High Court: Injunction granted against dispossessed homeowners for trespass as judge blasts ‘arrant nonsense’ defence

About this case:

• Citation:
  [2022] IEHC 109
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Senan Allen

In granting the order restraining the couple from trespassing on the property, Mr Justice Senan Allen heavily criticised the defendants McKenzie friend, who appeared to provide assistance with their submissions. The submissions were dismissed as “arrant nonsense” by the court.

Background

In June 2016, Start Mortgages was granted an order for possession of the defendants’ property. A late appeal was lodged with the High Court and the appeal was dismissed in July 2017. An execution order was effected in February 2020 when the County Registrar took possession of the property.

Start Mortgages engaged an asset recovery firm to attend the property, along with the court messenger, six court bailiffs, two locksmiths and four gardaí. They were refused entry by the couple and accordingly, the recovery team forcibly entered the property. The second defendant was offered to take anything she wished but she declined. Other members of the family were also removed from the property.

New locks were fitted and CCTV cameras were installed. After leaving the property, the cameras captured the defendants and their son using an angle grinder to cut the locks and enter the kitchen. The family were assisted by Michael “Pixie” O’Gorman, Gillian Noonan and Michael O’Sullivan who were described as an “anti-eviction task force”. They were recorded stating that the faces of the asset recovery team should be published online to intimidate them.

Start Mortgage brought injunction proceedings against the couple to restrain their trespass on the property and to restrain the sharing of video or images on the internet. The defendants raised a large number of grounds in their defence, which largely relied on thin legal arguments. The court noted that the defendants were assisted in their submissions to the court by a McKenzie friend, identified as Brian McCarthy.

Some of the arguments raised included that Start’s deponent was an employee of Start’s parent company rather than the designated activity company, that the wrong entity was listed as owning the charge on the folio, and that the defendants had lawfully demanded a redemption of the mortgage.

It was also argued that the court order for possession was defective because the civil bill was not stamped and that the order did not contain an endorsement of execution. Additionally, the defendants sought to argue that Bank of Scotland plc had never been registered as the owner of the charge following a cross-border merger in 2008, and therefore the charge for Start was invalid.

High Court

The court began its assessment by considering the involvement of Mr McCarthy as a McKenzie friend. It was stated that Mr McCarthy had provided notes for the first defendant to read out to court. It was stated: “The author of these documents plainly has a very limited knowledge and no understanding of the law. Not for the first time I wondered whether a litigant nominally acting for himself truly believed that his case could be advanced by reliance on a melange of grandiose language, wild assertion, bits and pieces of legislation and case law, and a sprinkle of Latin.”

Further, the court stated: “I find it very hard to credit [that] any person of ordinary intelligence could be brought to believe that he was entitled to use an angle grinder to break back into a house within hours of his eviction by a court messenger acting on foot of a court order.”

The court proceeded to dismiss each point raised by the defendants in their defence to the injunction application. The court noted that the facts of the case were uncontested and that the defendants raised purely legalistic arguments. The court held that Start’s deponent was formally employed by Start’s parent company but acted for the designated activity company. Accordingly, there was no issue with her swearing the affidavit (Start Mortgages Designated Activity Company v. Ryan [2021] IEHC 719).

Further, the court noted that the defendants misunderstood the effect of re-registration from a private limited company to a designated activity company in seeking to claim that the wrong entity was registered on the folio as chargeholder. Section 63(12) of the Companies Act 2014 made it clear that no rights of any companies were affected by such a change.

The defendants’ assertion that they made “lawful demand for statutory mortgage redemption pursuant to s. 121 of the Consumer Credit Act, 1995” was misguided, because the quoted section had “absolutely nothing to do with the case”. It was not suggested that the defendants wished to actually redeem the loan. The court decided not to dwell on certain correspondence which was “gobbledegook”.

The court said that it was “arrant nonsense” to suggest that lack of stamping on the civil bill rendered the order for possession invalid. Further, while it was good practice to ensure that execution of the order should be endorsed, any failure to endorse did not invalidate the execution, the court said.

It was “impossible to make head or tail” of the complaint that multiple people were brought to the defendants’ house in February 2020 during the pandemic, when in the same sentence the defendants asserted that the pandemic began on 27 March 2020.

Finally, the court considered the argument that the lack of registration of Bank of Scotland plc on the folio invalidated the order for possession. The court said that, even if there was substance to the point, it should have been made in the Circuit Court and High Court. Although it was not clear if the point had previously been made, the High Court had clearly held that the register was conclusive proof of title. Since Start was registered as chargeholder, it was the end of the matter.

Conclusion

It was “absolutely clear” that Start Mortgages was in lawful possession of the property and that the defendants were trespassers. Accordingly, the court granted the orders sought by Start. The court awarded costs to Start as well, stating that there was “no sensible purpose” for a further listing to decide otherwise.