of formal notice, foreseeability and an independent determination of the objective necessity for possession of the dwelling are presupposed by the guarantee of inviolability and these protections cannot be assured outside the judicial process or, at least, something akin to the judicial process.
\n243.
\nIf one leaves aside the debate about the meaning of “inviolable”, it is not controversial to observe that, in this context and as against the public officials, Article 40.5 rights entitle a person to demand strict compliance with the law; for example the provisions in the 1926 Act or the terms of the Warrant. The more open question is as to whether those rights extend to imposing any other obligations on public officials as to the manner in which they execute a warrant.
\n244.
\nI am satisfied that Article 40.5 does not give the plaintiff any entitlement to substantively thwart the possession order made after a full judicial process. However, I am not persuaded that the reach of Article 40.5, in so far as public officials are concerned, stops once the possession order is granted. If it can apply to the state in the context of the process of obtaining a possession order or issuing a warrant, then there is no convincing principled basis for excluding its ambit from the manner in which the possession order or warrant is executed, at least so far as the public execution machinery is concerned.
\n245.
\nThe circumstances here are that the plaintiff and her children had no relationship with either Promontoria or its financial predecessor and, in this case, the House was undoubtedly their home. Accordingly, while the public officials were lawfully charged with executing the possession order there is nothing intrinsic to that task that precludes public officials from taking account of the plaintiff’s Article 40.5 rights in the manner of the execution of the 32 possession order. In legal terms, that means no more than behaving in a manner that is broadly reasonable and proportionate. In practical terms, that means, as it happens based on the evidence in this case, no more than behaving in the manner that they themselves had decided was the appropriate way to behave, as described in detail in section II of this judgment.
\n246.
\nCounsel for Promontoria and Blackwater contended, by reference in particular to the Supreme Court decision in ZG v Ireland [2025] IESC 49, that the reach of Article 40.5 should not be extended “horizontally” to Promontoria or Blackwater, and certainly not in a case where the argument was not clearly pleaded or made. While there was a general claim for damages for breach of Article 40.5 (that on one view applied to all the defendants), I have considerable sympathy for that submission as Counsel for the plaintiff did not in truth push an argument that there should be a horizontal application of Article 40.5 as against Promontoria and Blackwater. While horizontal effect has arisen (for example in cases like Meskell v CIE [1973] IR 121, where the underlying rationale for horizontal effect does not appear to have been debated, and Herrity v Independent Newspapers [2009] 1 IR 316, where it was) the precise boundaries of that legal landscape in the context of Article 40.5 are unclear. Consequently, it is not terrain to embark upon readily where the argument is not made and debated and where there is, in any event, in this case a remedy available against a state defendant.
\n247.
\nThe State Defendants however are in a different position. The execution of a possession order is precisely where the Oireachtas has determined that the state, through the County Registrar, does become involved. In addition, the State Defendants contended in advance of the trial that the full circumstances around the execution of the Warrant were relevant.
\nTheir witnesses, without objection, gave evidence about the usual practice in relation to both the issue and execution of warrants. Furthermore, as a matter of principle, there is no convincing reason why Article 40.5 should be limited in its scope as against the State Defendants so as not to encompass the manner in which an order for possession of a home is executed. After all, albeit as against a different factual backdrop, the circumstances in Moore led the Supreme Court to conclude that the manner of the execution of the warrant in that case violated the plaintiff’s Article 40.5 rights; see para.s 38 to 45. As to how to assess such a claim, the authorities cited by the parties included Rouske v Sweden, ECtHR 25 October 2013, which refers to an assessment based on proportionality in the context of Article 8 rights, which echoes the reference to proportionality by the Supreme Court in Clare Co Council v McDonagh [2022] 2 IR 122. Proportionality in turn involves a consideration of reasonableness and the position of all of the parties involved. However proportionality does not require a re-evaluation of the entitlement to possession, but rather operates as a constraint on the manner in which public powers are exercised in enforcing that entitlement.
\n248.
\nApplying this conclusion to the facts as described in detail in section II, I am satisfied that, in relation to proportionality and reasonableness in the context of Article 40.5, the standard to be applied should take account of the evidence given by the County Registrar as to her established practise based on years of experience and knowledge of the practise of other county registrars and including her account of the standard that emerged from meetings held with other county registrars. The detail of this is set out comprehensively in section II of this judgment. In approaching the issue in this manner I am conscious that this is analogous to the approach applied by the courts in the context of the standard applied to medical professionals in the context of medical negligence claims; see Clarke CJ in Morrissey v HSE [2024] 1 IR 103 who explains that the standard of approach expected of a medical practitioner is not set by the courts, but by the profession itself. That is not to say that it is not ultimately for the court to carry out the assessment of the actions of public officials in the context of respect for constitutional rights.
\n249.
\nAny assessment of a claim of a violation of a person’s constitutional rights involves an assessment of the position of both sides. In this case that means weighing and considering the position of Promontoria, who had obtained a possession order on foot of the security it 33 had acquired. There may clearly be other plaintiffs with orders for possession who are in different circumstances when it comes to seeking to take possession or repossession of a property. However, in the context of a proportionality assessment it is not irrelevant that Promontoria acquired the security as a financial institution from another financial institution, and accordingly the value of the asset from their perspective is reflected in its monetary value on a resale basis. There was no evidence to suggest in this case that there was any particular urgency from the point of view Promontoria. This emphasises the need for the County Registrar not to mechanically follow the instructions of the plaintiff creditor, but rather to exercise her public functions in a way that balances rights.
\n250.
\nThe plaintiff resided in the property with her three children, one of whom was a minor and another of whom had special needs. Those facts were known to the relevant parties. The evidence shows that the plaintiff was given extremely limited notice at critical stages of the process, including, at one point, less than 12 hours’ notice to vacate the property. The execution ultimately took place following a relatively short period of notice after the determination of the Court of Appeal, and in circumstances where Ms. Ooi had indicated an intention to seek further relief from the courts.
\n251.
\nArticle 40.5 of the Constitution protects the inviolability of the dwelling. While that protection does not prevent the lawful execution of a possession order, it does require that any such execution be carried out strictly in accordance with law and in a manner that is reasonable and proportionate. This conclusion is confined to the conduct of the state officials involved in the execution process. It does not affect the validity of the underlying order for possession, nor does it impose an obligation on those public officials to defer execution indefinitely. It requires only that, in exercising coercive powers of entry and repossession, the state act in accordance with law and in a manner that is objectively reasonable and proportionate in the circumstances. In those circumstances, I am satisfied that the execution of the possession order in this case did not meet the standard required by Article 40.5. This finding is independent of the findings in relation to the lawfulness of the issue of the Warrant (by reason of not appointing the Court Messenger and by reason of the failure of the County Registrar to review and approve the Warrant) and separately, as a result of the lack of any oversight of the process by the public officials charged with the task by the 1926 Act.
\n252.
\nFinally, as the County Registrar was the public official assigned by law to take responsibility for this process on behalf of the state, I am also satisfied that it is appropriate to make these findings of liability as against all of the State Defendants jointly and severally. Just as Mr.
\nBurke was, as a matter of law, performing his functions in this case on behalf of the County Registrar, she too in turn was performing her functions on behalf of the state. (viii) The position of Promontoria and Blackwater 253.
\nIt is necessary, however, to distinguish between the role of the State Defendants and that of Promontoria and Blackwater. The plaintiff’s case against Promontoria ultimately rests on the proposition that, if the warrant was invalid, those acting to take possession became trespassers.
\n254.
\nThere is force in the submission that Promontoria played an active role in identifying Mr.
\nBurke, in funding the execution process, and in seeking its expedition. Dixon & Gilliland addresses the situation where a particular bailiff is appointed at the request of the plaintiff creditor, stating at page 19: “If a sheriff, at the request of the plaintiff or his attorney, appoint a particular person to be bailiff for the purpose of an execution, that person is known as a special bailiff.
\nWhen a plaintiff in an execution procures a sheriff to grant special bailiffs, the plaintiff becomes liable for the acts of such bailiffs in the execution in like manner, and to the same extent, as the sheriff is liable for the acts of his bailiffs.”
\n34 Dixon & Gilliland continues on to explain that this however does not alter the liability of the sheriff as “to all other parties the sheriff (as well as the plaintiff) must answer for the acts of the officer who holds his warrant”; see page 20 of Dixon & Gilliland.
\n255.
\nThese principles potentially bear on the factual circumstances in which Mr Burke came to be appointed. On the evidence, it was strongly arguable that Promontoria effectively procured the appointment of Mr. Burke. However, no such case was pleaded or pursued. Nor did the state advance a claim for indemnity on that basis. In those circumstances, the issue does not arise for determination, although the authorities demonstrate that such an argument could, in an appropriate case, affect the allocation of liability. In addition, Counsel for the plaintiff did not seek to make a case against these defendants that Article 40.5 might have horizontal effect.
\n256.
\nIn those circumstances, and as I have determined that the plaintiff is entitled to a remedy from the State Defendants, I do not consider it necessary to consider whether Article 40.5 might impose a liability on Promontoria and Blackwater in this case. The execution of a possession order is, by law, a function entrusted to the County Registrar, to be carried out through the statutory machinery established by the 1926 Act. Promontoria was not entitled to execute the order itself; it was required to act through that statutory process. The responsibility for ensuring that the process was conducted lawfully rested, in law, with the County Registrar and those acting under her authority.
\n257.
\nMr. Burke, as the individual named on the warrant, was acting (at least purportedly) as the agent of the County Registrar. The fact that, in practice, he took instructions from Promontoria’s solicitors does not alter the legal character of his role.
\n258.
\nIn those circumstances, I am not satisfied that Promontoria can be fixed with liability in trespass or for breach of constitutional rights. It did not itself purport to exercise the statutory power of entry; rather, it invoked the machinery of the State to enforce a court order of which it had the benefit.
\n259.
\nThe defects in the process, while serious, arise from the manner in which the State defendants operated (or failed to operate) that machinery. They do not, in my view, render Promontoria liable in damages. A similar conclusion arises in relation to Blackwater, whose role was confined to taking possession following execution.
\nV.
\nConclusion 260.
\nThe execution of possession orders is a regulated and intrusive function requiring strict compliance with formalities. Consequently, the proper appointment of those exercising enforcement powers is essential. Equally a fundamental defect in a warrant consequently renders any execution on foot of that warrant unlawful.
\n261.
\nIn addition, as discussed in section IV(viii) above, while the authorities make clear that Article 40.5 does not prevent the enforcement of a valid order for possession, the constitutional protection afforded to the dwelling does not cease at the point at which such an order is made or when a warrant is issued. Rather, as far as the state is concerned, the protection afforded by Article 40.5 extends to the manner in which the statutory machinery of enforcement is deployed. This requires not only strict compliance with the statutory framework governing execution, but also requires that the statutory powers are to be exercised in a manner that is reasonable and proportionate, having regard to the circumstances of those affected.
\n262.
\nIn the present case, the absence of any meaningful engagement with the plaintiff or her family, the failure to assess or take account of the presence of a minor and a vulnerable adult, and the imposition of extremely short timeframes for compliance, culminating in execution in circumstances where further resort to the courts was being sought, demonstrate a departure from that standard. These features, taken cumulatively, illustrate not merely a 35 failure of formality, but a failure in the manner of execution which falls short of what Article 40.5 requires of the state in exercising such powers.
\n263.
\nThe County Registrar, as the responsible office-holder, is prima facie liable for the acts of those executing the process, albeit that unlawfulness in the execution of a warrant does not necessarily extinguish the underlying substantive entitlement to possession, though it is relevant to the assessment of damages.
\n264.
\nDrawing these threads together, and based on the findings of fact described in section II of this judgment, and applying the legal principles discussed in section IV of this judgment, I am satisfied that:
\n265.
\nIn those circumstances, the plaintiff is entitled to appropriate declaratory relief and to damages as against the State Defendants. However, I am not satisfied that any liability arises on the part of Promontoria or Blackwater, and the claims against those defendants will be dismissed.
\nVI.
\nDamages 266.
\nIn the circumstances of the findings set out above, there was an unlawful interference with the plaintiff’s dwelling and a breach of her rights under Article 40.5 of the Constitution.
\n267.
\nIt is necessary, however, to place these findings in their proper context. The unlawfulness arises from the manner in which the possession order was executed, not from the existence of the order itself. Promontoria had obtained a valid order for possession, which had been upheld on appeal, and which entitled it to recover possession of the property. The plaintiff did not have a continuing legal entitlement to remain in occupation indefinitely. The damages to be awarded must reflect that distinction. Equally, however, the fact that there was a lawful possession order does not deprive the plaintiff of her entitlement to damages; see Moore at para.s 35 and 50:“…the starting point has to be to observe that a family home enjoys protection both under the Constitution and under the European Convention on Human Rights.
\nPersons may, of course, lose the right to occupy a family home in accordance with law. It might be said that the Moores lost the formal right to occupy their family home when a valid notice to quit was served. However, there are two relevant considerations that qualify the effect of that statement. One is that the house remained their home, whether they were legally entitled to be there or not, until such time as they were evicted in due course of law. … In those circumstances we consider that the proper course of action to adopt is to make a declaration that the eviction of Ms. Moore, effected on 14 May 2010, was unlawful and to determine that Ms. Moore is entitled to damages at the level of principle.”
\n36 268.
\nIn addition, as described in Dixon & Gilliland, the historical authorities distinguish between defects in execution, and the underlying entitlement to possession. That distinction supports the conclusion that, while the defects identified render the execution of the warrant unlawful, they do not in themselves negate the validity of the underlying possession order.
\nAccordingly, lawful possession could ultimately have been recovered. This distinction is material to the assessment of damages.
\n269.
\nHowever, the existence of the possession order does not mean that there is no entitlement to damages. As explained by the Supreme Court in Moore v Dun Laoghaire-Rathdown [2017] 3 IR 42 where someone has lost the right to occupy a home in accordance with law that home remains their home until such time as the eviction has been effected in due course of law (see para. 35 of the judgment). Accordingly, in this case that means that the plaintiff could have remained in the home for the period required for the eviction to have been lawfully executed and, in addition, the manner of the eviction, had it been done lawfully, would likely not have occurred in the way it did with the consequential afront to her dignity and associated distress described in section II of the judgment and summarised below.
\n270.
\nThe approach to assessing damages for breach of a constitutional right has been considered in Shortt v. Commissioner of An Garda Síochána [2007] 4 I.R. 587 where Murray C.J. states as follows at pp. 610 to 611:\"[77] … in these circumstances I am quite satisfied that the principles relating to the award of damages in tort or for breach of a constitutional right as set out by Finlay C.J. in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305 at 317 are applicable to the assessment of damages in this case … [78] In Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305, Finlay C.
\nJ. stated:- \" 'In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case.
\nThey are:1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
\nSuch a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, 37 and in part also a recognition of the cavalier or outrageous conduct of the defendant.
\n271.
\nAccordingly, in assessing damages, I have regard to the evidence of the impact of the events on the plaintiff and her family. The House had been her home for close to twenty years and was the only home her children had known. At the time, she resided there with her three children, including a minor and an adult child with special needs for whom she provided fulltime care. The evidence demonstrates that the process leading to the eviction involved very limited notice, and no meaningful engagement with the plaintiff or her circumstances. The execution took place in circumstances which differed markedly from the ordinary practice described by the County Registrar and the Court Messenger, including the absence of any assessment of the position of the occupants or of the presence of vulnerable persons. The plaintiff learnt by email of the outcome of the Court of Appeal hearing at approximately 11am on Friday 21 February 2025. She then received a letter by email that afternoon indicating that she had until midnight on Sunday 23 February 2025 to leave the House. Mr.
\nBurke was informed over the weekend that the plaintiff intended to make an application to court for a further stay on the execution process pending an application to the Supreme Court. Meanwhile, according to Mr. Gray, as far as he knew, none of those attending to carry out the eviction on the Monday morning 24 February 2025 were told about the plaintiff’s presence or that of the children or that one of the children had special needs. Indeed it was Mr. Gray’s recollection that he had been told a few days earlier that the plaintiff was no longer in the House.
\n272.
\nThe plaintiff described the experience of the eviction as humiliating and traumatising. In the circumstance that arose, one child had gone into school that morning to do a mock leaving examination and one had headed into Dublin to attend university. Neither child nor the plaintiff would ever return to their home. The plaintiff went into the Four Courts and had left her eldest son who had special needs with her partner. The evidence also establishes that, in the aftermath, she and her children were required to move between temporary living arrangements which were difficult and cramped, and which placed additional pressure on the family, particularly in light of her role as carer to her eldest son.
\n273.
\nThese matters justify an award of damages. However, the award must be proportionate to the nature of the wrong established. This is not a case in which the plaintiff was unlawfully deprived of a property to which she had a subsisting legal entitlement. Rather, it is a case in which a valid court order for possession was enforced by a process which failed to comply with the statutory scheme for enforcement and with the requirements of Article 40.5.
\n274.
\nIn that regard, I have had regard to the approach taken in cases such as Abraham v Oakley Park Developments [2016] IEHC 790 and McNulty v Commissioner of An Garda Síochána [2016] IEHC 632, and the judgments and examples referred to in those cases.
\n275.
\nMcNulty concerned incidents in the plaintiff’s home on two specific dates which the court found to be a trespass by virtue of gardaí exceeding their authority. An award of €5,000 for 38 trespass was made. In Kessopersadh v Keating & Ors [2013] IEHC 317 (referred to by Baker J. in McNulty) there was an unlawful search of the plaintiff’s home by gardaí late at night that was considered very upsetting and O’Malley J. assessed general damages for trespass and unlawful entry at €50,000. In Abraham an award of €15,000 was made for interference with the enjoyment of the plaintiffs’ home which included a dispute over the location of a fence and the painting of a line on the roof of a shed that was said to have crossed a boundary.
\n276.
\nWhile the facts in each of these cases are unique to their particular circumstances, in these cases the courts emphasise that, in cases involving trespass or irregularities in the exercise of lawful authority, damages should remain proportionate and not exceed what is necessary to vindicate the right in question. In those circumstances, I consider that a relatively modest award is appropriate, notwithstanding the real distress caused. Doing the best I can on the evidence, I will award damages in the sum of €20,000. That sum reflects the impact on the plaintiff of the unlawful manner in which possession was taken, while also recognising that the underlying entitlement to possession was valid.
\nAggravated and Exemplary Damages 277.
\nI am not satisfied that this is a case in which an award of aggravated or exemplary damages is warranted. While the plaintiff plainly suffered real distress arising from the manner in which the eviction was carried out, the evidence does not establish the type of exceptional or contumelious conduct which would justify such awards. The deficiencies identified in this judgment arise from failures in the execution of the statutory process rather than from any deliberate or high-handed wrongdoing. In those circumstances, an award of compensatory damages is sufficient to vindicate the plaintiff’s rights.
\nVII.
\nForm of Order and Declarations 278.
\nThere will accordingly be an award of damages in favour of the plaintiff in the sum of €20,000 against the State Defendants. The claim against Promontoria and Blackwater is dismissed.
\n279.
\nIn light of the findings above, I will make the following declarations:- 280. (i) The Warrant of 14 October 2024 purportedly issued by the County Registrar for Wicklow was not validly issued; and (ii) The execution of the possession order pursuant to that warrant, including the entry onto and recovery of possession of the plaintiff’s dwelling on 24 February 2025, was unlawful and in breach of the plaintiff’s rights under Article 40.5 of the Constitution.
\nI will list the matter for final orders and to address the issue of costs.
\n39