Summary of Judgment

Factual and Procedural Background

This judgment, delivered by Judge Jordan on 5 June 2026, concerns proceedings issued by the Plaintiff by Plenary Summons on 16 June 2025 (Record No. HP 2025/3369; [2026] IEHC 349). The Plaintiff seeks possession-based interlocutory relief and damages in respect of lands described in the plenary summons (folio 14702F) known in the material as the property. The Plaintiff obtained a Circuit Court decree for possession against Person A in February 2016 following mortgage enforcement initiated in 2015; that decree was the basis for later execution orders and an execution said to have been carried out on 15 October 2024. The Defendant, who had lived at the property since c.2001, contends he was never made a party to the possession proceedings and claims the 2016 possession order is invalid as against him. The Plaintiff moved for interlocutory orders (issued 23 June 2025, returnable 14 July 2025). The interlocutory motion was heard on 21 April 2026 and resumed on 20 May 2026. The court adjourned briefly to allow production of a statutory declaration required by the Mediation Act 2017 and invited mediation; the Plaintiff declined to mediate. The matter was listed for further hearing on 10 June 2026.

Legal Issues Presented

1. Whether the Plaintiff has proved that the Execution Order for Possession was lawfully executed on 15 October 2024 such that the Plaintiff is a mortgagee in possession entitled, as of right, to interlocutory injunctive relief restraining the Defendant from occupying or interfering with the property.
2. Whether the 2016 possession order and subsequent execution orders are enforceable against the Defendant given that he was not named as a party to, nor served with, the original possession proceedings.
3. Whether the Defendant has shown a sufficient arguable interest or right to occupation (including any protection under the Family Home Protection Act 1976 or the parties' divorce consent terms) to defeat the Plaintiff's claim to interlocutory relief.
4. Whether, on balance of justice, interlocutory relief should be granted having regard to adequacy of damages, delay, conduct of the parties (including refusal to mediate) and the need for fuller investigation at a plenary hearing.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff relies on the possession order obtained in 2016 and on an execution order said to have been lawfully executed on 15 October 2024 to assert it is a mortgagee in possession and entitled to injunctive relief restraining the Defendant from trespass and interference and to market and sell the property.
• The Plaintiff asserts the Defendant was aware of the Circuit Court proceedings from at least 21 September 2020 and sought to negotiate with the Plaintiff's predecessor.
• The Plaintiff relies on the ratio in Keating & Co. Limited v The Jervis Street Shopping Centre Ltd & Anor 1997 1 IR 512 for the proposition that a mortgagee in possession is entitled to injunctive relief as of right, subject to any evidence the defendant may adduce.

Defendant's Arguments

• The Defendant asserts he was never served with, nor named as a party to, the possession proceedings in which the 2016 possession order was obtained and therefore the order cannot bind him.
• The Defendant maintains he has occupied the newer house as his family home since c.2001 and claims an interest by virtue of the divorce consent order terms; he seeks to set aside the possession order as against him.
• The Defendant challenges the lawfulness of the execution on 15 October 2024, including the adequacy of identification and the absence of proof of a court messenger's warrant in writing authorising the specific execution.
• The Defendant proposes negotiation/mediation and offers to pay outstanding mortgage if engaged with appropriately.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Keating & Co. Limited v The Jervis Street Shopping Centre Ltd & Anor 1997 1 IR 512	Proposition that a mortgagee in possession may be entitled to interlocutory injunctive relief as of right (subject to qualification).	The Plaintiff relied on the ratio in Keating as supporting an entitlement to injunctive relief; the court noted the principle but held the Plaintiff had not proved it was a mortgagee in possession or that execution had been lawfully effected, so Keating did not secure relief in the circumstances.
Mars Capital v Patrick Carty & Ors. 2026 IECA 40	Authority on the powers of the County Registrar under the Court Officers Act 1926 (as to powers equivalent to undersheriffs).	The court referred to Mars Capital in the context of submissions about the County Registrar's powers to execute possession orders, but held that even if such powers exist the Plaintiff had not proved the required authorisation (warrant in writing) for the court messenger on the day.

Court's Reasoning and Analysis

The court conducted a fact-specific and procedural analysis focused on (i) non-joinder and lack of service, (ii) proof of lawful execution, (iii) assertions of the Defendant's occupation and beneficial interest, and (iv) discretionary interlocutory considerations.

1. Non-joinder and service: The court found it difficult to see how an Order for possession obtained in proceedings where the Defendant was not named and not served could bind him, given that he was in occupation at all material times. The court observed that the evidence did not explain why he was not named/served and that this raised a compelling argument that the 2016 possession order may be invalid as against the Defendant.

2. Proof of lawful execution: The court examined the evidence of execution on 15 October 2024. It emphasised the statutory requirement (Enforcement of Court Orders Act 1926 and Court Officers Act 1926) that a court messenger be authorised by a warrant in writing and produce that warrant on demand. The court noted that the warrant was not exhibited and that the execution order endorsement that appears to function as the warrant was left blank. The court concluded the Plaintiff had not proved that the court messenger was lawfully authorised on the day.

3. Occupation and interest of the Defendant: The court accepted that, notwithstanding the property being registered in Person A's name, the Defendant appeared to have a beneficial interest under the divorce settlement terms and had lawfully occupied the newer house as his home since c.2001. The court was not persuaded the Defendant was a mere trespasser.

4. Interlocutory relief and balance of justice: Even if some defects in execution were disregarded, the court considered broader equitable factors. It found that damages might not be adequate (the property is the Defendant's long-term home; he is elderly and of modest means), that the Plaintiff had delayed and that the refusal to mediate weighed against granting summary interlocutory relief. The court concluded there were serious unresolved questions requiring a plenary hearing.

Holding and Implications

HOLDING: The court held that the Plaintiff had not satisfied the court that it was entitled to the interlocutory relief sought. The court declined to grant the injunctions sought and was not satisfied the Plaintiff had proved it was a mortgagee in possession or that the execution of possession had been lawfully effected.

Implications:

• The interlocutory application was refused; the substantive issues (including the validity of the 2016 possession order as against the Defendant and related questions of title/interest and execution) remain for plenary determination.
• The court noted the Defendant may apply for modest reasonable expenses attributable to the motion (travel and similar costs) and explained the ordinary rule on costs would favour the Defendant subject to any application to the contrary by the Plaintiff.
• No new binding legal principle was established; the judgment applies existing statutory requirements (warrant for court messengers) and precedents to the facts and directs a full hearing to resolve outstanding factual and legal issues.

The matter was listed for further hearing at 10:30 a.m. on Wednesday 10 June 2026 for directions and finalisation of orders.