Authority of Court Messengers and Assignee Mortgagees in Executing Possession Orders: Commentary on Everyday Finance DAC v Carroll [2025] IEHC 626

1. Introduction

This commentary examines the High Court judgment of Ms Justice Siobhán Stack in Everyday Finance DAC v Anthony Carroll and Hilary Carroll [2025] IEHC 626, delivered on 14 November 2025. The case raises important issues at the intersection of mortgage enforcement, civil procedure, and the law governing execution of court orders.

The plaintiff, Everyday Finance DAC (“Everyday”), sought an interlocutory injunction to restrain trespass by the defendants on a residential property in County Wicklow (“the Property”). The plaintiff’s claim to possession rested on:

• a Circuit Court order for possession granted on 11 February 2019 in favour of its predecessor-in-title, Promontoria (Oyster) DAC (“Promontoria”), and
• the subsequent execution of that order in April 2025, following an order of the County Registrar in October 2023 granting Everyday leave to execute.

After execution, the defendants re-entered the Property. Everyday, treating itself as a mortgagee in possession, sought an injunction to restrain what it described as trespass by the defendants. The defendants, principally through the first defendant, resisted, arguing:

• that the original possession order was made without jurisdiction by the County Registrar; and
• that the execution process itself was unlawful, particularly as to the authority of the individual who carried out the physical recovery of possession.

The judgment addresses four broad themes:

1. The jurisdiction of a County Registrar to make orders for possession where an appearance has been entered but no defence affidavit has been delivered.
2. The legal status of a mortgagee (and its assignee) seeking injunctive relief following execution of a possession order.
3. The statutory framework governing execution of orders by County Registrars and court messengers, and the limits of the presumption of regularity (omnia praesumuntur rite esse acta).
4. The procedural requirements for an assignee of a mortgage to demonstrate entitlement to the benefit of an existing possession order.

Ultimately, the court refused Everyday’s application for an interlocutory injunction, finding that there was a serious question to be tried as to the lawfulness of the execution process and that Everyday had not adequately proved its entitlement to the benefit of the 2019 possession order. Yet the judgment also confirms that the underlying order for possession remains valid and capable of fresh execution.

2. Summary of the Judgment

2.1 The application

Everyday, claiming to be mortgagee in possession, sought an interlocutory injunction restraining the defendants from trespassing on the Property. Its asserted status as mortgagee in possession was based on:

• a 2019 Circuit Court possession order obtained by Promontoria; and
• execution of that order in April 2025, following a 2023 order giving Everyday leave to issue execution.

The defendants argued that:

• the County Registrar had no jurisdiction in 2019 to make the possession order once an appearance had been entered; and
• the Sheriff for County Dublin (Mr Fergus Gallagher) had no lawful authority to execute a Wicklow possession order as a court messenger, undermining the lawfulness of the execution process.

2.2 Key determinations

Ms Justice Stack held, in essence, that:

1. County Registrar’s jurisdiction was validly exercised.
   Even though the defendants had entered an appearance in the Circuit Court proceedings, they had failed to deliver an affidavit setting out a defence as required by Order 5B of the Circuit Court Rules. By virtue of Order 5B, r. 7(1)(e), as read in light of the Interpretation Act 2005, the County Registrar had jurisdiction to make the order for possession in those circumstances. The defendants’ longstanding contention that the order was made without jurisdiction was “clearly erroneous” and “misconceived”.
2. The 2019 possession order remains valid and effective.
   The order made in favour of Promontoria on 11 February 2019, with a 10‑month conditional stay, is a valid final order for possession whose stay has long since expired.
3. Subsequent order permitting Everyday to execute stands.
   In 2023 the County Registrar made an order under Order 22, r. 4 substituting Everyday as plaintiff in the possession proceedings and granting it leave to execute the 2019 order for possession. That order was never appealed or judicially reviewed and therefore stands as a valid order, notwithstanding possible procedural irregularity (following Crowley v Ireland [2022] IEHC 596; [2023] IECA 847).
4. Serious doubt about lawfulness of execution by “special bailiff” / sheriff.
   Possession was obtained pursuant to an execution order and a warrant addressed to “my court messenger and bailiffs”, with Mr Fergus Gallagher named in the First Schedule as “special bailiff”. The endorsements record that he acted as “sheriff of the county of Dublin”. The court held that:
   • A person executing a County Registrar’s order of possession must be a duly appointed “court messenger” under s. 4 of the Enforcement of Court Orders Act 1926, as amended.
   • The mere issue of a warrant does not turn an individual into a court messenger; a prior formal appointment, approved by the Courts Service, is required.
   • The description of Mr Gallagher as “special bailiff” and “sheriff”, rather than as “court messenger”, undermined any presumption that he had been so appointed.
   • Consequently, there was a serious question to be tried as to the lawfulness of the execution process, following the approach in Start Mortgages DAC v Kavanagh [2025] IECA 127.
5. Everyday had not sufficiently proved its entitlement to benefit of the 2019 order.
   Everyday relied on the 2023 substitution/leave-to-execute order to establish its status as beneficiary of the 2019 possession order. However:
   • The order of 9 October 2023 did not amend the original 2019 possession order under Order 36, r. 10; it merely substituted Everyday as plaintiff in the proceedings.
   • No deed of assignment of Promontoria’s interest (including the benefit of the possession order) was adduced.
   • Accordingly, there was a serious question as to whether Everyday had demonstrated its entitlement to the benefit of the 2019 possession order for the purpose of seeking an interlocutory injunction.
6. Interlocutory injunction refused, but order for possession not “spent”.
   Because:
   • there was a serious question to be tried concerning the lawfulness of execution; and
   • Everyday had not adequately proved its title to the benefit of the possession order,
   the court refused to grant the interlocutory injunction restraining trespass. Nonetheless, relying on Carlisle Mortgages Ltd v Costello [2018] IECA 334, the judge held that an invalid execution does not “spend” the possession order. The 2019 order continues to exist and may be the subject of a fresh process of execution.

The matter was listed for further directions and costs, but Everyday’s attempt to secure an immediate injunction placing it back into possession pending trial failed.

3. Detailed Analysis

3.1 County Registrar’s jurisdiction where appearance entered but no defence affidavit filed

(a) The Circuit Court summary possession regime under Order 5B

Order 5B of the Circuit Court Rules governs summary applications for possession of land on foot of a mortgage or charge. Originally introduced in 2009, it was substantially amended in 2012 and again in 2015. Two features are central in this case:

1. Obligation to both enter an appearance and file a defence affidavit.
   After the 2012 amendments, a defendant intending to defend a possession claim must:
   • enter an appearance within 10 days; and
   • “defend the plaintiff's claim by filing a replying affidavit to the plaintiff's affidavit setting out the defendant's defence” (originally Order 5B, r. 5(2); after the 2015 amendment, now r. 5(3)).
   This dual requirement reflects policy concerns: entering an appearance alone is easy, and, without more, could be used to delay enforcement even when no substantive defence exists. The rules therefore insist that a defendant who truly wishes to contest must put forward a defence on affidavit.
2. County Registrar’s power to grant possession where no defence affidavit is delivered.
   Order 5B, r. 7(1)(e), introduced in 2012 and still in force, authorises the County Registrar to grant an order for possession:

   “where an appearance has not been entered or an affidavit in accordance with rule 5(2) setting out a defence has not been filed and delivered.”

   Although r. 5(2) was renumbered as r. 5(3) in 2015, the cross-reference in r. 7(1)(e) was not updated. The judge treats this as a non-problem: by virtue of s. 26(2)(f) of the Interpretation Act 2005, a reference to a provision that has been renumbered must be read as a reference to the current provision. Thus, r. 7(1)(e) must now be read as referring to r. 5(3).

The practical outcome is that the County Registrar may make an order for possession in two situations:

• no appearance entered; or
• appearance entered but no defence affidavit filed and delivered.

(b) Application to the facts

In the possession proceedings (Record No. 691/2011), the defendants entered an appearance but did not file an affidavit disclosing a defence, as required by Order 5B, r. 5(3). They later maintained that once an appearance was entered, the County Registrar had no jurisdiction to make a possession order and was obliged to transfer the matter to a judge’s list.

The High Court decisively rejected this contention:

• Under r. 7(1)(e), the County Registrar has jurisdiction where either:
  • no appearance is entered, or
  • no defence affidavit is filed and delivered.
• Only where a defence affidavit is filed does r. 7(2) require transfer of the application to the judge’s list.
• As no such affidavit was ever filed, the County Registrar was entitled to make the 2019 possession order herself.

The defendants’ long-standing assertion that the 2019 order was a nullity for want of jurisdiction is therefore “clearly erroneous”. This aspect of the judgment consolidates the position that:

In Circuit Court mortgage possession proceedings, entering an appearance alone is not enough to oust the County Registrar’s jurisdiction; the failure to file a defence affidavit leaves the proceedings within the Registrar’s competence under Order 5B, r. 7(1)(e).

3.2 Adjournment and case management

At the outset of the High Court injunction application, counsel for the defendants sought an adjournment on the basis that he and his solicitor had only been instructed the previous day. The judge refused, emphasising:

• The defendants had been served with the application on 1 August 2025.
• They had been served with affidavits of verification in October 2025.
• The first defendant had sworn replying affidavits on 17 October 2025.
• The first defendant was present in court when the hearing date was fixed.

The court stressed that parties cannot be allowed to frustrate proceedings by obtaining legal advice at the last minute. While not the central doctrinal point of the judgment, this underlines a broader trend in Irish civil procedure: a more robust judicial attitude towards tactical or last-minute adjournment applications, especially where a party has already actively engaged with the process.

3.3 Mortgagee in possession and the nature of the injunction sought

(a) Mortgagee in possession and injunctions “as of right”

Everyday framed its application on the basis that, following execution, it was mortgagee in possession. The judgment reiterates two important principles:

1. Injunction characterisation: prohibitory, not mandatory.
   Where a mortgagee has been lawfully put into possession by execution of a possession order, its right to possession is already established by the prior court order. An injunction restraining the mortgagor from re-entering or remaining on the property is therefore viewed as a prohibitory injunction (restraining trespass) rather than a mandatory one (ordering delivery up of possession). The judgment cites Start Mortgages DAC v Rogers [2021] IEHC 691 in support of this characterisation.
2. Where title is already determined, injunction may be granted “as of right”.
   The court relies on Keating v Jervis Shopping Centre Ltd [1997] 1 I.R. 512 to state that where a plaintiff’s right to possession has already been judicially determined, the plaintiff (mortgagee) is entitled to interlocutory relief “as of right” without the need to go through the conventional “balance of justice” (or “balance of convenience”) assessment. The making and execution of a possession order effectively settle the parties’ respective rights.

In Everyday’s case, if execution was lawful, the injunction would ordinarily follow almost automatically, either because:

• the status quo is that the mortgagee is lawfully in possession and is simply seeking to restrain trespass; or
• the court has already determined the mortgagee’s entitlement to possession and the Keating principle applies.

(b) Why those principles did not secure Everyday’s injunction

The key difficulty for Everyday lay in two “gateway” questions:

1. Was the execution process lawful, so that Everyday had in fact become mortgagee in possession?
2. Even if execution were not lawful, could Everyday otherwise demonstrate that it was the current beneficiary of the 2019 possession order?

On both points, the court found that there were serious issues to be tried or gaps in proof, and thus declined to treat Everyday as a mortgagee in possession entitled to relief “as of right”.

3.4 Lawfulness of execution: court messengers, sheriffs, and the presumption of regularity

(a) Statutory framework: Enforcement of Court Orders Act 1926

Outside Dublin and Cork, County Registrars, not sheriffs, are responsible for executing possession orders. Sections 4 and 5 of the Enforcement of Court Orders Act 1926, as amended, create a structured mechanism:

• Section 4(1): appointment of court messengers.
  Each County Registrar must, with the approval of the Courts Service, appoint persons styled “court messengers” to act for and assist in execution of orders. Court messengers are salaried staff of the Courts Service.
• Section 5(1): warrants authorising execution.
  For each execution order, the County Registrar must issue a warrant authorising a named court messenger to execute or assist in the execution of that particular order. Only a duly appointed court messenger may act under such a warrant.
• Section 5(2): production of warrant on demand.
  A court messenger must produce his/her warrant, on demand, to the person in apparent possession before removing any property.

The Law Reform Commission and the Sheriff Review Group reports, cited by the judge, confirm that court messengers are Courts Service employees exercising functions equivalent to traditional sheriffs’ bailiffs in non-sheriff counties.

(b) The Private Security Services (Amendment) Act 2021

Section 7 of the 2021 Act repealed s. 4(4) of the 1926 Act, which had required publication in courthouses of the names and residences of court messengers. Everyday argued that this repeal meant that production of formal proof of appointment as a court messenger was no longer necessary; it was enough that the person held a warrant for a particular execution.

The court firmly rejected this interpretation. While the publication requirement has been removed, the underlying structure remains:

• Court messengers must still be formally appointed under s. 4(1) of the 1926 Act with Courts Service approval.
• Section 2 of the 2021 Act amends the Private Security Services Act 2004 to define “court messenger” as:

  “a person appointed as such under s. 4 of the 1926 Act”.

  This definition reinforces the requirement of a prior formal appointment. It also introduces the separate concept of an “enforcement guard” – a person who, for remuneration and as part of his/her duties, is authorised to perform certain enforcement functions, but is expressly distinguished from a sheriff, County Registrar or court messenger.

Thus, the statutory scheme contemplates a two-step process:

1. formal appointment as a “court messenger” (a continuing status), and
2. issue of a warrant to that court messenger authorising execution of a specific order.

A warrant cannot, by itself, cure the absence of a prior appointment. A person cannot lawfully execute an order unless he or she is both:

• a duly appointed court messenger; and
• named in a warrant for that specific execution.

(c) The role of sheriffs and the position of Mr Gallagher

The execution documents here are unusual:

• The execution order (in Form 23) is, as standard, addressed to “the several Sheriffs and County Registrars”. In counties with a sheriff (Dublin and Cork), the sheriff executes; elsewhere, the County Registrar is responsible.
• The County Registrar issued a warrant dated 14 April 2025 “to my court messenger and bailiffs whose names and addresses are set out in the first schedule hereto”. The First Schedule named Fergus Gallagher, described as “special bailiff”, with an address in Dublin.
• The endorsements on the execution order, including one signed by Mr Gallagher and one by Everyday’s agent, refer to him as “sheriff” and “sheriff of the county of Dublin”.

The defendants contended that Mr Gallagher, as Sheriff for County Dublin, could not lawfully act as a court messenger for the County Registrar in Wicklow. The judge did not accept a blanket incompatibility but noted:

• Sheriffs are appointed by the Government under s. 12(3) of the Courts Officers Act 1945, following a ministerial order reallocating certain County Registrar functions in a given county. This is a distinct process from the appointment of court messengers by a County Registrar under s. 4(1) of the 1926 Act.
• While it is not legally impossible that the Sheriff of one county could also be appointed as a court messenger for another, the appointment mechanisms are so different that it appears somewhat unlikely in practice.

(d) The presumption of regularity and its limits

Everyday relied on the presumption of regularity – omnia praesumuntur rite esse acta – arguing that the court should presume that the County Registrar had done whatever was necessary to authorise Mr Gallagher to act (i.e. that he had been properly appointed as a court messenger).

The judge’s treatment of this presumption is one of the significant doctrinal contributions of the case:

• The presumption applies where, on the face of the documents, everything appears regular and in order. It shifts the evidential burden to the party challenging the act to bring evidence of irregularity.
• Here, however, the face of the documents was not regular:
  • The warrant described Mr Gallagher as “special bailiff”, not as “court messenger”.
  • The endorsements referred to him explicitly as “sheriff” and “sheriff of the county of Dublin”.
• The deliberate use of “special bailiff” and “sheriff” suggested that neither the County Registrar nor Mr Gallagher regarded him as a court messenger for Wicklow. Rather, it appeared that he was acting on an ad hoc basis in lieu of a court messenger.

Accordingly, the presumption of regularity could not be invoked to deem Mr Gallagher a duly appointed court messenger. Far from showing that “everything has been done which ought to have been done”, the documents positively suggested non-compliance with the statutory scheme.

From this, the court concluded:

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

In line with Start Mortgages v Kavanagh [2025] IECA 127, where interlocutory relief was refused in the face of doubts over execution, the existence of this serious question meant that the court would not treat Everyday as having lawfully become mortgagee in possession for the purpose of granting an interlocutory injunction.

3.5 Everyday’s entitlement to the benefit of the 2019 possession order

(a) Order 36 rr. 9–10 and the usual method of dealing with assignments

The Rules of the Circuit Court (as in force before March 2024) envisaged that a judgment or order for possession might need to be executed by a person other than the original plaintiff, for example following assignment of a mortgage. Order 36, rr. 9–10 provided:

• Rule 9: decrees and judgments remain in force for 12 years. Execution may be issued within 6 years; thereafter, leave of the court is required.
• Rule 10: where, within that 12-year period, there has been “any change … by death, assignment or otherwise” in the parties entitled or liable to execution, a party claiming to be entitled may apply on notice for leave to issue execution, and “the original decree or judgment may be amended so as to give effect” to the order made on that application.

Thus, the orthodox route where a mortgagee assigns its interest after obtaining an order for possession is:

1. the assignee applies under O.36, r. 10 for leave to issue execution; and
2. the original possession order is amended to name the assignee as the party entitled to its benefit.

(b) What happened instead: Order 22, r. 4 substitution

Rather than amending the 2019 possession order itself, the plaintiff (or its advisers) pursued a different route. On 9 October 2023, the County Registrar:

1. made an order under Order 22, r. 4 substituting Everyday Finance DAC for Promontoria in the possession proceedings “subject to any arrangements, negotiations and agreements that exist between the parties”; and
2. ordered that all future proceedings be carried on between Everyday and the defendants; and
3. granted leave to issue execution on the 2019 order for possession, with a stay until January 2024.

However, crucially:

• this order did not amend the text of the 2019 possession order to substitute Everyday for Promontoria; and
• no deed of assignment transferring the benefit of the order was placed before the High Court in the injunction proceedings.

In other words, there were strong indications that Promontoria’s mortgage had been transferred to Everyday, but no direct evidence of that transfer was before the court, and the formal mechanism envisaged by O.36, r. 10 – amendment of the decree itself – had not been engaged.

(c) Status of the 9 October 2023 order

Although the judge expressed reservations about the procedural correctness of using O.22 r. 4 in concluded proceedings, she held that the order of 9 October 2023 must presently be treated as valid and binding. Relying on Crowley v Ireland [2022] IEHC 596 (upheld on appeal), she held that:

An order of a court stands as a valid order unless and until it is set aside on appeal or on judicial review, even if it may have been granted on a mistaken legal basis.

Since the defendants had never appealed or judicially reviewed the 2023 order, Everyday was entitled, at least, to rely on the leave to execute contained in paragraph 3 of that order. But that did not in itself prove:

• that Everyday had taken a valid assignment of Promontoria’s substantive mortgage interest; nor
• that it had taken an assignment of the benefit of the 2019 possession order itself.

(d) Consequence for the injunction: a serious question as to Everyday’s title

The court considered whether, even if execution was defective, Everyday could still obtain an interlocutory injunction on the basis that:

• the 2019 possession order remained valid; and
• Everyday was, in substance, the mortgagee entitled to that order as assignee.

The judge accepted that:

• If Everyday were clearly named as the beneficiary of the possession order (for example, via a formal amendment under O.36, r. 10), it would readily satisfy both:
  • the standard Maha Lingham (or Campus Oil) test for an interlocutory injunction; and
  • the more robust Keating principle, entitling it to relief “as of right” once its right to possession had been determined.
• Alternatively, a properly-evidenced deed of assignment might establish Everyday’s entitlement to the benefit of the order, though the judge expressly noted she did not need to decide that point.

But because:

• the 2019 order had not been amended to name Everyday as beneficiary; and
• no deed of assignment or equivalent evidence was produced,

the court held there was a “serious question to be tried” as to whether Everyday was entitled to rely on the 2019 possession order in seeking an interlocutory injunction. Combined with the serious question regarding the lawfulness of execution, this justified refusing interlocutory relief.

3.6 The continuing life of the possession order: Carlisle Mortgages v Costello

The judgment concludes by addressing the status of the 2019 possession order in light of the alleged defects in execution. Drawing on Carlisle Mortgages Ltd v Costello [2018] IECA 334, the judge adopts the principle that:

A defect in the process of execution does not render the original order for possession “spent” or exhausted. The order endures and may be the subject of a fresh, lawfully conducted process of execution.

Accordingly:

• If, at trial, it is found that possession was not lawfully recovered in April 2025, the 2019 order remains valid and can still be executed.
• Everyday already holds an unchallenged 2023 order granting it leave to issue execution on the 2019 order.
• It may therefore apply again for an execution order and initiate a new execution process, this time ensuring compliance with the statutory framework governing court messengers and proper proof of its title as assignee.

4. Precedents and Authorities Cited

4.1 Start Mortgages DAC v Rogers [2021] IEHC 691

Rogers is cited to support the proposition that where a mortgagee has obtained and executed an order for possession, an injunction restraining the mortgagor from trespassing on the property is properly classified as a prohibitory injunction. The mortgagor is no longer in lawful possession; the mortgagee is simply seeking to preserve the rights established by the earlier court order.

4.2 Keating v Jervis Shopping Centre Ltd [1997] 1 I.R. 512

This case stands for the proposition that where a plaintiff has already established a legal right (e.g., to possession of property), the grant of an interlocutory injunction to protect that right may be approached differently from a typical interim application. Rather than applying the full Campus Oil/Maha Lingham balancing exercise, the court may treat such an injunction as almost automatic (“as of right”), because it gives practical effect to an adjudicated right rather than preserving the status quo pending trial.

In Everyday Finance v Carroll, this principle would ordinarily favour the mortgagee, but it was undermined here by doubts about the lawful execution and by uncertainty as to Everyday’s status as beneficiary of the possession order.

4.3 Start Mortgages DAC v Kavanagh [2025] IECA 127

Although the High Court does not elaborate on the full facts of Kavanagh, it is clear that the Court of Appeal there upheld a refusal of interlocutory relief where there were doubts over the lawfulness of the execution process. The present judgment follows that approach: where serious questions arise as to whether execution was carried out by a lawfully authorised person, the court should not proceed on the basis that the mortgagee is validly in possession for the purpose of an interlocutory injunction.

Thus, Kavanagh functions as a significant authority constraining the otherwise broad power of mortgagees to secure injunctive relief post-execution.

4.4 Crowley v Ireland [2022] IEHC 596; [2023] IECA 847

Crowley is invoked for a constitutional and procedural proposition: a court order that has not been appealed or judicially reviewed stands as valid and binding, even if it is alleged to have been wrongly made. The remedy for an allegedly erroneous order lies in appeal or judicial review, not in collateral attack in subsequent proceedings.

Here, that principle validates the 9 October 2023 order of the County Registrar, which:

• substituted Everyday as plaintiff in the historic possession proceedings, and
• granted it leave to issue execution on the 2019 order.

The defendants’ failure to challenge that order means the High Court was obliged to treat it as effective, despite potential doctrinal concerns about the use of O.22 r. 4 in concluded proceedings.

4.5 Carlisle Mortgages Ltd v Costello [2018] IECA 334

Carlisle is authority for the proposition that an order for possession is not “spent” merely because steps have been taken to execute it, even if those steps are later held to have been defective or invalid. The order retains its legal force within the 12-year lifespan contemplated by O.36, r. 9 and can be the subject of a new, lawfully conducted execution process.

The application of this principle in Everyday Finance v Carroll reassures mortgagees that procedural mistakes in execution – including potentially serious defects in the authority of the enforcement officer – do not require a fresh possession action; the existing order can still be used, provided leave to execute is obtained where required.

4.6 The Maha Lingham / Campus Oil test (background authority)

While not fully set out in the judgment, the court refers to the “Maha Lingham test”. This is shorthand for the principles governing the grant of interlocutory injunctions, as consolidated in Maha Lingham v Health Service Executive and originally developed in Campus Oil v Minister for Industry and Energy. In summary:

1. The plaintiff must show there is a serious question to be tried (i.e., a non-frivolous claim).
2. Damages must be an inadequate remedy for the plaintiff if relief is refused.
3. The court must consider the balance of convenience/justice between the parties.

The judge notes that Everyday would easily meet this test if it could prove its entitlement to the 2019 possession order, but because its title and the lawfulness of execution are in doubt, its application falters at a more basic level.

5. Complex Concepts Explained

5.1 County Registrar vs Circuit Court Judge

In Irish civil procedure, a County Registrar is a quasi-judicial officer attached to the Circuit Court, with power to hear certain types of applications, including (under Order 5B) summary applications for possession on foot of mortgages, where no defence affidavit is filed. Where a defence affidavit is filed, the matter must be transferred to the Circuit Court judge.

5.2 Appearance and defence affidavit

• Appearance: a simple procedural step by which a defendant indicates that they wish to participate in the proceedings. It does not, by itself, disclose any defence.
• Defence affidavit: in the summary possession context, the defendant must file an affidavit responding to the plaintiff’s affidavit, expressly setting out the defence. Only then is the claim treated as genuinely contested and transferred to the judge’s list.

5.3 Mortgagee in possession

A “mortgagee in possession” is a lender (or its assignee) who has lawfully taken possession of the mortgaged property, either by agreement or, as here, by executing a court order for possession. Once in possession, the mortgagee owes certain duties (e.g., to account for rents, to take reasonable care of the property) but is also entitled to protect that possession from interference, including by the mortgagor.

5.4 Trespass in this context

When a court has granted and executed an order for possession in favour of the mortgagee, the mortgagor no longer has a legal right to occupy the property. If the mortgagor re-enters without the mortgagee’s consent, he or she is a trespasser. An injunction restraining such re-entry or continued occupation is therefore framed as a remedy for trespass.

5.5 Execution order and warrant

• Execution order: a court order (here, a Circuit Court execution order in Form 23) authorising enforcement of an earlier judgment (e.g., an order for possession).
• Warrant: a document issued by the County Registrar to a named court messenger, empowering that messenger to carry out the specific execution order (e.g., to enter a property and deliver possession to the mortgagee).

5.6 Court messenger, sheriff, bailiff, and “special bailiff”

• Court messenger: a Courts Service employee appointed under s. 4 of the Enforcement of Court Orders Act 1926 to execute orders for the County Registrar in counties without a sheriff (most counties).
• Sheriff: an office established by the Courts Officers Act 1945. In Dublin and Cork, sheriffs, rather than County Registrars, execute certain court orders.
• Bailiff: historically, an enforcement officer acting under a sheriff. In the context of court messengers, the Law Reform Commission notes that court messengers perform functions similar to bailiffs.
• “Special bailiff”: not a statutory category in the 1926 Act; it appears to have been used here to denote an ad hoc or exceptional enforcement role. The judge treats its use as an indication that Mr Gallagher was not being described as a duly appointed court messenger, which is one of the reasons why the presumption of regularity could not be invoked.

5.7 Presumption of regularity – omnia praesumuntur rite esse acta

This Latin maxim means “all things are presumed to have been done duly and in the usual manner”. In practice, it allows a court to assume that public officials (such as County Registrars) have complied with legal requirements, unless there is evidence to the contrary. However, it cannot be used to override clear indications on the face of the documents that something is amiss. Here, far from appearing regular, the documents suggested that the correct statutory pathway (appointment as court messenger) had not been followed.

5.8 “Spent” order

Sometimes it is argued that once an order (e.g., a possession order) has been executed, it is “spent” and cannot be used again, even if execution was defective. Carlisle Mortgages and this judgment reject that. Unless the order has been set aside or has expired by lapse of time, it remains in force and can be executed again, provided the procedural steps (e.g., leave to execute, proper warrants) are followed.

5.9 Interlocutory injunction: serious question to be tried and balance of justice

• Serious question to be tried: the plaintiff’s claim must be arguable and not frivolous. Where serious questions arise on central issues like lawful execution or title to sue, the court may refuse interim relief, particularly when the plaintiff is seeking to assert an already-contested right to possession.
• Balance of justice (or convenience): even if a serious question exists, the court considers whether it is more just to grant or refuse an injunction pending trial – weighing hardship to both sides and the adequacy of damages.

In property/injunction cases where a party’s right has been finally determined (e.g. by a judgment), the Keating principle may displace the usual balancing exercise. But here that principle was unavailable because both execution and title were in doubt.

6. Impact and Significance

6.1 For mortgagees and loan purchasers

The judgment sends several clear messages to lenders and purchasers of non-performing loans:

1. Formal proof of title as assignee is essential.
   It is not enough to rely on a general substitution order in concluded proceedings. Assignees should:
   • ensure that, where appropriate, the original possession order is amended under O.36, r. 10 to name them as the party entitled to execution; and/or
   • be prepared to adduce clear documentary evidence (e.g. deeds of assignment) demonstrating that they have acquired the mortgage and the benefit of the order.
   Without such proof, their ability to obtain urgent injunctive relief – even in the face of an apparently uncontroversial possession order – may be significantly weakened.
2. Scrupulous compliance with enforcement procedure is vital.
   Lenders must satisfy themselves that:
   • execution orders are properly directed to the relevant sheriff or County Registrar;
   • the County Registrar appoints and authorises court messengers, not ad hoc “special bailiffs”, to execute possession orders; and
   • warrants and endorsements clearly identify the enforcement officer as a duly appointed court messenger where the 1926 Act applies.
   Missteps – even apparently technical ones, such as misdescribing the enforcement officer – can be enough to raise “serious questions” that defeat applications for interlocutory relief.
3. Defects in execution are correctable, but cause delay and cost.
   While the order itself is not spent, any need to recommence execution means additional time, expense, and litigation risk. Lenders will have to balance the cost of meticulous procedural compliance at the outset against the far greater expense of defective execution challenged years later.

6.2 For defendants/mortgagors

From the defendants’ perspective, the judgment confirms:

• Entering an appearance without filing a defence affidavit will not protect against a summary order for possession in the Circuit Court. The Rules require both steps.
• However, if there are credible grounds to question whether the enforcement officer was lawfully appointed and authorised (e.g., misdescription as “special bailiff” rather than court messenger), such issues can amount to a serious question to be tried sufficient to resist interim injunctions and potentially to challenge the lawfulness of execution itself.
• Crucially, this does not nullify the underlying possession order. Defendants should not assume that success on procedural points will ultimately prevent the lender from taking possession; rather, it may only delay enforcement and create space for negotiation or restructuring.

6.3 For the Courts Service and procedural reform

The judgment indirectly highlights a need for clarity and consistency on the part of the Courts Service and County Registrars:

• Documentation (warrants, endorsements) should consistently describe enforcement officers in the statutory terms (“court messenger”) where they are acting in that capacity, avoiding improvised terminology such as “special bailiff” that may suggest irregularity.
• Consideration might be given to updating standard forms (such as Form 23) and to issuing guidance on cross-county enforcement where officers such as sheriffs may be involved outside their home counties, if that is intended to occur.

More broadly, the case illustrates the importance of aligning practice with the legislative changes introduced by the Private Security Services (Amendment) Act 2021, particularly the new definitional structure around court messengers and enforcement guards.

6.4 Doctrinally: presumption of regularity and its evidential threshold

Perhaps the most important doctrinal contribution of the judgment lies in its nuanced treatment of the presumption of regularity. The court makes clear that:

• The presumption is not a blunt instrument that cures all visible irregularities; it operates only where the face of the documents suggests compliance with legal requirements.
• Where the documents themselves use terminology that departs from the statutory language (e.g., “special bailiff” instead of “court messenger”), a court is entitled to infer that the underlying statutory steps may not have been taken.

This sets a relatively high bar for those seeking to rely on the presumption in enforcement contexts and underscores the need for precision in the drafting and issuing of warrants and related documents.

7. Conclusion

Everyday Finance DAC v Carroll [2025] IEHC 626 is a significant addition to Irish case law on mortgage enforcement, execution of possession orders, and interlocutory relief. Its key contributions can be summarised as follows:

1. County Registrar jurisdiction is robust where no defence affidavit is filed.
   The judgment confirms, using the Interpretation Act 2005, that Order 5B, r. 7(1)(e) permits County Registrars to grant possession orders even where an appearance has been entered, provided no defence affidavit is delivered. Defendants who rely merely on entering an appearance, without more, cannot later complain of a jurisdictional defect.
2. Mortgagees in possession generally enjoy strong protection – but only after lawful execution.
   In principle, a mortgagee who has lawfully executed a possession order is entitled to injunctive protection as of right, and an injunction restraining the mortgagor from re-entering is properly characterised as prohibitory. Yet this strong position depends critically on demonstration that execution was lawful and that the applicant is indeed the party entitled to the benefit of the underlying order.
3. Execution must comply strictly with the court messenger regime.
   The court reaffirms that enforcement in non-sheriff counties must be carried out by duly appointed court messengers, acting under warrants issued under s. 5 of the 1926 Act. The repeal of the publication requirement in 2021 does not permit ad hoc appointment by warrant alone, nor does it dispense with the need for formal appointment.
4. The presumption of regularity has real but limited reach.
   It cannot be used to gloss over visible irregularities on the face of warrants or endorsements. Where such documents use non-statutory terminology (“special bailiff”, “sheriff” of another county) instead of “court messenger”, a court may properly treat this as raising a serious question about the lawfulness of execution.
5. Assignees must prove their entitlement to the benefit of possession orders.
   Substitution as plaintiff in concluded proceedings, without amendment of the original order or production of a deed of assignment, may not suffice to demonstrate title for the purpose of interlocutory relief. Assignees must address both the substantive transfer of the mortgage and the procedural recognition of that transfer in the order.
6. Defective execution does not exhaust the order.
   Following Carlisle Mortgages, the judgment confirms that a possession order remains in force even if an attempt at execution is later found to have been defective. The order can be the basis of fresh execution, subject to compliance with the applicable rules and any need for leave.

In practical terms, the case is a cautionary tale for mortgagees, assignees, and enforcement officers: formal compliance with procedural and statutory requirements is not a mere technicality but a condition precedent to the powerful remedies that follow from being a mortgagee in possession. For defendants, it clarifies both the limits of jurisdictional challenges to County Registrar orders and the potential for procedural defects in execution to provide a real, if often temporary, line of defence. In doctrinal terms, it sharpens the law on the interplay between assignment, execution, and the presumption of regularity in the enforcement of possession orders.