Summary of Judgment — High Court

Court: The High Court

Citation (anonymized): [2025] IEHC 626

Judge: Judge Stack

Factual and Procedural Background

This is an application brought by Company A (the plaintiff in the original proceedings) seeking an interlocutory injunction to restrain alleged trespass by the Defendants on lands known in the judgment as "the Property". The County Registrar for The County made an Order for possession on 11 February 2019 in favour of Company B (the plaintiff's predecessor in title) in possession proceedings. That Order included a 10-month stay on execution conditional on the defendants making specified monthly payments; those payments were not made and the stay expired.

The Defendants had entered an appearance in the possession proceedings but did not file or deliver an affidavit disclosing a defence as required by the Rules of the Circuit Court. The County Registrar executed the Order for possession on 25 April 2025, following an order of 9 October 2023 which granted leave to Company A to execute the 11 February 2019 Order for possession. Shortly after execution the Defendants returned to possession of the Property and Company A seeks injunctive relief to restore and maintain possession.

At the interlocutory hearing the Defendants argued that (a) the County Registrar lacked jurisdiction to make the original possession order, and (b) that there were doubts as to the lawfulness of the process of execution because the person who recovered possession (identified in the execution warrant and endorsements) may not have been a properly appointed court messenger for The County. Company A relied on the County Registrar's orders of 11 February 2019 and 9 October 2023 and the execution documents to support its entitlement to possession.

Legal Issues Presented

1. Whether the County Registrar had jurisdiction to make the Order for possession of 11 February 2019 in the possession proceedings in circumstances where an appearance had been entered but no affidavit disclosing a defence had been filed and delivered.
2. Whether the process by which possession was recovered in April 2025 was lawful — specifically, whether the individual who recovered possession had been validly authorised as a court messenger (or otherwise lawfully authorised) under the Enforcement of Court Orders Act 1926 (as amended) and related legislation.
3. Whether Company A is entitled to the benefit of the 11 February 2019 Order for possession (given that the Order was granted in favour of Company B) such that an interlocutory injunction should issue in favour of Company A to restore and maintain possession.
4. Assuming defects in execution, whether Company A can nonetheless obtain interlocutory relief by reference to the legal status conferred by the original Order for possession or by other principles cited in the authorities (including the tests applied for interlocutory injunctions in mortgagee-in-possession contexts).

Arguments of the Parties

Company A (Plaintiff) — summary of submissions

• Company A relied on the unappealed County Registrar orders (11 February 2019 and 9 October 2023) and on the execution order and warrant issued for execution to show entitlement to possession.
• Company A submitted that the execution documents (including the Warrant "to my court messenger and bailiffs" and the execution order in the prescribed form addressed to "the several Sheriffs and County Registrars") were sufficient to authorise the person who recovered possession, and that the presumption omnia praesumuntur rite esse acta applied (i.e., that everything which ought to have been done was done).
• Company A relied on the leave granted on 9 October 2023 (giving leave to issue execution on the 11 February 2019 order) as support for its entitlement to execute the order and obtain possession.

Defendants — summary of submissions

• The Defendants argued that the County Registrar lacked jurisdiction to make the Order for possession because an appearance had been entered and, they contended, the matter should have been transferred to the judge's list (this argument was that the mere entry of an appearance prevented the County Registrar from making the order).
• The Defendants challenged the lawfulness of the execution process by querying whether the individual who recovered possession (named in the warrant and endorsements) was validly appointed as a court messenger for The County. They pointed to descriptions in the warrant and endorsements (e.g., "special bailiff" or references to sheriff) to argue that that person lacked proper authority, raising a serious question to be tried.
• On this basis the Defendants contended that interlocutory relief should not be granted and that doubts about lawful execution meant Company A was not entitled, as of right, to injunctive relief.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded in stages, addressing jurisdiction to make the original possession order, the lawfulness of the execution process, and whether Company A had established entitlement to the benefit of the 11 February 2019 Order for possession.

Jurisdiction to make the 11 February 2019 Order for possession

The court examined the Rules of the Circuit Court, in particular Order 5B and its amendments. The court explained that, after amendment, Order 5B, r. 7(1)(e) permits the County Registrar to make an Order for possession where either an appearance has not been entered or an affidavit disclosing a defence required by the specified rule has not been filed and delivered. The court emphasized the importance of the requirement to file an affidavit setting out a defence (now in r. 5(3)), and held that because the Defendants had not filed an affidavit disclosing a defence the County Registrar had jurisdiction to make the 11 February 2019 Order for possession. The court used the Interpretation Act 2005 to address an internal cross-reference in the Rules (reading r. 5(2) as a reference to r. 5(3)).

Lawfulness of the process of execution (authority of the person who recovered possession)

The court considered the statutory scheme under the Enforcement of Court Orders Act 1926 (as amended) and related provisions which contemplate that County Registrars appoint persons styled "court messengers" (with the Courts Service's approval) who may then be authorised by warrant to execute particular orders. The court noted that a court messenger executing an order must produce the warrant on demand (s. 5(2) of the 1926 Act), and that warrants should be issued to named individuals who have been appointed as court messengers.

The warrant in this case was issued and included a First Schedule naming an individual described as a "special bailiff" (identified in the judgment as the person who recovered possession). The court observed that the prescribed execution form is addressed generally (to sheriffs and county registrars) and that in many counties the County Registrar (rather than a sheriff) is the officer responsible for execution. However, the court concluded that the description of the individual as "special bailiff" (and other endorsements describing him as "sheriff") suggested that the person who recovered possession may have acted on an ad hoc basis and may not have been properly appointed as a court messenger for The County with the approval of the Courts Service.

Because the warrant and endorsements did not on their face describe the individual as a "court messenger," the court held that the presumption that everything which ought to have been done had been done (omnia praesumuntur rite esse acta) did not operate to relieve Company A of the obligation to show lawful authorisation. In these circumstances and bearing in mind the authority in Precedent 3, the court found there was a serious question to be tried on whether possession was lawfully recovered.

Entitlement to the benefit of the 11 February 2019 Order for possession

The court examined how Company A might demonstrate entitlement to the benefit of the earlier Order for possession (made in favour of Company B). The court noted that the Rules of the Circuit Court contemplate amendment of decrees or judgments where there has been an assignment of the benefit of a judgment or decree (Order 36 prior to substitution), and that the more conventional route would have been an application to amend the original possession order to name Company A. Instead, the County Registrar made an order dated 9 October 2023 substituting Company A in the proceedings and granting leave to issue execution on the 11 February 2019 Order for possession.

The 9 October 2023 order was not appealed or judicially reviewed and therefore stood as a valid order on the record. Nevertheless, the court observed that Company A had not produced direct evidence (for example, a deed of assignment or an amended original order explicitly naming Company A as beneficiary) to demonstrate its entitlement to the benefit of the 11 February 2019 order. Because Company A could not otherwise prove its right to the benefit of the Order for possession on the material before the court, and because a serious question as to the lawfulness of the execution had been raised, the court concluded that interlocutory relief should not be granted.

Adjournment and procedural observations

The court refused an application for adjournment by the Defendants' counsel on the basis that the Defendants had been served with the application and had engaged in correspondence and affidavit evidence in the lead-up to the hearing. The court also noted procedural irregularities regarding entry of appearance for the second Defendant and directed that an appearance should be filed forthwith if not already done.

Holding and Implications

Holding: The court refused the application for an interlocutory injunction to put Company A into possession pending trial. The plaintiff's application for interlocutory relief was therefore denied.

Implications:

• The court identified a "serious question to be tried" on the lawfulness of the execution process because of doubt as to whether the person who recovered possession had been validly appointed and authorised as a court messenger for The County. That issue prevents Company A from obtaining injunctive relief as of right on the material before the court.
• Although the County Registrar's 9 October 2023 order giving Company A leave to execute the 11 February 2019 order remains on the record and was not appealed, Company A did not, on the evidence before the court, establish by other means (for example, by producing a deed of assignment or an amended original order explicitly naming Company A) that it was entitled to the substantive benefit of the 11 February 2019 Order for possession.
• The court recorded that, if at trial it is ultimately found that possession was not lawfully recovered, the 11 February 2019 Order for possession would not necessarily be spent and could be the subject of fresh execution (consistent with the authority cited on this point).
• The matter was to be listed shortly for costs and for any further directions required to progress the case to trial.

Orders Made

• Application for interlocutory injunction refused.
• The matter to be listed in early course to deal with costs and to make further directions.

Notes on Anonymization and Sources

This summary is prepared exclusively from the text of the judgment provided and has anonymized parties and certain location identifiers in accordance with the instruction to remove personally identifiable information. All substantive legal points, citations, and quotations in the summary derive from that text and no external material has been introduced.