Pepper Finance Corporation (Ireland) DAC v Persons Unknown in Occupation of the Property known as 21 Little Mary Street, Dublin 7 & Pepper Finance Corporation (Ireland) DAC v Persons Unknown in Occupation of the Property known as 31 Richmond Avenue, Dublin 3

JurisdictionIreland
JudgeMr. Justice Gerard Hogan
Judgment Date31 July 2023
Neutral Citation[2023] IESC 21
CourtSupreme Court
Docket NumberS: AP:IE: 2022:000126
Between/
Pepper Finance Corporation (Ireland) DAC
Appellants
and
Persons Unknown in Occupation of the Property known as 21 Little Mary Street, Dublin 7
Respondents
Pepper Finance Corporation (Ireland) DAC
Appellants
and
Persons Unknown in Occupation of the Property known as 31 Richmond Avenue, Dublin 3
Respondents

[2023] IESC 21

O'Donnell C.J.

Dunne J.

Charleton J.

O'Malley J.

Hogan J.

S: AP:IE: 2022:000126

AN CHÚIRT UACHTARACH

THE SUPREME COURT

JUDGMENT of Mr. Justice Gerard Hogan delivered the 31st. day of July 2023

Part I — Introduction
Background
1

. This appeal from a decision of Whelan J. for the Court of Appeal dated 28 th July 2022 ( Pepper Finance Corporation (Ireland) DAC v. Persons Unknown [2022] IECA 170) presents questions relating to the contempt jurisdiction of the High Court, together with its jurisdiction to grant injunctive relief against persons unknown. The appeal arises from an endeavour from the (then) owner, Pepper Finance Corporation (Ireland) DAC (“Pepper”) of two properties at 21 Little Mary Street, Dublin 7 and 31 Richmond Avenue, Dublin 3 to obtain possession of those properties. A preliminary issue also arises in relation to the locus standi of the appellant to pursue this appeal since it has now been confirmed that these two properties have subsequently been sold by Pepper in February 2022. There is also a related issue as to whether the proceedings have been thereby rendered moot. This appeal is just the latest step in litigation which has already given rise to a multiplicity of motions, hearings and judgments, the intricacies of which do not lend themselves to any quick summary.

2

. These present proceedings arise out of an original bank debt. The properties had been owned by a Mr. Jerry Beades with the benefit of a mortgage in favour of IIB Homeloans Ltd. (“IIB”). By order of the High Court on 22 nd June 2008 an order for possession in respect of both properties was made in favour of IIB. An appeal against this order was dismissed by this Court on 12 th November 2014.

3

. It would appear that the ownership of the properties passed between various banks and finance houses in the subsequent period. Much of this is detailed in the judgment of Sanfey J. in the High Court of 13 th August 2021: see Pepper Finance Corporation (Ireland) DAC v. Persons Unknown [2021] IEHC 559 at paragraphs [10] to [16]. It appears that ownership in the loan facilities, facility letters and mortgages were transferred to Pepper on 7 th August 2020.

4

. In a judgment delivered on 29 th June 2018 Costello J. made an order granting leave for execution of the possession order pursuant to Ord. 42, r. 24 RSC: see IIB Home Loans Ltd. v. Beades [2018] IEHC 390. (This as it happens was the second such order, as the then mortgagee had previously refrained from executing the earlier order of 18 th May 2015: see paragraph [26] of the judgment of Costello J.). It seems that on 18 th November 2020 the High Court (Twomey J.) made an order substituting Pepper as the plaintiff in possession proceedings and that he also made an order in its favour pursuant to Ord. 42, r. 24 granting leave for execution of that possession order in respect of these two properties.

5

. On 8 th October 2020 Pepper issued these plenary proceedings (bearing record number 2020 6888P) against “Persons Unknown” seeking possession of the two properties. On the same day it issued a motion seeking injunctive relief in respect of the occupation of the properties by the persons unknown. On 23 rd November 2020, two of the occupants subsequently entered an appearance to these proceedings, namely, a Ms. Margaret Hanrahan, who had been in occupation of Flat 1 on 21 Little Mary Street for some ten years and a Mr. Gabriel Petrut, who was had been in occupation of Flat C, 31 Richmond Avenue for a year. Neither Ms. Hanrahan nor Mr. Petrut attended the hearing of the motion for an interlocutory injunction which came on before the High Court on 25 th November 2020, nor, as it happens, did any other occupant of these properties.

6

. On 25 th November 2020 the High Court (Reynolds J.) made an order requiring the defendants, their servants and agents “and all other persons having notice of the said order” immediately to surrender possession and control of the properties. The orders were subject to a stay until 5pm on Thursday 14 th January 2021. In her order, Reynolds J. had directed that Pepper's solicitor be at liberty to notify the making of the order to the defendants, their servants and agent and all other persons having notice of the order by both hand delivery and by ordinary pre-paid post.

7

. It would also seem (see, e.g., at [89] and [90] of the judgment of Whelan J.) that Reynolds J. directed those five copies of the letter together with her order be hand delivered to the property at 31 Richmond Avenue and addressed to the occupants of the various dwelling units. A further letter was to be sent to Mr. Petrut personally. It also appears that Reynolds J. directed in the case of 21 Little Mary Street (which had five separate dwelling units) that three hard copies of each of the relevant documents be delivered by hand to the property by way of service. These supplemental directions are not contained in the actual orders of the High Court which were perfected on the following day, 26 th November 2020.

8

. Both Ms. Hanrahan and Mr. Petrut had appealed to the Court of Appeal against the making of this order by Reynolds J. On 15 th January 2021 that Court, per Noonan J., refused to impose a general stay on that order but he nonetheless extended the stay. There is a dispute between the parties as to the extent and ambit of the stay order. In the High Court Sanfey J. ruled that based on comments made by Noonan J. in the transcript of his ruling, the stay order obtained only in favour of Mr. Petrut and Ms. Hanrahan to 5pm on 5 th February 2021. The two orders of Noonan J. (sitting alone) record Ms. Hanrahan had attended the Court of Appeal hearing on that day and had appeared in person and had informed the Court that Mr. Petrut could not attend on that date. Two separate motions seeking a stay had been issued by Ms. Hanrahan and Mr. Petrut respectively.

9

. At the close of the hearing on that day following an unsuccessful application by Mr. Beades for an extension of the stay, Noonan J. said (as per the transcript of that hearing):

“As far as I am concerned, I have made a very limited order in terms of a stay that applies only to Mr. Petrut and Ms. Hanrahan…I mean those orders say what they say and I don't think the Court has to interpret them beyond the fact that they relate to those parties and nobody else.”

10

. In the judgment of 28 th July 2022 under appeal, however, Whelan J. took a different view, saying (at [111] and 153–156]) that “it was evident from the face of the order of Noonan J. that it was of general application” and that it applied to all the occupants. The curial parts of both orders were in the following terms:

IT IS ORDERED that the said motion as sought be refused but that the stay granted in the High Court on the said Order be extended for a period of 3 weeks from the date of this Order only.”

11

. It should be noted that both orders were perfected on 23 rd June 2021 and were never served on any of the occupants. One of the difficulties in the present case is that both properties were divided into multiple flats, thus accentuating difficulties in respect of service. At all events, possession was not handed up until early October 2021.

12

. Pepper had appointed a Mr. Gerard Hughes of Grant Thornton as the authorised person for the purposes of taking possession. Mr. Hughes swore an affidavit describing his unsuccessful efforts to take possession on 14 th January 2021, 8 th February 2021 and 11 th February 2021. Pepper then issued a motion for contempt against the occupants of the properties on 12 th February 2021.

13

. Following an affidavit sworn on 22 nd February 2021 by the solicitors for the occupants of the properties, the identity of the occupants was ascertained. There were six dwelling units in Richmond Avenue occupied respectively by twelve adults and three children. Eight adults respectively occupied the five dwelling units at 21 Little Mary Street. Appearances were then entered by all the occupants to the proceedings. All the adult occupants were legally represented at the hearing of the contempt motion on 4 th and 5 th May 2021 when judgment was reserved by Sanfey J. Numerous affidavits had been filed on behalf of all parties.

14

. In the meantime, the occupants appealed to the Court of Appeal. In that appeal the appellants sought to extend time in which to lodge an appeal against the order of Reynolds J.; to adduce new evidence and a further stay. In a judgment delivered on 24 th June 2021 that Court refused the application: see Pepper Finance Corporation v. Persons Unknown [2021] IECA 244. In her judgment, Donnelly J. applied standard Éire Continental criteria ( Éire Continental Ltd. v. Clonmel Foods Ltd. [1955] IR 170). and rejected the application. She noted that they had not formed an intention to appeal at the time; they had delayed in their application and concluded [at 114] that “as regards the central contention of the applicants which is that they have valid tenancies as against Pepper there is no arguable ground.” The appeal of Ms. Hanrahan and Mr. Petrut against the making of this order was to be the subject of a separate hearing, the details of which I will presently describe.

The judgment of Sanfey J. of 13th August 2021
15

. Following a two-day hearing in early May 2021, Sanfey J. delivered a reserved judgment on the contempt matter on 13 th August 2021: see Pepper Finance Corporation v. Persons Unknown [2021] IEHC 559. In that judgment, he refused to set aside the earlier injunction of Reynolds J. He...

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