KBC Bank Ireland Plc v McGann
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 11 October 2019 |
| Neutral Citation | [2019] IEHC 667 |
| Docket Number | [2019 No. 3789P] |
| Court | High Court |
| Date | 11 October 2019 |
[2019] IEHC 667
THE HIGH COURT
Allen
[2019 No. 3789P]
AND
Interlocutory injunctions – Trespass – Property – Plaintiff seeking injunctive relief – Whether the plaintiff was entitled to the interlocutory orders sought
Facts: The plaintiff, KBC Bank Ireland plc, applied to the High Court for a variety of interlocutory injunctions restraining the defendants, Mr M McGann, Mr D McGann, Ms McGann and persons unknown, from trespassing on a property at Falsk, Strokestown, Co. Roscommon.
Held by Allen J that this was not a case of a landowner whose title was in issue. Allen J noted that the defendants had not in evidence sought to establish that they had a right to do what would otherwise be and what is a trespass.
Allen J held that the bank was entitled to the interlocutory orders it sought.
Application granted.
This is an application on behalf of KBC Bank Ireland plc for a variety of interlocutory injunctions restraining the defendants from trespassing on a property at Falsk, Strokestown, Co. Roscommon.
There was no appearance by or on behalf of the first defendant, but the affidavit of Tom Ryan filed on 30th May, 2019 shows that he was duly served with the plenary summons and the motion papers.
The grounding affidavit of Danny Noone, a bank official with KBC Bank, tracked the long history of dealings between the bank and the defendants, principally the first defendant, since 2003 when the bank's predecessor-in-title IIB Homeloans Limited, first loaned money to the first defendant but the vast majority of Mr. Noone's evidence is not really relevant to this application.
What is relevant is that by special summons issued on 12th May, 2009 possession proceedings were instituted by the bank against the first defendant Michael Anthony McGann claiming an order for possession of the property at Falsk, Strokestown, Co. Roscommon being the property comprised in Folio 32752 Co. Roscommon, which had been charged to the bank by the first defendant by deed of charge dated 6th January, 2004 to secure repayment by the first defendant to the bank of all present and future advances, which loans it was claimed the first defendant had failed to pay.
Shortly after the special summons was served on the first defendant it became apparent that the first defendant's mother, Mrs. Elizabeth McGann, and his brother Mr. David McGann, who is the second defendant in this action, were living in the property.
Order 9, r. 8 of the Rules of the Superior Courts requires that in any action for recovery of land the summons must be served on every person who is in actual possession or in receipt of the rents or profits of the lands or any part thereof.
On 17th June, 2011 the special summons was served on Mrs. Elizabeth McGann, who was then informed of the date upon which the summons would next be listed before the High Court. On 27th July, 2011 the summons was served on Mr. David McGann who was informed of the date on which the summons would next appear on the list.
The bank's application was heard by the High Court (Dunne J.) on 15th October, 2012. There was no appearance by or on behalf of Michael Anthony McGann the named defendant, or Elizabeth McGann or David McGann who had been served with a copy of the summons and the court made an order for possession against Michael Anthony McGann.
The order for possession was served on Michael Anthony McGann on 6th February, 2013 and on each of Mrs. Elizabeth McGann and David McGann on the 14th February, 2013.
In the following years there was some engagement between the bank and the first defendant in relation to the possibility of payment, and the first defendant made a number of applications to the High Court to set aside the order of the 15th October, 2012. The debt was not paid, and the order was not set aside.
Order 42, r. 5 of the Rules of the Superior Courts allows a judgment for recovery or the delivery of possession of land to be enforced by order of possession. On 8th August, 2018 the banks sued out an order for possession directed to the County Registrar for the County of Roscommon to enter the property and without undue delay cause the bank to have possession of the lands and premises and the order was sent to the County Registrar for execution.
The County Registrar directed that the order for possession be executed on 11th December, 2018 at 1.00 pm and gave notice that that would be done.
A party of the two court service officers, two security consultants, eight security officers (two with dogs), two staff members from the bank, including Mr. Noone, three engineers and three livestock handlers went to the property. There were eight members of An Garda Síochána present.
Mr. Noone deposes that those present were present to “execute the order” but goes on to describe precisely what happened. It is clear that the order was executed by the court messenger who it was was approached by the first defendant who asked for sight of the order of possession and was shown it.
At the property when the court messenger arrived was a party of seven men and one woman. They refused to vacate the property and the court messenger informed the gardaí that it would be necessary to forcibly remove the occupants. The occupants were removed to the roadside and the locks to the house were drilled out. The second and third defendants were found in the front living room of the house. They initially refused to leave but following the attendance of the gardaí agreed to do so, and did. The livestock were removed from the land and at 4:15pm the County Registrar delivered possession to Mr. Noone as the authorised representative of the bank.
The bank having obtained possession put in place a security detail to protect the property, and over the following days arrangements were made to allow the first and third defendants to remove some farm machinery and personal items.
In the early hours of 16th December, 2018 the eight security men and two dogs who were protecting the property were confronted by a large group of men who attacked the property, the vehicles and equipment of the security men, and the security men. All of the security personnel were injured, three of them seriously and one of the dogs had to be put down. Following the attack, the gardaí took control of the house and yard and held them as an active crime scene until the 17th December, 2018.
In circumstances which are not entirely clear...
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