Fox v Walshe and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Kennedy
• Judgment Date: 06 August 2024
• Neutral Citation: [2024] IEHC 268
• Court: High Court
• Docket Number: [Record No. 2023/5422P]

Between

Adrian Fox

Plaintiff

and

David Walshe, Caroline O'Grady, Waterford Trans Freight Storage & Warehousing Limited

and

Other Persons Unknown in Occupation of 2 Manor Walk, Rosehill, Kilkenny

Defendants

[2024] IEHC 268

[Record No. 2023/5422P]

THE HIGH COURT

Trespass – Possession of property – Adverse possession – Plaintiff seeking interlocutory orders restraining the defendants from trespassing and to yield up possession of the property – Whether the first defendant had made out an arguable case for his plea of adverse possession

Facts: The plaintiff, Mr Fox, having purchased a property, 2 Manor Walk, Rose Hill, Kilkenny, from a receiver, sought interlocutory orders to restrain the defendants, Mr Walshe, Ms O’Grady, Waterford Transfreight Storage & Warehousing Ltd and other persons unknown in occupation of the property, from trespassing and to yield up possession of it. The plaintiff’s essential submissions were that he had shown good title to the property and the defendants had no right to be in occupation; therefore, the onus passed to the defendants to show that they were not trespassers and they had not done so. Having discontinued against the second defendant, the plaintiff sought interlocutory reliefs against the remaining defendants pending the trial of the proceedings. The only real justification advanced by the first defendant for his continued occupancy of the property was his adverse possession plea.

Held by the High Court (Kennedy J) that the first defendant had not made out an arguable case for his plea of adverse possession. Kennedy J was satisfied that the plaintiff, as the registered owner of the property, met the Maha Lingham test (Maha Lingham v Health Service Executive [2006] IESC 89) in the absence of any arguable basis for the defendants’ occupancy. Kennedy J held that the plaintiff had established a very strong prima facie case that he would be likely to succeed at the trial of the action. Kennedy J found that the plaintiff had established a strong case that the defendants were trespassers; the defendants had not advanced any stateable defence to the permanent relief sought, nor had they shown any stateable interest in (or entitlement to occupy) the property. Kennedy J applied a proportionality test as part of a balance of convenience test for the cogent reasons outlined by Phelan J in Shay Murtagh Ltd v Cooke and Persons Unknown [2022] IEHC 436. Kennedy J was satisfied that the balance of justice and the proportionality analysis favoured the reliefs sought.

Kennedy J held that the balance of justice favoured the grant of the reliefs against the first and third defendants. In circumstances in which the first defendant had been residing in the property as a family home for a number of years, albeit he had not established any entitlement to do so and appeared to have been ignoring a previous High Court order for possession, and in view of the family circumstances which he had recently called to the Court’s attention, Kennedy J considered that it would be appropriate to give the first defendant a period to make alternative arrangements and to vacate the premises. Kennedy J placed a stay on his order until 31 October 2024.

Reliefs granted.

JUDGMENT of Mr Justice Kennedy delivered on the 6 ^th day of August, 2024 .

Introduction

1 . Having discontinued against the Second Defendant, the Plaintiff seeks interlocutory reliefs against the remaining Defendants (“the Defendants”) pending the trial of these proceedings. Because it is an interlocutory application, this judgment does not conclusively determine the factual or legal merits of any claims or defences, although it does consider some of those issues on a provisional basis for the limited purposes of the application.

Background

2 . Having purchased a property, 2 Manor Walk, Rose Hill, Kilkenny (“the Property”) from a receiver, the Plaintiff seeks interlocutory orders to restrain the Defendants from trespassing and to yield up possession of it. His evidence can be summarised as follows: (a) on 2 March 2007, Mr Ivor O'Brien (“the Mortgagor”) acquired the Property, a terraced house, with finance provided by AIB Mortgage Bank and Allied Irish Bank plc (“the Banks”); (b) on 20 February 2015, the Banks appointed a receiver/agent over the Property and initiated summary judgment and, subsequently, bankruptcy proceedings against the Mortgagor which ultimately resulted the Mortgagor being adjudicated bankrupt; (c) on 14 June 2019, Everyday Finance DAC (“Everyday”) acquired the Banks' interest in the Property and was substituted as the mortgagee; (d) on 10 February 2023, Mr Damien Harper was substituted as the receiver/agent (“the Receiver”). He was subsequently instructed to sell the Property; (e) on 17 August 2023, the Plaintiff bought the Property from Everyday for €170,000, following an auction process, becoming the registered owner; (f) the terms of sale confirmed that the Property was unlawfully occupied. The Plaintiff was therefore on notice of the Defendants' claim and of the facts that: (i) the Receiver could not gain access and was being impeded; and (ii) “the Occupants” were refusing to engage with the Receiver or to recognise his entitlements (while declining to identify themselves); (g) unsigned correspondence between the Occupants and the Receiver's solicitors asserted equitable interests in the Property and demanded payment of €146,475 to the First Defendant, asserting that the Property had been his private residence for a number of years; (h) the First Defendant owns a majority stake in the Third Defendant (“the Company”) which was operating from the Property and designating it as its registered office (until after the institution of these proceedings); and (i) there was reason for concern that the Defendants would damage the Property and strip it of fixtures and fittings.

3 . The Plaintiff's essential submissions were that the Plaintiff had shown good title to the Property and the Defendants had no right to be in occupation. Therefore, the onus passed to the Defendants to show that they were not trespassers. They had not done so: (a) there was no evidence of any lease or tenancy (or of rent having been paid) nor was it asserted that the Defendants ever had any lawful basis for their occupation; (b) the Defendants' affidavits had not disclosed a defence, nor had they disclosed how they came to be in occupation, nor had they disclosed any legitimate interest in the Property or the identity of any person whose permission was obtained in that regard. On the evidence, the Defendants could only be regarded as trespassers; (c) any claim to adverse possession was broken by the Mortgagor's bankruptcy (on the mortgagee's application) and by the first receiver's appointment on 20 February 2015 and his replacement on 10 February 2023; (d) nor could such a claim be grounded on the Defendants' unlawful interference with receivers.

4 . Service was duly established (and undisputed in any event). In addition to documents relating to the mortgage and its assignment, the receiverships, and the sale of and change of registered title to the Property, the Plaintiff exhibited correspondence between the receivers and the Property's “occupier”. The latter's epistles contained assertions, threats and demands with no credible legal or factual basis. Despite being asked to do so, the Occupants did not identify themselves. It is worth considering that correspondence in detail.

Receivers' Correspondence with the “Occupier”

5 . Following the original receiver's appointment, his solicitor wrote to the Mortgagor in the usual terms, but also sent a letter, dated 8 March 2022, to the occupants of the Property, notifying them that the receiver was the only party entitled to deal with the Property or to consent to its occupation. Although the letter was not specifically addressed to the First Defendant, he has confirmed to the Court that he was the principal occupant over the years. He did not specifically reference this letter in his evidence or submissions. In the circumstances, it is likely that the First Defendant did in fact receive the 8 March 2022 letter and that he was the author or instigator of the “Occupier's” response dated 10 March 2022, which said that he was:

“ sick and tired of the threats, knock and bangs on my door and assault causing me an injury which you are involved in doing to me”.

6 . The Occupier's response also warned the receiver and his solicitors:

“ Do not trespass on my dwelling or private property to change my locks without my full written consent, a receiver cannot delegate his powers and as you are aware the Forceable Entry Act 1381 is still on the statute books…

I am sure you are aware of my rights under law to protect my family in my dwelling against forced or unconsented entry, as a court order is required to change locks my family are entitles to the protections under law as I have no debt with you and the property belongs to me, you are now been put on NOTICE of Defence of the Dwelling Act 2011, I will use all legal remedies available under the Act to protect my dwelling and family.” [ sic].

7 . The Occupier's letter concluded that:

“ I have been in my dwelling with over 13 years and have private equity for consideration, so if your documentations are in order I will be happy to give the market price led my private equity for consideration however if your documentation is not in order then the price will reflect this. both Ben and myself are more than happy to meet to discuss this proposal and enter into a confidentiality agreement between all parties.

If you fail to respond to this NOTICE within 7 days I will assume that you did not possess the necessary above documentation or rights and the matters is closed, further correspondence will incur a cost of €10,000.00 per letter as my time must be paid going forward” [ sic].

8 . For completeness, I...