High Court dismisses plaintiff's interlocutory application for access relief due to insufficient evidence and adequate undertakings.

THE HIGH COURT

[2026] IEHC 217

[Record No. HP 2025/5957]

BETWEEN

OLIVE GREEN IMS HOLDINGS LIMITED

PLAINTIFF

AND

ANTHONY CARTER AND ELIZABETH CARTER

DEFENDANTS

JUDGMENT of Mr Justice Liam Kennedy delivered on 14 April 2026.

Introduction

1. The plaintiff seeks interlocutory relief, claiming that the defendants are preventing it and its tenants (including the latter’s customers or visitors) from accessing, or enjoying the use of, its property (“the Property”), blocking rights of way to the public roadway via the second defendant’s land (“Block 1”), or threatening to do so, contrary to longstanding arrangements and entitlements which are, it says, reflected in and required by, the terms of planning permissions granted to the defendants themselves over the years.

2. The parties’ adjacent properties (collectively, “the Site”) were previously in common ownership. Both were owned by the first defendant (the second defendant’s husband) until 2014. He bought Block 1 from the original owners (“the Seales”) in 1996 and Block 2 – the Property - in 1997. The plaintiff says that; (i) his transfer of Block 1 to the wife in 2014 and subsequent actions were intended to obstruct the receivership sale of the Property and its subsequent use and enjoyment by its purchaser; (ii) the defendants have taken (or threatened) steps to landlock the Property, eliminating access to and egress from the public roadway and access to shared parking; (iii) the Property has acquired rights of way or access rights over Block 1 and the defendants’ proposed steps would breach such rights; (iv) since it acquired the Property, the plaintiff, its tenants and the public have faced interference and threats of obstruction (including blocking access routes and preventing access to parking); (v) such actions would breach planning obligations and reverse long standing arrangements implemented by the first defendant himself; (vi) interlocutory orders are required to: “Maintain long-standing access and parking/circulation serving the Plaintiff’s property (The Property): (a) restraining interference with rights of way and site circulation; (b) preventing the erection of barriers or fencing over parking/circulation; and (c) directing the provision of keys (or removal of the lock) to the gate pending trial”.

3. If the applicable threshold test is met, the key issue is whether the balance of justice favours relief or whether undertakings suffice pending trial. This ruling focuses on the gap between the relief sought by the plaintiff and the undertakings. As a result of ongoing discussions following the hearing of the application, only one of the interlocutory reliefs sought remains in dispute, the plaintiff’s demand for access via a gate on the second defendant’s land which currently controls access to an area at the rear of the Property (“the Gate”). In short, I consider that relief is not required in respect of that issue; the undertakings suffice pending trial. My reasons are set out below and are necessarily based on the evidence and submissions to date. Different conclusions may be reached at trial on the basis of the exchange of pleadings, discovery, fuller evidence, cross-examination, and further legal submissions.

4. The Property comprises 11 residential and commercial units. It currently has one commercial tenant, a creche. The plaintiff describes it as “sharing” an entrance, internal roads and car parking with the adjacent Block 1 which separates the Property from the public roadway. In fact, the entrances are on Block 1. The surrounding land is largely developed. A wall on the Property itself blocks access to the public road at the only point at which the Property adjoins it. Currently at least, the only access to the roadway is across the second defendant’s land - it will be a question for trial as to whether the potential access point undermines the plaintiff’s claim to be landlocked in the absence of rights of way over Block 1.

5. Relying on two decades of planning records from an era during which both properties were jointly owned/controlled, the plaintiff says that the Site configuration does not distinguish between the properties - access to the Property has always been across Block 1 and parking was not designated as allocated to either block. Now that ownership and control of the properties have diverged, the issue arises as to whether the second defendant can restrict access via, or parking on, her land, or whether the Property has acquired rights on and over Block 1 and, if so, the extent of such rights.

6. The key aspects of the current layout are as follows: a. currently the Property’s only access routes to the roadway are via Block 1. The defendants declared an intention of fencing their boundary. On the current configuration, that would sever the Property’s access to the roadway, landlocking it unless alternative access could be developed. However, the defendants have helpfully undertaken not to restrict access to the Property from the public road pending trial. b. In the light of undertakings which cover access to the front of the Property and parking, the sole remaining interlocutory issue is whether the defendants should be required pending trial to also offer the plaintiff, its tenants and their customers and visitors access via the locked Gate on the second defendant’s land which is required to access a strip at the rear of the Property.

Background

7. The original owners of undivided land including the Site, the Seales, divided the title and sold it to the first defendant, as follows; (a) circa 1995, they offered him the chance to buy the Site, but he could not afford it; (b) in 1996, he bought Block 1, mortgaging it to Irish Life & Permanent (“ILP”), building commercial units and apartments thereon; (c) in 1997 he bought the Property from the Seales, mortgaging it to AIB and engaging a contractor to build townhouses, apartments and commercial units; (d) in 2004, and again in 2009, he obtained further finance from AIB to fund more development on the Property (and to repay the ILP mortgage on Block 1); (e) although the first defendant met his payment obligations despite the recession, AIB still called in the (commercial demand) loan - the demand was not tied to any default. Its successor as chargeholder, Everyday, appointed a receiver over the Property in 2022 who sold it at auction to the plaintiff1 in November 2024 for €750,000. In the meantime, the first defendant had transferred Block 1 to the second defendant in April 2014.

8. The plaintiff says that; (a) since 1997 (at least), there was no issue with accessing the Property via Block 1, nor any differentiation as to parking; (b) the defendants’ planning applications envisaged (and evidenced) that access to the Property’s shops and residences from the public roadway had been and would be via Block 1 and that parking had been and would be shared; (c) any change to those arrangements would contravene planning permissions.

9. The defendants: (a) rejected suggestions that they engineered the access issues to create a ransom strip, noting that the Property’s limitations arose organically due to the Seales’ division and separate sales of the two properties. The first defendant averred that; (a) he Although its application for registration is pending (the first defendant remains on the title as registered owner), there is no issue as to the plaintiff’s title.

developed the Property over the years without altering its boundaries or subdividing or transferring its folio in whole or in part; (b) rejected assertions as to the motivation for transferring Block 1 to the second defendant, in or around April 2014, noting that it was an unencumbered property which the first defendant was entitled to transfer and that the two properties folios were independent of each other - the transfer has never been questioned other than by the plaintiff in these proceedings; (c) denied that the defendants were simply being obstructive, stating that they are upholding the second defendant’s property rights, preventing trespass on her land; (d) denied that the Property enjoyed unrestricted access and parking rights over Block 1 over the years, noting that the defendants closed off parking on occasion and that access was not as of right, but only with their permission.

10. Since the receivership sale, the defendants have indicated their intention to enforce the second defendant’s rights as owner of Block 1, denying any obligation to permit the plaintiff (or its tenants etc) to traverse or park on her land. The plaintiff asserts that the Property has acquired rights of way or other access rights, including the right to access the rear of the Property via a Gate on Block 1. The defendants deny such claims.

Events triggering the litigation

11. Prior to the receivership sale, the defendants signalled their intention to enforce the second defendant’s boundary rights. Since then, they have communicated with the plaintiff, its tenants and others in terms to which the plaintiff takes exception, posting signs, sending letters and leaving notices on cars warning against trespass or unauthorised parking on Block 1, threatening to fence its boundary (before undertaking not to do so pending trial).

12. Key pre-litigation communications were as follows: a. following the sale, and consistent with pre-sale communications, the second defendant wrote to the plaintiff on 6 January 2025 stating that it and its tenants did not have permission to park on or traverse her land and declaring her intention to fence her boundary. b. The plaintiff’s 12 January 2025 response on stating, inter alia, that the company bought the property on 8 November 2024 and that it "shares an entrance, car park, and common areas with the adjacent block, part of which is owned by you". The letter also stated that since approximately 2000, the Property had had the benefit of a right of access over Block 1 which had "enabled owners, occupiers, and visitors to the residential and commercial units to access the entrance, car park, and share the areas. The existence of this right of access is reflected in several planning permissions granted to the former owner prior to your acquisition of the property in 2014”. The letter stated that the plaintiff was “satisfied” that the second defendant acquired Block 1 subject to the “longstanding right of way” in favour of the Property, then owned by the first defendant and now owned by the plaintiff. c. The plaintiff's solicitors’ 29 January 2025 letter to the second defendant similarly asserted that; (a) the Property had had “the benefit of a right of way and right of access over" her property, allowing the occupiers of the residential and commercial units within the Property to access those units; (b) such rights accrued prior to the second defendant's acquisition of Block 1 and she acquired Block 1 subject to those rights. d. The defendants’ solicitors’ 4 February 2025 reply denied that the Property benefitted from any such rights and requested detail or evidence. It noted that the legal pack provided for the sale left the plaintiff in no doubt as to the vendor’s position that the sale did not include any such rights:

“…the document schedule provided in this regard included specific detail concerning the absence of any such rights and the contention in relation to the use of any such rights or access. Your clients were and are fully aware of those issues these issues and cannot in any serious way contend that they have purchased the adjoining property in expectation of either right away or right of access across our clients’ property”. The letter asserted the second defendant’s right to restrict access to, her property, noting a serious issue concerning the break in and interference (allegedly by one of the plaintiff’s tenants) with the CCTV system housed in the area, noting their client’s intention "to adequately secure and protect her property". e. The defendants’ solicitors’ 13 February 2025 letter pressed for a response to the

4 February 2025 letter. f. The plaintiff’s solicitors’ 17 February 2025 response asserted a right of way on the basis that, when the first defendant owned both folios, "he applied for and was granted planning permission of the construction of the premises contained within our client's property. This permission also provided for the provision of car parking spaces over the land which is now owned by your client. For the past 20 years or so the users of the premises have utilised the right of way across the land which our client now owns so as to access to premises owned by our clients and the public road." g. The defendants’ solicitors 3 March 2025 reply acknowledged that the second defendant had allowed access across her property but stated that she had not assigned any formal right-of-way to any party, much less the plaintiff, stating that the second defendant had no obligations to the plaintiff and that it was disingenuous to suggest the plaintiff ever believed otherwise. h. After further correspondence and negotiations, the second defendant’s solicitors emailed the plaintiff solicitors on 3 November 2025 expressing concern that the plaintiff’s tenants continued to park on Block 1, reiterating the intention of fencing it. The plaintiff’s solicitor’s 4 November 2025 response reiterated that the Property’s users and occupants had utilised “a long-standing right of way”, seeking undertakings not to alter arrangements and to remove the padlock on the Gate preventing access to several units, threatening an application for injunctive relief in the absence of a satisfactory response by 7 November 2025. Proceedings were served on that date.

The Plenary Summons

13. The relevant reliefs in the 4 November 2025 Plenary Summons may be paraphrased as seeking: (a) an injunction restraining the defendants from interfering with access to the Property and/or interfering with the right of way (or use) to and from the public road; (b) a declaration that the Property benefitted from a right of way, or right to use a right of way, to and from the public road across Block 1; (c) an order under s.160 of the Planning and Development Act 2000, and/or s.351 of the Planning and Development 2024, directing that unauthorised development should not be carried out, including any development contrary to any condition of permission concerning access, the layout of the lands, open spaces or hardstanding areas.

The 14 November 2025 Notice of Motion

14. The reliefs sought in the notice of motion differed from the Plenary Summons and may be paraphrased as seeking interlocutory orders restraining the defendants from, inter alia; (a) obstructing access to/egress from the Property, including any right of way or routes connecting it to the public road, on and over the lands historically forming part of the original Site including Block 1; (b) erecting or maintaining any barrier, gate, etc on, at or across the said rights of way or routes of access and egress, or use of the car parking, and directing the removal forthwith of any such barrier, lock or obstruction if already placed; and (c) interfering with the plaintiffs and its tenants' quiet and peaceable use and enjoyment of the Property, including by aggravating contact or communication directed at the plaintiff or its tenants; (d) restraining the defendants pursuant to s.160 and/or s.351 from contravening the Act and/or planning permission (reference P9/2003).

The Access Issue

15. The first defendant observed in its first affidavit that the plaintiff repeatedly claimed (in correspondence and in the proceedings) more property rights than it contracted for when it bought the Property from the mortgagee for €750,000 in November 2024. He noted that the plaintiff knew of the issues before the sale; a. the Contract detailed the boundaries, including the lack of access to the back of several apartments, without identifying rights of way or easements. The 'Particulars and tenure' section confirmed that it was entirely comprised in Folio WW21106F and that the folio map outlined its boundaries. b. Condition 4 stipulated that rights of way or access were a matter for the Purchaser - no further documentation or information would be provided. c. Condition 6 referred to correspondence from the first defendant, reiterating that the Vendor had no further information or documentation and that no objection, requisition or inquiry should be raised. (The scheduled correspondence from the first defendant and his then solicitors stated that there was no right of way and that the apartments at the rear did not have access across Block 1 without the first defendant’s permission). d. Condition 16b disapplied General Condition 11, stipulating that:

“The Purchaser Shall be deemed to be aware of the defined boundaries of the property in sale and the Vendor … shall not be required to define same or to specify what boundaries (if any) are of a party nature and General Condition 11 is hereby deleted accordingly." e. Condition 16c excluded vendor warranties or representations as to the boundaries, placing the Purchaser on inquiry. f. There were no vendor declarations of alleged use or documentation evidencing any right of way or easement benefitting the Property. g. The vendor’s replies to requisitions on title reiterated the Property’s boundaries and the absence of any right of way or easement: a. no details of easements or rights of way were disclosed in section 3, entitled 'Easements and Rights'. b. The reply to sections 20 and 22 stated that the entire property was registered and the folio had been provided.

16. The second defendant stated that she was informed by the estate agent who handled the sale that potential bidders withdrew because of the access issues, concluding that the plaintiff knew of the boundary and access issues before purchase and paid a reduced price accordingly. The plaintiff has not denied its awareness of the issue prior to the sale or, indeed, the impact on the sale price.

Application to the Land Registry

17. The first replying affidavit notes that, after buying the Property, the plaintiff applied to the Land Registry to move its boundaries northward (into Block 1). The defendants objected and the Land Registry rejected the application, refusing to change the boundaries. Accordingly, the first defendant says that, despite knowing of the boundaries, when it bought the land, the plaintiff attempted to alter the boundaries with the Land Registry to obtain more than it acquired in the sale. The plaintiff’s affidavits did not refer to their unsuccessful application.

Lack of definition of rights of way

18. The opacity of the rights asserted by the plaintiff is striking: a. their pre-action correspondence and the plenary summons did not define the parameters of the alleged right-of-way. Nor were particulars furnished explaining its basis or origins. b. Although the defendants raised the issue, the Plenary Summons and the plaintiff’s affidavits did not identify the routes and beginning and end points of the right(s)-of-way. c. The Property’s folio did not reference any such right. Nor was such a right identified as a burden on the Block 1 folio. Nor did the maps annexed to the folios reference such rights. d. The only documented reference to a right of way appeared in the 1997 deed of transfer recording the Seales’ sale of the Property to the first defendant which the grounding affidavit characterised as an express grant. However, this point was not pressed in oral submissions - as the defendants noted in unchallenged submissions, the 1997 deed is not relevant to the current issues.

19. The affidavits sworn by the plaintiff’s director (“the Director”) were vague as to the nature of the rights asserted. The grounding affidavit stated: (a) The Property shared an entrance, hardstanding areas including internal roads and car park with adjacent buildings and lands (i.e. the second defendant’s property) (Para. 9); (b) The plaintiff’s commercial tenants relied upon such public access; (c) both properties were previously under common ownership; and the Property had had “the continuous and uninterrupted benefit of access to the public roads” since 1990 at least. (Paras 10 and 15); (d) The Property benefited from easements and rights of way as a matter of necessity, either at common law or pursuant to section 40 of the Land and Conveyancing Law Reform Act 2009 (“section 40”). Such rights were “a right of way to and from the public roadways across the lands of Folios 12879F, Folio 12880F, and the Original Site”. Once again, the route (or routes) was not delineated. (Para. 16). The plaintiff went further in submissions, maintaining that since there were two access points to the public road from the second defendant’s land which any of the plaintiff’s 11 units could utilise, there could be up to 22 rights of way.

20. The Director’s affidavits claimed that the Property had been used and accessed openly, continuously and as of right (over Block 1) for more than twenty years and that the right of way arose by implication as an easement of necessity and on other grounds, propositions challenged by the defendants on factual and legal grounds.

Planning Records

21. The Director largely relied on planning records both as evidencing how the Site operated historically and also to submit that the defendants’ proposed actions would breach the terms of planning permissions granted over the years. He said: (a) that the records show how the Site had been used and accessed for more than 20 years, including shared parking and access via the Gate, and that such use, layout and access were regulated by the 2003 planning permission (“the 2003 Permission”), including the requirement for at least 41 car parking spaces “in interests of proper planning, Site and safety”; (b) the threatened actions would breach planning permission terms, rendering the Site unauthorised; (c) other planning applications and planners’ assessments in 2011 and 2025 were to similar effect. Para. 19 of his grounding affidavit summarised the claim: “the use, layout and access to the site are all regulated by planning. In 2003, the First Defendant applied for and obtained planning permission for the construction of an extension to the existing buildings on the Property. On foot of same, planning permission issued with planning reference P. 9 / 2003 and this allowed Block 2 to be built. The planning permission made provision for the construction of buildings, car parking spaces, and ancillary Site, and for the layout of the Site which was the Property. Pursuant to Condition 1 of the planning permission, the Site was required to be carried out in accordance with the documents lodged on 19 February 2003; Condition 1 concerns Site: both works and use of the Property. The application lodged and the permission granted provides for open space, roads/hardstanding areas, parking, turning, and access to the public road to service Block 2 as well as permitting the construction of the extension. The Defendants' actions and threated action therefore constitute a breach of the permission applied for and granted in respect of the Property as a whole”.

22. Para. 41 likewise stated that the planning permission concerning site layout and parking reflected and necessitated the rights claimed by the plaintiff and: “obstruction of same would constitute a breach of the Planning and Development Act and the permission granted thereunder, or constitute a variation of same”. The defendants acknowledge the terms of the grants of planning permission but say that the Property’s current planning status is a matter for the plaintiff and that planning and title were separate matters. They also maintain that the Property had sufficient space and access to ensure continued planning compliance in any event.

Undertakings

23. While asserting a full defence, paras 12 - 16 of the first defendant’s replying affidavit noted that: (a) the Court would not determine the merits on the application and would be seeking a balance pending trial; (b) to that end and to progress to trial as soon as possible, the defendants offered (without prejudice) undertakings pending trial in terms of paras 1 - 3 of the notice of motion, with the exceptions of the Reliefs. Negotiations following the hearing led to terms of undertakings being agreed which satisfied the plaintiff except in one respect; the defendants were not prepared to unlock or give access to the Gate on Block 1.

24. The Director’s second affidavit criticised the defendants for not volunteering undertakings earlier and for imposing conditions as to the reliefs, necessitating the present motion. It characterised the undertakings as “subject to quite deliberate carve-outs” to advance the defendants’ “obstructive strategy”. The Director’s replying affidavit and the plaintiff’s written submissions maintained that the undertakings would: (a) authorise the erection/retention of barriers, gating and the exclusion of parking across the circulation areas historically serving the development and continue to prevent access to the buildings, parking and open space to the rear of the Property; (b) make it impossible to comply with planning requirements.

The Gate

25. A longstanding fence and Gate on Block 1 currently control access to the rear of the three of the Property’s units. This is the outstanding issue on this application. While the Gate has been there for two decades2, the plaintiff says that the defendants have recently started locking it, as part of a campaign of obstruction. Its Director exhibited photographs of the open Gate and an email from a former tenant from 2017 – 2019, who claims to have enjoyed unimpeded keyless access as the Gate was never locked. The Director also asserted his “belief” that the other tenants would have had the same experience.

26. The plaintiff claimed that justice required access via the Gate pending trial because: (a) the Property always enjoyed such access as envisaged by planning permission terms; (b) its tenants required access; (c) the Gate could impede fire and other emergency access, creating a safety risk; (d) by locking the Gate the defendants were breaching the plaintiff’s right-of-way and preventing access to part of the Property. The defendants deny that they have only recently started locking the Gate, stating that; (a) it is on their land, is and has been locked for good The first defendant says since 2004 in his first replying affidavit, but it may have been even earlier, if it is the gate referred to in the 2003 planning application.

reason and represents the status quo; (b) they have no obligation to allow access and should not be required to do so pending trial; (c) they generally kept the Gate locked over the years; only giving individual tenants in the three units access on the basis of individual negotiation and express permission; (d) they replaced the padlock about a year ago after a key was copied without authorisation; (e) save for that unauthorised individual, anyone who used the Gate over recent years did so with the defendants’ express permission, at the defendants’ discretion and on the basis of a strictly personal agreement with each tenant; (f) the defendants are concerned to lock the Gate for security reasons and are not prepared to offer access; (g) the balance of justice militates against such access because: (i) it has generally been padlocked over the years, contrary to the plaintiff’s claims; (ii) no current tenants are affected; (iii) alternatively the plaintiff could develop direct access to the roadway along the southern side of the various units (although the plaintiff says that that would be impractical); (iv) the Gate only affects access to an area at the rear of three units but it is open to the plaintiff to develop alternative access over its own land; (v) the three apartments have been unoccupied for a long time, years in two cases, months in the third; (vi) the Gate is locked for security reasons since a serious break in in the area controlled by the Gate on 20 January 2025, allegedly by one of the plaintiff’s tenants involving interferences with CCTV security recordings; (vi) the security concerns were also evidenced in the 2003 planning documents3 ; (vii) no right of way via the Gate is claimed in the Plenary Summons, therefore such interlocutory relief cannot be sought; (viii) if the lock is removed or keys are provided then the plaintiff and unknown people will be permitted to trespass on the Block 1.

The 2003 application noted that part of the area that was to be the subject of the then proposed extension was “presently closed off from general public use as it was becoming a problem for the applicant due to vandalism and vagrancy. The applicant has presently put a security gate at the access to this area to prevent entry to non-patrons of the development”. While the application suggested that the development would “help to brighten up this corner of the site and the provision of an office and apartment will provide activity throughout the day and that should provide natural surveillance of the area" it did not suggest that the gate would be removed.

Balance of Justice

27. The plaintiff’s evidence with regard to the balance of justice was directed to a large extent at the broader access and parking issues resolved by the undertakings. It said, inter alia, that the balance of justice favours the reliefs sought because: (a) it and its tenants and their customers and visitors would otherwise suffer harm - including safety risks, disruption of childcare services, loss of goodwill, planning non-compliance exposure and degradation of the development's functioning; (b) such harms would be immediate and ongoing and could not be compensated in damages; (c) prejudice to the defendants from granting the relief would be minimal and could be compensated in damages; (d) the plaintiff had offered the usual undertaking as to damages; (e) the defendants had not brought their own application to restrain access and could not, by opposing the plaintiff’s application, secure a mandatory reordering of the site contrary to the existing arrangements and the planning; (f) damages would not be an adequate remedy for the plaintiff as the defendants are not marks for damages; (g) the balance of justice favours the reliefs as representing the status quo as it stood prior to the defendants’ recent actions.

28. The defendants say that the balance of justice favours the refusal of the relief as; (a) the second named defendant is entitled to protect her undisputed property rights and to prevent trespass; (b) damages are not an adequate remedy for interference with property rights; (c) the locked Gate is important from a security perspective. A serious break-in has already caused criminal damage, targeting security equipment which protects Block 1; (d) there is no evidence that the locked gate would prejudice the plaintiff and its tenants or cause fire or safety risks or any other issue as alleged; (e) damages would be an adequate remedy for the plaintiff because by virtue of the unencumbered ownership of Block 1, a significant asset against which the plaintiff could seek recourse, the defendants would be marks for damages.

Legal Submissions and Authorities

29. The parties relied on the authorities set out below. Applications for interlocutory injunctions.

30. The plaintiff sought interlocutory orders pursuant to section 21(8) of the Supreme Court of Judicature Act (Ireland) 1877 (the “1877 Act”) and, in the alternative, invoked section 160(3) of the PDA 2000 which, in short, permits the restraint of anticipated planning infringements in specified circumstances. The same principles (in terms of the threshold test and balance of justice) apply to either jurisdiction: a. The Supreme Court clarified the principles in Merck Sharp & Dohme v. Clonmel Healthcare (“Merck”) [2019] IESC 65, [2020] 2 IR 1 and Okunade v. Minister for Justice [2003] 3 IR 153, [2002] IESC 49 (“Okunade”). In Merck it confirmed: (a) adequacy of damages was part of the balance of justice assessment4; (b) the flexibility of the remedy and the need to eschew mechanical rules in favour of a just solution, applying the criteria flexibly and sensitively;

(c) courts apply the threshold test - generally whether there was a fair question or serious issue to be tried - before determining whether the balance of justice favoured the grant or refusal of the interlocutory relief. b. The defendants noted that O’Donnell J (as he then was) emphasised at para.35, that the adequacy of damages was “the primary element” of the balance of convenience assessment, describing it at para.64 as the most important element in that balance in most cases, adding that: “(5) In commercial cases … courts should be robustly sceptical of a claim that damages are not an adequate remedy;”

Rather than a precondition to interlocutory relief as some authorities had previously suggested.

c. The defendants also cited Duddy Hospitality Ireland Holdings Ltd and Ors v Propiteer Ireland Holdings Ltd [2024] IEHC 190, in which Mulcahy J confirmed that where damages were an adequate remedy, a “significant risk of injustice” would be required to tip the balance in favour of an injunction, noting at para.75 that, as the Supreme Court made clear in Merck: “a conclusion that damages are an adequate remedy does not preclude the grant of an injunction, rather the assessment of the adequacy of damages is a component of the overall assessment of the balance of convenience. However, in circumstances where the court confirmed that the adequacy of damages is “the most important” component of that overall assessment, it seems that it would require some significant risk of injustice to tip the balance in favour of the grant of an injunction where damages are an adequate remedy. I am not satisfied that there is any such significant factor here.” d. The defendants also noted O’Donnell J’s observations at para.31 and 33 of Merck that the court must avoid possible injustice by finding a just solution pending trial, stating at para.31: “As long as the outcome of the case is unknown, a court must take steps to avoid any possible injustice being created by the length of time it will be necessary to take before a decision can be rendered.” e. O’Donnell J also noted that the fundamental objective was to minimise injustice, stating at para.64(8): “(8) While a structured approach facilitates analysis and, if necessary, review, any application should be approached with a recognition of the essential flexibility of the remedy and the fundamental objective in seeking to minimise injustice, in circumstances where the legal rights of the parties have yet to be determined.” f. The plaintiff noted that at para. 85 of Betty Martin Financial Services Ltd v. EBS DAC [2019] IECA 327 (Betty Martin) Collins J described Merck as effecting:

“…a less rigid approach, both generally and with particular reference to the issue of the adequacy of damages and emphasising that the essential concern of the court is to regulate matters pending trial pragmatically and in a manner calculated to minimise injustice.” g. The plaintiff also cited the Supreme Court’s decision in Okunade as explaining the balance of justice test on the basis that once the plaintiff had established an arguable case “the court should consider where the greatest risk of injustice would lie” depending on whether relief was granted or refused, recognising the need to implement the regime which minimises the overall risk of injustice. h. Both parties submitted that damages are rarely an adequate remedy where property rights concerned, citing Diamond in which Clarke J (as he then was) observed that: “the mere fact that it may… be possible to put a value on property rights lost does not, of itself, mean that damages are necessarily an adequate remedy for the party concerned is entitled to his property rights instead of their value.”. i. The defendants also cited Diamond as confirming the need in such circumstances for the Court to be satisfied, on the basis of the asserted facts for which credible evidence is presented, that the plaintiff has a strong arguable case. Clarke J (as he then was) outlined at p.576 that: “The court can, of course, conclude that, even on the facts asserted by the plaintiff, the case would be weak and might fail to reach the strong case test where that test applies. The court can also, for reasons such as clear internal inconsistency in the evidence presented, come to the view that the facts asserted as forming the basis of the issue to be tried lack any credibility. So far as the factual element of the plaintiff's case is concerned the court should assess whether, on the basis of the asserted facts for which credible evidence is presented, the plaintiff has a strong arguable case.”

j. The parties agreed that, as appearing from Maha Lingham v Health Services Executive [2006] 17 ELR 137, [2005] IESC 89, the courts apply a higher threshold test where mandatory relief is sought, stipulating in that case that on such applications “it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action.” The plaintiff added, citing Ryanair DAC v Skyscanner Limited & Ors [2022] IECA 64, that the Court will look at the substance of the relief sought rather than its form in determining whether an order is “mandatory”. As Murray J observed, the court should identify the substance of the relief sought rather than deciding the issue on the basis of the phraseology of the order and “in deciding whether to grant or refuse interlocutory injunctive relief should lean in favour of the maintenance of the status quo ante”. In Fitzpatrick v Minister for Agriculture, Food and the Marine [2018] IEHC 77, Ní Raifeartaigh J likewise observed that it is the substance rather than the form of the relief which mattered. k. The plaintiff noted Kirwan, Injunctions: Law and Practice, 3rd ed, 2020 including its non-exhaustive list of factors to be considered when deciding whether to grant an injunction, including the effect on non-parties and the public interest, the parties’ bona fides, illegality and the status of any undertaking. l. The plaintiff submitted, citing O'Flaherty's (Nassau Street) Ltd v Setanta Centre Unlimited Company [2020] IEHC 272, that the parties’ conduct is relevant – “who is causing the problem and changing the status quo”.

Entitlement to restrain breaches of planning law

31. The plaintiff also submitted that, in addition to the general jurisdiction to restrain unlawful acts, injunctive relief can be granted under s.160(3) PDA5 to restrain anticipated now s.351 PDA 2024 breaches of planning law submitting that; (a) under s.160(3), the Court may grant interim or interlocutory orders to restrain unauthorised development; (b) given the Court’s power to restrain illegal conduct, the illegality of the proposed actions and the potential breach of planning law was also a factor for the balance of convenience in respect of the application for relief under s21(8) of the 1877 Act; (c) In Meath County Council v Murray [2017] IESC 25, McKechnie J. emphasised the breadth of the High Court’s powers under s.160; (d) s160(3) relief has been granted in many cases, including Limerick County Council v. Tobin T/A Harry Tobin Sand & Gravel [2005] IEHC 281, Donegal County Council v P Bonar Plant Hire Ltd T/A Bonar's Quarry [2020] IEHC 349, Corrib Community Association Company Limited by Guarantee v Killola Quarries Ltd [2023] IEHC 610.

Easements pursuant to s. 40 of the Land and Conveyancing Act 2009

32. Section 40(2) the Land and Conveyancing Reform Act 2009 (“s.40(2)”) provides “Where the owner of land disposes of part of it or all of it in parts, the disposition creates by way of implication for the benefit of such part or parts any easement over the part retained, or other part or parts simultaneously disposed of, which— is necessary to the reasonable enjoyment of the part disposed of, and was reasonable for the parties, or would have been if they had adverted to the matter, to assume at the date the disposition took effect as being included in it”.

33. The plaintiff submitted that the effect of s40(2) is that the disposition of part of land leads to the creation of any easement that is “necessary to the reasonable enjoyment” and which it would have been reasonable to assume was included; an objective test encompassing, it says, the easements sought in these proceedings.

34. The defendants cited Bland, Easements, 3rd Ed., 2015 at paras 5-35 (Bland) as explaining the operation of s.40(2): “The first condition of being necessary to the reasonable enjoyment of the quasidominant tenement is the same as in the rule in Wheeldon v Burrows. Both tests are limited to grants and not reservations: implication by s.40 can only be availed of to imply a right into a grant, and not a reservation, as s.40(2) refers to land disposed of by its owner.”

35. The plaintiff also claimed that there was an easement of necessity/common intention arising from the need to avoid landlocking the Property, preserving access to the roadway, citing Palaceanne Management Limited v Allied Irish Banks plc [2012] IEHC 182 in which Clarke J described such easements as “a long established legal concept” stating at para. 5.15: “In general terms a way of necessity arises when a landowner sells part of his land holding to a purchaser such that the purchased lands have no means of access other than through the retained lands. The way of necessity then arises but must be along a route chosen by the owner of the retained lands.”

36. The defendants submitted that the doctrine of necessity is strictly construed and only applies to landlocked land, with no possible physical access: a. They cited Maguire v Browne [1921] 1 I.R. 148 (Maguire), in which O’Connor LJ explained at 169: “… in the absence of an express grant a right of way of necessity rests upon the supposed intention of the parties; that the law presumes that a man owning a parcel of land, and granting away all the land surrounding it, would not be so foolish as to leave himself entirely land-locked and cut off from all communication with the outer world; that, accordingly, it was to be taken that in such a case the parties understood or agreed that the owner of the otherwise land-locked land was to have a right of way…”

37. The defendants noted that inconvenience or difficulty in access is not sufficient, citing Manjang v Drammeh (1990) 61 P & CR 194 (Manjang), in which a right of way over adjoining land was not deemed necessary where the land could be accessed by water. The Privy Council held that: “…an available access by water, albeit perhaps less convenient than access across terra firma, is sufficient to negative any implication of a way of necessity”

38. The defendants cited Harnett and Others v Broadreach investments Ltd [2025] IEHC 47, in which Dignam J determined that the lands were not landlocked – the plaintiff’s preferred route by the main avenue “was undoubtedly more suitable and more convenient than the Bellinter Bridge Road and, indeed, that road was not in a suitable condition to be used conveniently for certain purposes relating to the lands. However, the lands could be accessed by that road, and the road could be developed (as indeed it was, though this is irrelevant to the current discussion). There was therefore no true necessity.” In that decision, Dignam J: a. outlined the test for the implication of an easement through common intention at para.229 (quoting from Bland), as follows: “(1) the parties must, at the time of the grant, have shared an express or implied intention that the land granted or retained should be used for a particular purpose;

and

(2) the easement is necessary to give effect to that intention.” b. Concluded that in determining the parties’ common intention for the first limb: “the Court must have regard to all the relevant surrounding circumstances, including the terms of the conveyance, the position on the ground and the contract and other communications passing between the parties before the execution of the conveyance.” c. Confirmed at para.238 in relation to the second limb, that necessity was a requirement: “I am not satisfied that a right over the main avenue was necessary, or that the lands would have been “ineffective” for the purpose for which they were purchased without such a right of way, in circumstances where the Steward's House could be accessed by domestic traffic, albeit with difficulty, and where that roadway could be improved. A right of way of common intention therefore did not arise.”

39. In support of a plea of prescription or long use, the plaintiff cited Orwell Park Management Ltd v Henihan [2004] IEHC 87, noting that Herbert J set out the standard in that case as being that open, uninterrupted, and continuous user “as of right” over the prescriptive period raises a presumption that the servient owner was aware and acquiesced; the right is to pass and repass whenever occasion requires, citing Herbert J’s comment that:

“To establish an easement of way by prescription, the party claiming that right whether by virtue of s. 2 of the Prescription Act, 1832 or under the Doctrine of Lost Modern Grant, must provide evidence of continuous use of the way for the prescription period. Continuous use is not, however, to be equated with incessant use: what the law requires is that the use be such as would clearly indicate to a servient owner that a continuous right to do what would otherwise amount to a trespass was being asserted. A right of way is a non-continuous easement: a right to pass and repass over the property of another whenever the person claiming that right has occasion so to do. In my judgment, where the evidence establishes that there has been an open, uninterrupted and continuous use of land as a right of way, in the instant case for 35 years, the court should presume that the owner of the land was aware of this use and acquiesced in it.”

Obligation to particularise claims to rights of way and easements

40. The defendants submitted in response to the Long Use Claim, that Roe v Siddons (1888)

22 QBD 224 establishes that no person can have an easement or right of way over their own land, so the time for acquisition of an easement benefiting the Property over Block 1 could not have commenced until the transfer of Block 1 to the Second Named Defendant in 2014. Fry LJ held in Siddons at 236: “Of course, strictly speaking, the owner of two tenements can have no easement over one of them in respect of the other. When the owner of Whiteacre and Blackacre passes over the former to Blackacre; he is merely making use of his own land to get from one part of it to another.”

41. The defendants also noted the treatment of the principle in Bland, which cites Shanley J in Redfont Ltd & Wrights v Customs House Dock Management Ltd & Hardwice Property Management Ltd [1998] IEHC 206 at p.12 (referring to an earlier edition). They also cited the observation of Dignam J in Harnett at para.241: “In order to establish that they have acquired a right of way by prescription in accordance with the provisions of the Prescription Act 1832, the plaintiffs have to establish continuous user for a period of twenty years and that the user was “nec vi, nec clam, nec precario”, i.e. without force, without secrecy and without permission.”

42. The defendants also noted that in Zopitar Ltd v Jacob [2017] IECA 183, Hogan J refused at para. 69 to find that an easement had been acquired due to the principle of nec precario.

43. In terms of the need for particulars of any alleged easements, the defendants cited AGS v Madison Estates Ltd 2003 WJSC – SC 324 (Madison Estates), in which Keane CJ confirmed in relation to an alleged parking easement that “such an easement, of course, to be an enforceable legal right, would have to have some precise and specific form”.

44. The defendants also cited the following authorities as to the requirements in respect of easements and rights of way: a. In Donnelly v Adams [1905] 1 IR 154 (Donnelly), Fitzgibbon LJ held at p.181 that “Every lawful way must be capable of identification; it must have a terminus a quo and a terminus ad quem.” b. In Flanagan v Mulhall [1985] I.L.R.M 134 (Flanagan), O’Hanlon J stated at p.10: “… although the courts have been prepared to give effect to a right-ofway between defined termini, even when the path linking them has not been clearly defined, there has always been an insistence on a defined terminus a quo and terminus ad quem.” O’Hanlon J concluded at p.15: “… I am not satisfied that the evidence as to terminus a quo and terminus ad quem, or the evidence as to the extent of user, was sufficient to support a claim to a right-of-way or rights-of-way with the precision and certainty which should normally be required in this type of case where adverse rights are claimed by one landowner over the lands of another.”

45. The defendants submitted that the plaintiff was not entitled to rely on planning permission as it does not confer property rights, citing Keane CJ’s rejection in Madison Estates of a claim for parking rights based on planning permission:

“Whatever may have been the position in relation to the planning permissions as to the requirement of car parking spaces for the flat development, whatever the legal effect of that was, it could not possibly under any circumstances confer a right on the individual apartment owners or on Madison Estates Limited on their behalf to put that planning permission into effect by going on to somebody else's land and occupying somebody else's land for the purpose of car parking. That is not the effect of a planning permission. The Planning Acts have always made it clear from 1963 onwards that the grant of a planning permission does no more than render legal in planning terms what would otherwise be illegal, that is to say the carrying out of a development or the making of a material change of use in land.”

46. The defendants also submitted that property rights attract protection even where it may be possible to quantify damages. In Diamond at 590 Clarke J explained the special treatment of property rights: “The mere fact that it may, therefore, be possible to put a value on property rights lost does not, of itself, mean that damages are necessarily an adequate remedy for the party concerned is entitled to its property rights instead of their value.”

47. The defendants noted that in McKeever v Hay [2008] IEHC 145, Feeney J observed that trespass was a more serious property right infringement than a nuisance and that a plaintiff will only be refused an injunction to restrain a trespass in exceptional circumstances. Feeney J stated at p.25: “In such circumstances the plaintiff will only be deprived of her entitlement to such injunction if very exceptional circumstances are identified. This is particularly so where the infringement is in the form of trespass rather than nuisance.”

48. Feeney J added at p.29: “The plaintiff in this case is prima facie entitled to the injunction sought and that is all the more so as it is a case of trespass as opposed to nuisance.”

49. The defendants submitted that; (a) the plaintiff was wrongly asserting an entitlement to various easements and/or rights of way. Although only one right of way is sought in the Plenary Summons (a right of access and egress from the plaintiff’s property across the second named defendant’s property to the public road which is addressed by the undertakings), the grounding affidavit asserts vague and wide-ranging easements and/or rights of way. Accordingly, the plaintiff must present credible evidence and must demonstrate a strong arguable case based on the facts it asserts.

50. The defendants submitted that: (a) the plaintiff had asserted three discrete easements which they described as the Access Right of Way (governing the right to access the public roadway from the Property via Block 1), the Rear Access Right of Way (governing the right to access an area at the rear of the Property via the Gate on Block 1), and the Parking Easement (being a right to park on Block 1). (Due to the undertakings, the only easement remaining at issue on this application is the Rear Access Right of Way); (b) by failing to properly define and particularise the easements and/or rights of way, the plaintiff had failed to clearly explain the basis upon which it claimed to own or have acquired them; (c) the plaintiff had not particularised the starting and end points and the route of the alleged right of way, which was fatal to such a claim; (d) In response to claims as to the basis for the alleged easements/rights: a. the Grant Claim does not apply because, as appears from the 1994 deed, its route does not relate to the Rear Access Right of Way. b.

S.40 does not apply because the rights would need to be for the benefit of the land disposed of (Block 1) rather than the land retained; nor is such a right necessary for the reasonable enjoyment of the part disposed of (Block 1). c. Citing Maguire, Manjang and Harnett, the plaintiff cannot rely on necessity because, inter alia, the Property is not landlocked - access may be more difficult and/or inconvenient, but it is not necessary. The plaintiff was attempting to extend the concept of necessity from “physical access to a property’ to ‘convenient access to one part of the property” with no authority for such a proposition.

In fact, the plaintiff accepts that access is possible but states that it would be ‘impracticable’. It submits that the reality is that the plaintiff purchased a property that is not landlocked but is not laid out in a manner which utilises the access well. Necessity simply does not arise. d. Citing Harnett, no evidence of the defendants’ alleged common intention had been presented by the plaintiff. In fact, it had failed to set out the evidence which the Court must consider (as per para.231 of Harnett). There was no evidence of the conveyance, or the position on the ground at the time, or of the contract, or the communications between the defendants prior to the conveyance.

In fact, the plaintiff’s claim that the defendants intended to create a ransom strip situation directly contradicts a common intention claim. As to the second limb of Harnett, necessity, the defendants relied on their submissions as to necessity. e. A Long Use Claim could not be maintained for the Rear Access Right of Way because the claim could only have commenced in 2014 when Block 1 was transferred. Twenty years has not elapsed. Nor could the plaintiff claim as a leaseholder because it is not a leaseholder and no leaseholders are parties to these proceedings.

In fact, there are no leaseholders of the back units and so any leaseholder interests have expired. Furthermore, any access through the Gate by leaseholders was with permission rather than as of right. Nor had evidence of continuous uninterrupted use as a right of over twenty years been submitted. f. The plaintiff was not entitled to invoke s.160 and/or s.351 PDA which concern unauthorised developments rather than easements. g. In relation to the first limb of the test for implication of an easement through common intention, the plaintiff had presented no evidence of the defendants’ alleged common intention.

It had failed to set out the evidence which the Court must consider (as per Harnett). There was no evidence of the conveyance, or the position on the ground at the time, of the contract, or the communications between the defendants prior to the conveyance. The claim that the defendants intended to create a ransom strip actually contradicts a common intention claim. h. Certain rights attract protection even if it is possible to quantify damages, the primary example being a property right, the courts having recognised that trespass was a serious property infringement - a plaintiff will only be refused an injunction to restrain that trespass in exceptional circumstances i.

The Block 1 tenants have an interest in maintaining the security of Block 1, which would be undermined by the grant of the injunction due to security risks evident from the recent break in and, in relation to the Parking Easement, the grant of the injunction would hinder a Block 1 tenant, the restaurant owner, in the conduct of his business. j. As damages are an adequate remedy, the plaintiff needed to rely on some significant risk of injustice in order for injunctive relief to be granted but no such significant risk had been established in respect of the Gate.

51. The defendants submitted that in considering the balance of justice, the Court ought to be cognisant of the undertakings offered and the fact that the plaintiff has failed to adequately outline why the undertakings offered are not acceptable on an interlocutory basis. The least risk of injustice lies in refusing the relief sought.

Issues for Determination

52. I am only concerned with whether to compel the defendants to cease locking the Gate pending trial (or to give keys and access to the plaintiff). I need to determine; (a) whether to apply the higher or lower threshold test; (b) whether the applicable test is met; (c) if so, the balance of justice, including the adequacy of damages. Before addressing those issues, I should note certain preliminary points.

Evidential Issues

53. At this stage I cannot resolve evidential conflicts or determine the merits. Since I am only concerned with the Gate issue, I need not address all issues raised in the affidavits and submissions in detail, or, in some cases at all. However, the plaintiff must adduce sufficient evidence to satisfy me that the criteria for interlocutory relief are met. I have concerns as to whether its affidavits provide a robust basis for its claims. The opening paragraph of the Director’s first affidavit stated that he was a director authorised to make the affidavit on the plaintiff’s behalf and that: “The facts and matters deposed to herein are within my own knowledge, save where otherwise appears and where so stated are based on the documents exhibited hereto and on information and belief, all of which is believed by me to be true.”

54. In fact, his knowledge is limited. He and the plaintiff have been involved for, perhaps, two years. Accordingly, to the extent that it concerned events predating the sale of the Property, his affidavits depend on the documents he exhibited - essentially inter partes correspondence, planning documentation, google photographs and folios. These did not encompass all documents available to the plaintiff. He did not exhibit or comment on, for example; (i) the sales contract; (ii) the pack provided to purchasers before the auction; and (iii) the details of the plaintiff’s unsuccessful attempt to persuade the Land Registry to change the Property’s boundaries at the defendants’ expense 6. The credibility of an application is generally not enhanced by the failure to exhibit and address the implications of all relevant documents. He also made assertions of fact (including as to the locking of the Gate, the operation of the Site over the years and issues as to parking) relating to periods predating his involvement in the Site without an evident basis to do so. However, such The omission appears curious since the plaintiff refers to the first defendant's own rejected application the land Registry without disclosing its own unsuccessful application.

averments were refuted by first hand evidence from the defendants and others which I prefer to his more speculative testimony.

55. I was also surprised that para. 46 of the Director’s first affidavit asserted that damages would not be an adequate remedy for the plaintiff because the defendants would not have the means to meet a damages award. He knew that the second defendant owns Block 1 outright. Accordingly, I am surprised that he denied that the defendants were “marks” without adverting to that substantial asset.

56. Notwithstanding the Director’s assertion that the facts and matters he deposed to were within his own knowledge “save where otherwise appears and where so stated are based on the documents exhibited hereto and on information and belief”, the basis for many broad assertions were often opaque; it appeared that crucial claims were not based on personal knowledge. The defendants challenged the Director’s knowledge of the matters he averred to, even asking in submissions whether he had even visited the Site before, or perhaps after, the sale. No basis for his “information and belief” was established in respect of matters predating the sale. The Director’s averments should have differentiated between statements from his own knowledge and those which were not, either justifying or, preferably, excising the latter. In fact, his affidavits largely depended on his characterisation of the planning file and a solitary and inconclusive email from a former tenant. A vague reference to “information and belief” is not a sufficient foundation for conjecture. It was entirely inappropriate for him to included assertions in his affidavit speculating as to the views of tenants from whom he had not actually heard. An email from a solitary tenant gave him no credible basis for his assertions.

57. Averments as to source of knowledge are not pro forma - they serve a vital evidential role, establishing a forensic foundation for the relevant evidence. I have considerable reservations as to the Director’s averments in respect of events predating the sale. While some evidential latitude is permitted on interlocutory applications, a basis for factual assertions is still required. I was underwhelmed by speculative assertions7 of doubtful accuracy, or which overstated the position, or constituted opinion evidence, such as concerning perceived planning issues (which would require independent expert evidence; his views were scarcely independent, nor did he have any obvious expertise to underpin his claims8).

58. The concerns as to the Director’s lack of firsthand knowledge, and, more significantly, his failure to acknowledge such limitations, are reinforced by photographs exhibited by him as evidence of the historic use of the Site. He exhibited photographs predating the sale to show what access had traditionally been available and whether the Gate was traditionally locked. However, the defendant noted features of the photographs suggesting that at least one, perhaps more, of the photographs may have been altered. The plaintiff’s final affidavit and submissions did not address that issue. The defendants very fairly confirmed that they were not alleging an attempt to mislead the Court, noting that the plaintiff may have exhibited photographs generated prior to the sale which may have been “touched up” for the auction. I need not resolve that issue save to note the doubts as to the authenticity and reliability of photographs on which the plaintiff relied. The issue highlights the solemn duty imposed on litigants and lawyers to confirm the integrity and authenticity of all documents and information they put before the Court.

59. In fairness, there is an asymmetry of information - the defendants’ involvement in and knowledge of the property goes back almost three decades whereas the plaintiff’s goes For example; (a) the claim at para. 6 of the Director’s second affidavit that "the evidence confirms that site circulation and parking have operated on an open, shared basis for decades" which translates, it appears, as “the plaintiff’s interpretation of the planning file suggests …”; (b) paragraphs 27 & 28 of the grounding affidavit suggested, incorrectly in my view, that it was only in June 2025 that the defendants first locked the Gate. The plaintiff may have jumped to that conclusion because it only focussed on the Lock following an email from a tenant about that time; (c) his affidavits downplayed material facts such as that the Gate was on the second defendant’s land; (iv) The Director incorrectly stated at para. 22 of his first affidavit that it was in December 2024 that the defendants demarcated the boundary by painting a red line; as the first defendant confirmed at para. 55 of his first affidavit, that occurred in August 2024, before the sale; (v) the Director speculated at para 31 that the other tenants would have shared the view of the single tenant who emailed him. The same must be said of the second defendant’s response on those points, suggesting that I should discount such opinion evidence as to planning compliance on either side.

back less than two years. However, that asymmetry does not give the plaintiff licence to speculate, or to ignore evidence actually available to it, such as the sale documentation. Furthermore, the plaintiff could have furnished affidavits from former owners or tenants (as the defendants did). Absent such evidence, I am sceptical of the Director’s assertions as to matters in respect of which he has no basis for knowledge. He did not rely on evidence from the receiver or the chargeholder, the evidence adduced by the plaintiff which predated the sale was essentially derived from the planning file and an email from a former tenant, which are considered below.

60. By contrast, the Court has the benefit of affidavits from both defendants, two of their former tenants and a current tenant offering first hand, testimony. While I need not determine the merits at this stage, I must accord first-hand testimony greater respect than speculative affidavits which are not grounded on first-hand knowledge.

The pleading default

61. No Statement of Claim had been delivered at the time of the hearing of the application, despite the plaintiff asserting the urgency of the matter. The plaintiff’s pleading deficits (the generality of the Plenary Summons and the lack of a Statement of Claim) scarcely enhance the credibility of its application. They do not assist the assessment of the threshold test or the balance of justice. While the plaintiff accepted its default as to the statement of claim and offered to remedy it within seven days, it is a significant omission:

a. As counsel accepted, pending interlocutory applications do

not suspend obligations under the Rules, including the duty to deliver a Statement of Claim. If a plaintiff is committed to going to trial expeditiously, there will rarely be good reason for tarrying until the end of the period permitted by the Rules. It should serve a fully particularised Statement of claim without delay and press for a defence to close the pleadings. b. Many authorities, including Supreme Court decisions such as Scriven, Kirwan v Connors and Tweedswood9, emphasise (admittedly in the context of longer delays) the obligations on applicants for equitable relief to progress expeditiously. I consider that that obligation arises when the interlocutory application is issued (not just when granted) - a commitment to progress is part of the justification for the application and any such application can be defeated by delay. The duty increases where, as here, a plaintiff seeks short service. c. In its seminal decision in Merck, the Supreme Court emphasised that equitable interlocutory relief is not intended as a tactical benefit. Judicial intervention restraining before the merits are determined is only justified as a temporary measure to protect the position pending trial. That is why the first steps in the eight stage analysis stipulated by O'Donnell J (as he then was) invite me to consider whether, if the plaintiff succeeded at trial, a permanent injunction might be granted and whether there is a fair question to be tried, “which may also involve a consideration of whether the case will probably go to trial”. The Court also warned against tactical injunction applications, a warning echoed in other decisions, noting the need to be aware that “cases may not go to trial, and that the presence or absence of an injunction may be a significant tactical benefit”. The failure to deliver a Statement of Claim in the circumstances of this case raises doubts as to the plaintiff’s commitment to seek an early trial and raises the possibility of the application being tactically motivated.

Charleton v Scriven [2019] IESC 28; Kirwan v Connors [2025] IESC 21; Tweedswood Ltd & Anor v Power [2025] IESC 18.

d. That concern is increased because, if the plaintiff had diligently progressed the proceedings while its interlocutory application was pending (by delivering its Statement of Claim without delay), it could have pressed the defendants for the defence. The pleadings would have been closed now by now, which may have clarified matters for the threshold test, perhaps eliminating the jurisdictional issue. I doubt that discovery needs be extensive, and the matter could progress rapidly to trial. The absence of such steps reinforces doubts as to the commitment to go to trial.

At my urging, the parties agreed a timetable designed to ensure the closing of pleadings and exchange of discovery requests etc over a three-month period. If the plaintiff had taken those steps at its own initiative, the proceedings could have reached that point in February, before the hearing of the interlocutory application. It should not have downed tools pending resolution of the injunction application. e. Another fundamental issue arises in the absence of a statement of claim, The pursuit of reliefs going beyond the plenary summons raises a jurisdictional doubt as to whether the plaintiff could secure such reliefs at trial, a prerequisite to interlocutory relief.

A plaintiff cannot claim interlocutory reliefs which are not grounded on the pleadings because it cannot claim such reliefs at trial. f. When pressed for particulars of the rights asserted over the second defendant’s land, the plaintiff submitted that such rights would be fully particularised in the statement of claim. It likewise submitted that, to the extent that the relief went beyond the plenary summons, the statement of claim could address the matter, enlarging on the reliefs sought in plenary summons. That submission does not advance matters in the absence of even a draft pleading.

The only pleading before me is the plenary summons, so the only rights-of-way asserted in the pleadings are those articulated therein. If the plaintiff wants to rely on how they may be articulated in a statement of claim, it must first serve that document. To apply the threshold test and to consider jurisdiction, I must assess the claim for breach of the alleged unregistered rights on the basis of the current pleadings, without the assistance of a statement of claim and on the basis of a plenary summons which does not particularise the unregistered rights alleged.

The absence of a statement of claim is particularly unhelpful since the reliefs are expressed in the plenary summons in generalities and in terms which do not align with subsequent affidavits, which often, but not always, refer to various rights (plural rather than singular), not just rights of way, and in different, inconstant and vague terms. g. For the foregoing reasons, the plaintiff’s failure to properly plead the claim, the terms of the Plenary Summons and the failure to deliver a statement of claim even within the period required by the Rules weighs against it on both the threshold and balance of justice assessments.

Opacity as to rights

62. The plaintiff’s pre-litigation correspondence (including that of its solicitors), its Plenary Summons, affidavits and submissions are vague, elastic and inconsistent in their references to the alleged rights, failing to sufficiently define or delineate them or to produce a map clearly showing them. For example, the language of the plaintiff’s 12 January 2025 letter referred to the Property “sharing” an entrance, car park and common areas with the adjacent block (which was owned by the second defendant). If the plaintiff has any experience of ownership rights in respect of shared developments, it would be familiar with the provisions that generally feature in the documentation in such contexts determining issues concerning common areas. They would also have been aware that there were no such provisions in the documentation which formed the basis for the sale. Its solicitors would doubtless have explained the lacuna to it prior to the sale. Accordingly, the language of the 12 January 2025 letter is difficult to reconcile with the plaintiff’s title documentation. There was no suggestion that the plaintiff had been advised either by the vendor or its own lawyers or by anyone else that it had the rights which it asserted in its letter to the defendants.

63. Very sensibly, having received letters from the plaintiff and its solicitors advancing that the plaintiff enjoyed legal entitlements over the second defendant’s land, the defendants took legal advice and its solicitors, who duly invited the plaintiff’s solicitors to explain the basis for the various rights which they and their client had asserted in correspondence with the individual defendants. No adequate explanation seems to have been forthcoming (save for references to planning documents and assertions as to past practice). Nor was the confusion dispelled by the grounding affidavit. For instance, para. 13 asserts “the right to access and egress freely to and from the property to the public roads” (without demarcating the route). The Director’s affidavits emphasised google photographs rather than folios or maps, but the sands seemed to shift throughout the application as to what rights were asserted. Sometimes the plaintiff asserts a singular; at others multiple rights are asserted, never with adequate definitions or particulars.

The Undertakings

64. There would have been a serious hazard for the plaintiff, its tenants and their customers if the defendants had maintained the position asserted in their original communications; in that scenario the balance of justice would have likely favoured the plaintiff, rendering an injunction likely if the threshold test was met. However, the undertakings changed the position and the basis for relief. The Director’s second affidavit was dismissive in its response to the undertakings. He would have been informed by the plaintiff’s lawyers that the provision of undertakings pending trial is a normal step which does not imply an admission. However, his replying affidavit was unnecessarily argumentative in this context. Indeed, the plaintiff itself had itself sought undertakings; the parties disagreed as to the terms rather than the principle. Any characterisation of such undertakings as admissions or concessions was gratuitous.

65. The plaintiff dismissed the proffered undertakings on the basis of a perceived risk that the defendants might still seek to block any passage across Block 1 pending trial, by creating a barrier along its border. While there may have been a misunderstanding on the plaintiff’s part as to the extent of the undertakings, its concerns did not reflect a reasonable interpretation of the proffered undertakings; if it harboured any doubts, they should have been addressed in correspondence or in discussions between counsel. In the event the plaintiff accepted the undertakings in the course of argument and in further discussions after the hearing, ultimately the locked Gate became the only outstanding interlocutory issue. While the undertakings committed the defendants to allow the plaintiff and its tenants and their customers, visitors etc to continue to cross Block 1 pending trial to access the Property, the second defendant was not prepared to permit them access via the Gate pending trial.

Is there any jurisdiction to seek the Reliefs?

66. The Gate is not referenced at all in the plenary summons and it does not appear to be encompassed in the single right of way referenced therein. I agree that because the relief sought in respect of the Gate is not grounded in the Plenary Summons and has no basis in the pleadings, it cannot ground an application for interim relief. The first limbs of the Merck test cannot be met. As Clarke J observed in Diamond at 558, there must be a close connection between the relief sought in an interlocutory injunction and at trial. Nevertheless, notwithstanding my doubts as to the jurisdictional basis, I will consider the criteria for interlocutory relief.

The threshold test

67. Both parties largely agreed as to the principles governing the assessment of such an interlocutory application but disagreed as to which threshold test applied. Both said that either test favoured them in any event. The defendants submitted that the relief sought in respect of the Gate triggered the higher standard because mandatory reliefs were sought, requiring the defendants to give the plaintiff and its tenants a key to and access via the Gate to allow them to cross the plaintiff's land to access parking at the rear of three units. The plaintiff replied that;

(a) while mandatory in form, the reliefs were trivial in terms of their impact on the defendants and were maintaining the status quo; (b) the Court should adopt a common sense view and the lower test, citing Merck, Betty Martin and Ryanair to support the proposition that the test was not mechanical and the court should look at the reality of the situation, applying the standard test even if the relief were technically mandatory.

68. I consider that the higher threshold test applies. Compelling the defendants to offer access via the locked Gate would change the long-standing status quo, requiring the second defendant to offer the plaintiff and its tenants, and possibly others, access to an area of her land which the evidence suggests they enjoy as of right and have not done so at any time since the sale of the Property. Of course, interlocutory relief may be granted to preserve the status quo ante, the position as it stood prior to an allegedly unlawful intervention. However, that issue does not arise here as the Gate has been locked and the defendants have been asserting their rights to restrict parking on Block 1 since before the plaintiff bought the Property. It is too late for the plaintiff to claim interlocutory relief to preserve the status quo ante.

69. I consider that the higher threshold applies. The second defendant is the registered owner of Block 1 and the relief not only seeks to restrain her from exercising her undoubted prerogatives in terms of the control and use of her land but would actually direct her to give access via the Gate on her land, an intrusive remedy. This conclusion is reinforced since the evidence establishes that both before and since the sale, the defendants have generally locked the Gate on their land and restricted access by that route and have maintained that position since before the plaintiff bought the Property knowing of the issues.

Does the plaintiff meet the threshold test?

70. The plaintiff has raised many factual and legal arguments. Many are difficult to assess at this stage in the absence of particularised pleadings and cogent evidence. I take its case at its height. It hinges on an implicit assumption that, if the defendants (unsurprisingly) treated both properties as one when they were both jointly owned and controlled, they were obliged to continue to do so after the Property had been sold. It justifies this premise by reference to its construction of the planning file and by asserting unparticularised easements and without responding to the defendant’s reply that a division of land invariably has consequences in terms of access etc. There is force in the defendant’s rejoinder that when land is partitioned or divided, and transferred into different ownership, there will inevitably be consequences in terms of its subsequent use. I do not understand why historic planning applications would require the defendants to offer the Property and its current owner and tenants the rights for which the plaintiff contends. At the time of the relevant applications the defendants may well have assumed that the land would remain in common ownership, in which case the issue of access rights was moot. However, I do not see why the legal consequence of such applications would be that the Property would acquire the access rights or rights of way for which the plaintiff contends. Such an argument seems to run counter to Keane CJ’s analysis in Madison Estates. Nor do the s160 cases cited by the plaintiff assist it. Those cases concerned examples of neighbours restraining quarrying activities conducted without or contrary to the terms of, planning permission rather than examples of planning obligations subsisting following the disposition of property, which is the plaintiff’s contention here. That issue will doubtless be developed as the matter progresses. As matters stand, the plaintiff has not satisfied me that there is a nexus between past use (when the Site was effectively jointly owned and controlled) and an obligation to extend access and parking rights in perpetuity to the Property and its tenants (even when it was no longer owned by the first defendant).

71. I am sceptical of the reliance on planning records and photographs as evidencing the factual position over the years. The Director inferred that if the Gate was unlocked during planning visits, that implied that it was always unlocked. That scarcely follows - it would have been necessary to open up the property for inspection on such occasions. The inspectors’ notes scarcely evidence the practice over the years - at most they reflected the planners’ impression on the day of their visits. Likewise, the photographs, unless contextualised, only reflect the moment when they were taken.

72. The plaintiff exhibited a former tenant’s email (the author is now one of its tenants elsewhere in the Property) suggesting that in her experience the gate was not locked over the years. Leaving aside the fact that her “evidence” was only provided by email, it does not advance matters as she was only in situ in the 2017 – 2019 period – it was not suggested that the gate was locked during that period in any event.

73. By contrast, although the dates in para. 60 of the first defendant’s first replying affidavit do not span the full period since its installation, he confirms, from firsthand knowledge, that the Gate has been in place since 2004 and that the padlock has "nearly always been locked” save for "a period of maybe a year or two". It was always locked for the first eight years or so after the installation of the Gate and also for the last two or three years. This seems plausible – he went to effort and expense to install the fence and Gate, suggesting an intention to use it. It seems unlikely that he would have done so in 2004 in the absence of security concerns and an intention to use it. It is also significant that he changed the lock when somebody got unauthorised access as it refutes any suggestion of access via the Gate as of right. His firsthand knowledge and evidence are corroborated by affidavits from two former tenants. Both were in apartment 15, one from 2006 to 2008, the other was from 2022 to 2025. Each confirms that the Gate was consistently locked and that, although the first defendant provided them with a key he did so on the basis of a personal arrangement – it was not offered to tenants as of right. Those affidavits refute the plaintiff's assumptions as to how long the Gate has been locked.

74. The first-hand evidence confirms that the Gate on the second defendant's land has generally been locked over the years and that the locked gate represents the status quo. Significantly, it represented the status quo at the time the plaintiff bought the Property, and the plaintiff knew the position when it bought the Property (apparently at a price which reflected the access issues). The preservation of the status quo weighs against the plaintiff's demands for access via the Gate in terms of both the threshold test and the balance of justice assessment.

75. If, which has not been established, the Property was not meeting relevant obligations, then that could imply a planning infringement by the plaintiff or its tenants. In fact, there is no suggestion that any enforcement notice has issued or is likely. However, even if there was a risk of such a development, the plaintiff has not demonstrated the likelihood of an infringement by the defendants which could be restrained as in the quarrying cases which it cited. It seems to assume that, by virtue of having applied for planning permission on a particular basis when the defendants controlled both properties, the defendants must continue to operate their remaining land so as to facilitate the plaintiff’s Property's ability to comply with planning requirements. Such a novel case would need to be fully pleaded and particularised would face factual and legal challenges. As matters stand it has not been fully articulated and I cannot say that the plaintiff has established a fair question to be tried let alone a strong case likely to succeed at trial. The Property’s compliance with planning regulations must in principle be seen as issues for its current owner.

76. The plaintiff has not satisfied me that it has even the lower threshold test or established that the locking of the Gate breaches planning permissions pertaining to Block 1. The position may change when a fully particularised statement of claim is delivered backed by expert evidence or more detailed submissions, but, at present, neither threshold has been met in respect of the planning point. As matters stand, the defendants have plausible arguments that they have no continuing planning obligation in respect of Block 1. If the plaintiff says otherwise, it must plead its case. For completeness I should note that I do not consider that either party’s interpretations of planning obligations constitute admissible evidence which required lengthy articulation on affidavit, neither the Director nor the first defendant appearing to have either the necessary expertise or independence to opine on such issues. I have considered whether the evidence actually before the Court (i.e. planning documents and the evidence of changes to circulation and planning arrangements) might enable the court to reach a conclusion on the threshold test on the basis of legal submissions in respect of such a planning breach in so far as it pertains to the Reliefs. I am not satisfied that it done on the basis of the submissions to date.

77. The factual and legal issues will be developed and fully litigated at trial on the basis of explicit pleadings; more comprehensive oral and documentary evidence tested on cross examination and more detailed legal submissions. Accordingly, there is little benefit in a detailed factual or legal analysis of the merits at this stage. However, on the evidence to date, the plaintiff has not demonstrated a strong case likely to succeed at trial in respect of the Gate issue. (Nor, in fact, has it even met the lower standard). In case I am wrong as to the applicable threshold test or whether it is met, I will address the balance of justice.

The balance of justice

78. Although no longer a precondition, the adequacy of damages is the primary factor in any balance of justice assessment. The plaintiff has offered the usual undertaking as to damages and there is no issue as to its ability to honour it. I consider the adequacy of damages factor favours the defendants: a. if the plaintiff ultimately establishes a right of way via the Gate and that its rental income was impaired due to the obstruction of such rights, such losses would be readily compensable. The situation could be different if the Gate made it impossible for tenants, customers or others to access the creche or the other currently occupied commercial or residential units. However, the proffered undertakings avoid that scenario pending trial. b. Granting the relief would impact on the second defendant’s undoubted property rights as registered owner of Block 1 and I do not agree that such an intrusion could be dismissed as inconsequential. Of course, if the plaintiff succeeds at trial in establishing an entitlement to the relief, then its rights will also have been affected in the meantime. However, clearly delineated, registered rights must take precedence over vague claims yet to be properly particularised in the pleadings, including with the level of detail required in authorities such as Donnelly and Flanagan. If the defendants are correct in their rejection of the plaintiff’s alleged entitlements, then the relief sought would have required them to submit to a continuing trespass pending trial. However, authorities such as Diamond demonstrate that damages are not an adequate remedy for the breach of such rights.

79. I consider that, in the light of the evidence as a whole, the preservation of the status quo does not favour the application. In any event, the concept of the status quo is less relevant here than in other contexts – granting or refusing access via the Gate would not irreversibly change the status quo in the same way that the termination of an executive’s employment or the grant or refusal of a contract might. For example, the position contrasts with Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform [2022] IECA 131, where, at para 144, Barniville J (as he then was) noted the difficulties of reversing matters if the plaintiff succeeded at trial once the respondent entered into the controversial agreement with the successful tenderers, so damages would not be an adequate remedy in that scenario.

80. I agree that I can have regard to the parties’ behaviour and motivations and their responsibility for the impasse that has led to the litigation but this does not favour the plaintiff: a. I do not agree that the defendants should be characterised as having caused the problem or the suggestion that its actions (including a decade before the plaintiff had any interest in the Property) and motivation are suspect; the plaintiff’s assertions as to the reasons for the 2014 transfer are speculative. Its claim that the transfer of Block 1 was designed to create a ransom strip, to the detriment of the chargeholder and subsequent purchasers, ignores the fact that it was the Seales (not the defendants) who split the title in 1996 when they sold Block 1 to the first defendant. He only acquired the Property a year later and both properties were mortgaged with separate institutions. b. I am unimpressed by pejorative claims in respect of issues of which the plaintiff has no first-hand knowledge and to which it was not party. The fact is that AIB, which was presumably legally advised, advanced finance in 1997, 2004 and 2009 on the basis of the Property’s title, apparently without demanding the creation or registration of rights of way or other access rights over Block 1. Indeed, even when funds advanced by it on foot of the charge on the Property were used, inter alia, to pay off the ILP mortgage on Block 1, AIB still did not insist that easements or access rights should be granted over Block 1 to reinforce its security over the Property. The plaintiff cannot look for better title beyond that which derives from AIB’s security. It has not satisfied me that it has established a fair question to be tried to the effect that the registered owner is not entitled to seek to enforce her property rights.

81. Accordingly, I discount the plaintiff's speculation that the transfer of Block 1 in 2014 was a device to foil the 2024 sale. The evidence does not suggest that AIB, Everyday or the Receiver ever complained about or sought to impugn the transfer, nor is it evident that they could have had any cause for complaint since AIB’s security was always confined to the Property. AIB must have been satisfied of its security since it repeatedly made advances to fund the Property’s ongoing development.

82. The defendants’ offer of undertakings was a constructive and reasonable offer to address the principal issues pending trial, a relevant factor in the context of the balance of justice assessment for the other Reliefs.

83. As far as the plaintiff’s conduct is concerned: a. it bought the property in the full knowledge of its limitations (including as to the Gate). Its solicitors doubtless advised it of the implications prior to the sale. The plaintiff has not suggested that it was under any illusion. b. Following the sale, the plaintiff sought to change the boundaries in a submission to the Land Registry, on grounds which are not clear, which were rejected by the Land Registry and which have not been addressed in the plaintiff’s affidavits. c. The bald assertions advanced by the plaintiff and its solicitors in their 12 and

29 January 2025 letters to the defendants arguably overstated the legal position. The plaintiff and its advisors presumably appreciated that their position was less clearcut than their letters to the defendants asserted. d. Once solicitors came on record for the defendants, they invited the plaintiff’s solicitors to explain the basis for the plaintiff’s asserted rights. However, the plaintiff and its solicitors never satisfactorily responded to that invitation with a properly particularised explanation of the rights alleged, save for generalised assertions and references to past practices. e. The plaintiff's unhelpful reaction to the undertakings is also a factor in the balance of justice assessment in respect of the relief sought.

84. I am not convinced that, absent access via the Gate, the plaintiff, its tenants and their customers and members of the public, including creche patrons, would be unable to access the property. While the plaintiff’s justifications for interlocutory relief may have reflected its understanding when the application issued, the undertakings changed the position. Its subsequent affidavit and submissions still failed to take sufficient account of the undertakings, exaggerating the need for the remaining relief. The undertakings addressed its main and most credible concern, - access to the Property pending trial, striking a fair balance. The evidence as to prejudice notwithstanding the undertakings was underwhelming. Although the plaintiff justified its insistence on access via the Gate on the basis of the potential impact on its tenants and their customers and visitors, there was no affidavit evidence from those parties. There was no detail as to the numbers of drop offs or collections from the creche at particular times nor any analysis as to why the Property’s own parking would not meet its tenants’ needs. Without such evidence, the plaintiff's claims as to detriment are speculative and are outweighed by first hand evidence from the defendants and three current or former tenants. In any event, the plaintiff’s assertions as to prejudice to it and its tenants and their customers and visitors appear directed more to the issues resolved by the undertakings than the outstanding issue of the Gate.

85. The balance does not favour the relief sought in respect of the Gate; (i) although it controls access to the rear of three units, it may be possible to develop alternative access over the plaintiff’s own land; (ii) the relevant units are unoccupied and have been for a considerable time, years in two cases, months in the other; (iii) access via the Gate would raise security concerns. The need for the Gate and Fence is confirmed by the effort and expense invested in constructing them in the first place. The ongoing need for security in the area is demonstrated by the recent break-in; (iv) notwithstanding submissions to the contrary, the evidence of past practice suggests that the gate was generally locked over the years, particularly in recent years, with access only offered by at the defendants’ discretion and on their terms. Requiring them to offer the plaintiff (and others) access to the Gate would be interfering with the status quo, ceding to the plaintiff, and its tenants and their customers the right to use that route across the first defendant’s land.

86. In view of the property rights at play on the defendants’ side as well as the plaintiff’s, cogent evidence would have been required to satisfy the court as to prejudicial impact in the absence of the relief. The defendants’ evidence that the Gate has been locked over the years and the fact that it controls a confined area makes it hard to credit the Director’s assertions as to fire or emergency access concerns. In any event, the Gate is secured by a flimsy padlock which would scarcely thwart the fire brigade and emergency services. The three affected units are vacant. I have seen no evidence that the locking of the Gate over the years has had the consequences anticipated by the plaintiff. If it had, or if it was unnecessary, then presumably the defendants would have dispensed with the lock throughout the period of their control of the entire Site, or they might have implemented an alternative solution. Instead, they retained it. Admittedly, they allowed some tenants to have a key, but the evidence confirms that they did so at their discretion, on the basis of a personal arrangement, not as of right. In any event, since the relevant units are vacant, the need for such access no longer arises.

87. There is no evidence that the Gate is the reason the three units lie vacant. It has been locked historically, not always but generally and for significant periods, including the last 2 -

3 years. While access would be convenient for the plaintiff (and prospective tenants), it is not obvious to me that irreversible harm is likely to the plaintiff or other parties pending trial if the status quo (the locked Gate) is maintained. The balance of justice does not justify interference with the registered owner’s rights pending trial by requiring her to offer unrestricted access, in circumstances in which: (a) the Gate has been locked for the last 2 or 3 years and for significant periods before then, apparently without the adverse consequences now feared by the plaintiff;

(b) the relevant units are vacant in any event so no tenants are affected.

88. The orders sought in respect of the Gate would be burdensome for the defendant pending trial. I disagree with the plaintiff’s dismissal of any such concern; such orders would represent a significant intrusion in respect of the second defendant’s undoubted property rights as registered owner, requiring her to permit what would otherwise be a trespass and restricting her ability to deal with her property as she wished. Authorities such as Diamond confirm the respect which the Court should accord such property rights.

89. The potential impact on third parties is highly relevant to the balance of justice assessment and was invoked by both sides. I do not consider that this issue assists the plaintiff in respect of the Gate given that the relevant units are vacant. Its claims as to such prejudice are belied by the fact that the Gate has historically been locked most of the time and parking on the defendant's land has been increasingly restricted both before and since the sale.

90. I do not agree with the characterisation of the relief sought in respect of the Gate as “a limited, status-quo preserving ask that avoids any irreversible step and is necessary for safety, planning compliance and continued commercial operation of the premises and tenancies”. If at trial the plaintiff establishes an entitlement in respect of the Gate, it can be granted then, together with compensation for any loss in the meantime. Damages will be an adequate remedy.

There is no irreversible step. The plaintiff’s evidence does not satisfy me that either Relief is necessary for safety, planning compliance and continued commercial operation of the premises and tenancies.

91. Other factors relevant to the balance of justice assessment (some also go to the threshold test) include:

(a) the vagueness and inconsistency of the position adopted by the plaintiff in its pleadings and affidavits and submissions in respect of the asserted rights of way or other rights, rights which have not been meaningfully delineated or defined in any map produced by the plaintiff or linked to the registered title of the relevant folios, militates against the relief sought.

(b) The failure to progress the proceedings expeditiously, including by delivering a Statement of Claim.

(c) My conclusion that the undertakings are sufficient to preserve the position pending to trial. Even if the plaintiff had satisfied the threshold test, I would not consider that the balance of justice would justify access.

92. Although the traditional term was “balance of convenience”, in recent years the courts have moved to using the expression "balance of justice" and in CC v Minister for Justice and Equality [2016] 2 IR 680, Clarke CJ explained why the latter concept is more apt. The invocation of the Court’s powers in the absence of a determination of the merits should be based on considerations of justice rather than convenience. While access to the gate might well be convenient from the plaintiff's perspective, justice does not in my view warrant intervention in the circumstances. If the plaintiff requires such access, it should bring the case to trial with greater diligence than it has shown to date.

Conclusion

93. The plaintiff has not established a strong case likely to succeed at trial which would justify the order sought in relation to the Gate. I am not convinced that it has even met the lower standard in relation to the easement which it asserts in that regard. Nor, in the absence of proper pleadings, expert evidence and more detailed submissions am I satisfied that the plaintiff has established a strong case likely to succeed at trial as to the possible planning infringement. In any event damages would be an adequate remedy if the plaintiff succeeds on that issue at trial. The undertakings provide a just and sensible basis on which to proceed pending trial, permitting access across Block 1, notwithstanding the defendants’ position that such access constitutes trespass. The balance of justice would not require the relief to be granted via the Gate as well, even if the plaintiff had met the threshold test.

94. I will dismiss the application in the light of the defendants’ constructive undertakings. I will list the proceedings for 10:30am on 29 April 2026 to determine final orders.

Representation

David Dodd, instructed by Cullen Tyrrell & O’Beirne Solicitors LLP, for the plaintiff Neal Flynn, instructed by Padraig J. Hyland & Co., for the defendants.