Pepper Finance Corporation (Ireland) DAC v Persons Unknown in Occupation of the Property known as 21 Little Mary Street, Dublin 7

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Sanfey
• Judgment Date: 13 August 2021
• Neutral Citation: [2021] IEHC 559
• Docket Number: [Record No. 2020/6888 P]
• Year: 2021
• Court: High Court

Between

Pepper Finance Corporation (Ireland) DAC

Plaintiff

and

Persons Unknown in Occupation of the Property known as 21 Little Mary Street, Dublin 7

Defendants

Between

Pepper Finance Corporation (Ireland) DAC

Plaintiff

and

Persons Unknown in Occupation of the Property known as 31 Richmond Avenue, Fairview, Dublin 3

Defendants

[2021] IEHC 559

[Record No. 2020/6888 P]

[Record No. 2020/6889 P]

THE HIGH COURT

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 13 ^th day of August, 2021 .

Introduction

1 . This judgment concerns applications in each of these proceedings for attachment and committal of certain individuals who the plaintiff alleges are in occupation of the properties to which reference is made in the designation of the defendants in the respective titles of the proceedings, i.e. 21 Little Mary Street, Dublin 7 and 31 Richmond Avenue, Fairview, Dublin 3 (‘the properties’, or ‘Little Mary Street’ and ‘Richmond Avenue’ respectively).

2 . At the time of the issue of the proceedings, and indeed as of 12 ^th February, 2021 when the motions presently under consideration were issued, the plaintiff's position was that it was not aware of the identity of the majority of the occupants of the premises, notwithstanding having delivered correspondence to the properties prior to the commencement of the proceedings requiring the occupants to identify themselves and engage with the plaintiff (‘Pepper’).

3 . As I will set out in more detail below, applications were made to this Court on 25 ^th November, 2020 by the plaintiff, who has succeeded to the mortgagees' interest in each of the properties, for various injunctive reliefs in respect of the properties intended to facilitate the unimpeded taking of possession of the properties by the plaintiff. On 23 ^rd November, 2020, appearances were delivered to the solicitors for Pepper by Mr. Gabriel Petrut, described on the appearance as a “defendant in person” and Ms. Margareth [sic] Hanrahan, described as “an unnamed defendant”, residents of 31 Richmond Avenue and 21 Little Mary Street respectively.

4 . An appearance was also delivered on that date by Mr. Jerry Beades, who was the original mortgagor of the property. There is no evidence that Mr. Beades was ever an occupant of either of the properties, and, as far as the plaintiff is concerned, he is not a defendant in either proceedings or a person to whom the applications for injunctive reliefs or the present applications for attachment and committal are addressed, and has no standing in either proceedings, notwithstanding repeated attempts by him to intervene in the applications for the injunctions, a subsequent application to the Court of Appeal for a stay on the High Court order of 25 ^th November, 2020, and indeed the present applications.

5 . On 22 ^nd February, 2021, appearances were filed by a firm of solicitors, F.H. O'Reilly & Co, in both of the proceedings on behalf of twenty named occupants of the properties to whom I will refer collectively hereafter as “the occupants” or “the respondents”. The appearances give rise to confusion, because it is evident that the persons named in the appearances do not in all instances occupy the properties to which the appearances are intended to refer: for instance, an appearance for Ms. Hanrahan, who resides in 21 Little Mary Street, is included in the notice of appearance filed in respect of the proceedings with record no. 2020/6889 P, which relate to 31 Richmond Avenue. Likewise, Mr. Petrut, who lives in the Richmond Avenue property, is referenced in the notice of appearance to the proceedings dealing with the Little Mary Street property. Both of these persons had in fact already lodged appearances on 23 ^rd November, 2020 which correctly reflected their respective addresses.

6 . However, the confusion was alleviated by Mr. Eoghan O'Reilly, a solicitor in F.H. O'Reilly & Co, who swore affidavits on 22 ^nd February, 2021 in each of the proceedings, in which he identified the “tenants/occupants” of the properties as follows:-

Tenant Register 31 Richmond Ave

Flat	Name	Years in occupation	Location	Children
A	Firuca Puscas	11	Basement
A	Gavrila Puscas	11	Basement
B	Dorina Brat	17	Ground
B	Ioan Brat	17	Ground
C	Gabriel Petrut	1	Ground
D	Doina Bortas	16	First	Cosmina Circu (6), Annabell Circu (9)
D	Vasile Circu	16	First
E	Mihai Bataraga	12	First	Alex Constantin Bataraga (16)
F	Danut Vlad		First
G	Irina Ucaciu	10	Basement
G	Ion Mihali	10	Basement
G	Nicolae Mihali	10	Basement

Tenant Register 21 Little Mary Street

Flat	Name	Years in occupation
1	Margaret Hanrahan	10
3	Iuliu Putina	8
3	Svetlana Gannokha	8
4	Vasile Ivanov	6
4	Augustin Gabor	15
5	Vasile Rus	2
5	Mihai-Romica Striblea	2
5	Iosua Striblea	2

7 . As these tables make clear, there are three children living in 31 Richmond Avenue, two of whom have lived there for all of their lives. The plaintiff has repeatedly asserted that it seeks no reliefs against the minor occupants of the property, deprecating characterisations of the motions such as that of Mr. O'Reilly at para. 5 of the aforesaid affidavit as an “application to imprison children”. At the hearing of the applications however, I was urged by counsel for the defendants to give particular consideration to the effect on these children if the court were to accede to the plaintiff's application.

8 . In any event, it appears that all adult occupants of the properties have had appearances filed for them in one or other of the proceedings, and they have had appropriate legal representation from the outset of these applications. There was an extensive exchange of affidavits, and extremely lengthy and comprehensive written submissions were filed in court ahead of the hearing of the applications, which took place before me on 4 ^th and 5 ^th May, 2021, at the conclusion of which I reserved judgment.

9 . In their submissions, counsel for the defendants were insistent that, where attachment and committal is sought, strict observance of all appropriate formalities and procedures is necessary, and that failure in this regard in any respect is fatal to the plaintiff's applications. It will therefore be necessary to examine in detail how the applications have come about, and the particular steps taken by the plaintiffs in pursuance of them.

Background

10 . On 29 ^th November, 2006, IIB Homeloans Limited (‘IIB’) initiated proceedings by way of special summons in respect of each of the properties against Mr. Jerry Beades, and on foot of each of these proceedings (‘the possession proceedings’), orders for possession were made by this Court in respect of both properties on 23 ^rd June, 2008 by Ms. Justice Dunne (‘the possession orders’). The execution on foot of the possession orders was stayed for a period of six months from the date of the orders. Mr. Beades appealed these orders, and the appeals were heard on 29 ^th April, 2014. On 12 ^th November, 2014, the Supreme Court made orders dismissing the appeals and confirming the possession orders.

11 . The history of the proceedings thereafter, and in particular the attempts to execute on foot of the possession orders, becomes somewhat convoluted. The chronology of events up to the initiation of the present applications – with which the defendants do not take any material issue – is set out in detail at para. 35 of the grounding affidavit in support of the present application regarding the Richmond Avenue property of Gerard McHugh, a Senior Portfolio Manager employed by the plaintiff, and I do not propose to reproduce its detail here, other than to summarise the salient facts as briefly as possible.

12 . In May 2015, IIB was granted leave to issue execution pursuant to the possession orders. It appears that the legal and beneficial interest in the loan facility, facility letter and mortgage in respect of each of the properties was subsequently sold to KBC Bank Ireland plc (‘KBC’), which in October 2017 issued a notice of motion for substitution of KBC for IIB in the possession proceedings in each case, also seeking leave to execute on foot of the possession orders. In July 2018, following a contested application, these orders were granted by the High Court. However, KBC's rights in the loans and securities were subsequently sold to Beltany Property Finance DAC (‘Beltany’), and by order of this Court of 14 ^th October, 2019, Beltany was substituted as plaintiff in each of the possession proceedings, with leave to issue execution on foot of the possession orders.

13 . Beltany subsequently nominated Gerard Hughes of Grant Thornton as the duly authorised person for the purpose of taking possession of the properties. Mr. Hughes attended each of the properties on 14 ^th November, 2019, following requests by letters of 12 ^th November, 2019 from Beltany's solicitors to the solicitors for Mr. Beades enclosing the possession orders and the orders substituting Beltany as a plaintiff, each bearing a penal endorsement and requiring delivery up of possession on 14 ^th November, 2019. These attendances at the properties did not progress the matters, and in February 2020, Beltany's solicitors issued letters to “the occupants” of each of the properties, setting out Beltany's view that the occupants were not in lawful occupation of the properties, but indicating a preference that the matter be resolved consensually. The letters suggested that the occupants seek “urgent legal advice” in relation to the matters.

14 . Beltany's solicitors subsequently received three emails, which were exhibited to Mr. McHugh's affidavit of 8 ^th October, 2020 in support of the injunction application ultimately determined by Reynolds J. They purported to be sent by...