Allied Irish Banks Plc v Fitzgerald

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] IEHC 231
• Docket Number: 2019 No. 232 SP
• Court: High Court
• Date: 26 March 2021

BETWEEN

ALLIED IRISH BANKS PLC

PLAINTIFF

AND

RICHARD FINBARR FITZGERALD

DEFENDANT

EILEEN DALY

NOTICE PARTY

[2021] IEHC 231

Garrett Simons

2019 No. 232 SP

THE HIGH COURT

Stay – Costs – Possession – Plaintiff seeking costs – Whether a stay should be placed upon the orders pending an appeal

Facts: The High Court (Simons J), on 22 March 2021 ([2021] IEHC 172) (the supplementary judgment) decided that the notice party, Ms Daly, the reputed lessee, did not have a right to possession of the mortgaged property as against the plaintiff bank, Allied Irish Banks plc, as mortgagee. Ms Daly was a trespasser insofar as the bank was concerned. Therefore, the order of possession which was initially granted on 27 April 2020 was good as against Ms Daly ([2020] IEHC 197) (the principal judgment). The position between Ms Daly and the defendant, Mr Fitzgerald, inter se was different, but that did not affect the bank’s rights, for the reasons set out in the supplementary judgment. There were two matters that remained to be determined by the court. The first was in relation to the stay, if any, which should be placed upon the orders pending an appeal. The second was the allocation of the costs incurred in addressing the issue as to the rights, if any, of Ms Daly, as reputed lessee, as against the plaintiff bank.

Held by Simons J that ordinarily in a case such as this, where the plaintiff bank sought possession for the precise purpose of exercising its power of sale in respect of the mortgaged property, he would grant a stay pending the hearing and determination of the full appeal because the rights of a party asserting a claim to possession of a mortgaged property would be prejudiced if they were ultimately to succeed in an appeal only for the property at issue to have been sold from under them in the interim. He did not think it is appropriate to burden the Court of Appeal with unnecessary applications for stays in circumstances where, in most cases, the correct balance of justice in a mortgage suit will be obvious. He found that in this case there were two factors which tell against granting an open ended stay: the first was the weakness of the grounds of appeal; and the second was the delay in the proceedings to date. Having had regard to those two factors, it seems to him that the fairest thing was to grant a stay, initially for 28 days, and then, if an appeal was lodged, until the first return date before the Court of Appeal; that then left it open to Ms Daly, if she wished, to apply to the Court of Appeal for a longer stay pending the hearing and determination of the appeal. Having had regard to the criteria set out at s. 169 of the Legal Services Regulation Act 2015, it seemed to Simons J that the default position was that Ms Daly was liable for the costs incurred for her participation in the proceedings; she created a contest, as counsel for the plaintiff bank put it, and had ultimately been unsuccessful. The only factor which was put forward in aid of the court exercising its discretion in her favour was an argument that Ms Daly was not in fact a “party” to the proceedings, and, as such, was not amenable to a costs order. Simons J held that this argument was simply untenable.

Simons J proposed making an order for costs in favour of the plaintiff as against Ms Daly; those costs related to all of the applications made, and all of the costs incurred, since her intervention in the proceedings. Simons J held that the order would include all reserved costs, and the costs of the various written legal submissions and affidavits filed. He held that the costs would include the costs of the hearing before him on 15 March 2021 and the costs of 26 March 2021. He held that the costs also included the costs of taking up a transcript of the DAR for 9 March 2020. Simons J held that he would place a stay on the costs order and that the stay on execution of the costs order would remain in being pending the determination of any appeal to the Court of Appeal.

Costs to successful party, stay pending appeal.

JUDGMENT of Mr. Justice Garrett Simons delivered ex tempore on 26 March 2021

1 This is my ruling in relation to the final orders to be made in the above entitled proceedings consequent to the judgment delivered by me on Monday 22 March 2021 ( Allied Irish Bank plc v. Fitzgerald [2021] IEHC 172) (“ the supplementary judgment”). As appears from the supplementary judgment, this court has decided that Ms. Eileen Daly, the reputed lessee, does not have a right to possession of the mortgaged property as against the plaintiff bank as mortgagee. Ms. Daly is a trespasser insofar as the bank is concerned. Therefore, the order of possession which was initially granted on 27 April 2020 is good as against Ms. Daly. (See Allied Irish Bank plc v. FitzGerald [2020] IEHC 197 (“ the principal judgment”)). The position between Ms. Daly and Mr. Fitzgerald inter se is different, but that does not affect the bank's rights, for all of the reasons set out in the supplementary judgment.

2 There are two matters then remaining to be determined by this court. The first is in relation to the stay, if any, which should be placed upon the orders pending an appeal. The second is the allocation of the costs incurred in addressing the issue as to the rights, if any, of Ms. Daly, as reputed lessee, as against the plaintiff bank. I will deal with these in sequence.

3 The position in relation to a stay pending an appeal has most recently been authoritatively stated by the Supreme Court in its judgment in Krikke v. Barranafaddock Sustainability Electricity Ltd. [2020] IESC 42 (“ Krikke”). There, the Supreme Court explained that, in deciding whether or not to grant a stay, the guiding principle must...