2026 IEHC 349

(1)An order restraining the defendant, his servants and/or agents, and all persons having notice of the order, from trespassing on or attending at the property identified in the schedule to the plenary summons – namely all that and that and those the hereditaments and premises known as Tullynamoyle, Dowra, County Cavan, being all of the lands comprised in folio 14702F of the register of the County of Cavan (‘the property’).

(2)An order restraining the defendant, his servants and/or agents, and all persons having notice of the order, from interfering with the plaintiff in 2 relation to its right to possession of the property, and/or its right to the marketing and sale of the property.

(3)An order restraining the defendant, and all persons having notice of the order, from holding themselves out as having any entitlement to occupy or otherwise deal with the property.

(4)Damages for trespass.

(5)Such further or other order as to this Honourable Court shall deem fit.

(6)Costs.

1. The plaintiff has brought a motion for interlocutory orders in like vein. It was issued on 23 June 2025 and returnable to 14 July
2. Following directions and the exchange of affidavits the matter came before the court for hearing on Tuesday, 21 April 2026 and again on 20 May
4. The property the subject matter of the proceedings is comprised in folio 14702F County Cavan. The plaintiff and his wife Catherine Kirk are divorced and the property is registered in her name. Catherine Kirk was registered as full owner with title absolute on 11 September
5. The property area is given as 0.2090 hectares on the folio and the evidence is that there is an old cottage and a new house on the lands.
6. Catherine Kirk took out a mortgage on the property in August
7. At that time the loan facility was in the sum of €82,
8. At the time of the hearing in April the court was advised that the balance outstanding on the loan was €94,728.
9. The court was told that it stood at €94,997.20 on 20 May
11. The defendant and his wife Catherine Kirk divorced
12. The consent agreement they arrived at was formalised in November 2014 in the Circuit Court when a decree of divorce was granted – with ancillary relief in the terms of the consent order. Part of the settlement involved a sale of the Dowra property as soon as practicable with the proceeds of sale being split equally after the mortgage and costs of sale were discharged. The defendant was entitled to continue to reside there to the exclusion of Ms. Kirk pending the closing of the sale.
13. By reason of mortgage default legal proceedings were issued in May 2015 [Record No. 2015/00152] and an order for possession of the property was made by the County Registrar in Cavan on 22 February
14. The proceedings were brought by Ulster Bank Ireland Limited against Catherine (otherwise Cathy) Kirk. Promontoria (Oyster) DAC then acquired the mortgage with subsequent amendment of the title of the proceedings. Later Everyday Finance DAC acquired the mortgage. By order of the 3 County Registrar dated 25 September 2023 the plaintiff was given leave to execute the order for possession of the property - with amendment to the title of the Order by the deletion of Promontoria (Oyster) DAC and the insertion of Everyday Finance DAC in its place.
15. On 15 October 2024 the order for possession was, according to the plaintiff, lawfully executed by Mr Mark Corrigan who was it says a court messenger duly appointed by the Cavan County Registrar Mr Joseph Smith. A team from Blackwater Bailiff & Asset Management Services Limited employed by the plaintiff and which team numbered 9 individuals in all was present for the purpose of assisting and receiving possession on behalf of the plaintiff on execution of the order.
16. There was also a BER Assessor and Mr. Corrigan – so 11 people in all.
17. According to the plaintiff Mr Sean Cahill from Blackwater accepted possession on its’ behalf from Mr Corrigan following execution of the order.
18. However, the defendant moved back into the property and was found to be in occupation on 18 November 2024 at which time he said that he would move out on 10 December
19. However, he refused to move out and contended that the eviction was illegal.
20. In her affidavit at para.14 Ms Keogh for the plaintiff states ; – “I say and believe that at the time of execution of the aforesaid execution order of possession by the County Registrar/Sheriff for the County of Cavan and/or his servants or agents on 15 October 2024, the defendant was unlawfully occupying the property. I say and believe that the defendant is the ex-husband of Catherine Kirk.”
21. As far as the court can see from the evidence there was nothing unlawful about the defendant’s occupation of the property, which was his home, in October 2024 - or before or after then. That said, even if he was in unlawful occupation of the property it is difficult to see how such a status would have justified a failure to name him as a party in the Circuit Court possession proceedings and the failure to serve him.
22. Later in the affidavit Ms Keogh describes how a letter was sent on behalf of the plaintiff on 8 January 2025 to Cavan Garda Station to complain about the defendant’s trespassing on the property and to point out that pursuant to s.25 of the Enforcement of Court Orders Act 1926 the defendant's continuing trespass constituted a criminal offence. The Superintendent's Office of Cavan Garda Station replied on 14 January 2025 making the point that s.25 did “not apply in this case as that law is time sensitive 4 and expires after a month from the date of possession”. Ms Keogh points out that this response appeared to have overlooked the amendment of s.25 by s.26 of the Criminal Justice Act of 1951 which deleted the reference to “within one month”. Ms Keogh then goes on in para.2 to aver that the defendant’s reoccupation of the property without the consent of the plaintiff constitutes a criminal offence pursuant to s.
24. An employee of the plaintiff had apparently telephoned the Gardaí in Cavan on 19 December 2024 in relation to the matter. As appears from their reply of 14 January 2025 the Gardaí had attended the residence on 19 December 2024 and identified the men present. In the reply of 14 January 2025 the Gardaí, having made the point that s.25 did not apply in their view as that law was time sensitive, went on to say that a formal criminal complaint would have to be made by the owners of the property if the Gardaí were to investigate from a criminal aspect.
25. Even ignoring the fact that the defendant was never a party to or served with the proceedings in which the Order for Possession was obtained it is indicative of a complete absence of empathy or sense of fairness that the plaintiff would so involve the Gardai and escalate the matter a few days before Christmas - and when dealing with a person of the plaintiff’s age. All the more so when there was no urgency over the years - the Order for possession dating back to
27. After asserting that the plaintiff has “…an indisputable entitlement to possession of the property” following the execution of the order for possession Ms Keogh says that the plaintiff has, at the very minimum, established a strong case that it is entitled to market and sell the property in accordance with its rights under the mortgage and at law – and that the plaintiff ought, as of right, be entitled to injunctive relief restraining the defendant from trespassing on the property.
28. Paragraph 26 of the Keogh affidavit is confusing as Ms Keogh says that “…there is a fair question to be tried in relation to whether the defendant has any right to retake possession of the property after he had been evicted ...”.
29. Paragraph 27 of the Keogh affidavit states that; – “… Damages would not be an adequate remedy from the perspective of the plaintiff in circumstances where the defendant has admitted that it was his ex-wife's bankruptcy and inability to pay her debts that caused her to lose possession of the property, which the defendant asserts she had orally promised to transfer to him as part of their divorce settlement, but which she never did, and in circumstances where the defendant had 5 never indicated any intention to discharge the outstanding debts of his ex-wife to the plaintiff”.
30. This averment makes little sense. Firstly, if the plaintiff is the holder of a valid and enforceable mortgage/charge on the property it appears to be well placed in terms of its security. Although the plaintiff has not provided a valuation of the property it is probable that the value of the property is comfortably in excess of the amount outstanding. Secondly, the defendant requested negotiations many years ago and it appears that his request fell on deaf ears. Thirdly, it is far from clear what legal obligation it is asserted the defendant has to repay any outstanding debts of his exwife. Fourthly, although the bankruptcy of Ms Kirk is referred to no effort is made to set out the position in that regard. One wonders if or how the bankruptcy impacted on the monies due to the plaintiff or its predecessors.
31. In para. 28 of the affidavit it is stated that “… damages would clearly be an adequate remedy for the defendant given that he is a trespasser on lands that he has never had any legal interest in”. The court deals with the issue of whether or not damages would be an adequate remedy for the plaintiff later in this judgment. Suffice it to say for now that the court is not persuaded that the defendant is a trespasser on the property. While it may be correct to say that the defendant does not have a legal interest in the property in circumstances where it is registered in the name of his ex-wife it nonetheless appears from the evidence that the defendant does have a beneficial interest in the property – and he has also a right to occupy the property.
32. Amongst the exhibits the plaintiff relies on and contained in the Keogh affidavit is the mortgage/charge between Cathy Kirk and Ulster Bank dated 13 August
33. It is executed by Catherine Kirk and is witnessed by a Solicitor. There is on the fifth page a standard type endorsement in relation to the prior consent of the spouse for the purpose of s.3 of the Family Home Protection Act 1976 . This is not complete on the mortgage/charge which is exhibited. It is left blank. Section 3

(1)of the Family Home Protection Act 1976 provides that “Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to subsections

(2),

(3)and

(8)and section 4, the purported conveyance shall be void.” 6 Thus, proof of consent is rather important. It may be that the consent is recorded on a separate document. If so, that document should have been exhibited. The mortgage/charge which is exhibited is incomplete. 22. The order for possession is exhibited in the Keogh affidavit and shows that the County Registrar granted this order on 22 February 2016. The order records the fact that the defendant [Catherine – (otherwise Cathy) Kirk] was duly served with the civil bill for possession. It also records the fact that there was no appearance by or on behalf of the defendant. After making the order for possession the court granted a stay of eight months and granted liberty to apply. The defendant’s case. 23. The core of the defendant’s case is that he was not notified of the possession proceedings and that he ought to have been a party to the proceedings. He is a lay litigant and he has kept his argument simple. The simplicity of his argument belies its force. 24. The defendant describes himself as a retired art salesman. He says that he purchased the property known as Flory’s Old Place at Tullynamoyle, Dowra, County Cavan which was a cottage and around four acres of land in his own name in 1998. 25. Around 1999 his wife (Cathy Kirk) borrowed €40,000 from the First Trust Bank and they had a three bedroomed house built next to the existing cottage. He says that around this time the original folio was divided and he was told that the cottage remained in his name and that the bank’s charge was against the new house only. He says that he and his brother fixed up the old cottage. 26. His wife borrowed further money to complete the building work on the new house and he and his wife moved into the new house, their family home, around 2001. The defendant says that he has lived there ever since that time (although the events on 15 October 2024 clearly disturbed his occupation for a short period ). 27. According to the Kirk affidavit it appears that in January 2002 his wife transferred the loan to AIB Bank and later it appears to have been transferred to Ulster Bank. His wife and himself and their three children lived in the house together until 2008. His wife then decided she wanted a divorce and she moved out of the house to a different house in Dublin. The children spent equal time with both parents. 28. The defendant says that his wife declared that the Tullynamoyle house would be his and the Dublin house would be hers but that this arrangement was never 7 formalised. He says that around this time he realised that the mortgage payments were not being kept up to date and that he tried to negotiate with Ulster Bank to pay the mortgage but they would not respond to his letters. 29. Mr Kirk says that the final terms of the divorce settlement were that the house and cottage and some part of the land would be sold. The proceeds from the sale would be used to pay off the mortgage and whatever money was remaining would be divided equally between he and his wife. He correctly points out that this arrangement forms part of the court order. 30. Mr Kirk says that the house and land were put on the market. However, the sale ran into difficulties because the interested buyers needed information from Cathy regarding the property tax record on the house and on the cottage and she did not respond to these enquiries and the sale fell through twice. Later the defendant says that there was an issue over the title deeds. In any event, it appears that efforts to sell were made and failed. 31. Mr Kirk says that he tried again to contact Ulster Bank. He says that he sent them a cheque but that it was returned to him and no attempt was made by the bank to negotiate with him. He says that this situation continued. He was living full-time at the house and at various times the children lived there with him. He says that no one ever came to the house representing any finance company to inform him of any matter. 32. The plaintiff does not really dispute what the defendant has to say concerning the above history. It does not provide a competing narrative. While it might be said that the events occurred before its involvement it is not the case that the plaintiff can airbrush the history away by such an approach. 33. The remaining paragraphs of the defendant’s affidavit are worth quoting; – “12. In October 2024 I was at the house alone, my daughter had very recently gone to live in England. Around ten paramilitary style persons arrived at the house. They pushed in the door when I opened it, storming in, one tall man took hold of me, twisting my fingers back and saying ‘don't resist, you have 15 minutes to leave'. One man flashed papers at me but refused to give them to me. I called my friend and he persuaded the man to give me some photographs of the documents. The photographs are not clear and do not show the full papers. 8 13. These men ransacked my home in front of me, pulling out drawers and presses, going up into the attic as well. They would not let me change my clothes in private. 14. Since this occasion I have felt constant anxiety and panic attacks, I have had trouble sleeping and I feel disturbed whenever a car passes the house. 15. After a while of having to sleep in an old caravan I began to realise there was something very wrong with what had happened. I realised I had never been served with any court papers despite the fact that this house was my and my children's home for over 20 years. 16. I decided to move back into the house. I put up gates on my own land because I felt threatened by the Everyday Finance Company. 17. A letter came from a solicitor representing the Everyday Finance Company demanding that I move out within 21 days. I replied to the letter and I attach a copy of my letter to the solicitor of Everyday Finance Ltd…. 18. There was no response to my letter. 19. A bundle of papers were served on me by registered post around 1 July 2025 containing a court order obtained in 2016 by Ulster Bank for possession of the folio of land on which the house and cottage stand. I have never seen this order before (

1. or)any of the following orders made on foot of that order. I was never served notice of any of the proceedings now exhibited before this Court by Everyday Finance Limited. 20. In my view the possession order obtained by Ulster Bank in 2016 is invalid as I was a person in primary residence at the property, it being my family home, and I have an interest in the property through the terms of the divorce settlement and consequently the Ulster Bank was mandated to name me in those proceedings for possession, which they omitted to do. 21. My ex-wife Cathy Kirk has indicated to me that she is happy to put the house in my name as owner. I am happy to pay the outstanding mortgage to Everyday Finance Limited if they are prepared to communicate with me in a non-violent manner. 9 22. My ex-wife is living in Italy at present and I am attempting to communicate with her. 23. I pray the honourable court for the relief sought in my counterclaim setting aside the order of possession obtained by Ulster Bank and all subsequent orders made on foot of that order.” 34. The above affidavit was sworn on 30 July 2025. 35. The letter of 29 March 2025 from Mr Kirk to the plaintiff's solicitor reads; – “I acknowledge receipt of your letter dated 27 March 2025. This is the first occasion you have corresponded with me in regards to Everyday Finance DAC. Everyday Finance was fully aware of my interest in the property and my children. Everyday Finance deliberately and wilfully omitted to inform the court that I resided here since the construction was completed along with my children. Everyday Finance I assert was obtained by misconduct before the court! I assert that the title deed by Everyday Finance is void.” 36. Although it is not entirely clear it seems that a copy letter contained in the motion booklet (from Walter P Toolan & Sons dated 2 June 1999 to the defendant and his wife) concerning the transfer and subdivision of the property and the mortgage with First Trust Bank was provided to the plaintiff’s solicitors along with the above affidavit. This letter refers to the “…subdivision of the property… to limit the banks charge to the house alone…” 37. The divorce order which was granted on 3 November 2014 records the fact that the parties were married on 21 January 1986 at the Registrar's Office, Bangor, County Down, Northern Ireland. 38. Mr Kirk swore a subsequent affidavit on 14 November 2025. In it he exhibited a copy of his defence and counterclaim which was served on the plaintiff. A copy of that defence and counterclaim is contained in the motion booklet before the court at p. 238. This defence and counterclaim is a lay person's draft but it does make the essential points that the defendant was not a party to the possession proceedings and was not given notice of those proceedings – nor indeed was he given notice of the subsequent proceedings (concerning the amendment of the proceedings and the application for the execution order and its renewal). The defendant makes the case that he holds an interest in the property the subject matter of the proceedings both as a former spouse and longterm resident of the property and by way of the consent order (para. 7). The defendant 10 makes it clear in his defence and counterclaim that he wishes to reopen the possession proceedings to have the order for possession set aside. Whether he needs to do so is another matter. After all, he was never a party to or served with those proceedings and thus one wonders how the possession order could be enforceable against him. 39. The defendant relies heavily on the Family Home Protection Act 1976 in his defence and counterclaim. Whilst the sections on which he relies may be of no assistance to him the matter may not end there given that the plaintiff has exhibited and relies on a deed of mortgage/charge with a blank endorsement pursuant to s.3 of the 1976 Act. 40. Insofar as the defendant's knowledge of the possession proceedings is concerned the plaintiff says he was aware of the proceedings. This is asserted in the affidavit of Mr Ruane of Everyday which was sworn on 22 October 2025. 41. On 18 September 2020 Hugh J Ward & Company, solicitors for the plaintiff, wrote to Ms Kirk on a without prejudice basis, on behalf of the plaintiff's predecessor, Promontoria (Oyster) DAC, seeking her engagement in relation to the Circuit Court possession proceedings. In reply to that letter the defendant wrote on 21 September 2020 to Hugh J Ward & Company seeking to negotiate in relation to the premises. This correspondence is exhibited in the affidavit of Mr Ruane. 42. The letter of 18 September 2020 does in the title refer to a Circuit Court Action Record No. 2015/00152 between Promontoria and Catherine Kirk. However, the body of the letter gives no real information concerning the action and includes a warning to Ms Kirk that “In the event you choose not to engage, we are instructed to proceed with our client’s action”. 43. The plaintiff asserts that the defendant was aware of the Circuit Court proceedings from at least 21 September 2020 when he actively sought to negotiate with the plaintiff's predecessor, Promontoria (Oyster) DAC – even though he was not the registered owner. 44. Whatever little the letter did convey to the defendant concerning the litigation it was very late in the day given that the proceedings issued in 2015 and a Decree for possession was obtained on 22 February 2016. There is no little irony in the averment by Mr Ruane that “…the defendant was aware of the Circuit Court proceedings from at least the 21st. September 2020….” 45. The defendant was clearly in occupation of the property in 2015 when the proceedings issued - along with it appears two of his teenage children. As there appears 11 to have been a shared parenting arrangement in place at the time of the divorce it may be that the children were not there all of the time. 46. While the “new” house may not have been a family home within the meaning of the 1976 Act in 2015 it was certainly the defendant’s home. 47. The defendant was never served with the Civil Bill for Possession and he was not a party to the proceedings. He should have been served with the proceedings as he was in occupation. Furthermore, it does appear that his occupation was lawful. It is difficult to comprehend how it came to be that he was not served with the proceedings. It is hard to understand why he was not named as a defendant in the proceedings given that an order for possession of his home was being sought. 48. The court does not know what affidavit evidence concerning the occupiers was before the court at the time the Order for possession was granted. However, one wonders how the order for possession was granted if the affidavit disclosed the defendant’s occupation - and given that he was not served and was not named as a party. On the other hand, one wonders how the defendant’s occupation was not averred to in the grounding affidavit(
2. s)if it was not. 49. The essence of the defendant’s case is a compelling argument to the effect that the 2016 Possession Order is invalid against him. 50. The affidavit of Mr Cahill sworn on 21 October 2025 (on behalf of the plaintiff) avers that; (
3. a)He is a director of Blackwater Bailiff & Asset Management Services Limited. (
4. b)The plaintiff engaged Blackwater as its servant and/or agent for the purpose of receiving possession of the premises comprised in folio 14702F from the County Registrar of Cavan, Mr Joseph Smith and/or his servants or agents, following the execution of an execution order of possession dated 27 April 2020 (which was renewed on 10 July 2024). (
5. c)On 15 October 2024 at approximately 11 o'clock in the morning he attended at the premises with Mr Corrigan who was a court messenger duly appointed by the Cavan County Registrar, Mr Joseph Smith, to assist him in the execution of the execution order. (
6. d)Mr Cahill had eight colleagues from Blackwater with him when he attended along with Mr Corrigan. There was also a BER Assessor present. (
7. e)He noted that there were two dwelling houses – an older vacant cottage and a newer house. 12 (
8. f)He says that he knocked on the front door of the newer house and the defendant eventually opened the front door. He says that he explained to the defendant that he had been engaged by the plaintiff to attend at the premises on behalf of the plaintiff to accept possession of the premises from the court messenger, Mr Corrigan, who was there to execute the execution order of possession. He says that he identified Mr Corrigan to the defendant. (
9. g)He says he showed the defendant his identification, a true copy of the Execution Order of Possession and a copy of the relevant folio (with attached plan) for the premises and that he allowed the defendant take photographs of these documents. (
10. h)He says that Mr Corrigan showed the defendant his warrant from the Cavan County Registrar and the execution order of possession and informed the defendant that he was there to take possession of the premises. Mr Cahill explains how Mr Corrigan took possession of the premises and handed over possession to Mr Cahill on behalf of the plaintiff. 51. It is not clear if or how possession of the vacant older cottage was obtained. 52. While the folio is exhibited no plan of the property is exhibited. This may be of some significance as the letter dated 2 June 1999 from their Solicitors to Mr and Mrs Clifford and Catherine Kirk [ page 187 ] refers to “The Transfer and Sub-Division of Your Property and Your Mortgage with First Trust Bank” and references “…the subdivision of the property we were going to undertake in any case to limit the Bank’s charge to the house alone…”. 53. In the affidavit Mr Cahill explains that his Blackwater colleagues accompanying him were all wearing green uniforms. It is therefore understandable how the defendant describes them as he does. 54. Mr Cahill disagrees with the defendant’s assertions concerning the use of force. 55. Mr Cahill does say that having taken possession of the house from the court messenger he and his colleagues entered the house and a firearm was found, together with a quantity of ammunition. He does not say whether it was a shotgun and cartridges or something else. He says that the Guards were called and that when they arrived he handed the firearm and ammunition over to them – prior to the Gardaí carrying out a full search of the newer house and the vacant old cottage. He says he does not know if the firearm that was found in the newer house was a licensed or unlicensed firearm. He 13 makes the point that no complaint was made to the Gardaí about the use of force and/or assault at the time, or afterwards. 56. The reference to the firearm and ammunition being found is presumably to explain how it came to be that the Gardaí were called. It is difficult to understand the relevance of this information otherwise. After all, the defendant sensibly did not have or produce the firearm when he opened the door to the team of eleven individuals assembled outside. Mr Cahill does not say the firearm was loaded and it is a reasonable inference to draw that it was not. Having a firearm and ammunition in one's home in a rural area is far from unusual – certainly such as a shotgun and cartridges. Whilst one can understand the Gardaí being called to an eviction where a firearm and ammunition were found it must be said that there is absolutely nothing in the evidence to suggest any wrongdoing on the part of the defendant. On the contrary, it seems clear that there was no physical resistance by the defendant. His behaviour was as close to full cooperation as one could in the circumstances expect of him. 57. The affidavit of Mr Ruane of Everyday which was sworn on 22 October 2025 for some reason focuses extensively on the divorce order and settlement. This affidavit, like the other affidavits on behalf of Everyday, does not address the failure to have the defendant named as a party to the possession proceedings and the failure to serve him with those proceedings. 58. The Everyday affidavits fail completely to deal with the defendant’s case and his evidence that he has been living in the house since it was completed in 2001. While the possession order was obtained on 22 February 2016 the height of the reply in relation to non-joinder and no service appears to be that already mentioned and contained at para.11 of Mr Ruane’s affidavit where he says; – “I say and believe that the defendant was aware of the Circuit Court proceedings from at least 21 September 2020, and actively sought to negotiate with the plaintiff's predecessor, Promontoria (Oyster) DAC, despite not being the registered owner of the premises.” 59. It is not an answer to the defendant's case to say that the divorce consent order/settlement agreement has not yet been finalised. That neither explains nor does it justify the failure to have the defendant named as a party to the possession proceedings - and the failure to serve him with those proceedings. Mr Ruane says that the defendant has never provided any documentation to the plaintiff evidencing any interest he might have in the premises. On this, the court will again observe that the evidence which is 14 uncontradicted is to the effect that the defendant has been living in the newer house as his home since 2001 and does have a beneficial interest in the property separate from that occupation under the terms of settlement by reason of para 7. 60. Turning then to the actual execution of the “Execution Order for Possession”. 61. The authority of the Court Messenger Mr Corrigan does require to be proved. While the evidence is that he did show the defendant his warrant from the Cavan County Registrar as well as the execution order for possession that evidence is less than compelling. The warrant is not exhibited. While the plaintiff says that the evidence contained in the affidavit of Mr Cahill is uncontradicted this ignores the defendant’s complaint about how the documentation was shown to him and the poor quality of the photographs he was allowed to take. He says one of the men flashed papers at him but refused to give them to him. 62. The return on the execution order is the stamp of Joseph Smith Sheriff for County Cavan/Monaghan and is dated 15 October 2024 with the note “lands handed over!” 63. Counsel for the plaintiff opened the legislation in relation to the powers of the County Registrar and in particular under s.54 of the Court Officers Act, 1926. The County Registrar did have the power to execute the order for possession and was entitled to the assistance of a Court Messenger in doing so. The County Registrar had all of the powers which the 1926 Act conferred on undersheriff's. [ see Mars Capital v Patrick Carty & Ors. 2026 IECA 40 - Judgment of Mr Justice McDonald ]. 64. Section 5 of the Enforcement of Court Orders Act, 1926 provides ; “5.—

(1)Every court messenger when assisting the under-sheriff in the execution of an execution order or when executing an execution order for an under-sheriff shall be furnished by the under-sheriff with a warrant in writing signed by the under-sheriff and authorising the court messenger by name to execute or assist in the execution of that particular execution order, and no court messenger shall execute or take part in the execution of any execution order unless duly authorised so to do by such warrant as aforesaid.

(2)It shall be the duty of every court messenger executing or assisting in the execution of an execution order, at any time after entering on any lands or premises under such execution order and before removing therefrom any property, to produce on demand to the person in apparent 15 possession of such lands or premises the warrant issued to him under this section by the under-sheriff.

(3)A court messenger executing or assisting in the execution of an execution order in pursuance of a warrant duly issued to him under this section shall have all the powers which would be vested by law in a bailiff employed by an under-sheriff for that purpose.

(4)A warrant issued by an under-sheriff under this section shall not lapse or be prejudiced by reason of such under-sheriff ceasing to hold office but every such warrant shall lapse and terminate on the court messenger named therein ceasing to hold office.”

1. In terms of the lawful execution of the Execution Order for Possession the plaintiff says that the Court Messenger had the necessary warrant and relies on the affidavit of Mr Cahill that Mr Corrigan showed it to the defendant. However, the correct way to prove that the Court Messenger was lawfully authorized in respect of the execution on the day is by exhibiting his warrant. That has not been done.
2. Furthermore, when one looks at the documents exhibited at “H” in the affidavit of Ms Keogh for the plaintiff [pages 49 to 54] one will note that Page 51 (which is the second page of the Execution Order) contains an “Endorsement on Execution Order” section which requires completion. It is left blank. While the printed wording of this endorsement could be better it seems that this section if completed would be the warrant authorizing the Court Messenger to act in the execution of the Execution Order for Possession. This view is supported by the requirement under Section 5 for the Court Messenger to be authorized by name to execute or assist in the execution of the particular court order.
3. Whatever the true position is in relation to the existence or non-existence of the necessary warrant on the day the simple fact of the matter is that the evidence before the court does not prove that such a warrant existed. The incomplete endorsement on page 51 suggests that it may have been overlooked.
4. In terms of the basis for the interlocutory relief sought the plaintiff says that it is a mortgagee in possession in circumstances where the order for possession was lawfully executed and possession was handed over to it. It says that the defendant has since trespassed upon the property and that it is entitled to the interlocutory relief in those circumstances. The plaintiff says it is entitled to the injunction sought as of right pursuant to ratio decidendi in Keating & Co. Limited v The Jervis Street Shopping 16 Centre Ltd & Anor 1997 1 IR 512 – but subject to the qualification that the defendant may put in evidence to seek to establish that he has a right to do what would otherwise be a trespass.
5. This court is not satisfied that the plaintiff has proved that the Execution Order for possession was lawfully executed.
6. Firstly, it is difficult to see how the defendant could be bound by an Order for possession granted in proceedings where he was not named as a party and when he was not even served with the proceedings. The defendant was occupying the property when the proceedings commenced, when the order for possession was granted, when the Execution Order for Possession was granted, when it was renewed and at all material times. Moreover, it is difficult to see how anyone could argue that his occupation was not lawful. On a first principal basis it is incomprehensible that the plaintiff can have the defendant evicted from his home by relying on an order granted in proceedings which he was not a party to and was not served with.
7. Secondly, the defendant challenges the lawfulness of his eviction. Even assuming the existence of a valid Order for Possession and a valid Execution Order the plaintiff has failed to prove that the court messenger was lawfully authorized to act in the eviction by warrant in writing.
8. The court is not satisfied that the plaintiff is a mortgagee in possession. There are serious questions surrounding the eviction which remain unanswered. There is strong support for the view that the eviction was unlawful.
9. Secondly, the plaintiff says that it has established a strong case for the interlocutory relief even if the court did find some imperfection with the execution of the order for possession of the property. The court disagrees for the reasons outlined above which need not be repeated.
10. Even if the plaintiff had established a strong case, the balance of justice would favour the defendant for the following reasons; (a) Damages would not be an adequate remedy. The property is the home of the defendant and has been for 25 years. He is approaching 70 years of age and is clearly of modest means. (b) The plaintiff has not provided a valuation of the property. The balance outstanding is c. €95,000.
11. The property is in a remote area in Cavan close to the Leitrim border and the court will take judicial notice of the fact that houses 17 are cheaper there than in most other areas of the country. Yet, on the evidence there is a relatively new house and an older cottage standing on 0.2090 Hectares and it is likely that the plaintiff is well secured in respect of the debt if it has a valid charge. (c) There has been significant delay by the plaintiff. While the defendant has been in occupation it is also a fact that he has had the uncertainty about his home hanging over him for years. (d) The plaintiff’s approach appears to be to treat this application as a form of summary judgment against the defendant. And it might well prove to be so if the relief sought was granted. That is quite inappropriate as there are significant issues which require to be addressed in relation to the events that have transpired in the circuit court proceedings and concerning the eviction. (e) In making submissions at the end of the hearing the defendant enquired about mediation. It then became apparent that the statutory declaration required by s.14 of the Mediation Act 2017 was not available for production to the court. It was not endorsed on the originating summons. Counsel for the plaintiff indicated that the Central Office do not issue proceedings unless the declaration is produced. However, no copy of the statutory declaration was available for production to the court. On the face of it, the plenary summons was not accompanied by a statutory declaration made in accordance with s.
12. In the circumstances the court was obliged to adjourn the proceedings to enable the plaintiff's solicitor to comply with sub.1 of s.14 and to provide the court with a declaration to that effect – or to provide the court with such declaration if the requisite advice had in fact been given before the proceedings were issued (as counsel for the plaintiff was instructed had happened). The court adjourned the matter to Wednesday, 20 May 2026 at 10:30 a.m. to resume the hearing as it did need sight of the statutory declaration. In addition, the court, of its own motion, invited the parties to the proceedings to consider mediation as a means of attempting to resolve the dispute pursuant to s.16

(1)(a) of the Mediation Act

1. The court indicated that if mediation was to take place then it should take place on or before Friday, 15 May
2. When the hearing resumed the court was given a copy of the Section 14 Statutory Declaration which was filed in the Central Office on 1 May
3. It 18 was also advised that the plaintiff was unwilling to avail of mediation. The defendant had pressed for mediation and had written to the plaintiffs solicitors on 30 April 2026 requesting mediation and nominating 3 candidates to act as Mediators. He had suggested negotiations as far back as his letter of 21 September 2020 but to no avail. A Mediator consulted by the defendant phoned the plaintiff’s solicitors in that regard on 12 May 2026 and was made aware that the plaintiff was not willing to engage in mediation. Having regard to the history and the amount of the debt (which is not large) the refusal of the plaintiff to engage in mediation does weigh heavily in the scales against it – even though it was entitled to decline – as it was an unfair approach.
4. The plaintiff has not satisfied the court that it is entitled to the interlocutory relief sought. The court will go further and observe that the events recorded above are troubling and raise questions which require to be answered. A plenary hearing is the appropriate forum for answers.
5. In the ordinary course costs would follow the event and the defendant would be entitled to his costs unless the plaintiff persuaded the court otherwise. As the defendant is not legally represented legal costs as such do not arise on his side but the court will entertain any application the defendant has for his reasonable expenses in relation to the Motion. The defendant should note that these reasonable expenses relate essentially to travelling to Dublin for the court hearings and like expenses - which are attributable to the actual motion. They will likely be modest. If the defendant wishes to apply for such expenses it is preferable that he provide details of same to the plaintiff’s solicitors before the next date (i.e. before the 10th of June 2026).
6. All other matters in dispute in these proceedings between the parties are matters for the full hearing of the action.
7. The court had indicated that it might deal with this matter electronically. However, the court considers that would be unsatisfactory.
8. The court will list this matter at 10.30 a.m. on Wednesday 10 June 2026 and will then hear from both sides and finalise the order.