Pepper Finance Corporation (Ireland) DAC v Persons unknown in Occupation of the property known as 21 Little Mary Street, Dublin 7 and Another

• Jurisdiction: Ireland
• Judge: O'Donnell C.J.,Dunne J.,Charleton J.,O'Malley J.,Hogan J.
• Judgment Date: 22 November 2023
• Neutral Citation: [2023] IESC 30
• Court: Supreme Court
• Docket Number: S: 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 30

O'Donnell C.J.

Dunne J.

Charleton J.

O'Malley J.

Hogan J.

S: AP:IE: 2022:000126

AN CHÚIRT UACHTARACH

THE SUPREME COURT

RULING of the Court in respect of costs delivered the 22 ^nd day of November 2023

Introduction

1 . The Court has already delivered its principal judgment in this matter on 31 ^st July 2023: see Pepper Finance Finance Corporation (Ireland) DAC v. Persons Unknown [2023] IESC. 21. The Court is now called upon to adjudicate on the issue of costs, the parties having availed themselves of the opportunity to make submissions re costs.

2 . The background facts are well known to the parties and need only be recapitulated here in a more summary form than in the principal judgment. The proceedings arose out of a bank debt and an order for possession in respect of certain properties made by the High Court as far back as 2008. It appears that ownership in the loan facilities, facility letters and mortgages were transferred to Pepper on 7 ^th August 2020. Leave had been granted in 2018 by the High Court to a previous owner of the debt to execute that judgment. In November 2022 the High Court made an order substituting Pepper Finance as the plaintiff in those proceedings.

3 . The appeal to this Court arose from an endeavour from the (then) owner, 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 arose in relation to the locus standi of Pepper to pursue this appeal as these two properties had subsequently been sold by Pepper in February 2022 after the Court of Appeal heard an appeal in the contempt proceedings. There was also a related issue as to whether the proceedings have been thereby rendered moot. This appeal was just the latest step in litigation which has already given rise to a multiplicity of motions, hearings and judgments.

4 . 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.

5 . 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.

6 . 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 in the case of 21 Little Mary Street (which had five separate dwelling units) Reynolds J. directed those three hard copies of each of the relevant documents be delivered by hand to the property by way of service. These supplemental directions were not, however, contained in the actual orders of the High Court which were perfected on the following day, 26 ^th November 2020.

7 . 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 was 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) recorded that 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. This Court ultimately held (disagreeing with the judgment of the Court of Appeal) that this order enured for the benefit of Mr. Petrut and Ms. Hanrahan only and not the other tenants.

8 . 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.

9 . 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.

10 . 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 to obtain a further stay. In a...