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2026 IEHC 270

THE HIGH COURT CIRCUIT APPEAL [2026] IEHC 270 2025 No. 125 CA BETWEEN MAURICE REGAN PLAINTIFF/RESPONDENT AND PATRICK HEFFERNAN DEFENDANT/APPELLANT Ex tempore JUDGMENT of Ms. Justice Eileen Roberts delivered 1 May 2026

  1. On 23 January 2025, the Circuit Court granted a permanent injunction restraining the defendant/appellant (“the defendant”) from trespassing on lands in County Tipperary comprised in five separate folios (being folios number TY17642F, TY968, TY4468 TY4469 and TY14698, together comprising 83 hectares approximately and hereinafter referred to as “the Lands”). The Circuit Court Order was made on an unopposed basis in the absence of the defendant at the hearing of the action on 23 January
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  3. The defendant is a farmer who resides adjacent to the Lands. He was previously the registered owner of the Lands. To secure borrowings, the defendant mortgaged the Lands to AIB Bank and to ACC Bank. These mortgages were registered over the respective folios comprising the Lands. The ACC mortgages were subsequently assigned to Pepper Finance Ireland DAC (“Pepper”) and the AIB mortgages were assigned to Everyday Finance DAC (“Everyday”). Pepper and Everyday appointed receivers over the Lands for the purpose of their sale. The plaintiff purchased the Lands following their being publicly marketed for sale and the plaintiff was subsequently registered as full owner of the Lands.
  4. The application before this court is an application made by the defendant appealing the order of the Deputy Master made on 17 October 2025 refusing to extend the time to permit the defendant to file a notice of appeal in respect of the Circuit Court Order made on 23 January
  5. The appeal of the Deputy Master’s order is strongly opposed by the plaintiff. I heard arguments from the respective parties on Monday last the 27 April.
  6. The evidence confirms that two separate contracts of sale were entered into on or about March 2022 when the plaintiff purchased the Lands (through a solicitor in trust) from each of the receivers as agent for the mortgagor or bank as mortgagee. The total purchase price paid by the plaintiff for the Lands was €1.5 million. Specifically, the plaintiff purchased part of the Lands comprising approximately 48 hectares for €900,000 and he purchased the remaining portion comprising approximately 35 hectares for €600,
  7. The sale of the Lands to the plaintiff completed on 24 June
  8. The special conditions of sale noted that it would be a matter for the plaintiff as purchaser to achieve vacant possession of the Lands. The plaintiff became registered as owner of two folios being part of the Lands on 3 August 2022 and became registered as owner of the remaining folios comprising the Lands on 14 December
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  10. Following completion of the sale the plaintiff requested that the defendant remove his cattle and poultry from the Lands. The defendant did not do so and serious difficulties emerged between the parties as set out in the affidavits exchanged.
  11. The plaintiff accordingly issued Circuit Court proceedings against the defendant on 20 July 2022 seeking injunctive relief restraining the defendant from entering onto or trespassing on the Lands and from taking steps to remove, damage or interfere with locks and signage on the entrances to the Lands or placing impediments or obstacles to interfere with the plaintiff’s access to the Lands.
  12. Interim relief in the terms sought was granted by the Circuit Court on 22 July 2022 and was ordered to remain in place by further order made on 29 July
  13. The defendant refused to recognise or comply with those interlocutory orders. He has pleaded that the plaintiff is not in lawful possession of the Lands; that the court orders are “void” and that “a void order does not need to be complied with”. His actions resulted in the intervention of An Garda Síochána, the making of an order for attachment and committal against the defendant and the subsequent prosecution of the defendant for continuing trespass on the Lands.
  14. The defendant delivered a full defence and counterclaim to the proceedings on 17 November
  15. He was not legally represented at that time. The grounds of defence included that the receivers had no entitlement to sell the Lands; that they had not been appointed by a valid deed of appointment and that there was no evidence of any debt due by the defendant. It was also pleaded that the registrar of titles did not have jurisdiction to register the transfer of ownership of the Lands; that possession did not form part of the alleged contract entered into by the plaintiff and that the transaction was a fraud committed on the revenue. The defendant pleads that the plaintiff did not gain lawful possession of the Lands and has no lawful entitlement to farm them. He also says that the Lands had a market 4 value of more than €3 million and that accordingly the Circuit Court had no jurisdiction to hear the proceedings.
  16. The defendant’s counterclaim includes a claim that the plaintiff unlawfully used an ex parte application to seek interlocutory injunctive relief. The counterclaim includes a request for an order directing a criminal investigation into certain matters set out, including an allegation of false imprisonment of the defendant relating to a period of incarceration. Damages were sought under various headings including for alleged unjust attack on the defendant’s constitutionally protected private property rights.
  17. The Circuit Court Order dated 23 January 2025 dismissed the defendant’s counterclaim against the plaintiff and noted the plaintiff’s lawful title as registered owner of the Lands. The court also awarded the costs of the proceedings to the plaintiff. It directed that a copy of the court order be fixed to the gates and entrances to the Lands for a period of 28 days from the Order.
  18. It is accepted by all parties that the defendant did not issue his appeal of the Circuit Court Order within the relevant 28 day appeal period prescribed. Order 61 rule 2

(4)RSC clearly states that a notice of appeal “…shall be lodged for issue not less than 28 days from the date on which the judgment or order appealed from was pronounced in open court”. In circumstances where the Circuit Court Order was made in open court on 23 January 2025 the defendant was required to bring his appeal by 20 February
  1. He did not meet this time limit. His notice of motion applying to extend the time to appeal did not issue until 24 April
  2. His solicitors had written to the plaintiff’s solicitors on 1 April 2025 seeking consent to the late filing of an appeal, which request was refused by letter dated 14 April
  4. There was general agreement as to the relevant legal test in applications of this nature and it is not necessary for this court to set it out in much detail. In broad terms however the 5 test remains that set out by the Supreme Court in Eire Continental Trading Company Limited v. Clonmel Foods Ltd. [1955] I.R. 170 at p. 173, namely: “
  5. The applicant must show that he had a bona fide intention to appeal formed within the permitted time.
  6. He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient.
  7. He must establish that an arguable ground of appeal exists.”
  8. As the court itself recognised in Eire Continental, while these three conditions are proper matters for the consideration of the court in determining whether time should be extended, they must however be considered in relation to all the circumstances of the case. Accordingly it is clear that the entire circumstances need to be considered in every individual case. As the Supreme Court confirmed in Seniors Money Mortgages Ireland DAC v. Gately [2020] IESC 3 it does not necessarily follow in all circumstances that a court would either grant the extension if all three conditions were fulfilled, or refuse it if they were not. The court retains a discretion, having regard to the totality of the circumstances of the particular case before it, to extend or refuse to extend the time to appeal.
  9. By reference to the Eire Continental guidelines the parties submit as follows: Intention to appeal within the 28 day period
  10. The defendant says he formed a bona fide intention to appeal within 28 days from the pronouncement of the Order. This is evidenced the defendant says because he had already delivered a detailed defence and counterclaim. He has averred that he immediately formed the view that he should appeal the decision on initially learning of it in media reports on 25 January
  11. He also avers that he sought legal advice from four separate solicitors on what steps he should take and that he met with counsel and his current solicitors on 10 February 6 2025 to discuss matters. On that evidence I am satisfied that the defendant likely formed an intention to appeal the Circuit Court Order within the relevant 28 day period. Mistake
  12. The second guideline is the existence of a mistake which would justify or explain the failure to bring a timely appeal. The defendant has referred to the following reasons as to why he did not lodge his notice of appeal within 28 days from the pronouncement of the Order: i. He wanted to obtain the DAR of the previous court hearings and his focus on this meant that he “forgot” about the 28 day time limit. This averment shows that the defendant was well aware of the 28 day time limit as otherwise he could not have forgotten about it. There is no evidence that he took any steps to apply for the DAR in that time period. Indeed it would appear he did not do so until 9 February
  13. Furthermore, awaiting the DAR would not constitute a good reason for failing to file a notice of appeal and would not have prevented the defendant from appealing in time. I am not satisfied that this averment satisfies the criteria of mistake. ii. The defendant sought to adduce further reasons for not appealing on time in his supplemental affidavit, averring that these had been omitted from his first affidavit due to an “administrative error”. The defendant says he thought the time would not begin to run until the incorrect copy of the Circuit Court Order that he had received in the post from the Courts Service on 6 February 2025 had been amended to correctly reflect the fact that it had not been made “by consent”. This averment is in fact in many respects entirely contradictory to the earlier averment of the defendant that he had forgotten about the 28 day time period running. The defendant had the benefit of legal advice shortly following his receipt of the Court Order. He provides no evidence or justification for his alleged contemporaneous assumption that the time for an appeal 7 was not running because the court order he received needed to have the words “by consent” removed. iii. The defendant also says that when he received the Circuit Court Order on 20 February 2025 he incorrectly thought the time would not start to run until the plaintiff had affixed a copy of the Order to the gates into the Lands and this did not occur until 27 February
  14. There is however no evidence that this was a contemporaneous understanding of the defendant at the time. He does not appear to have communicated in any way with the Courts Service on it. He also had the benefit of legal advice. In any event a 28 day period from 27 February 2025 would have expired on 27 March 2025 and the defendant had taken no steps to appeal by that time.
  15. The defendant clearly became aware of the making of the Circuit Court Order (even if he did not have a copy of that order) within a day or two of it being made. That is evident from the fact that he spoke to a journalist the following day and was quoted in a detailed newspaper article published about the Circuit Court Order on 25 January 2025 which the defendant admits he read.
  16. In all the circumstances I am not satisfied there was an operative mistake which justified or explained the defendant’s failure to file a notice of appeal within the prescribed time. Arguable ground of appeal
  17. The defendant says that he meets the third criteria of arguable grounds of appeal. In that regard a number of matters are argued.
  18. He claims there was a fundamental breach of fair procedures as the defendant was not aware of the hearing date and was not represented in the Circuit Court at the hearing.
  19. He claims that the Circuit Court did not have jurisdiction to hear the proceedings in light of the market value of the Lands exceeding €3 million. In that regard the defendant 8 produced a valuation report dated 7 April 2022 which ascribed a market value to the Lands of €3.5 million. I am satisfied that there was no breach of fair procedures and that the Circuit Court took care both to ensure that it had jurisdiction and that the defendant had been on notice of the hearing date before it dealt with the substantive proceedings. I accept that the risk of injustice may be higher in the present case where the substantive proceedings were not heard on a contested basis in the Circuit Court. However, the evidence is that the defendant was in court on 9 December 2024 at the call over before the Tipperary County Registrar but left early, despite the fact he knew or ought to have known that a hearing date was to be fixed on that occasion. I have been provided with evidence in the form of sworn affidavits that the hearing date was notified to the defendant by letter dated 11 December 2024 and by further letter on 20 January
  20. While the defendant says he did not receive this correspondence, I accept the plaintiff’s evidence that these letters were sent by certified prepaid post as is averred to and supported by sworn exhibits, and that the letters were never returned. This affidavit evidence was also available to the Circuit Court before deciding to deal with the matter on 23 January
  21. I do not accept that I have to take the defendant’s evidence at its height, as was suggested by his counsel. In applications of this nature the court is entitled to weigh up and assess the credibility of the evidence put before it in order to decide how to exercise its discretion.
  22. I am also of the view that the Circuit Court was entitled to assume and indeed had jurisdiction to deal with the proceedings in light of the market price actually paid by the plaintiff for the Lands when they were offered for sale without vacant possession. This figure was well within the Circuit Court’s jurisdictional limit.
  23. The defendant says that the contract for sale by the receiver for Pepper was dated 22 March 2021 but the receiver was not appointed until 17 May
  24. While it is correct that the contract is dated 2021 rather than 2022, this was self-evidently a typographical error and I am 9 satisfied that the relevant year of the contract was in fact
  25. That is clear from the fact, for example, that there is a reference in the contract for sale to documentation printed and dated on later dates than March
  26. Such documentation could not have been in existence had the contract for sale actually been correctly dated 22 March
  27. It is clear from all the surrounding documentation and circumstances and was accepted by both the trial judge and indeed previous Circuit Court judges who granted orders, that the date of the contract for sale was in fact 22 March 2022 i.e. after the date of the appointment of the receiver. This ground of defence has no substance.
  28. The defendant also says that the receiver appointed by Everyday in respect of three of the folios entered into a contract on 16 March 2022 despite there being no power of sale for a receiver contained in the AIB mortgage deed dated 20 August
  29. I have considered this ground of defence carefully.
  30. Two statutory provisions afford the plaintiff protection in this case. These are s. 21
(2)of the Conveyancing Act, 1881 and s. 5
(1)of the Conveyancing Act, 1911 which provide as follows: “Section 21
(2)Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.” Furthermore: “5—
(1)Upon any sale made in professed exercise of the power conferred on mortgagees by the Act of 1881, a purchaser is not, and never has been, either before or on conveyance, concerned to see or inquire whether a case has arisen to authorise the sale, or due notice has been given, or the power is otherwise properly and regularly exercised.” 26. On this basis, it is clear that the text of s. 21
(2), especially when combined with s. 5
(1), precludes any challenge to a purchaser’s title by reason of the fact that the power of sale may have been improperly or irregularly exercised. The fact that the purchasers’ title 10 is unimpeachable precludes an award of damages against them for slander of the d e f e n d a n t ’ s title, breach of constitutionally protected property rights, negligence, trespass etc. since each of those claims necessarily depends on the defendant’s title being established as against the purchaser which is exactly what s. 21
(2)prevents. If the defendant has a remedy, it is a remedy against the mortgagee and/or the receiver who put the sale in train prior to delivering possession to the mortgagee.
  1. As the High Court noted in Farrell v Everyday [2022] IEHC 698, provided the mortgagee had itself the power to execute the transfer deed, there is no reason why that transfer deed would be in any way invalidated or impugned by the absence of any power or authority on the part of the receiver to enter into the contract.
  2. The legal protection afforded to purchasers who buy from mortgagees exercising a statutory power of sale under s. 21
(2)of the Conveyancing Act, 1881 and s. 5
(1)of the Conveyancing Act, 1911 are significant and extensive. A purchaser is not obliged to make inquiries as to whether a power of sale is properly exercisable and will not be fixed with constructive knowledge of irregularities in circumstances where inquiries have not been made – see the decision of the Court of Appeal in Langan v Táilte Éireann & Ors [2024] IECA
  2. Furthermore the plaintiff is entitled to avail of the protection of his status as the registered owner of the Lands. In my assessment therefore this ground of defence has no substance as against the plaintiff, as the purchaser for value.
  3. It is also alleged that the Circuit Court judge failed to have due regard to the defendant’s defence and counterclaim. This is a bare assertion by the defendant and there is no evidence to substantiate it. The information available is that the Circuit Court took some time to deal with the evidence and required all necessary matters to be formally proved before making its Order on 23 January
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  5. I also reject as an arguable ground of appeal against the plaintiff that the Circuit Court Order was wrongly amended without a notice of motion being brought under O. 65 r. 3(b) of the Circuit Court Rules. It is true that the first copy of the Order incorrectly contained the words “by consent”. However, the operative part of the Order was correct in all respects. Notwithstanding any need to formally amend the Order if the plaintiff wished to execute on foot of it, I am satisfied that the Circuit Court Order was validly pronounced in open court on 23 January 2025 and that the time period for appeal ran from that date.
  6. The defendant also argues that there was no inordinate delay in this case. However, it is quite clear that the time limits were missed – and missed by some margin. I accept that the time period is not as lengthy as in some reported cases.
  7. As noted by Clarke J. (as he then was) in Goode Concrete v CRH plc [2013] IESC 39, it would be difficult to envisage circumstances where it could be in the interests of justice to allow an appeal to be brought outside time where the court was not satisfied that there were any arguable grounds for appeal established. It cannot be in the interests of justice to allow wholly unmeritorious appeals to progress.
  8. In this as in every case in which the court is asked to extend the period of time within which to bring an appeal the court must seek to balance the interests of all parties. There is a risk of injustice if a defendant is excluded from bringing an appeal. On the other hand there is a legitimate public interest in the finality of litigation and the orderly administration of justice and indeed this interest is at the very heart of statutory time limits. Failing to bring finality to proceedings in a timely way is, in itself, a potential and significant injustice.
  9. The motion in this case issued 63 days after the time to appeal had expired. I do not accept that the request for consent to extend the time to appeal should in any way be seen to reduce that period of time. The plaintiff was under no obligation to consent to an extension of time and, in all the circumstances, it was highly unlikely that he would do so. 12
  10. The avoidance of unfair prejudice to the plaintiff in whose favour the original Order was made is a matter I believe to be of particular relevance in the difficult circumstances and background of the present case. I do not accept the defendant’s suggestion that no prejudice will be suffered by the plaintiff if this appeal is granted. I believe, given the unfortunate history to these proceedings that there would be a particular prejudice to the plaintiff if these proceedings were permitted to continue and that is particularly so in circumstances where I am not satisfied that the defendant has raised grounds for an arguable defence of any substance against the plaintiff as a bona fide purchaser for value and the now registered owner of the Lands.
  11. Furthermore, I am advised that the plaintiff has in the last number of days issued High Court proceedings in which he seeks urgent injunctive relief against the plaintiff and a number of other defendants and a stay on the enforcement of the permanent injunction granted by the Circuit Court. The grounding affidavit of the defendant in that case confirms that the proceedings are advanced “regardless of the outcome” of this extension of time application. The defendant continues to plead in those High Court proceedings that he remains in lawful possession of the Lands and entitled to farm them.
  12. In all the circumstances I am satisfied that the court’s discretion should be exercised so as to refuse an extension of the time within which to appeal the Order of the Circuit Court and accordingly I dismiss the defendant’s appeal of the Deputy Master’s order to that effect.
  13. It follows that, having been entirely unsuccessful in this application, the costs of this motion should be ordered against the defendant – same to be adjudicated in default of agreement.

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