O'Neill v O'Connor
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 11 December 2018 |
| Neutral Citation | [2018] IEHC 709 |
| Docket Number | [2018 No. 578 P] |
| Court | High Court |
| Date | 11 December 2018 |
[2018] IEHC 709
[2018 No. 578 P]
THE HIGH COURT
Property – Possession – Discovery – Plaintiff seeking possession of property – Whether the material sought by the defendant in a motion for discovery was necessary for her to formulate or progress her defence
Facts: The plaintiff, Mr O’Neill, by plenary summons issued on 23rd January, 2018, claimed an injunction requiring the defendant, Ms O’Connor, to forthwith surrender possession of two properties, the first at 23 Lifford Park, South Circular Road, Limerick (the Limerick property) and the second at 9 Muckross Lakeside Holiday Village, Muckross, Killarney, County Kerry (the Muckross property), and a variety of injunctions restraining the defendant, her servants and agents, from interfering with the discharge by the plaintiff of his duties as receiver over the properties. Having issued his summons, the plaintiff moved immediately for a series of interim injunctions, which were granted by Costello J. On the same day, he issued and served a motion for interlocutory relief, returnable for 25th January, 2018. The plaintiff’s motion came before Baker J on 25th January, 2018. Baker J continued the interim injunctions which had been granted by Costello J until further order and made a number of orders directed to restoring students into possession of the Limerick property. The orders of 23rd and 25th January, 2018 dealt only with the Limerick property. The plaintiff’s motion for interlocutory relief in relation to the Muckross property was adjourned on 25th January, 2018 to 27th February, 2018 and then from time to time until it came before Allen J on 27th November, 2018. The defendant issued three motions against the plaintiff. The first was a motion issued on 25th January, 2018 and originally returnable for 26th February, 2018 for the trial of 23 so called points of law. By that motion the defendant sought to join Allied Irish Banks plc and AIB Mortgage Bank to the action and sought a variety of orders directed to the validity of the assignment of the loans and security, and the validity of the plaintiff’s appointments. The defendant also sought to have the action dismissed on the ground that her husband, who was jointly party to the loans and mortgages, had not been named. The defendant’s second motion was issued on 10th April, 2018 and originally returnable for 30th April, 2018. By that motion the defendant sought, in eight iterations, an order dismissing or striking out the plaintiff’s claim for want of standing or jurisdiction; an order declaring that the plaintiff’s paperwork was bad and that the defendant’s paperwork was good; an order that the plaintiff had trespassed on the private life and property of the defendant; and damages. The defendant’s third motion was issued on 9th May, 2018 and originally returnable for 25th June, 2018. In his affidavit sworn on 23rd January, 2018 the plaintiff had deposed that shortly after his appointment he was instructed to place the receivership on hold. By her third motion the defendant claimed an order for discovery by the plaintiff of any and all documentation in relation to the placing of a “hold” on the receivership by AIB Mortgage Bank; the removal of the “hold”; an order compelling the plaintiff to produce or to procure from Beltany Property Finance DAC “any and all documentation in his possession and which ought to be in his possession confirming beyond all reasonable doubt the lawfulness of his appointment”; and an order “declaring and clarifying that in the absence of and/or failure by the plaintiff to produce same irrevocably compromises and voids the plaintiff’s claim in its totality against the defendant”.
Held by the High Court (Allen J) that it was not satisfied that the action was bound to fail and it therefore refused the defendant’s second motion. Allen J held that Allied Irish Banks plc and AIB Mortgage Bank were not affected by the issues and that there was no basis upon which they should be joined. Allen J held that it made no sense to contemplate that the issues in the action might be tried as preliminary issues. Allen J therefore refused the defendant’s first motion. Allen J held that in the defendant’s third motion seeking discovery, the defendant did not say that the material sought was necessary for her to formulate or progress her defence, nor was it.
Allen J held that, on the evidence, he was driven to the conclusion that the plaintiff had not sufficiently made out the case that he was entitled to possession of the Muckross property. Allen J therefore refused the plaintiff’s motion.
Motion refused.
In this case I dealt with four motions together, one on behalf of the plaintiff and three by the defendant, on 27th and 28th November, 2018. The plaintiff was represented by solicitors and counsel. The defendant represented herself with the assistance of, or at least prompted from time to time as to what she might say by, a McKenzie friend. I heard the motions in the order in which they were issued but I will deal with them in logical order.
By plenary summons issued on 23rd January, 2018 the plaintiff claimed an injunction requiring the defendant to forthwith surrender possession of two properties, the first at 23 Lifford Park, South Circular Road, Limerick (‘ the Limerick property’) and the second at 9 Muckross Lakeside Holiday Village, Muckross, Killarney, County Kerry (‘ the Muckross property’) and a variety of injunctions restraining the defendant, her servants and agents, from interfering with the discharge by the plaintiff of his duties as receiver over the properties.
At the time the action was commenced there was a problem with the Limerick property that needed to be dealt with urgently. The Limerick property was a house which had been let by the defendant to four students. On 15th January, 2018 the plaintiff had written to the tenants of the Limerick property advising them of his appointment. On 22nd January, 2018 the plaintiff's agent in Limerick had a call from the mother of one of the students to say that the defendant had arrived at the property with a sleeping bag and had told them that she was going to change the locks. The defendant wanted the tenants to sign a document stating that they would not have dealings with anyone other than her. When the tenants declined to sign the document, the defendant said that she wanted them out of the house. The tenants reported to one of the plaintiff's staff that they were alarmed and worried, not least by the fact that the defendant insisted on staying in the house overnight and had three men in the house with her until 12.30 am. One of the tenants had reported that she had been woken by the defendant on the morning of 23rd January, 2018 who shouted ‘get out’ at her. Over the course of 22nd and 23rd January the Gardaí were called at least twice.
The Plaintiff moved swiftly. Having issued his summons on 23rd January, 2018, he moved immediately for a series of interim injunctions, which were granted by Costello J. On the same day, he issued and served a motion for interlocutory relief, returnable for 25th January, 2018.
The plaintiff is a partner in KPMG Chartered Accountants. He was appointed (or, the defendant says, and I will say for the moment, purportedly appointed) by AIB Mortgage Bank over each of the Limerick property and the Muckross property by separate deeds dated 7th October, 2016. It does not appear that as of 23rd January, 2018 the plaintiff had taken any step in relation to the Muckross property but the defendant and her husband, directly and by a firm called Fitzpatrick Financial Solutions (‘ FFS’) had been in correspondence with Allied Irish Banks plc, AIB Mortgage Bank, Beltany Property Finance DAC (‘ Beltany’) (to whom the defendant's loans and the security held for them had been sold, or purportedly sold) and Beltany's agent, Pepper Finance Corporation (Ireland) DAC, challenging the validity of the assignment of the loans and security, and the validity of the plaintiff's appointments.
The immediate object of the action and the motion was to resolve the difficulty with the Limerick property but the Muckross property was included in both. In those circumstances, the focus of the application and the affidavits was very much on the Limerick property.
The plaintiff's motion for interlocutory relief came before Baker J. on 25th January, 2018. Baker J. continued the interim injunctions which had been granted by Costello J. until further order and made a number of orders directed to restoring the students into possession of the Limerick property.
The orders of 23rd and 25th January, 2018 dealt only with the Limerick property. The plaintiff's motion for interlocutory relief in relation to the Muckross property was adjourned on 25th January, 2018 to 27th February, 2018 and then from time to time until it came before me on 27th November, 2018.
With the assistance of, or at least prompted by, those who held themselves out to her as being able to assist her, the defendant issued three motions against the plaintiff.
The first was a motion issued on 25th January, 2018 and originally returnable for 26th February, 2018 for the trial of 23 so called points of law. By that motion the defendant sought to join Allied Irish Banks plc and AIB Mortgage Bank to the action and sought a variety of orders directed to the validity of the assignment of the loans and security, and the validity of the plaintiff's appointments. The defendant also sought to have the action dismissed on the ground that her husband, who was jointly party to the loans and mortgages, had not been named. That motion was grounded on an affidavit of the defendant, which was also sworn in answer to the plaintiff's motion.
The defendant's second motion was...
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