Olive Green IMS Holdings Ltd v Carter and Anor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Liam Kennedy
• Judgment Date: 14 April 2026
• Neutral Citation: [2026] IEHC 217
• Docket Number: [Record No. HP 2025/5957]

Between

Olive Green IMS Holdings Limited

Plaintiff

and

Anthony Carter and Elizabeth Carter

Defendants

[2026] IEHC 217

[Record No. HP 2025/5957]

THE HIGH COURT

Interlocutory relief – Balance of justice – Undertakings – Plaintiff seeking interlocutory relief – Whether the balance of justice favoured relief

Facts: The plaintiff, Olive Green IMS Holdings Ltd, sought interlocutory relief, claiming that the defendants, Mr and Mrs Carter, were preventing it and its tenants from accessing, or enjoying the use of, its property (the Property), blocking rights of way to the public roadway via the second defendant’s land (Block 1), or threatening to do so, contrary to longstanding arrangements and entitlements which were reflected in and required by the terms of planning permissions granted to the defendants. The plaintiff said that: (i) the first defendant’s transfer of Block 1 to the second defendant in 2014 and subsequent actions were intended to obstruct the receivership sale of the Property and its subsequent use and enjoyment by its purchaser; (ii) the defendants had taken (or threatened) steps to landlock the Property, eliminating access to and egress from the public roadway and access to shared parking; (iii) the Property had acquired rights of way or access rights over Block 1 and the defendants’ proposed steps would breach such rights; (iv) since it acquired the Property, the plaintiff, its tenants and the public had faced interference and threats of obstruction; (v) such actions would breach planning obligations and reverse long standing arrangements implemented by the first defendant; (vi) interlocutory orders were required to: “Maintain long-standing access and parking/circulation serving the Plaintiff’s property (The Property): (a) restraining interference with rights of way and site circulation; (b) preventing the erection of barriers or fencing over parking/circulation; and (c) directing the provision of keys (or removal of the lock) to the gate pending trial”. If the applicable threshold test was met, the key issue was whether the balance of justice favoured relief or whether undertakings sufficed pending trial. As a result of discussions following the hearing of the application, only one of the interlocutory reliefs sought remained in dispute, the plaintiff’s demand for access via a gate on the second defendant’s land which controlled access to an area at the rear of the Property (the Gate).

Held by the High Court (Kennedy J) that the plaintiff had not established a strong case likely to succeed at trial which would justify the order sought in relation to the Gate. He was not convinced that it had even met the lower standard in relation to the easement which it asserted in that regard. Nor, in the absence of proper pleadings, expert evidence and more detailed submissions was he satisfied that the plaintiff had established a strong case likely to succeed at trial as to the possible planning infringement. In any event he held that damages would be an adequate remedy if the plaintiff succeeded on that issue at trial. He found that the undertakings provided a just and sensible basis on which to proceed pending trial, permitting access across Block 1, notwithstanding the defendants’ position that such access constituted trespass. He held that the balance of justice would not require the relief to be granted via the Gate as well, even if the plaintiff had met the threshold test.

Kennedy J dismissed the application in the light of the defendants’ constructive undertakings.

Application dismissed.

Representation

David Dodd, instructed by Cullen Tyrrell & O'Beirne Solicitors LLP, for the plaintiff

Neal Flynn, instructed by Padraig J. Hyland & Co., for the defendants.

JUDGMENT of Mr Justice Liam Kennedy delivered on 14 April 2026 .

Introduction

1 . The plaintiff seeks interlocutory relief, claiming that the defendants are preventing it and its tenants (including the latter's customers or visitors) from accessing, or enjoying the use of, its property (“the Property”), blocking rights of way to the public roadway via the second defendant's land (“Block 1”), or threatening to do so, contrary to longstanding arrangements and entitlements which are, it says, reflected in and required by, the terms of planning permissions granted to the defendants themselves over the years.

2 . The parties' adjacent properties (collectively, “the Site”) were previously in common ownership. Both were owned by the first defendant (the second defendant's husband) until 2014. He bought Block 1 from the original owners (“the Seales”) in 1996 and Block 2 – the Property — in 1997. The plaintiff says that; (i) his transfer of Block 1 to the wife in 2014 and subsequent actions were intended to obstruct the receivership sale of the Property and its subsequent use and enjoyment by its purchaser; (ii) the defendants have taken (or threatened) steps to landlock the Property, eliminating access to and egress from the public roadway and access to shared parking; (iii) the Property has acquired rights of way or access rights over Block 1 and the defendants' proposed steps would breach such rights; (iv) since it acquired the Property, the plaintiff, its tenants and the public have faced interference and threats of obstruction (including blocking access routes and preventing access to parking); (v) such actions would breach planning obligations and reverse long standing arrangements implemented by the first defendant himself; (vi) interlocutory orders are required to:

“Maintain long-standing access and parking/circulation serving the Plaintiff's property (The Property): (a) restraining interference with rights of way and site circulation; (b) preventing the erection of barriers or fencing over parking/circulation; and (c) directing the provision of keys (or removal of the lock) to the gate pending trial”.

3 . If the applicable threshold test is met, the key issue is whether the balance of justice favours relief or whether undertakings suffice pending trial. This ruling focuses on the gap between the relief sought by the plaintiff and the undertakings. As a result of ongoing discussions following the hearing of the application, only one of the interlocutory reliefs sought remains in dispute, the plaintiff's demand for access via a gate on the second defendant's land which currently controls access to an area at the rear of the Property (“the Gate”). In short, I consider that relief is not required in respect of that issue; the undertakings suffice pending trial. My reasons are set out below and are necessarily based on the evidence and submissions to date. Different conclusions may be reached at trial on the basis of the exchange of pleadings, discovery, fuller evidence, cross-examination, and further legal submissions.

4 . The Property comprises 11 residential and commercial units. It currently has one commercial tenant, a creche. The plaintiff describes it as “sharing” an entrance, internal roads and car parking with the adjacent Block 1 which separates the Property from the public roadway. In fact, the entrances are on Block 1. The surrounding land is largely developed. A wall on the Property itself blocks access to the public road at the only point at which the Property adjoins it. Currently at least, the only access to the roadway is across the second defendant's land — it will be a question for trial as to whether the potential access point undermines the plaintiff's claim to be landlocked in the absence of rights of way over Block 1.

5 . Relying on two decades of planning records from an era during which both properties were jointly owned/controlled, the plaintiff says that the Site configuration does not distinguish between the properties — access to the Property has always been across Block 1 and parking was not designated as allocated to either block. Now that ownership and control of the properties have diverged, the issue arises as to whether the second defendant can restrict access via, or parking on, her land, or whether the Property has acquired rights on and over Block 1 and, if so, the extent of such rights.

6 . The key aspects of the current layout are as follows:

• a. currently the Property's only access routes to the roadway are via Block 1. The defendants declared an intention of fencing their boundary. On the current configuration, that would sever the Property's access to the roadway, landlocking it unless alternative access could be developed. However, the defendants have helpfully undertaken not to restrict access to the Property from the public road pending trial.

• b. In the light of undertakings which cover access to the front of the Property and parking, the sole remaining interlocutory issue is whether the defendants should be required pending trial to also offer the plaintiff, its tenants and their customers and visitors access via the locked Gate on the second defendant's land which is required to access a strip at the rear of the Property.

Background

7 . The original owners of undivided land including the Site, the Seales, divided the title and sold it to the first defendant, as follows; (a) circa 1995, they offered him the chance to buy the Site, but he could not afford it; (b) in 1996, he bought Block 1, mortgaging it to Irish Life & Permanent (“ILP”), building commercial units and apartments thereon; (c) in 1997 he bought the Property from the Seales, mortgaging it to AIB and engaging a contractor to build townhouses, apartments and commercial units; (d) in 2004, and again in 2009, he obtained further finance from AIB to fund more development on the Property (and to repay the ILP mortgage on Block 1); (e) although the first defendant met his payment obligations despite the recession, AIB still called in the (commercial demand) loan — the demand was not tied to any default. Its successor as chargeholder, Everyday, appointed a receiver over...