EBS Ltd v Kenehan

JudgeMr Justice Max Barrett
Judgment Date24 October 2017
Neutral Citation[2017] IEHC 604
Docket Number2015 No. 196CA
CourtHigh Court
Date24 October 2017

[2017] IEHC 604


Barrett J.

2015 No. 196CA

EBS Limited
– and –
Trevor Kenehan


Bernadette Ryan

Banking & Finance – Property & Conveyancing – Right to fair trial – Jurisdiction – Aziz-Counihan obligations.

Facts: The defendants filed an appeal against the order of the Circuit Court for granting the possession of principal private residence of the defendants to the plaintiff for non-repayment of loans taken by the defendants from the plaintiff. The defendants raised various grounds on appeal namely, lack of jurisdiction, denial of right to fair trial, lack of consent to jurisdiction, non-credit of TRS payment and requirement of assessment under the decision of the Court of Justice in Aziz v. Caixa d'Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa) (Aziz-Counihan obligations)(Case C-415/11).

Mr. Justice Max Barrett allowed the appeal of the defendants and set aside the possession order granted by the Circuit Court. The Court dealt with each grounds of appeal and refused to agree on the said grounds except for the Aziz-Counihan obligations as laid down in Case C-415/11. The Court stated that the performance of the said obligation puts the plaintiff in a jeopardized situation but it would have been in the plaintiff's self- interest to place the Court where it could have discharged those obligations by providing the relevant documents as there were conflict between the rules of the plaintiff/bank and the mortgage conditions.

JUDGMENT of Mr Justice Max Barrett delivered on 24th October, 2017.

On 3rd November, 2015, the Circuit Court issued an order for possession against Mr Kenehan and Ms Ryan in respect of certain premises in County Tipperary. On 12th November, 2015, Mr Kenehan and Ms Ryan brought an appeal against that judgment. The grounds of appeal raised by Mr Kenehan and Ms Ryan are as follows:

(1) the Circuit Court had no jurisdiction because the premises against which the order issued comprise a principal private dwelling with no rateable value, particular emphasis being placed in this regard on the decision of the Court of Appeal in Permanent TSB plc v. Langan [2016] IECA 229;

(2) the Circuit Court Rules (Actions for Possession and Well-charging Relief) 2009 ( S.I. No. 264 of 2009) are unconstitutional and/or in breach of the European Convention on Human Rights as Mr Kenehan and Ms Ryan have been denied a right to fair trial;

(3) consequent upon (2), the Circuit Court order being rooted partly in Circuit Court Rules that are, it is alleged, unconstitutional and/or in breach of the European Convention on Human Rights, any order that derives from same is incurably bad;

(4) EBS has misled the courts by referring to the premises in respect of which possession is sought is the ' principal private residence' of Mr Kenehan and Ms Ryan, this being a phrase which suggests that Mr Kenehan and Ms Ryan are in possession of another residence;

(5) Mr Kenehan and Ms Ryan enjoy, it is claimed, a right to housing (or not to be rendered homeless) under, inter alia, the European Convention on Human Rights, and the European Social Charter;

(6) Mr Kenehan and Ms Ryan did not consent to the jurisdiction of the Circuit Court;

(7) there has been intimidatory behaviour, it is alleged, on the part of the solicitors for EBS.

(8) Mr Kenehan and Ms Ryan were not shown what Mr Kenehan and Ms Ryan refer to as ' Wet Ink' copies of the applicable loan and security documentation;

(9) Mr Kenehan and Ms Ryan have been overcharged by EBS and have not been credited with a TRS payment.

(10) Mr Kenehan and Ms Ryan being consumer-borrowers (this does not appear to be disputed) an assessment of the type identified by the High Court in AIB plc v. Counihan [2016] IEHC 752 requires to be undertaken (and presumably they consider that such an assessment will yield a result that is to their advantage).


Rather lost in all of this, it seemed to the court, was that money was loaned by EBS and has not been repaid by Mr Kenehan and Ms Ryan, no doubt as a result of the vicissitudes visited on so many innocent people by a Great Recession occasioned by the actions of others, yet unpaid nonetheless.


The court treats with each of the above-mentioned grounds of appeal below. In passing, the court notes that pursuant to s.63 of the Companies Act 2014, the re-registration of EBS Limited, in the course of the within proceedings, as a designated activity company (DAC), has, notwithstanding suggestion by Mr Kenehan and Ms Ryan to the contrary, no impact on the within proceedings. Section 63(12) of the Act of 2014 provides, inter alia, that: ' The re-registration of an existing private company as a designated activity company pursuant to this Chapter shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company...'.




The property that is the subject of the within proceedings had the benefit of a certificate of rateable valuation that justified the invocation of jurisdiction by the Circuit Court. As a result the decision of the Court of Appeal in Langan does not have the contended-for application to the within proceedings.



Mr Kenehan and Ms Ryan were given a fair and impartial hearing by the learned Circuit Court judge. They and their British-qualified solicitor were given full opportunity to ventilate such points as they wished to make. No breach of constitutional rights or the right under Article 6 of the European Convention on Human Rights to ' a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law' has been established.



As Mr Kenehan and Ms Ryan have not succeeded on point (2), they cannot succeed on point (3).



There is no suggestion that the property that was the subject of the Circuit Court proceedings (or that is the subject of the within appeal) has been mis-identified; in point of fact it has been correctly identified. There is, it is true, in the adjective ' principal' some element of comparison but that does not avail Mr Kenehan and Ms Ryan in any way. It does not have the result that a property that has otherwise been correctly identified falls to be treated as incorrectly identified. To the extent that Mr Kenehan and Ms Ryan seek to make the point that they have no other residence, this is understood by the court.



There is no express right to housing in Irish law; but that is not to say that a qualified, as yet unrecognised, un-enumerated right pertaining to housing may not at some point be recognised by the courts as existing in and under the Constitution. There is a relative abundance of sources by reference to which the existence of such a right might conceivably be identified by analogy. If, for example, one looks to instruments which are not a part of Irish law but which could nonetheless be of influence in identifying the extent of Irish law, in particular when it comes to recognising (if it comes to recognising) a qualified, as yet unrecognised, un-enumerated right pertaining to housing in the Constitution:

(i) in the European Convention on Human Rights, there are several articles of that Convention which, indirectly, provide protection for a right to housing, e.g., Arts. 2, 3, 5, 8, 14, and Art.1, Protocol 1. Moreover, the European Court of Human Rights has a burgeoning line of case-law that recognises some legally defined minimum State obligations as regards housing rights (see, inter alia, Moldovan v. Romania (2007) 44...

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7 cases
  • Pepper Finance Corporation v Cannon
    • Ireland
    • Supreme Court
    • 4 February 2020
    ...The parties have referred to a number of subsequent judgments of the High Court dealing with the Directive. In EBS Limited v. Kenehan [2017] IEHC 604, Barrett J. allowed an appeal against an order for possession made in the Circuit Court in circumstances where the documentation placed befo......
  • Permanent TSB Plc formerly Irish Life and Permanent Plc v Davis
    • Ireland
    • High Court
    • 28 March 2019
    ...subsequent decisions of this court in Allied Irish Banks PLC v. Counihan and Counihan [2016] IEHC 752, EBS Limited v. Kenehan and Ryan [2017] IEHC 604 (see also Ulster Bank Ireland Limited v Costelloe [2018] IEHC 289 and Permanent TSB PLC v Fox [2018] IEHC 292). As appears from the auth......
  • Grant v The County Registrar from the County of Laois
    • Ireland
    • High Court
    • 7 March 2019
    ...they gave rise to an arguable defence because they are unfair and not binding on the defendants. 78 In EBS Limited v. Kenehan and Ryan [2017] IEHC 604, in an appeal against an order for possession granted by the Circuit Court in respect of a family home, the defendants submitted that since......
  • Ulster Bank Ireland Ltd v Costelloe
    • Ireland
    • High Court
    • 12 April 2018
    ...Deed was not before the Court. 51 At this juncture I would echo the sentiments expressed by Barrett J. in EBS Limited v. Kenehan [2017] IEHC 604, where he states: '[T]he court must also admit to being mystified as to why borrowers seem to place so much emphasis on seeing original, signed d......
  • Request a trial to view additional results
2 books & journal articles
  • The Focus of Ireland: Homelessness in the Courts - Fagan v Dublin City Council
    • Ireland
    • Hibernian Law Journal No. 19-2020, January 2020
    • 1 January 2020
    ...fail as it was not germane to the appeal as formulated and in any event, could not give rise to any relief from the possession order. 6 [2017] IEHC 604. 7 ibid [13]. 8 Namely, Moldovan v Romania (2007) 44 EHRR 16, Marzari v Italy (1999) 28 EHRR CD175, Botta v Italy (1998) 26 EHRR 241, and G......
  • Our Herculean Judiciary?: Interpretivism and the Unenumerated Rights Doctrine
    • Ireland
    • Irish Judicial Studies Journal No. 1-20, January 2020
    • 1 January 2020
    ...IEHC 539. 74 This decision was recently overturned on appeal. Carter v Minister for Education [2019] IECA 150. 75 [2017] IEHC 578. 76 [2017] IEHC 604. 77 Rooney (n 70) 78 ibid, 20-23. [2020] Irish Judicial Studies Journal Vol 4(1) 61 IRISH JUDICIAL STUDIES JOURNAL 61 rich personal rights ju......

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