Strict expedition after registering a lis pendens and “special circumstances” limiting security for costs where an individual co-plaintiff remains on risk

1) Introduction

In Kavanagh and Anor v O'Neill and Anor (Approved) [2026] IEHC 589, the High Court (Bolger J) determined two interlocutory applications brought by the receiver of a corporate defendant owner of a property:

  • an application to vacate a lis pendens registered over the property under s. 123(b) of the Land and Conveyancing Law Reform Act 2009; and
  • an application for security for costs against the corporate plaintiff under s. 52 of the Companies Act 2014.

The underlying dispute arose from a failed settlement framework intended to resolve earlier proceedings and facilitate a sale of the property to the corporate plaintiff, with later disagreement about VAT and the purchase price. The plaintiffs sought (among other reliefs) specific performance and declaratory relief as to the VAT-inclusive price, and registered a lis pendens over the property.

2) Summary of the Judgment

  • Lis pendens: The Court vacated the lis pendens, holding that there had been unreasonable delay in prosecuting the action post-commencement within the meaning of s. 123(b)(ii).
  • Security for costs: The Court refused security for costs against the corporate plaintiff, primarily because evidence that the individual co-plaintiff would fund costs was unchallenged; and, in any event, because the presence of an individual co-plaintiff remaining in the litigation could constitute special circumstances justifying refusal.
  • Indicative costs views (s. 169, Legal Services Regulation Act 2015): the defendant was indicated to be entitled to costs of the lis pendens application (with a stay on execution pending the proceedings), while the corporate plaintiff was indicated to be entitled to costs of the security application (also with a stay).

3) Analysis

3.1 Precedents Cited

(a) Vacating lis pendens: an elevated duty of expedition

The Court treated the governing approach as settled by High Court authority interpreting s. 123 of the 2009 Act, primarily:

From Hurley, the Court emphasised two propositions crucial to the outcome here:

  • A party who has registered a lis pendens bears a particular and special obligation to prosecute proceedings more quickly than ordinary litigation timetables might otherwise permit.
  • The assessment of “unreasonable delay” focuses on the period after proceedings are commenced, rather than pre-issue delays.

(b) Security for costs: unchallenged funding evidence and “special circumstances” where an individual remains exposed

On security for costs, Bolger J applied established principles, in particular:

  • Quinn v PricewaterhouseCoopers [2021] IESC 15 on the general requirements for security: (i) prima facie defence, (ii) inability of the company to pay costs if unsuccessful, and (iii) absence of special circumstances.
  • Beakonford Ltd v Stokes & Wilding [2005] IEHC 22, relied on by the defendant as an analogy involving a special purpose vehicle (SPV). The Court distinguished it on the basis that the present proceedings also involved an individual co-plaintiff who would remain party regardless of the security outcome.
  • Comcast International Holdings Inc v Minister for Public Enterprise [2014] IEHC 18, relied on for the proposition that an unchallenged averment (here, as to ability/willingness of the individual co-plaintiff to fund the corporate plaintiff) “must stand” in the absence of a challenge (including cross-examination).
  • Kimpton Vale Ltd v Ferox Ltd [2013] IEHC 577 and Oltech (Systems) Ltd v Olivetti UK Ltd [2012] 3 IR 396, supporting the Court’s alternative conclusion that the existence of an individual co-plaintiff may constitute special circumstances justifying refusal of security.

3.2 Legal Reasoning

(a) Why the lis pendens was vacated

Applying s. 123(b)(ii) (unreasonable delay / lack of bona fides in prosecution), the Court found the plaintiffs’ delay unjustified. The Court’s reasoning was anchored in the statutory policy identified in Hurley and Togher: a lis pendens is a powerful restraint on dealings with land and is therefore tolerated only where the plaintiff prosecutes the action with demonstrable urgency.

The Court evaluated delay pragmatically against the litigation record and surrounding context, including:

  • repeated ignored requests for a statement of claim;
  • only limited periods of engagement that could not justify the overall pause;
  • the contractual backdrop that “time was of the essence” for completion of the sale;
  • the age of the underlying lending and the receiver’s mandate to realise security;
  • ongoing deterioration-related expense exposure (insurance, derelict property fines), which heightened the need for expedition.

While some delay was attributed to the defendants (including time to enter an appearance), responsibility for “most of the delay” lay with the plaintiffs and remained largely unexplained. The Court rejected the submission that the discretionary wording “may” in s. 123 should save the lis pendens, given the timeline: a prolonged period from issue to the bringing of the motion, followed by additional months before delivery of the statement of claim.

(b) Why security for costs was refused

The Court accepted the defendant had crossed the “low bar” of demonstrating a prima facie defence. The application failed on the remaining components.

First, the Court was not satisfied that inability to pay had been established, because evidence was advanced that the individual co-plaintiff was funding the corporate plaintiff and had access to funds (supported by exhibited account screenshots). Critically, that evidence was not challenged in reply, and no notice of intention to cross-examine was served. Relying on Comcast International Holdings Inc v Minister for Public Enterprise [2014] IEHC 18, the Court treated the funding averment as one that “must stand absent a challenge”.

Second (and alternatively), Bolger J held that even if the threshold requirements were otherwise met, special circumstances existed because an individual co-plaintiff remained in the proceedings and was in a different position to a company. The Court explicitly grounded this in Kimpton Vale Ltd v Ferox Ltd [2013] IEHC 577, Oltech (Systems) Ltd v Olivetti UK Ltd [2012] 3 IR 396, and the observation in Comcast that “a personal litigant is in a different position to a company”. The Court also distinguished Beakonford Ltd v Stokes & Wilding [2005] IEHC 22 because that case involved only a corporate plaintiff, whereas here an individual co-plaintiff remained exposed to the ordinary costs risks of litigation.

3.3 Impact

  • Lis pendens practice: The decision reinforces that registration of a lis pendens effectively places the plaintiff under an enhanced procedural duty. Even where parties are engaging on settlement mechanics (here, VAT), the plaintiff must continue to progress pleadings and steps with “expedition and vigour” or risk vacatur.
  • Security for costs strategy: The judgment underscores the tactical importance of properly challenging asserted third-party or co-plaintiff funding. Where a defendant does not confront such evidence (including by seeking cross-examination), the court may treat funding assertions as sufficient to defeat the “inability to pay” requirement.
  • Co-plaintiff structure and SPVs: Where a claim is brought by both an SPV and an individual, the presence of the individual may itself operate as a “special circumstance” against ordering security from the corporate vehicle—particularly where the individual remains fully on risk and is said to stand behind the company’s costs exposure.

4) Complex Concepts Simplified

  • Lis pendens: A notice registered against land signalling that the land is subject to litigation, which can practically impede sale or financing. Because it burdens property rights, the law expects swift prosecution of the underlying claim.
  • Vacating a lis pendens (s. 123, 2009 Act): The court can remove the notice where proceedings are not pursued bona fide or there is “unreasonable delay” after issue.
  • Security for costs (s. 52, Companies Act 2014): A mechanism to protect a defendant from the risk that a corporate plaintiff will lose and be unable to pay the defendant’s costs.
  • Prima facie defence: The defendant does not have to prove it will win; it must show a credible, arguable defence.
  • Special circumstances: Even where the usual conditions for security exist, the court may refuse security if fairness requires it—here, because an individual co-plaintiff remains a party and is treated as differently situated from a company.
  • Indicative view on costs (s. 169, 2015 Act): A provisional costs view given by the court, often because the issue is discrete and unlikely to be revisited at trial; execution may be stayed pending final outcome.

5) Conclusion

[2026] IEHC 589 confirms that a party who registers a lis pendens must prosecute the proceedings with exceptional urgency; substantial, insufficiently explained post-issue delay is likely to lead to vacatur under s. 123(b)(ii) of the 2009 Act. On security for costs, the judgment illustrates two practical limits on orders against corporate plaintiffs: (i) unchallenged evidence that an individual co-plaintiff will fund the company may defeat the “inability to pay” limb, and (ii) the continuing presence of an individual co-plaintiff may amount to “special circumstances” justifying refusal of security.