Osborne v Tyrell

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 30 May 2022
• Neutral Citation: [2022] IEHC 343
• Court: High Court
• Docket Number: [2018/2537 P]

Between

James Osborne

Plaintiff

and

Ken Tyrell

Defendant

Between

KBC Bank Ireland Plc

Plaintiff

and

James Osborne

Defendant

[2022] IEHC 343

[2018/2537 P]

[2015/1856 S]

THE HIGH COURT

Undertaking – Isaac Wunder order – Liberty to issue proceedings – Plaintiff seeking an order removing the obligations of an undertaking as was provided by the plaintiff in lieu of a notice of motion seeking an Isaac Wunder order – Whether a cogent case had been made as to why liberty to issue fresh proceedings should be granted

Facts: The plaintiff, Mr Osborne, by notice of motion dated the 30th of October 2020, sought the following reliefs: an order removing the obligations of an undertaking as was provided by the plaintiff in lieu of a notice of motion seeking an Isaac Wunder order; an order granting liberty to the plaintiff to issue the proceedings as exhibited before the High Court and as referred to in the grounding affidavit of the plaintiff in the application; an order granting liberty to reinstate a lis pendens attached to the proceedings upon Folio No. 14039F; an order for the setting up of an escrow account for the collection of rents; liberty to issue the notice of motion; liberty to issue the plenary summons; further or any order of the Court; and costs.

Held by O’Moore J that, on the relevant issues, the evidence of Mr Reynolds was to be preferred. O’Moore J was satisfied that Mr Osborne gave instructions to Mr Reynolds to offer the disputed undertaking to McGovern J. In light of this finding and having considered the entirety of the submissions made in respect of the first relief sought in the notice of motion, O’Moore J decided to refuse that relief.

O’Moore J held that, with regard to the second relief sought, namely liberty to issue fresh proceedings in the event that Mr Osborne was not relieved of his undertaking, no cogent case had been made as to why such relief should be granted. O’Moore J therefore also refused the second relief sought. O’Moore J also refused the other reliefs claimed, which did not feature prominently in the argument.

Reliefs refused.

DECISION of Mr. Justice Brian O'Moore delivered on the day of 30 ^th of May, 2022

1 . By Notice of Motion dated the 30 ^th of October 2020 Mr. James Osborne sought the following reliefs;

“An Order removing the obligations of an undertaking as was provided by the Plaintiff in lieu of a Notice of Motion seeking an Issac Wunder Order.

An Order granting liberty to the plaintiff to issue the proceedings as exhibited before this Honourable Court and as referred to in the Grounding Affidavit of the said Plaintiff in the within Application.

An Order granting liberty to reinstate a lis pendens attached to the within proceedings upon Folio No. 14039F

An Order for the setting up of an escrow account for the collection of rents.

Liberty to issue the within Notice of Motion

Liberty to Issue the Plenary Summons

Further or any order of the Court

Costs”

2 . While the first paragraph of the Motion suggests that Mr. Osborne actually provided an undertaking in lieu of an Isaac Wunder Order, it transpired that the essence of Mr. Osborne's case on this issue was that the relevant undertaking (given to McGovern J on the 17 ^th of April 2018) was given without Mr. Osborne's authority. Following an exchange of affidavits, some of them extremely detailed, the motion was heard on the 15 ^th of December 2020.

3 . After hearing the motion, I was...