When Mortgage Borrowers Are Not Consumers: Non‑Consumer Warranties, EU Unfair Terms Law and Interlocutory Relief in Coyle v Everyday Finance DAC [2025] IEHC 666

1. Introduction

This commentary examines the decision of Nolan J in the High Court of Ireland in Coyle v Everyday Finance DAC & Ors [2025] IEHC 666, delivered on 28 November 2025. The case concerns an application by Mr Paul Coyle (“the Plaintiff”) for an interlocutory injunction to restrain the enforcement of a mortgage over a property known as “Claddagh Cottage”, Naas, Co. Kildare.

The judgment is notable for three interlocking points:

1. Its treatment of the concept of “consumer” under EU law in a mortgage context where the borrower has expressly warranted that he is not a consumer and has the benefit of legal advice.
2. Its application of the Campus Oil / Okunade / Merck line of authority on interlocutory injunctions, with a strong emphasis on adequacy of damages and the requirement of a meaningful undertaking as to damages.
3. Its clear differentiation between family homes (where EU law and fundamental rights to accommodation may justify stronger interim protection) and commercial/investment properties, even if physically adjacent to a family home.

While the Plaintiff alleged unlawful assignment of the mortgage, lack of enforcement entitlement, trespass, unjust enrichment and breaches of Central Bank regimes, the Court’s refusal of injunctive relief turned primarily on: (i) adequacy of damages; (ii) his non‑consumer status; (iii) the commercial nature of the property; (iv) prolonged non‑payment; and (v) his inability to give an effective undertaking as to damages.

2. Background and Factual Matrix

2.1 The Parties and the Property

• Plaintiff: Paul Coyle, an individual borrower, previously involved in litigation (including Re Decobake Ltd), described by the Court of Appeal there as “apparently impecunious”.
• First Defendant: Everyday Finance Designated Activity Company (“Everyday”), trading as Link Financial – the current holder of the mortgage and loan.
• Second Defendant: John Boland – appointed by Everyday as its agent to take possession, manage, let or sell the property.
• Third Defendant: BIDX1 Ireland Ltd – an auction/online sales platform involved in marketing/sale.
• Fourth Defendant: Tailte Éireann – the land registration authority (successor to the PRAI).
• Fifth Defendant: The Attorney General – typically joined in constitutional/EU law challenges, though no detailed constitutional claim is explored in the judgment as relevant to this interim application.

The property in issue, “Claddagh Cottage”, is contained in Folio 47312F, Co. Kildare. It adjoins the Plaintiff’s family home and shares a driveway. Crucially for the outcome, the Court finds that Claddagh Cottage is not part of the Plaintiff’s family home but is, in reality, used for commercial/business purposes.

2.2 The Mortgage and its Assignments

The mortgage history, set out at paras 5–13, is relatively standard in the modern Irish context:

1. 2005: The Plaintiff and his wife remortgaged their home with IIB Home Loans Limited (“IIB”) to purchase Claddagh Cottage. A loan of €460,000 was advanced; a legal charge was created over the property and registered on 1 November 2005.
2. Corporate Changes:
   • 2008: IIB was converted into an unlimited company and renamed KBC Mortgage Bank.
   • KBC Mortgage Bank transferred its banking business to KBC Bank Ireland plc.
3. Loan Sales / Assignments:
   • 30 November 2018: KBC assigned its rights under the loan and mortgage to Beltony Property Finance DAC.
   • 7 August 2020: Beltony assigned its interest to Pepper Finance Corporation (Ireland) DAC (“Pepper”).
   • 19 May 2023: Pepper assigned its rights, title and interest to Everyday Finance DAC.
4. Receiver and Agent:
   • 9 June 2021: While Pepper still held the loan, a receiver was appointed arising from default.
   • On transfer to Everyday, a Receiver Novation Deed was executed, substituting Everyday for Pepper.
   • 20 January 2025: Everyday appointed Mr Boland (Second Defendant) as its agent to take possession and manage/sell the property.

By the time of the hearing, the amount due on the original mortgage had increased to €560,387, and the Plaintiff had other significant liabilities. The Court finds (para. 37–38) that he had not made any mortgage repayments since around 2011, when the loan was still with KBC (successor to IIB), well before any sale to Beltony, Pepper or Everyday.

2.3 The Plaintiff’s Allegations

The Plaintiff, a litigant in person with a diagnosis of ADHD (for which the court provided procedural accommodations), advanced a series of arguments, including that:

• the assignment of the mortgage was unlawful or invalid;
• the Defendants had no contractual entitlement to enforce the loan;
• the Defendants trespassed on the property;
• any sale would constitute unjust enrichment; and
• there were issues arising from FSPO complaints and the Central Bank’s Tracker Mortgage Examination.

He also asserted that:

• he is a “consumer” under EU law and Irish consumer legislation,
• the mortgage terms allowing assignment “on whatever terms [the lender] may think fit” are unfair terms within the meaning of Council Directive 93/13/EEC, and
• by reason of those EU law protections, damages could not be considered an adequate remedy and he was entitled to equitable relief preserving the status quo pending trial.

3. Summary of the Judgment

3.1 The Interlocutory Injunction Framework

Applying Campus Oil v Minister for Industry and Commerce [1983] IR 88, as refined in Okunade v Minister for Justice [2012] 3 IR 152 and Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65, Nolan J reaffirmed that the court must:

1. Determine whether there is a fair question to be tried (or “arguable case”).
2. If so, consider whether damages would be an adequate remedy for each party if the injunction is granted or refused.
3. Weigh the balance of convenience/balance of justice, taking account of all relevant factors, including the possibility that there may never be a trial.
4. Require, as an “essential quid pro quo”, a meaningful undertaking as to damages from the applicant.

3.2 Findings

Nolan J held as follows:

1. Fair question to be tried conceded: Counsel for Everyday and Mr Boland conceded that the Plaintiff had raised a fair issue to be tried as to the transfer and assignment of the mortgage. The Court accepted this concession and did not conduct a detailed merits analysis at this stage (para. 20).
2. Plaintiff not a consumer for this transaction:
   • The Plaintiff had executed an “amended letter of offer” dated 4 July 2005 which contained a special condition, clause 333, in the section headed “Matters for the attention of Broker/Client – Advisory”.
   • Clause 333 stated:

     “The Borrower warrants to the Lender that in accepting this loan facility, he is acting within his business, trade or profession and is thereby not a ‘consumer’ within the meaning of the Consumer Credit Act 1995 – Section 2.”

   • The Plaintiff had the benefit of legal advice at the time. The clause was expressly brought to the attention of both borrower and solicitor (para. 31–32).
   • On the facts, including later commercial use of the property, the Court “finds as a fact” that the Plaintiff was not a consumer when he gave this warranty and entered the mortgage (para. 36).
3. EU consumer/unfair terms law not engaged in a way that affects adequacy of damages:
   • The CJEU cases invoked by the Plaintiff (GR Real s.r.o. v PO and RT, Case C‑351/23; Costea v Volksbank Romania, Case C‑110/14; Gruber v BayWa AG, Case C‑464/01) were distinguished.
   • GR Real was focused on protection of a family home and the fundamental right to accommodation under Article 7 of the Charter, in the context of potentially non-transparent acceleration clauses (paras. 23–25).
   • Those circumstances did not apply here: Claddagh Cottage is not the Plaintiff’s family home, there was no similar transparency issue, and the Plaintiff was not a consumer.
   • Accordingly, the line of CJEU authority which stresses that consumers must not be limited to “subsequent protection of a purely compensatory nature” (para. 24, 27) did not render damages an inadequate remedy in this case.
4. Property is commercial/investment, not family home: The Court found that the property was, in reality, used for business/commercial purposes. Photographic evidence showed commercial activity. The Plaintiff’s own description of the property as “vital to his business and family life” undermined his claim that it was purely for residential/family use (paras. 48, 52).
5. Damages are an adequate remedy for the Plaintiff:
   • Given the Plaintiff’s non‑consumer status, the commercial nature of the property, and the availability of monetary compensation if he ultimately succeeded at trial, damages were held to be adequate (paras. 54–56).
   • The Court emphasised the Supreme Court’s guidance in Merck that courts in commercial disputes should be “robustly sceptical” of claims that damages are not adequate (para. 49).
6. Serious and prolonged default: The Plaintiff had not made any payments since approximately 2011. His explanation that he withheld payments because of doubts about the lenders’ title was inconsistent with the fact that, at the time of default, the original lender (IIB/KBC) still held the mortgage (paras. 37–38).
7. Registered title and receiver presumptively valid: Everyday holds registered title as mortgagee, and a receiver was validly appointed. The Court refers to Tanager DAC v Kane [2019] IESCDET 80 for the proposition that the land folio is prima facie conclusive evidence of title (para. 55).
8. Undertaking as to damages deficient:
   • The Plaintiff did not give any undertaking as to damages in his first two affidavits (March and April 2025).
   • Only in June 2025 did he state:

     “For the avoidance of doubt, the plaintiff confirms that he offers all undertakings required for the grant of interlocutory injunctive relief, including an undertaking as to damages.”

   • When questioned, he relied on an assertion that four acres of unencumbered land existed, supported only by a marked-up photograph and speculative valuations (€20,000–€25,000 per acre) (paras. 58–59).
   • Given his apparent impecuniosity (as noted in Re Decobake) and the lack of concrete evidence, the Court held that he was not in a position to give a meaningful undertaking as to damages (paras. 59–60).
9. Balance of justice / convenience favours refusal:
   • The Defendants, as registered mortgagees, would suffer loss if restrained from realising their security while no payments are being made.
   • The Plaintiff’s interest in the property is ultimately financial and compensable in damages, whereas the lender faces an increasing debt with no income and no security realisation.
   • On the approach explained by Clarke C.J. in Charlton v Scriven [2019] IESC 28, the Court must fashion the order that carries the least risk of injustice. Nolan J held that refusing the injunction meets that test (paras. 50–56, 61).

On that basis, the Court refused the application for an interlocutory injunction (para. 62).

4. Precedents Cited and Their Role in the Decision

4.1 The Interlocutory Injunction Trilogy: Campus Oil, Okunade, Merck

Nolan J grounds his approach in the well‑known Irish authorities on interlocutory relief:

• Campus Oil v Minister for Industry and Commerce [1983] IR 88 – established the classic test: fair issue, damages, balance of convenience.
• Okunade v Minister for Justice [2012] 3 IR 152 – refined the approach in public law contexts, emphasising a flexible “balance of justice” standard.
• Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65 – the Supreme Court (O’Donnell J) restated and rationalised the test, stressing:
  • the primary task being to “do justice between the parties pending the trial”;
  • the central importance of adequacy of damages;
  • robust scepticism in commercial cases towards claims that damages are inadequate; and
  • the need for essential flexibility and recognition that many disputes never reach full trial (para. 18 of the judgment, quoting Merck).

The High Court’s analysis faithfully applies these principles. Once the Defendants concede a fair question to be tried, the focus decisively shifts to adequacy of damages and the broader balance of justice.

4.2 Perfect Stripe Ltd t/a Grafter v Fennell [2025] IEHC 585

Nolan J cites Twomey J’s recent reaffirmation in Perfect Stripe that to obtain interlocutory relief the plaintiff must establish:

1. a fair issue to be tried; and
2. that the balance of justice or convenience favours the grant of the injunction.

This simply restates the orthodox position and underlines that the balance of justice stage is not a mere afterthought but a substantive threshold the plaintiff must clear.

4.3 EU Unfair Terms and Consumer Law: GR Real, Costea, Gruber

4.3.1 GR Real s.r.o. v PO and RT, Case C‑351/23

This recent CJEU decision concerned Articles 6(1) and 7(1) of Council Directive 93/13/EEC on unfair terms in consumer contracts. A bank called in a loan, sold the consumers’ home via extra‑judicial auction, and secured an eviction order. The referring Slovak court had doubts about the transparency of an acceleration clause in the bank’s general conditions (para. 23).

Key points highlighted by Nolan J:

• At para. 60 of GR Real, the CJEU stressed the special protection accorded to a family home and the fundamental right to accommodation under Article 7 of the Charter.
• At para. 92, the Court emphasised that Article 7(1) of the Directive requires that a consumer should not be deprived of the possibility of obtaining suspension of enforcement proceedings based on a potentially unfair term. Absent such suspension, later compensatory relief would be “incomplete and insufficient” and thus not an adequate or effective means of preventing continued use of that term.

The Plaintiff sought to use this reasoning to argue that, as an alleged consumer, he must be able to obtain injunctive relief rather than only damages. Nolan J rejected this, on two main bases:

1. Factual distinction: GR Real concerned a family home and a questionable acceleration clause. Here, Claddagh Cottage is not a family home and no such transparency issue was identified (paras. 23–25, 29).
2. Non‑consumer status: The Court held that the Plaintiff is not a consumer as a matter of fact and contract (see below). The Directive and GR Real only apply where there is a “consumer” contract; therefore, the powerful “no purely compensatory protection” logic of para. 92 did not assist him (paras. 27–28).

4.3.2 Costea v SC Volksbank Romania SA, Case C‑110/14

In Costea, the CJEU examined whether a lawyer entering into a credit agreement with unspecified purpose could be treated as a “consumer”. The Court clarified that:

• “Consumer” is defined in Article 2(b) of Directive 93/13 as a natural person acting for purposes outside his trade, business or profession.
• The concept is objective and is based on the person’s role in a particular contract, not on their professional qualifications or level of knowledge (para. 21).
• The underlying rationale is that the consumer is in a weaker position regarding bargaining power and information (para. 18).

Nolan J invokes Costea (para. 26) to emphasise the objective nature of the consumer concept and that a person can be a consumer in some contracts and a professional in others (para. 20 of the CJEU judgment, as quoted).

4.3.3 Gruber v BayWa AG, Case C‑464/01

In Gruber, the CJEU reiterated that “consumer” must be interpreted strictly and by reference to:

“the position of the person concerned in a particular contract, having regard to the nature and aim of that contract and not to the subjective situation of the person concerned, since the same person may be regarded as a consumer in relation to certain supplies and as an economic operator in relation to others.” (para. 36, cited by Nolan J at para. 35)

Nolan J relies on this to:

• underline that each contract must be assessed on its own nature and aim; and
• support his conclusion that, taking account of the express non‑consumer warranty and the commercial use of Claddagh Cottage, the Plaintiff was not a consumer in respect of this loan (paras. 34–36).

4.4 Undertaking as to Damages: Ooi v Ireland [2025] IECA 40

The Plaintiff cited Ooi v Ireland in support of his position, but Nolan J considered that it in fact ran counter to his interests (paras. 40–43).

In Ooi, the Court of Appeal (Meenan J) stressed that:

“It is an essential quid pro quo for the grant of an injunction, even if the applicant for the injunction may not in reality be able to make good their undertaking. … To accede to the submission [that the undertaking could be waived on a bare assertion of inability to pay] would be to drive a coach and horses through this ancient and vitally important requirement …”

Nolan J uses this to emphasise:

• that an undertaking as to damages is a core equitable requirement, not a mere formality;
• that courts should be extremely slow to waive it; and
• that a bare assertion of impecuniosity or unsupported claims about unencumbered assets are insufficient.

4.5 Other Authorities: Báinne Aláinn, Sammon, Philpot, Ryan v Deangrove, Charlton v Scriven

• Báinne Aláinn Ltd v Glanbia plc [2014] IEHC 482 – a pre‑Merck commercial dispute on interlocutory relief. Nolan J regards it as of “limited value” post‑Merck (para. 44).
• Sammon v Tyrell and Everyday Finance DAC [2021] IEHC 6 – involved an injunction against a sale of property where there was a serious dispute about the correct construction of a charge and whether certain liabilities were properly secured.
  • There, the status quo was that the plaintiffs remained in possession of the property.
  • The Court considered that the lesser risk of injustice lay in preserving the status quo pending trial.
  • Nolan J treats this as an example of fact‑sensitivity: different factual matrices can justify different interim outcomes (para. 45–47).
• Philpot v Pepper Finance Corporation DAC [2025] IEHC 199; Ryan v Deangrove [2021] IECA 38 – cited by the Plaintiff but considered not directly relevant; the Court comments that lifting sentences out of context does not advance the Plaintiff’s case (para. 50).
• Charlton v Scriven [2019] IESC 28 – Clarke C.J. emphasised that the role of the court in interim relief is to fashion an order that runs the least risk of injustice. Nolan J explicitly adopts this lens when concluding that refusing the injunction is the less risky course (paras. 50, 56).
• Re Decobake Ltd [2024] IECA 67 – not about injunctions, but relevant to the Plaintiff’s financial position. The Court of Appeal endorsed Cregan J’s description of the Plaintiff as “apparently impecunious” and noted the low prospect of cost recovery (para. 6, 59–60).
• Tanager DAC v Kane [2019] IESCDET 80 – a leave decision but cited for the basic principle that a land folio is prima facie conclusive evidence of registered title (para. 55).

5. Legal Reasoning and Doctrinal Analysis

5.1 A Low Bar: “Fair Question to Be Tried”

The first limb of the test was effectively bypassed by concession. Counsel for Everyday and Mr Boland accepted that there was a fair issue to be tried regarding the assignment of the mortgage and related questions about title (para. 20).

This is tactically significant: defendants in possession/enforcement cases sometimes prefer to concede arguability in order to avoid a mini‑trial on complex documentation at an early stage and to focus the hearing on adequacy of damages and balance of convenience, where lenders typically have stronger arguments.

Nolan J expressly “applaud[s]” this approach as it spared the Court from parsing voluminous documents at the interlocutory stage (para. 20). However, he is careful to distinguish:

• conceding an arguable case, from
• conceding that an injunction should be granted.

The latter requires a separate and more demanding assessment of adequacy of damages and balance of justice (para. 51).

5.2 Adequacy of Damages in a Non‑Consumer, Commercial Property Context

The central substantive battleground was whether damages could adequately compensate the Plaintiff if the property were sold and he later succeeded at trial.

The Plaintiff argued, by reference to EU consumer and unfair terms law, that monetary compensation alone would be “incomplete and insufficient” (echoing GR Real) and that he should be entitled to injunctive relief to suspend enforcement.

Nolan J’s reasoning proceeds in two stages:

5.2.1 Stage 1: Is this a consumer contract within Directive 93/13?

The Court answers “no”, by reference to:

1. The express non‑consumer warranty (Clause 333) (paras. 31–33):
   • The Plaintiff expressly warranted that, in accepting the loan facility, he was acting “within his business, trade or profession” and was not a “consumer” for the purposes of the Consumer Credit Act 1995.
   • This clause was expressly highlighted in the “Matters for the attention of Broker/Client (Advisory)” section, and the Plaintiff had legal advice.
   • The Court notes the internal inconsistency of the Plaintiff’s position: he simultaneously seeks the protection of consumer law while having bargained for and relied on a non‑consumer status in order to obtain the loan.
2. The factual nature and use of the property (paras. 34–36, 48, 52):
   • Although the Plaintiff claimed Claddagh Cottage was bought as part of a “family plan” and to protect privacy, the Court finds that it has been and is used for business/commercial purposes.
   • Photographs filed in the affidavits show commercial activity on the property.
3. EU case law on the consumer concept:
   • Drawing on Costea and Gruber, the Court stresses that “consumer” is an objective notion, and that the same person may be a consumer for some contracts and a professional for others.
   • The focus must be on the “nature and aim” of the contract in question, not the borrower’s subjective narrative or general financial vulnerability.

From these elements, Nolan J concludes:

“I find as a fact that he was not a consumer at the time he made his warranty to IIB with the benefit of legal advice and therefore his EU law argument does not place him in a position in which damages would not be an adequate remedy, in the context of seeking injunctive relief.” (para. 36)

This is an important point of principle: an express non‑consumer warranty, coupled with legal advice and commercial usage, can be decisive in excluding EU consumer law protections at the interlocutory stage.

5.2.2 Stage 2: If not a consumer and not a family home, are damages adequate?

Once EU consumer/unfair terms law is out of the equation, the adequacy of damages is approached in orthodox domestic terms. Relevant considerations include:

• Nature of the property: The property is not the Plaintiff’s family home but a commercial/investment asset. Loss of such an asset is typically monetisable. The court pointedly contrasts this with GR Real, where the family home and fundamental right to accommodation were implicated.
• Commercial context: Merck instructs courts to be robustly sceptical of contentions that damages are not adequate in commercial disputes (para. 17, 49).
• Nature of alleged harm: The Plaintiff’s complaint that the mortgage allowed the lender to assign “on whatever terms it may think fit” was treated as a theoretical concern unsupported by evidence of concrete harm (para. 29).
• Registered charge and receiver: Everyday is registered as mortgagee; the receiver was “on the face of it” validly appointed; the folio is prima facie conclusive of title (para. 55).

On these facts, the Court has little difficulty concluding that:

• any loss the Plaintiff might suffer from a sale (if he later succeeded) could be compensated in damages; and
• this is not the type of case (e.g., eviction from a family home on the basis of a dubious term) in which EU law or domestic equity would normally require preserving the status quo to avoid irreparable harm.

5.3 The Plaintiff’s Default and Its Relevance

The Court places significant weight on the Plaintiff’s long history of non‑payment:

• He had made no payments since 2011 (para. 37–38).
• The explanation that he withheld payments because he doubted the power of sale of later assignees was untenable, as the default began when the original lender (IIB/KBC) still held the mortgage.

From this, the Court infers that:

• the Plaintiff’s disputes concerning assignment and power of sale are not the genuine reason for default, but a subsequent litigation strategy;
• the indebtedness has been growing unchecked for 14 years; and
• granting an injunction in such circumstances would exacerbate the lender’s exposure while the Plaintiff contributes nothing financially.

While non‑payment alone does not automatically preclude injunctive relief, it is obviously a strong factor in the balance of justice. Here it supports the conclusion that the lender, not the borrower, is bearing the ongoing injustice if enforcement is delayed.

5.4 The Undertaking as to Damages

Equity demands that a party seeking an injunction must give a meaningful undertaking as to damages, so that if the injunction later proves unjustified the respondent can be compensated.

The Plaintiff’s conduct on this front was problematic:

• His first two affidavits (March and April 2025) omitted any undertaking.
• Only in June 2025, seemingly in response to the Defendants’ objections, did he offer an undertaking in broad and formulaic terms (para. 57).
• When the Court probed his ability to honour the undertaking, he pointed to four acres of land depicted in a photograph and speculated about possible development value, without documentary proof of ownership, encumbrances, or realistic market value (para. 58–59).

Coupled with his established impecuniosity (Re Decobake), the Court concluded that:

“Pointing to land in a photograph and asserting that it is unencumbered is not enough to satisfy the legal requirement of giving an undertaking as to damages.” (para. 59)

and:

“I do not accept that the Plaintiff is in a position to give an undertaking as to damages…” (para. 60)

This goes to the heart of equitable discretion. Even assuming arguable merits, a plaintiff who cannot offer meaningful security for the harm caused by an injunction is in a structurally weak position. Ooi reinforces that the court should not lightly dispense with this safeguard.

5.5 Balance of Justice and the “Least Risk of Injustice” Test

Applying Clarke C.J.’s formulation in Charlton v Scriven, the Court asks which course— granting or refusing the injunction—carries the lesser risk of injustice, bearing in mind that many such disputes settle or never reach a full trial.

On the Defendants’ side:

• They are registered mortgagees entitled prima facie to enforce; a receiver is in place.
• They face an ever‑increasing unsecured exposure because the Plaintiff has ceased paying.
• An injunction would prevent realisation of their security, without any satisfactory compensation mechanism.

On the Plaintiff’s side:

• His interest is essentially economic; the property is not a family home.
• If he ultimately wins at trial, monetary compensation could be awarded (and the Court sees no reason why such damages would be unquantifiable or speculative).
• He has been in long‑term default and has failed to demonstrate the ability to compensate the Defendants for interim delay.

These factors conduce strongly to refusing relief. Even accepting a fair issue to be tried, the Court holds that the “balance of justice clearly rests with refusing the injunction” (para. 56, 61–62).

6. Complex Concepts Simplified

6.1 What is an Interlocutory Injunction?

An interlocutory injunction is a temporary court order granted before a full trial, usually to preserve the status quo and prevent irreparable harm. It does not decide the case finally. Instead, it is based on:

• whether the claim is at least arguable;
• whether money would adequately compensate either party if the injunction is wrongly granted or refused; and
• which outcome minimises overall unfairness pending the final decision.

6.2 “Adequacy of Damages”

The core question is:

“If the plaintiff later wins the case, can money adequately make up for what they lost by not getting an injunction now?”

If the answer is “yes”, courts are generally reluctant to interfere with the defendant’s rights before trial—especially in commercial disputes.

In contrast, where the loss involves something unique or fundamental—a family home, constitutional rights, or rights to accommodation—courts may find that damages are not an adequate remedy and lean more towards injunctive protection.

6.3 “Consumer” under EU Law

Under Directive 93/13/EEC, a consumer is a natural person acting for purposes outside their trade, business or profession. The concept is:

• objective: it depends on the nature and aim of the specific contract, not the person’s job title or subjective understanding; and
• contract‑specific: the same person can be a consumer in some contracts but not in others.

Consumers enjoy special protection against unfair contract terms, including the right to effective remedies (such as suspension of enforcement) where enforcement is based on a potentially unfair term.

6.4 Can You “Sign Away” Consumer Rights?

EU law generally does not allow consumers to waive their rights simply by contractual wording. A borrower cannot be deprived of consumer protection just because the contract labels them a “non‑consumer” if, in fact, they are acting for private purposes.

However, a non‑consumer warranty can still be:

• evidence of the true nature of the transaction; and
• particularly persuasive where:
  • the borrower had independent legal advice, and
  • the property is used or designed for commercial/investment purposes.

In such cases, courts may be satisfied that the contract genuinely is a non‑consumer transaction, and EU consumer protections do not apply.

6.5 Undertaking as to Damages

An undertaking as to damages is a promise given by the party seeking an injunction:

“If it later turns out that this injunction should not have been granted, I will pay the other side for any loss they suffered because of it.”

Courts treat this as an essential safeguard. Without it, the respondent might be left uncompensated for harm caused by a wrongly granted injunction—especially where assets are frozen or sales are halted.

If the applicant is clearly unable to meet any such liability (for instance, due to insolvency) or offers only vague assertions about available assets, the court may refuse the injunction.

6.6 Registered Land and the Conclusiveness of the Folio

In Ireland, registered land is recorded on a folio maintained by Tailte Éireann. Being recorded as owner of a charge (mortgage) on the folio is prima facie conclusive evidence of one’s title to that charge. This is why cases such as Tanager DAC v Kane are cited: they confirm that, absent compelling contrary evidence, a registered mortgagee is entitled to enforce.

7. Impact and Significance

7.1 Clarifying the Boundary Between Consumer and Commercial Mortgages

The judgment reinforces an important boundary in Irish and EU law:

• Where a mortgage is genuinely entered into for commercial or investment purposes, especially with legal advice and an express non‑consumer warranty, the borrower will struggle to claim “consumer” status.
• Absent consumer status, the powerful CJEU jurisprudence on unfair terms, suspension of enforcement, and the inadequacy of purely compensatory remedies will generally not apply.

Practically, this underscores the importance of precise drafting in loan offers and mortgages:

• Express non‑consumer warranties, clearly brought to the borrower’s and solicitor’s attention, will carry substantial evidential weight.
• Lenders can rely on such provisions to resist attempts to recast commercial loans as de facto consumer/home protection cases at the enforcement stage.

7.2 Family Home versus Adjacent/Investment Properties

The judgment also draws a sharp line between:

• a family home, directly engaging Article 7 of the Charter (right to accommodation) and strong EU/constitutional protection; and
• other properties (including those physically adjacent to the family home), where use and contractual classification show a business/investment purpose.

Borrowers sometimes argue that properties adjacent to or associated with the family home merit equivalent protection. Nolan J’s analysis suggests that:

• what matters is function, not proximity;
• if the property is in reality a commercial asset, courts are far more likely to see damages as adequate.

7.3 High Threshold for Borrowers in Long‑Term Default

For borrowers in prolonged default seeking to restrain enforcement, this case underlines:

• Long‑term non‑payment (here 14 years) weighs heavily against interim relief.
• Arguments about defects in assignment or power of sale are less persuasive where default predates any assignment.
• Courts are acutely aware of the lender’s growing exposure during protracted litigation.

This does not mean that all borrowers in arrears will be refused injunctions, but the cumulative factors in Coyle—commercial property, non‑consumer, long default, weak undertaking—make the refusal almost inevitable.

7.4 Reaffirmation of the Centrality of Undertakings

The judgment strongly reaffirms that the undertaking as to damages is an “ancient and vitally important requirement” of equitable relief (via Ooi). Litigants in person sometimes underestimate this; Nolan J’s approach sends a clear signal that:

• the court will scrutinise not only whether an undertaking is given, but whether it is plausible that it could be honoured; and
• mere assertions without documentary backup are insufficient.

7.5 EU Law and Domestic Interlocutory Relief

Finally, the case contributes to an emerging pattern in which Irish courts:

• acknowledge the strength of CJEU jurisprudence on effective consumer protection and fundamental rights; but
• confine those principles to genuine consumer/family home scenarios and do not allow them to displace domestic equitable principles in commercial settings.

While GR Real and related cases might demand more robust interim protection for consumers facing loss of a home on the basis of potentially unfair terms, Coyle suggests that such protection will not be extended to borrowers who have, in substance and form, engaged in a business‑type transaction.

8. Conclusion

Coyle v Everyday Finance DAC confirms and refines several important points in Irish mortgage enforcement law and interlocutory relief:

1. Consumer status is contract‑ and fact‑specific. An express non‑consumer warranty, highlighted to the borrower and their solicitor, and backed by commercial use of the property, can lead the court to find that the borrower is not a consumer and therefore cannot invoke Directive 93/13 or CJEU case law to argue that damages are inherently inadequate.
2. Family homes attract different considerations. The strong EU protection articulated in GR Real—including the insistence that consumers not be limited to “subsequent protection of a purely compensatory nature”—remains primarily relevant to family homes and dwellings, not investment or business premises.
3. Merck‑style scepticism in commercial cases is firmly entrenched. Courts will be reluctant to accept that damages are not an adequate remedy where the dispute is essentially commercial and concerns property that is not a home.
4. An effective undertaking as to damages is indispensable. Vague or unsupported assertions about assets do not suffice, particularly where the applicant is already heavily indebted and has a history of impecuniosity.
5. Long‑term default undermines equitable claims. Where a borrower has made no payments for many years, especially where default predates any alleged irregularities in assignment, the balance of justice will usually favour allowing the lender to realise its security.

In this sense, the judgment does not radically change the law but crystallises and applies existing principles to a contemporary mortgage enforcement scenario. It provides a clear roadmap for how Irish courts are likely to handle similar applications by non‑consumer borrowers seeking to restrain the sale of commercial or investment properties, particularly where EU consumer law is invoked in an attempt to re‑characterise essentially commercial disputes.