Clean Hands, Abuse of Process and Delay: Governing Interlocutory Injunctions in Property Receivership (Kehoe v Promontoria)

Introduction

Kehoe v Promontoria (Aran) Ltd & Anor [2025] IEHC 286 is a High Court decision delivered by Mr Justice Nolan on 20 May 2025. The plaintiff, Declan Kehoe, challenges the validity of the appointment of a receiver over two investment properties and seeks interlocutory injunctions to restrain their sale. The defendants are Promontoria (Aran) Ltd (successor‐in‐title to Ulster Bank’s security) and Ken Fennell, the appointed receiver. The dispute arises from loans taken out between 2008 and 2011, secured by an “all sums due” mortgage on two properties—the Kerry Property (Tralee) and the Dorset Street Property (Dublin). After the loans were transferred to Promontoria in 2015, a receiver was appointed and began enforcement, including sales of other secured assets. Kehoe has issued three prior sets of proceedings on similar grounds, all of which were discontinued or dismissed. In this fourth application, he seeks mandatory and prohibitory orders under Section 103 of the Land and Conveyancing Law Reform Act 2009 and injunctive relief under the Registration of Title Act 1964.

Summary of the Judgment

The court refused all interlocutory relief. Mr Justice Nolan held that:

Kehoe does not come to court with “clean hands”—he made false and misleading sworn statements about the Kerry Property being a family home when in fact it was rented.
The proceedings amount to an abuse of process under the rule in Henderson v Henderson—the same relief was sought in 2016 and 2018 and never prosecuted.
There has been an unexplained and unconscionable delay (events date back to 2015), which bars equitable relief.
Aside from a narrow facility‐letter point, no serious issue to be tried arises. Even if it did, damages would be an adequate remedy and the balance of convenience lies with the defendants.
No mandatory application under the Registration of Title Act 1964 was required for out‐of‐court sale; the statutory power to sell need not be preceded by a possession order when vacant possession is not sought.

Costs were ordered against the plaintiff in the ordinary course, with a return date fixed for the form of order and costs submissions.

Analysis

1. Precedents Cited

Henderson v Henderson [1843] 3 Hare 100 – establishes that once relief is sought (or could have been sought) in earlier proceedings, it is an abuse to raise it again.
Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65 – confirms the test for interlocutory injunction: (i) fair question to be tried; (ii) balance of convenience including adequacy of damages.
Tanager DAC v Kane [2019] 1 I.R. 385 and Tyrrell v O’Connor [2022] IEHC 274 – affirm that registration of a charge is conclusive evidence of title under the Registration of Title Act 1964, subject only to fraud or mistake.
Moffitt v Agricultural Credit Corporation [2007] IEHC 245 – explains distinction between res judicata and abuse of process (Henderson rule).

2. Legal Reasoning

Nolan J applied well-established equitable maxims and procedural rules:

Clean Hands: A litigant seeking equitable relief must be candid. Kehoe’s repeated affirmations that the Kerry Property was never rented—and was a family home—were belied by documentary evidence of leases and correspondence demanding rent. This undermined his credibility and barred equitable relief.
Abuse of Process (Henderson v Henderson): Kehoe had twice before sought identical relief via special summons (2016) and plenary summons with lis pendens (2018), neither prosecuted. By re-opening the same issues, he offends against finality and judicial economy.
Delay: Events giving rise to the dispute date from 2015 (loan transfer, receiver appointment, property sales). A nine-year delay without adequate explanation disentitled him to urgent interlocutory relief.
Interlocutory Injunction Test:
1. Fair Question to Be Tried: All but one point were unsustainable; Kehoe’s late reliance on a facility letter raised at best a borderline issue.
2. Balance of Convenience:
  - Defendants face no irreparable harm—they seek to enforce a registered security long in default. Any breach can be compensated in damages.
  - Kehoe’s alleged loss is purely pecuniary; damages would adequately compensate him if he succeeds.
  - The equities overwhelmingly favor the defendants, who have conducted the receivership and property sales for years.
Registration of Title Act 1964: Section 62(7) creates a summary route to possession but does not mandate a court order before sale. When vacant possession is not sought (as here), a mortgagee may sell out of court without invoking Section 62.

3. Impact

This judgment crystallizes several doctrines for future receivership and mortgage enforcement cases:

Litigants cannot disguise the true nature of property occupation to procure interlocutory relief—false affidavits will result in immediate refusal on “clean hands” grounds.
Persistent or repetitive litigation on identical grounds will be struck out as abuse of process under Henderson v Henderson, even if packaged as new applications.
Equity disfavors inordinate delay. Parties must seek injunctive or protective orders promptly after enforcement steps; multi-year delays are fatal.
Affirms that registered mortgagees and their receivers may sell without prior possession orders so long as vacant possession is not required by the purchaser.

Complex Concepts Simplified

Clean Hands: A principle that you must be truthful and fair in court if you want the court’s equitable protection. Misleading or false statements destroy your right to relief.
Abuse of Process (Henderson Rule): You cannot split a single dispute into multiple lawsuits or repeatedly re-run claims that were or could have been raised previously.
Interlocutory Injunction: A temporary court order that stops someone from doing something until the full case is decided. To get one you must show a real issue to try, that damages won’t fix the problem, and that the balance of harm favors you.
Registered Title Conclusiveness: Once a mortgage is registered in the Land Registry, it is proof of the lender’s security and can only be challenged if there was fraud or a formal land-registry mistake.

Conclusion

Kehoe v Promontoria firmly reinforces that equitable relief in property receivership disputes requires candor, promptness, and respect for prior proceedings. False affidavits, repeated litigation, or long delays will summarily defeat interlocutory injunctions. Registered mortgagees and their receivers may rely on the Land Registry to enforce and sell secured assets without interim court orders for possession, so long as vacant possession is not a precondition. This decision will guide practitioners in drafting clear affidavits, assessing the viability of urgent relief, and advising clients on the finality of mortgage enforcement once security is duly registered.