Mc Guinness v Allied Irish Banks Plc and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conor Dignam
• Judgment Date: 01 April 2025
• Neutral Citation: [2025] IEHC 180
• Docket Number: Record No. 2021 3606P

Between

Charles McGuinness

Plaintiff

and

Allied Irish Banks Plc, Everyday Finance Designated Activity Company and Damien Harper

Defendants

[2025] IEHC 180

Record No. 2021 3606P

THE HIGH COURT

Interlocutory injunctions – Property – Sale – Plaintiff seeking interlocutory injunctions – Whether the plaintiff had established a strong case that he was likely to succeed

Facts: The plaintiff, Mr McGuinness, sought orders: (i) restraining the defendants, Allied Irish Banks plc (AIB), Everyday Finance DAC (Everyday) and Mr Harper (the receiver), and all persons having notice from entering, watching, besetting, threatening or otherwise taking possession of lands situate at Main Street, Cavan (the property); (ii) restraining them from trespassing on the property or any part thereof; (iii) restraining them from advertising for sale, selling, transferring, alienating, disposing, dissipating or otherwise dealing with the property in whole or in part pending determination of the proceedings; (iv) directing Everyday and the receiver to deliver up to the plaintiff the keys in respect of the property; and (v) directing them to account to the plaintiff for rent received by them from the tenant of the property. The core issues upon which he relied were as follows: (1) the terms of the letter of sanction of 18 December 2008 were not accepted by him and the signature on it which purported to be his signature was a forgery; (2) Everyday and the receiver were not entitled to enter into possession of the property or to offer it for sale without the plaintiff’s consent or a court order; (3) Everyday and the receiver effected forcible entry to the property, causing damage, so even if they were entitled to take possession they did so unlawfully; and (4) the property was being sold at an undervalue.

Held by the High Court (Dignam J) that there was no evidence that AIB was attempting to do anything which required to be restrained and there was no basis for an interlocutory injunction against AIB. He therefore refused the relief against AIB. Applying Merck Sharpe & Dohme v Clonmel Healthcare [2019] IESC 65, he was satisfied that the plaintiff had established a strong case that he was likely to succeed in his claim that: he did not accept the terms in the 2008 letter and did not sign it; possession was not obtained peaceably; and the property was being sold at an undervalue. Dignam J held that a significant factor in the balance of justice was the nature of the claim that the signature on the 2008 letter was a forgery. Having had regard to that factor, he found that the balance of justice favoured an order restraining the sale of the property because a sale would either mean the loss of the property or possibly the future unravelling of a sale. He held that the balance did not favour an order being made directing the defendants to give up possession or to deliver the keys because retention of possession and the keys did not lead to the permanent loss of the property or the unravelling of a sale. He held that in the event that the plaintiff succeeded at trial possession could be restored and the loss of rent was a simple financial exercise. Dignam J did not believe that a sufficient evidential basis had been laid for a conclusion that it was necessary to make an interlocutory order compelling Everyday and the receiver to account to the plaintiff in respect of rent.

Dignam J made an order restraining Everyday and the receiver, their servants or agents, and all other persons having notice of the order from advertising for sale, selling or disposing of the property and declined granting the other reliefs.

Relief granted in part.

Judgment of Mr. Justice Conor Dignam delivered on the 1st day of April 2025

INTRODUCTION

1 . The plaintiff seeks interlocutory injunctions in respect of lands which are fully described in the Plenary Summons and Notice of Motion. They are lands which are situate at Main Street, Cavan, and are referred to as “the Main Street Property” or simply as “the Property”.

2 . He seeks Orders:

• (i) restraining the defendants and all persons having notice of the Order from entering, watching, besetting, threatening or otherwise taking possession of the Main Street Property;

• (ii) restraining the defendants and all persons having notice of the Order from trespassing on the Main Street Property or any part thereof;

• (iii) restraining the defendants and all persons having notice of the order from advertising for sale, selling, transferring, alienating, disposing, dissipating or otherwise dealing with the Main Street Property in whole or in part pending determination of the proceedings;

• (iv) directing the second and third-named defendants to deliver up to the plaintiff forthwith the keys in respect of the Main Street Property;

• (v) directing the second and third named defendants to account to the plaintiff for rent received by them from the tenant of the Main Street Property.

3 . I will refer to the first-named defendant as “AIB”, the second-named defendant as “Everyday”, and the third-named defendant as “Mr. Harper” or “the receiver”.

4 . The grounding affidavit is extremely lengthy, running to seventy-one pages and two hundred and thirty-seven paragraphs. The exhibits run to several hundred pages. A significant portion of the contents of the affidavit are drawn from documents which the plaintiff obtained on foot of a data access request to AIB in July 2012 and a data access request to Mr. Harper on the 28 ^th September 2020. Much of the material in the affidavit concerns other parcels of land. These are referred to as “the Mayo Lands” and “4 Church Street”. No relief is sought in respect of these other lands but the material and the issues raised in relation to them are part of the background and context for the issues which have to be determined and the plaintiff relies on certain aspects of it to support some of his allegations in respect of the Main Street Property. I have considered all of this material. It is not necessary to refer to it in detail at this stage, though I will make reference to some of it during the course of this judgment. Two affidavits were sworn on behalf of Everyday and the receiver (by a Ms. Margaret Hartigan and by Mr. Harper). Two affidavits were sworn on behalf of AIB (by a Mr. Ian Smith) and two replying affidavits were sworn by the plaintiff. I have considered all of the contents of these affidavits.

5 . The plaintiff raised objections in respect of the affidavits sworn by Mr. Smith and Ms. Hartigan on the basis that they did not exhibit their authority to make their respective affidavits on behalf of the relevant defendant, that Mr. Smith could not have the books and records of AIB in his control and custody, that he did not inspect all the books and records or was not being candid with the Court, and that a director or the secretary of AIB should have made the affidavit, and that several of the averments in Ms. Hartigan's affidavit are hearsay. I am satisfied that these objections are without merit from the point of view of whether I should have regard to these affidavits for the purpose of this application (this is particularly so where the contents of the plaintiff's grounding affidavit are largely drawn from the books and records of the defendants), though they may go to the weight to be given to any particular averment in the event of a dispute.

6 . The directly relevant background can be summarised as follows. It is important to note that due to the nature of the grounding affidavit it is, at times, difficult to ascertain what facts are in dispute. However, it became apparent at the hearing that the plaintiff is putting almost everything in dispute or at least is putting the defendants on proof of almost everything; for example, in the written submissions delivered on behalf of the second and third-named defendants, they identify twelve factual matters which they believed were not in dispute but the plaintiff stated at the hearing that he did not accept most of these matters. These included what would appear to be relatively uncontroversial matters, including that the plaintiff borrowed significant sums of money from AIB and that the plaintiff gave a mortgage over the Main Street Property as security. While the plaintiff accepts that he received significant sums of money from AIB, he does not concede that they were given as loans (notwithstanding that he says at paragraph 29 of his grounding affidavit that “ In or around November 2003 AIB agreed to offer facilities to assist in the construction of seven apartments and three commercial units on The Main Street Property”). He also accepts that he signed a mortgage document but does not concede that he gave a valid mortgage. The plaintiff explained that he was not conceding matters because he did not want to prejudice his position at the substantive trial. This is not an appropriate way to proceed. It is for an applicant to clearly state what their position is. They can, of course, reserve their rights but it is essential that parties clearly state what their respective positions are so that the Court can decide between the opposing positions. Everyday and the receiver urged that this is no way to approach an application for equitable relief. That is a legitimate point. Nonetheless, I propose to consider the application on the merits, though that is made more difficult by the approach adopted. The determination of any such disputes is a matter for the substantive trial of the action. The following summary should therefore not be taken to amount to findings of fact, though I have tried to identify where there is no dispute.

7 . A loan facility for €1,400,000 was extended to the plaintiff by AIB Monaghan town branch by letter of the 28 ^th November 2003. This replaced an earlier letter of sanction of the 18 ^th November 2003 which had not been accepted by the plaintiff. The...