuit

Court’s determination of the tenant’s entitlement. Its clear

purpose was to preserve continuity of possession for a tenant

lawfully claiming renewal, pending judicial resolution.

Crucially, however, s. 38 made that interim right of

occupation conditional upon the tenant’s continued

observance of its contractual obligations. The provision thus

struck a deliberate balance between protecting tenants from

premature eviction and safeguarding the landlord’s

proprietary rights: while the landlord could not evict

precipitously, the tenant was required to continue performing

as if the lease remained in force.”

120. The submissions go on, then, to contend that the removal of the right of physical re-entry would represent a radical and far-reaching change in the law. It is further contended that this change would interfere with a landlord’s property rights and would fundamentally alter the balance of interests between landlord and tenant.

121. The difficulty with these latter contentions is that the complained-of loss of a right of physical re-entry is one of the least radical changes and one of the least significant incursions upon a landlord’s rights. The animating principle of the Landlord and Tenant Act 1931 was to regulate landlords’ property rights in the common good. This entailed significant incursions on landlords’ freedom to deal with their property as they wished. A landlord who had granted a tenancy might find themselves in a position whereby a new tenancy was foisted upon them. It cannot sensibly be argued that a minor, consequential amendment which regulates the position in the interregnum is “radical” in the context of what is, on any view, radical legislation. This is especially so where that consequential amendment, as re-enacted under the 1980 Act, has been interpreted as affording a landlord the right to apply to court to bring the period of statutory occupation to an end. This interpretation had only been settled upon after a careful consideration of the objects of the Landlord and Tenant (Amendment) Act 1980. It adheres with the assumption underlying the statutory scheme, namely that there should generally be a “seamless transfer” from holding under the old tenancy to holding under the new tenancy in such a way as to avoid disruption to a tenant while ensuring the rights of the landlord are respected. See paragraph 105 above.

INTERIM CONCLUSION

122. The conclusions reached thus far in the judgment can be summarised as follows. The Landlords acted unlawfully in purporting to effect a physical re-entry upon the demised premises in August 2023. The Tenant enjoyed a statutory right to continue in occupation and same could only be brought to an end by court order. It follows, therefore, that the purported re-entry was invalid and did not adversely affect the Tenant’s claim for a new tenancy. This finding is sufficient to dispose of the issues arising in the first module.

RE-ENTRY DOES NOT PRECLUDE NEW TENANCY

123. For the reasons explained under the previous headings, the purported re-entry upon the premises on 17 August 2023 was ineffective to lawfully terminate the Tenant’s right of statutory occupation.

124. It should be explained that even if, counterfactually, the re-entry had been effective, it would not have precluded the grant of a new tenancy. This is because it is not a condition precedent to the grant of a new tenancy that the tenant must remain in occupation of the demised premises in the interregnum between the termination of the previous tenancy and the grant of a new tenancy. Whereas the Landlord and Tenant (Amendment) Act 1980 does seek to ensure that there is a “seamless transfer” from holding under the old tenancy to holding under the new tenancy (per Crofter Properties), it is not mandatory that the tenant remain in occupation pending the determination of the application for a new tenancy.

125. This is so even where the reason for non-occupation is that the period of statutory occupation has been terminated, by court order, for the non-payment of rent. This is not a disqualifying ground which automatically precludes the grant of a new tenancy. The disqualifying grounds under section 17(1) of the Landlord and Tenant (Amendment) Act 1980 are directed to circumstances where a tenancy has been terminated for non-payment of rent. They do not extend to the termination of a period of statutory occupation.

126. It follows, therefore, that it is not an answer to the claim for a new tenancy to say that the period of statutory occupation was lawfully terminated.

127. Indeed, this much has been acknowledged by the Landlords in their written legal submissions (at §42). It is expressly stated there that a tenant’s statutory rights are not extinguished by the act of re-entry itself: the tenant may still pursue its application in the Circuit Court, where the court can determine whether a new tenancy should be granted and, if so, on what terms.

NON-PAYMENT OF RENT: FEBRUARY TO JULY 2023

128. There was some suggestion at the hearing before me that the Landlords might be attempting, belatedly, to distinguish between (i) the act of the termination of a period of statutory occupation, and (ii) the event of default relied upon to ground that termination. The outline of the inchoate argument seems to be that the fact that the Tenant had withheld rent for the period between February and July 2023 might have been relied upon to resist a new tenancy. With respect, this does not represent a good defence to the claim for a new tenancy for the following reasons.

129. First and foremost, a defence along these lines has never been pleaded. This is so notwithstanding that the formal defence has been amended twice: the second application for leave to amend being made towards the end of the appeal hearing in December 2025. The position adopted in each iteration of the formal defence has been consistent: the Landlords rely on the happenings of August 2023 to resist the claim for a new tenancy. Put otherwise, it is the act of their taking possession of the demised premises on 17 August 2023—and thereby supposedly terminating the period of statutory occupation—that is said to defeat the claim to a new tenancy. (This had been mischaracterised as the termination of the tenancy in the first two iterations of the formal defence).

130. With respect, it is not open to the Landlords, towards the end of a six-day appeal hearing, to commit a volte-face and attempt to pursue an entirely different, unpleaded defence. It has never been part of the pleaded case that—absent a valid physical re-entry in August 2023—the non-payment of rent, in and of itself, would defeat the claim for a new tenancy.

131. It would be contrary to the interests of justice, and work an unfairness to the other side, to allow this volte-face. These proceedings have consumed weeks of hearing time before the Circuit Court and the High Court, and the parties had more than ample opportunity to plead and argue whatever case they might have wished to. A party cannot simply switch tack at the eleventh hour.

132. Second, and following on directly from the lack of pleading, this line of argument was never articulated by the Landlords at the hearing of the second module before the Circuit Court. Crucially, the Landlords have not appealed against the judgment and order in respect of the second module. The implications of this are elaborated upon under a separate heading below (at paragraphs 141 to 149).

133. Third, even if one were to leave aside the insurmountable obstacles identified above, the fact that the Tenant had withheld rent for the period between February and July 2023 is not a good defence. Before turning to the particulars of the present proceedings, it is salutary to address the issue at the level of general principle.

134. The fact that a tenant has not paid rent during a period of statutory occupation is something which the court would, in principle, be entitled to take into account in deciding whether or not to grant a new tenancy. Depending on the precise circumstances, non-payment of rent might well represent a “good and sufficient reason” for refusing to renew for the purposes of section 17(1)(a)(v) of the Landlord and Tenant (Amendment) Act 1980. The phrase “good and sufficient reason” is defined, for the purpose of the section, as meaning a reason which emanates from or is the result of or is traceable to some action or conduct of the tenant and which, having regard to all the circumstances of the case, is in the opinion of the court a good and sufficient reason for terminating or refusing to renew (as the case may be) the tenancy.

135. It is the fact of the non-payment of rent, as an aspect of the conduct of a tenant, which is the relevant consideration. This is separate and distinct from the termination of the period of statutory occupation. A landlord, who has not applied for a court order to terminate the period of statutory occupation, would nevertheless be entitled to invite the court to have regard to the non-payment of rent. A court might, for example, be persuaded that the tenant has a history of non-payment of rent and that the new tenancy should be refused on this basis notwithstanding that neither the tenancy nor the statutory occupation had been terminated for non-payment of rent.

136. Turning to the present proceedings, the non-payment of rent does not represent a “good and sufficient reason” for refusing to renew the tenancy for the purposes of section 17(1)(a)(v) for the following reasons.

137. The Tenant had offered, in the immediate aftermath of the attempted forfeiture on 17 August 2023, to pay the arrears of rent, subject only to the proviso that the Landlords issue the requisite VAT invoices. An amount equivalent to the rent arrears had been placed in an escrow account with the Tenant’s solicitors: see letter of 25 August 2023 as follows:

“Fourthly, as a separate but related point to that above, your

clients have not even issued invoices in respect of the rent

that they claim is due in the purported forfeiture notice that

allegedly issued on their behalf. Our client previously

requested invoices from your clients but this was ignored by

your clients. Nevertheless, and strictly without prejudice to

all of our client’s rights and entitlements and our client’s

claims against your client, including in particular the damage

caused to our client arising from your client’s purported

forfeiture notice and your clients’ use of force to enter the

Premises, our client is transferring the amount of €25,212.00

to our client account. This is the amount that is referred to in

your clients’ purported forfeiture notice. On receipt of valid

invoices from you, we have instructions to transfer payment

to your clients. Lest it be suggested otherwise, our client is

robustly solvent.”

138. It was not until 14 February 2024 that the Landlords finally issued the VAT invoices in respect of the rent payable for the period between February 2023 and

16 August 2023. The issuance of the VAT invoices triggered the payment of the monies held in escrow by the Tenant’s solicitors.

139. Having regard to the fact that the Tenant had offered to pay the rent and the default of the Landlords in complying with their obligation, under the Value- Added Tax Consolidation Act 2010, to issue VAT invoices, the late payment of the rent does not represent a good and sufficient reason to refuse to grant a new tenancy. Indeed, as discussed earlier, counsel for the Landlords had conceded at the hearing of the stay application on 6 March 2025 that the Tenant would have been entitled to relief against forfeiture for the asking. The same logic applies to the analogous question of whether a “good and sufficient reason” exists within the meaning of section 17(1)(a)(v) of the Landlord and Tenant (Amendment) Act 1980. In each instance, the focus is on the reasonableness of the conduct of the particular tenant and landlord. Here, the Tenant acted reasonably in paying the rent into an escrow account immediately upon learning of the purported forfeiture. By contrast, the Landlords acted unreasonably:

(i) the Landlords never had any lawful reason to refuse to issue the VAT invoices, and (ii) the manner in which the Landlords chose to serve the forfeiture notice gives rise to the irresistible inference that their true intention was to contrive a forfeiture rather than secure payment of the arrears of rent. See paragraphs 48 to 60 above.

140. It is not necessary, for the resolution of the present proceedings, to go as far as the Circuit Court did and to find, as a general proposition of law, that a tenant would always be entitled to withhold rent by reason of a dispute in relation to the issuance of VAT invoices. The present proceedings can be resolved on the narrower, fact-specific grounds outlined above.

FAILURE TO APPEAL ORDER MADE IN SECOND MODULE

141. For the reasons explained, I have concluded that the purported re-entry on

17 August 2023 did not have the effect of bringing the period of statutory occupation to an end. I have also concluded that even if, counterfactually, the period of statutory occupation had been lawfully terminated, this occurrence would not have precluded the grant of a new tenancy. None of the points pleaded in the formal defence (even in its third iteration) disclose a valid basis for resisting the claim for a new tenancy.

142. There is, however, a more fundamental difficulty with the Landlords’ case. The Landlords, by failing to appeal the judgment and order on the second module, have allowed the terms of the new tenancy to be fixed in final form. In the absence of any appeal to the High Court, the judgment and order of the Circuit Court is now conclusive. The issue is res judicata.

143. The chronology of these proceedings, whereby the second module had already been conclusively determined by the Circuit Court prior to the hearing of the appeal to the High Court in relation to the first module, has rendered the appeal largely moot save as to costs. The controversy as to the legal consequences of the events of 17 August 2023 has been overtaken by subsequent developments: the new tenancy has been fixed in final form.

144. Counsel on behalf of the Landlords suggested that an application might be made to the Circuit Court to set aside its judgment and order in respect of the second module. It was further suggested that a successful appeal in relation to the first module would represent a new and significant factor bearing on the entitlement to a new tenancy. Counsel was asked to identify what new arguments, if any, would then be open to the Landlords which had not been available at the time of the hearing on the second module. Three putative arguments were identified as follows.

145. First, it was said that the Tenant’s conduct in retaking possession of the demised premises, in the week following the Landlords’ purported re-entry on 17 August 2023, could be characterised as trespass and relied upon as a ground for resisting a new tenancy. The difficulty with this proposition, however, is that the retaking of possession had occurred several months prior to the Landlords’ first application to amend their formal defence (November 2023). The Landlords were fully aware of the retaking of possession at the time. There is no reason as to why a plea of trespass could not have been included as part of the proposed amendments to the formal defence. In the event, however, no plea of trespass was ever included in the amended defence. The Landlords sought, instead, to pursue a claim for damages in separate proceedings. One consequence of this litigation strategy is that the Landlords are confined to a claim for damages and could not, in the absence of a plea to that effect in the present proceedings, rely on the alleged trespass to resist the claim for a new tenancy.

146. Second, it was said that the Tenant’s overall conduct, in allegedly allowing the demised premises to deteriorate and failing to carry out works, might be relied upon as a “good and sufficient reason” not to grant a new tenancy. Again, this is not a new factor which has only recently come to the Landlords’ attention. If and insofar as the Landlords had wished to rely on the Tenant’s conduct in relation to the maintenance of the demised premises in resisting a new tenancy, the particulars have been known to them since well before they delivered their amended defence. The Circuit Court had granted leave to amend on

28 November 2023. In the event, however, no plea in relation to repairs was ultimately included in the amended defence.

147. Third, it was implied that—in consequence of the Circuit Court’s finding in module one that the Tenant had acted reasonably in withholding rent in the context of the dispute over VAT invoices—the Landlords might have been inhibited or embarrassed in attempting to rely on the non-payment of rent as a “good and sufficient reason” not to grant a new tenancy. With respect, this is incorrect as a matter of law. The proper approach for the Landlords to have adopted would have been to renew the argument before the Circuit Court as part of the second module and thereby preserve their right of appeal. The Landlords had a statutory right to a de novo hearing by way of appeal from the Circuit Court to the High Court. The two appeals could have been heard together by the High Court.

148. In all the circumstances, the Landlords must be taken as having abandoned the argument by reason of their failure to agitate the point before the Circuit Court and to pursue an appeal in relation to the second module. The Landlords have, in effect, accepted the new tenancy in the terms fixed by the Circuit Court. It would be tantamount to an abuse of process for the Landlords now to attempt to reagitate these issues by applying to set aside the judgment and order of the Circuit Court in respect of the second module. It is long since established that a final judgment and order will only be set aside in exceptional circumstances (In re Greendale Developments Ltd [2000] 2 IR 514). This is especially so where the party had enjoyed an unqualified right of appeal against that judgment but failed to exercise it. An application to set aside a judgment and order cannot be used as a vehicle to introduce new arguments which had been available to the party at the time of the original hearing.

149. Having regard to all of the foregoing, it is difficult to understand what benefit the pursuit of an appeal in relation to the first module could produce having regard to the unchallenged outcome of the second module.

PART III

SUMMARY OF CONCLUSIONS

150. For the reasons explained earlier, I have concluded that the specific issue raised in these appeal proceedings falls to be resolved by reference to the general principles stated in Crofter Properties Ltd v. Genport Ltd [2007] IEHC 80, [2007] 2 ILRM 528. The judgment, as a reasoned judgment of a court of coordinate jurisdiction, is presumptively binding on me and the Landlords have not invited me to refuse to follow it.

151. The High Court held in Crofter Properties that the court must retain a discretion to determine whether or not to terminate a period of statutory occupation under section 28 of the Landlord and Tenant (Amendment) Act 1980. A period of statutory occupation will only be terminated in exceptional circumstances where there appears to be a risk of a serious injustice to the landlord.

152. A landlord does not enjoy a unilateral right to re-enter the demised premises during a period of statutory occupation in the absence of a court order. This follows as a corollary of the finding in Crofter Properties that a period of statutory occupation can only be ended where a court is satisfied that exceptional circumstances exist.

153. The rights of the landlord are protected by an entitlement to apply for a court order terminating the occupation if there has been a breach of the terms of the terminated tenancy. This application can be made in the context of the proceedings in respect of the claim for a new tenancy, i.e. to the Circuit Court and the High Court (on appeal), or in fresh proceedings before the High Court.

154. Applying these principles to the circumstances of the present proceedings, the Landlords acted unlawfully in purporting to effect a physical re-entry to the demised premises in August 2023. The Tenant enjoyed a statutory right to continue in occupation and same could only be brought to an end by court order. It follows, therefore, that the purported re-entry was invalid and did not adversely affect the Tenant’s claim for a new tenancy. This finding is sufficient to dispose of the issues arising in the first module.

155. It should be explained that even if, counterfactually, the re-entry had been effective, it would not have precluded the grant of a new tenancy. This is because it is not a condition precedent to the grant of a new tenancy that the tenant must remain in occupation of the demised premises in the interregnum between the termination of the previous tenancy and the grant of a new tenancy.

156. There was some suggestion at the hearing before me that the Landlords might be attempting, belatedly, to distinguish between (i) the act of the termination of a period of statutory occupation, and (ii) the event of default relied upon to ground that termination. The outline of the inchoate argument seems to be that the fact that the Tenant had withheld rent for the period between February and July 2023 might have been relied upon to resist a new tenancy. With respect, this does not represent a good defence to the claim for a new tenancy for the reasons explained at paragraphs 128 to 140 above.

157. Finally, there is a more fundamental difficulty with the Landlords’ case. The Landlords, by failing to appeal the judgment and order on the second module, have allowed the terms of the new tenancy to be fixed in final form. In the absence of any appeal to the High Court, the judgment and order of the Circuit Court is now conclusive. The issue is res judicata.

158. For completeness, it should be explained that, having regard to the conclusions I have reached on the legal issues arising on the appeal, it is not necessary to make any legal determination in relation to the events of 17 August 2023. In particular, the answer to the question of whether the actions of the Landlords represented a peaceable re-entry, or whether, alternatively, the use of an angle grinder to remove the existing locks rendered it a forcible re-entry, cannot affect the outcome of the proceedings. This is because, even on the working assumption that the physical re-entry had been peaceable, the occurrence of same would not represent a good defence to the claim for a new tenancy.

159. It would be inappropriate to address these issues, by way of obiter dicta, in circumstances where the court is being invited by one of the parties to refuse to follow a judgment of co-ordinate jurisdiction. A court should not embark upon such an exercise unless necessary for the determination of the proceedings.

PROPOSED FORM OF ORDER AND NEXT LISTING

160. An order will be made dismissing the appeal against the Circuit Court order of

21 November 2024. As to costs, the parties are directed to file and exchange written legal submissions by 27 March 2026. The proceedings will be listed, for argument on costs, on 20 April 2026 at 2 o’clock in the afternoon. The parties should notify the registrar if this date is not suitable.

Appearances

Michael Howard SC and Niall Ó hUiginn for the plaintiff instructed by Maples and Calder (Ireland) LLP Hugh O’Neill SC, Roughan Banim SC and Aoife McCarthy for the defendants instructed by O’Hagan Ward & Co.