Ooi v Ireland and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Nessa Cahill
• Judgment Date: 19 November 2024
• Neutral Citation: [2024] IEHC 663
• Docket Number: Record no. HP 2024/698

Between:

Yeoksee Ooi

Plaintiff

and

Ireland, The Attorney General, Brian McDonagh, and Promontoria Scariff Designated Activity Company

Defendants

[2024] IEHC 663

Record no. HP 2024/698

THE HIGH COURT

Strike out – Injunction – Family Home Protection Act 1976 s. 2 – Fourth defendant seeking an order striking out or dismissing the proceedings against it – Whether the claim against the fourth defendant was bound to fail

Facts: The plaintiff, Ms Ooi, sought various orders, most notably a declaration that s. 2 of the Family Home Protection Act 1976 is repugnant to the Constitution and, in particular, Articles 40.1, 40.5, 41.1, 41.2 and 41.2.1 thereof. A motion was issued by the fourth defendant, Promontoria Scariff DAC, and its predecessor in title (Promontoria), seeking an order striking out or dismissing the proceedings against it pursuant to O.19, r. 28 or O.19, r. 27 of the Rules of the Superior Courts and/or the inherent jurisdiction of the Court (the Strike Out Application). Promontoria’s case was that there was no reasonable cause of action and/or that the claim against it was bound to fail. Ms Ooi’s motion sought an interlocutory order prohibiting the Dublin City Sheriff, Mr Burke, or any other person appointed by the County Registrar of Wicklow, or his agents, from evicting Ms Ooi and her family from Dromin House, Drummin East, Delgany, County Wicklow pending the determination of the proceedings (the Injunction Application). Ms Ooi’s case was that Dromin House was her family home and that there was an arguable case that s. 2 of the 1976 Act (on which Promontoria and Mr McDonagh relied) discriminated against her on the ground of marital status in violation of several sub-articles of Articles 40 and 41 of the Constitution.

Held by the High Court (Cahill J) that she was not satisfied that Promontoria had discharged the onus it bore to show that Ms Ooi’s claim against it was bound to fail, disclosed no reasonable cause of action, or had no reasonable prospect of success. Cahill J refused the Strike Out Application. She held that this decision was subject to findings that the claim in misrepresentation did not disclose a reasonable cause of action and the claim of breach of duty only disclosed a reasonable cause of action insofar as it concerned the application of the 1976 Act.

Cahill J held that the low threshold of arguability for the Injunction Application was met. At this preliminary stage, on the basis of the limited information before her, it seemed to her more likely than not that a permanent injunction would be refused. In the very particular circumstances of the case, she was of the view that the delay in issuing the Injunction Application was a factor which weighed in the balance against the grant of the relief sought. She concluded that there were various factors in the balance of justice which weighed cumulatively against the grant of the relief sought. Cahill J refused the Injunction Application.

Applications refused.

JUDGMENT of Ms Justice Nessa Cahill delivered on 19 November 2024

Introduction

1 By these proceedings, the Plaintiff (Ms Ooi) seeks various orders, most notably a declaration that s. 2 of the Family Home Protection Act 1976 (“ the Act of 1976”) is repugnant to the Constitution and, in particular, Articles 40.1, 40.5, 41.1, 41.2 and 41.2.1 thereof.

2 This Judgment addresses two motions: The first is the motion issued by the Fourth Defendant and its predecessor in title (“ Promontoria”) seeking an order striking out or dismissing the proceedings against it pursuant to O. 19, r. 28 or O.19, r. 27 of the Rules of the Superior Courts (“RSC”) and/or the inherent jurisdiction of the Court (“ the Strike Out Application”).

3 The second motion is Ms Ooi's motion seeking an interlocutory order prohibiting the Dublin City Sheriff, Mr Joseph Burke, or any other person appointed by the County Registrar of Wicklow, or his agents, from evicting Ms Ooi and her family from Dromin House, Drummin East, Delgany, County Wicklow (“ Dromin House”) pending the determination of these proceedings (“ the Injunction Application”).

4 While they are very different applications, there is an important overlap between them. The first question in the Strike Out Application is whether the Proceedings disclose no reasonable cause of action and are bound to fail; and, conversely, the first test for the grant of an injunction is whether there is an arguable or serious issue to be tried. It is now established that the same threshold is applicable to both.

5 Before proceeding further, it is important to record that the First and Second Defendants (“ the State Defendants”) did not participate in the Strike Out or the Injunction Applications. The outcome of the two Applications before me does not decide the fate of Ms Ooi's claim against the State Defendants, but only that of her claim for relief against Promontoria.

Background

6 There is a lengthy history of litigation involving Mr McDonagh and Promontoria (among others). It is neither necessary nor efficient to recite this background in this Judgment.

7 The facts that are relevant to the Motions may be more briefly stated and are not in dispute.

Dromin House

8 In 2005, Mr McDonagh purchased Dromin House in his sole name with the benefit of a loan obtained from First Active plc in the amount of €3,000,000 (“ the First Loan”). This loan was secured by a mortgage over Dromin House, which was agreed by a mortgage deed dated 10 May 2005 (“ the First Mortgage”). This mortgage was registered in the Registry of Deeds.

9 In 2007, the First Loan was restructured, resulting in Mr McDonagh obtaining a loan facility of €5,009,750 (“ the Second Loan”) which was secured by a second mortgage on Dromin House. This subsumed and cleared the First Loan. The second mortgage deed is dated 3 August 2007 (“ the Second Mortgage”). This mortgage was also registered in the Registry of Deeds. In the context of the Second Mortgage, Mr McDonagh completed a statutory declaration under the Act of 1976 on 28 July 2007 to the effect that Dromin House was not a family home for the purpose of that Act and no other person had an interest in the property. Ms Ooi asserts that this Second Loan was taken out in connection with a larger commercial investment in which Mr McDonagh was involved.

10 No repayments have been made in respect of the Second Loan since 2013.

11 Promontoria is now the successor to, and holds the rights of, First Active plc under the two Mortgages.

12 Owing to the defaults by Mr McDonagh, Promontoria issued proceedings in the Circuit Court on 18 May 2021 to obtain possession of Dromin House (“ the Possession Proceedings”).

13 As of 1 September 2022, the sum of €5,200,596.71 was owed by Mr McDonagh, with arrears amounting to €2,144,212.36.

14 Following a contested hearing, an order for possession was made by the Circuit Court (His Honour Judge Quinn) sitting in Bray, County Wicklow on 18 January 2023, with a stay on the order of possession for a period of 18 months from the date of service of that order (“ the Possession Order”).

15 Mr McDonagh appealed the Circuit Court Order and, on 19 June 2023, this appeal was given a date for summary hearing on 15 February 2024 (“ the Possession Appeal”).

16 By judgment delivered on 12 March 2024 (“ the Possession Judgment”), Bradley J decided not to refer the matter to plenary hearing and instead granted the order for possession sought by Promontoria.

17 The stay that was imposed by the Circuit Court expired on 7 September 2024.

18 An execution order was issued by the Country Registrar for County Wicklow on 25 September 2024 (“ the Execution Order”).

19 The County Registrar sent an order for ejectment to Mr McDonagh on 14 October 2024.

20 By notice dated 15 October 2024, the Dublin City Sheriff confirmed his appointment to execute the Execution Order and take possession of Dromin House and required the occupier(s) of Dromin House to vacate the property by midnight on 22 October 2024.

Ms Ooi's Position

21 More than 20 years ago, Ms Ooi and Mr McDonagh commenced a relationship and Ms Ooi moved into Dromin House in 2006.

22 It was common case that Ms Ooi never had an established legal interest in, or title to, Dromin House (Possession Judgment [6]) (although she makes an unexplained averment to the contrary in her replying affidavit in the Injunction Application).

23 Since 2006, Ms Ooi and Mr McDonagh have had three children together, who also reside in Dromin House. It has been found by the Court of Appeal and the High Court that Dromin House is not a ‘family home’ within the meaning of the Act of 1976 (“ Possession Judgment”, [36]; Ulster Bank Ireland DAC v Brian McDonagh & Ors [2023] IECA 265, [7]).

24 As an occupant of Dromin House, Ms Ooi was on notice of the Possession Proceedings and was represented by solicitor and counsel at the hearing in the Circuit Court.

25 She issued these proceedings on 13 February 2024, two days before the hearing of the Possession Appeal was scheduled to take place.

26 On 15 February 2024, Ms Ooi applied to the High Court (Bradley J) for an adjournment of the Possession Appeal owing to the issue of these Proceedings. An application was also filed in these Proceedings for the two actions to be joined and requesting the joinder of the Attorney General as “ amicus curia” to the Possession Appeal, among other reliefs (“ the Joinder Application”).

27 The adjournment application was opposed by Promontoria on the ground that no constitutional question arises in the Possession Appeal and the proceedings were straightforward possession proceedings.

28 The Possession Judgment ([11]) records that Promontoria's counsel advanced the argument that—

“Ms. Ooi was free to pursue her constitutional challenge against the State, but this did not in any way impugn the entitlement of Promontoria to the possession of the property in accordance with its...