Start Mortgages DAC v Kavanagh

• Jurisdiction: Ireland
• Judge: Ms. Justice Egan
• Judgment Date: 02 June 2022
• Neutral Citation: [2022] IEHC 348
• Court: High Court
• Docket Number: [2021/3794 P]

Between

Start Mortgages Designated Activity Company

Plaintiff

and

Vincent Kavanagh and Madeleine (Madeline) Kavanagh

Defendants

[2022] IEHC 348

[2021/3794 P]

THE HIGH COURT

Attachment – Committal – Contempt – Plaintiff seeking an order for the attachment and committal of the first defendant and three other individuals – Whether the first defendant and three other individuals failed to comply with an order of the High Court

Facts: The Circuit Court (Judge Fergus), on 14th March, 2016, made an order for possession of the property comprised in Folio 9004F County Carlow known as 36 Beechwood Park, Carlow, County Carlow. The High Court (Noonan J) subsequently dismissed an appeal by the defendants, Mr V Kavanagh and Ms Kavanagh, against that order. On 17th February, 2022, the order for possession was executed and possession was delivered to the plaintiff, Start Mortgages DAC. Later that day, the defendants broke into the property and, despite demand, the first defendant had since that date refused to leave. In a reserved judgment of 3rd March, 2022, Allen J stated that the defendants were trespassers and that the plaintiff was clearly entitled to the interlocutory order which it sought. Allen J noted that the defendants had sought to resist the application on a number of grounds but that there was no substance to any of their arguments. Allen J noted that in truth the case was a perfectly simple one and that the defendants had defied the process of the law. On 3rd March, 2022, the defendants, their servants or agents and any other person acting in consort with them or having knowledge of the order were restrained pending the trial of the action from: (1) trespassing upon or otherwise entering the property; and (2) filming or recording by any means the employees, servants or agents of the plaintiff or the County Registrar for Carlow or his servants or agents at or near the property and from posting such footage or images on the internet or otherwise sharing such films, videos or images by way of social media. An application was made to the High Court on 31st May, 2022 seeking an order pursuant to O. 44 of the Rules of the Superior Courts for the attachment and committal of the first defendant and three other individuals, Mr D Kavanagh, Mr McCarthy and Mr Murphy, for their alleged failure to comply with the order of Allen J made on 3rd March, 2022.

Held by Egan J that the contempt of court on the part of all three individuals before the court was manifestly clear from their actions and their conduct, both in and outside court. Egan J held that this conduct amounted to a flagrant and deliberate breach of the order of 3rd March, 2022 by trespassing upon and entering the property, or in the alternative, by declining to undertake to the court not to re-enter the property.

Egan J held that, in the circumstances, she had proposed to make an order of committal of all three individuals until such time as they purged their contempt. As matters transpired, Mr Murphy agreed to furnish an undertaking not to breach the order of 3rd March, 2022 and the court accepted that undertaking; however, the first defendant and Mr McCarthy were subject to the court’s order of committal for indefinite detention until such time as they purged their contempt. Egan J proposed reviewing the matter in due course and adjourned the proceedings for a fixed period to be relisted again before her on 15th June, 2022.

Proceedings adjourned.

JUDGMENT of Ms. Justice Egan delivered ex tempore on 2nd day of June, 2022

Introduction

1 This is the court's ex tempore judgment in respect of an application made to the court on 31st May, 2022 seeking an order pursuant to O.44 of the Rules of the Superior Courts for the attachment and committal of the first named defendant and three other individuals, Mr. Dylan Kavanagh, Mr. Brian McCarthy and Mr. Francis Murphy, for their alleged failure to comply with an order of the High Court (Allen J.) made on 3rd March, 2022.

Order of 3rd March, 2022

2 On 3rd March, 2022, the defendants, their servants or agents and any other person acting in consort with them or having knowledge of the order were restrained pending the trial of the action from:

• 1. Trespassing upon or otherwise entering the property comprised in Folio 9004F County Carlow known as 36 Beechwood Park, Carlow, County Carlow (“the property”);

• 2. Filming or recording by any means the employees, servants or agents of the plaintiff or the County Registrar for Carlow or his servants or agents at or near the property and from posting such footage or images on the internet or otherwise sharing such films, videos or images by way of social media.

3 Execution on foot of the above order was stayed until 12 noon on Friday 4th March, 2022.

4 In brief, the background to the order of 3rd March, 2022 is as follows: On 14th March, 2016 the Circuit Court (Her Honour Judge Fergus) made an order for possession of the property. The High Court (Noonan J.) subsequently dismissed an appeal by the defendants against that order. On 17th February, 2022, the order for possession was executed and possession was delivered to the plaintiff. Later that day, the first and second named defendants broke into the property and, despite demand, the first named defendant has since that date refused to leave.

5 In a reserved judgment of 3rd March, 2022, Allen J. stated that the first and second named defendants were trespassers and that the plaintiff was clearly entitled to the interlocutory order which it sought. Allen J. noted that the defendants had sought to resist the application on a number of grounds but that there was no substance to any of their arguments. Allen J. noted that in truth the case was a perfectly simple one and that the defendants had defied the process of the law.

6 No appeal was pursued by the defendants against the order of Allen J. of 3rd March, 2022. For completeness, it should be noted that the second named defendant has since left the property and that the present application did not concern her in any way.

Non-compliance with Order of 3rd March, 2022

7 The circumstances in which the order of 3rd March, 2022 came to be before this court are set out in an affidavit of the plaintiff's solicitor sworn on 19th May, 2022. Initially, the plaintiff tried to come to a resolution of the matter and by letter of 9th March, 2022 requested the defendants' proposals. The consistent attitude of the first named defendant, as evident from his correspondence with the plaintiff's solicitor, has been to refuse to acknowledge the validity of the order of 3rd March, 2022. The plaintiff's solicitor was therefore instructed to serve the order of 3rd March, 2022, with a penal endorsement, upon the first name defendant and any other occupants of the property. The plaintiff's solicitor engaged the services of Blackwater Bailiff and Asset Management Services Ltd to effect service of the penally endorsed order. Service was attempted on 28th March, 2022 and on four subsequent occasions thereafter. On each such occasion the summons server detected activity from inside the property, knocked on the door but received no answer. The summons server was therefore instructed to return to the property and attach an envelope to the door of the property containing the order bearing the penal endorsement, which he did on 12th April, 2022. When the summons server returned the following day, the envelope had been removed.

8 It is clear that the first named defendant received a copy of the penally endorsed order as, in correspondence to the plaintiff's solicitor of 13th April, 2022, he acknowledged receipt of the order but stated that it was a “ false” penal endorsement and that same was “ an ultra vires instrument”. The first named defendant further stated that leaving the order at the property...