FFrench -O'Carroll v Permanent TSB Plc (formerly known as Irish Life and Permanent Plc)

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 09 November 2017
• Neutral Citation: [2017] IEHC 851
• Docket Number: [2016 No. 5892 P]
• Court: High Court
• Date: 09 November 2017

[2017] IEHC 851

THE HIGH COURT

Tony O'Connor

[2016 No. 5892 P]

BETWEEN

ARTHUR FFRENCH-O'CARROLL

PLAINTIFF

AND

PERMANENT TSB PLC (FORMERLY KNOWN AS IRISH LIFE AND PERMANENT PLC), KEITH LOWE, STEPHEN TENNANT, HAVBELL DAC

AND

TOM O'BRIEN

DEFENDANTS

Balance of convenience – Interlocutory injunction – Directions for expedited hearing – Defendants seeking specific interlocutory orders arising from their counterclaim – Whether one or other party would be able to pay the other the damages which would arise if they lost at the plenary trial

Facts: These proceedings came before the High Court (O’Connor J) on 25th and 26th October, 2017, by way of a notice of motion issued on 13th February, 2017, on behalf of the fourth and fifth defendants, Havbell DAC and Mr O’Brien, seeking specific interlocutory orders arising from their counterclaim. Those defendants had given an undertaking to the Court to pay the plaintiff, Mr FFrench-O'Carroll, such damages as may be assessed if required and no question arose about their ability to discharge same. The plaintiff, on the other hand, admitted to having recovered rent and referred to maintenance and other costs. Although the plaintiff had a business relationship with the tenants and was familiar with the property, O’Connor J agreed with counsel for those defendants that they would be obliged to perform their statutory and contractual duties to maintain and look after the property whether through professional estate management agents or whoever. It was agreed that whatever rents would be collected and received by the receiver would be placed in an account from which disbursements could be made for maintenance. The plaintiff did not dispute his multimillion euro debt and did not appear to be in a secure position to repay rents.

Held by O’Connor J that it was a fair proposal for the receiver to maintain and look after the Longwood Avenue property while collecting rents to be placed in an account for ease of transparency. The Court, therefore, granted an interlocutory injunction in the terms of paras. 2 and 3 of the notice of motion as set out in the letter of 8th November, 2017, from the solicitors for the defendants confined to the properties described in the second schedule to the amended statement of claim delivered on 1st November, 2017.

O’Connor J proposed the following orders: (i) an order directing the plaintiff to deliver his reply and defence to the counterclaim by 22nd November, 2017, and copy same to each of the solicitors on record for the other defendants; (ii) an order requiring the plaintiff to issue a motion returnable for 23rd November, 2017, and serve with at least five days’ clear notice seeking directions for (a) the delivery of defences by the other defendants within a specific timeframe or such time as the Court would direct on 23rd November, 2017, (b) the delivery of replies to the defences to the amended statement of claim, (c) the delivery of replies to any particulars or discovery requests which must be sought by each and all of the plaintiff and the defendants by a date which O’Connor J would ascertain on 23rd November, 2017, and (d) the exchange of estimates of legal fees and outlays which would be incurred by the parties from 23rd November, 2017, to the end of a plenary trial.

Limited interlocutory injunction granted to counter claimants with directions for expedited hearing.

EX TEMPORE JUDGMENT of Mr. Justice Tony O'Connor delivered on the 9th day of November, 2017

Introduction

1 These proceedings came before me on 25th and 26th October, 2017, by way of a notice of motion issued on 13th February, 2017, on behalf of the fourth and fifth named defendants (“these defendants”) seeking specific interlocutory orders arising from their counterclaim.

2 An order by consent was made on 26th October, 2017, changing the name of the fourth named defendant.

3 Following the opening of the application Mr. Brady SC, for the plaintiff/respondent, explained what he considers a killer point to the claim of these defendants to take possession, lease and/or sell premises at the rear of 55 Fitzwilliam Square, previously rented out to a restaurant (“the Fitzwilliam premises”). Mr....