Donlon and Another v Promontoria [Aran] Ltd and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Liam Kennedy
• Judgment Date: 30 October 2025
• Neutral Citation: [2025] IEHC 568
• Docket Number: Record No. 2025/878P

Between

Oliver Donlon and Nicola Donlon

Plaintiffs

and

Promontoria (Aran) Limited, Damien Harper, Aengus Burns, Michael McAteer and Grant Thornton

Defendants

[2025] IEHC 568

Record No. 2025/878P

THE HIGH COURT

Beneficial ownership – Settlement agreement – Delay – Plaintiffs seeking an interlocutory order to restrain a mortagee sale on the basis that the mortgagee had no power of sale – Whether the settlement agreement previously entered into by the first plaintiff precluded his claim

Facts: The plaintiffs, Mr and Ms Donlon, sought an interlocutory order to restrain a mortagee sale on the basis that the mortgagee, the first defendant, Promontoria (Aran) Ltd (Promontoria), had no power of sale, being the legal owner of the charge but not its equitable owner. While not conceding that the Donlons had raised a fair issue, the defendants’ submissions focussed on their preliminary objections that the Donlons were precluded from taking that issue due to a previous settlement and by virtue of their delay and conduct. They also invoked the doctrines of estoppel, laches and acquiescence. Since, for the application, the defendants did not vigorously contest the point, judgment of the High Court (Kennedy J) focussed on the preliminary objections, assuming a fair issue for trial on the beneficial ownership point (subject to those objections) and it did not rehearse the evidence and submissions on the beneficial ownership issue.

Held by Kennedy J that the objections were well made and that, irrespective of the merits of the beneficial ownership point, the settlement agreement previously entered into by Mr Donlon precluded his claim (and the associated injunction application). Kennedy J held that Mr Donlon's delay and acquiescence would be further reasons to refuse the application as would the absence of any meaningful undertaking. Even leaving aside those factors, Kennedy J held that the balance of justice would not favour the granting of reliefs in any event. As for Ms Donlon, taking her evidence at its height and accepting the pleadings on the fact, Kennedy J was not satisfied that Ms Donlon had established a cause of action. Accordingly, Kennedy J found that there was no basis for Ms Donlon to seek interlocutory relief on her own behalf. However, Kennedy J held that even if Ms Donlon did have such standing to assert a cause of action and to seek interlocutory relief in her own right, then her application would be likely to suffer the same fate as her father for the same reasons unless she could point to distinguishing factors. As matters stood, Kennedy J doubted that there would be any basis for Ms Donlon to do so.

Kennedy J dismissed the application.

Application refused.

APPEARANCES

Brendan Donelon BL, instructed by John Feahney & Co, for the Donlons

Eamon Marray SC, instructed by Keoghs Ireland LLP, for the Defendants

JUDGMENT of Mr. Justice Liam Kennedy delivered 30 October 2025

1 . The Plaintiffs (Oliver & Nicola Donlon, together “the Donlons”) seek an interlocutory order to restrain a mortagee sale on the basis that the mortgagee, the first Defendant (“Promontoria”), has no power of sale, being the legal owner of the charge but not its equitable owner. As the parties' roles alternated in related proceedings, I will generally refer to them by name rather than by their role in these proceedings so as to avoid confusion.

2 . While not conceding that the Donlons have raised a fair issue, the Defendants' submissions focussed on their preliminary objections that the Donlons are precluded from taking that issue due to a previous settlement and by virtue of their delay and conduct. They also invoke the doctrines of estoppel, laches and acquiescence. Since, for this application, the Defendants did not vigorously contest the point, this judgment will focus on the preliminary objections, assuming a fair issue for trial on the beneficial ownership point (subject to those objections) and it will not rehearse the evidence and submissions on the beneficial ownership issue.

3 . As explained below, I am satisfied that the objections are well made and that, irrespective of the merits of the beneficial ownership point, the settlement agreement previously entered into by Mr Donlon precludes his claim (and the associated injunction application). His delay and acquiescence would be further reasons to refuse the application as would the absence of any meaningful undertaking. Even leaving aside those factors, the balance of justice would not favour the granting of reliefs in any event. As for Ms Donlon, taking her evidence at its height and accepting the pleadings on the fact, I am not satisfied that she has established a cause of action. Accordingly, there is no basis for her to seek interlocutory relief on her own behalf. However, even if she did have such standing to assert a cause of action and to seek interlocutory relief in her own right, then her application would be likely to suffer the same fate as her father for the same reasons unless she could point to distinguishing factors. As matters stand, I doubt that there would be any basis for her to do so.

Background

4 . The following points appear undisputed on the current evidence:

• a. The Donlons are father and daughter. Mr Donlon is the registered owner of c.8.27 acres of farmland in Co. Westmeath (“Clare Hill”). In 2004, he mortgaged Clare Hill to Ulster Bank Ireland Limited (“Ulster”). These and other mortgages granted by him were transferred by Ulster to Promontoria. The Donlons dispute the validity of the transfer and Promontoria's title to enforce the charges.

• b. The Second, Third, and Fourth Defendants are insolvency professionals, and the Fifth Defendant is their firm (collectively, “the Receivers”).

• c. Previous litigation following the mortgage transfer culminated in High Court and Court of Appeal decisions that the Receivers' appointments were void, awarding Mr Donlon €30,000 for trespass.

• d. Mr Donlon issued six other proceedings against Promontoria. Four were issued between 2013 and 2025 in respect of Clare Hill; the other two in 2019 concerning other lands in Moate, (“the Moate Lands”). All six proceedings were compromised by agreement dated 25 March 2024 (“the First Settlement”).

• e. Mr Donlon failed to make payments due under the First Settlement so Promontoria twice unsuccessfully put the Moate Lands up for auction.

• f. Mr Donlon and a company associated with him then entered into a revised agreement dated 27 August 2024 (“the Revised Agreement”) which Ms Donlon executed on her father's behalf under a power of attorney (and no issue was raised in that regard). It required Mr Donlon to pay €700,000 plus certain conveyancing costs by 11 October 2024, including a non-refundable deposit of €70,000 on signing.

• g. Mr Donlon paid the deposit but failed to pay the balance by the due date. Accordingly, Promontoria's solicitors informed the Donlons on 1 November 2024 that they would auction the Moate Lands and Clare Hill.

• h. Mr Donlon did not dispute Promontoria's right to sell the lands following the 1 November 2024 correspondence but subsequently sought to restrain the sale more than three months later, writing on 17 February 2025 and querying Promontoria's right to sell the lands. By that time, the Moate Lands had already been sold at auction for €187,000 (the Donlons say they were worth more) and Promontoria had already accepted an offer of €370,000 for Clare Hill nearly three weeks before, on 28 January 2025.

• i. Ms Donlon explains her father's delay in objecting on the basis that it was only at the end of 2024 that the Donlons learnt that Promontoria were not the beneficial owners of the mortgages.

The Revised Settlement Agreement

5 . The following provisions are pertinent:

• a. Promontoria was identified as the Lender and Mr Donlon (and his company) as the Borrowers.

• b. Recital B provided that:

  “Pursuant to the terms of an agreement with Ulster Bank Ireland Limited (now known as Ulster Bank Ireland DAC) (the Assignor), the Lender acquired all the rights, title and interest to the Facilities, the Security and the Guarantee.”

• c. Clause 2.3 states:

  “The Lender and the Borrowers hereby agree any and all active proceedings issued will be discontinued on completion of this agreement with each party to bear their own costs, to include Record No. 2013/1313P, 2019/72, 2019/112S, 2019/988P, 2024/1430P and 2024/1456P”

• d. Clause 6 confirmed the Borrowers' “full right, power, and authority to execute, deliver and perform the agreement in accordance with the laws of the territory under which it has been incorporated”.

• e. Clause 6.2 noted Mr Donlon's representation and warranty to Promontoria:

  ‘that the security is valid and enforceable and constitutes continuing security for the payment and discharge of the secured liabilities”.

• f. Clause 26 stated:

  “The Borrowers hereby agree not to sue, commence… prosecute … against the Lender or the Assignor …any action or proceedings relating to the facilities, the security and the guarantee, this Agreement or any other associated documentation relating to the Borrowers relationship”.

The Donlons' Submissions

6 . The Donlons submit that:

• a. two fair questions arise for trial — whether Promontoria has the power of sale and whether the terms of the Revised Agreement or the doctrines of estoppel, laches and acquiescence prohibit the Donlons from raising that argument. (Since I am assuming a fair issue for trial on the first point, there is no need to address the beneficial interest issue or the authorities cited on that issue, such as Permanent TSB Plc & Ors v Donohoe [2024] IEHC 467 and Bexhill UK Limited v Abdul Razzaq [2012] EWCA Civ 1376.

• b. Recital B of the Revised Agreement is factually incorrect — Promontoria did not have had an equitable interest in the loans or the security). Accordingly, the recital was a...