Court of Appeal dismisses appeal against injunction ordering family to vacate mortgaged property due to lack of residence.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 73

APPEAL NO. 123/2015

Finlay Geoghegan J.

Peart J.

Irvine J.

BETWEEN

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND AND TOM KAVANAGH

PLAINTIFFS/RESPONDENTS

AND

BRIAN O’DONNELL AND MARY PATRICIA O’DONNELL

DEFENDANTS/APPELLANTS

JUDGMENT of the Court delivered on the 15th day of April 2015

1. This appeal demonstrates, once again, the very difficult situation in which a family may find itself where a decision was made to

give security over their home to a bank in relation to significant borrowings. Such situations are understandably a cause of great

emotional upset and distress for the families concerned.

2. The appellants, Mr. and Mrs. O’Donnell, appeared in person. Mr. O’Donnell, a former experienced commercial solicitor, made oral

submissions in addition to the written submissions filed on behalf of the appellants. Mrs. O’Donnell appeared and informed the Court

that she wished to pursue the appeal and rely upon the submissions made by her husband.

3. The respondents, to whom the Court will refer individually as “the Bank” and “the Receiver” respectively, were jointly represented

by solicitor and counsel.

4. The appeal is against an order made on 12th March 2015, by the High Court (McGovern J.) granting an interlocutory injunction

restraining the appellants, their servants and/or agents or any other person acting on their behalf, or having notice of the making of

the order from trespassing, interfering with, entering upon or otherwise attending at the property known as ‘Gorse Hill’; an order

directing the appellants and others to vacate Gorse Hill and other interlocutory orders restraining the same persons from impeding or

obstructing the Receiver, and directing the appellants and others deliver up to the Receiver any keys, alarm codes and/or other

security and access devices. The appellants also appeal against prior rulings of the High Court judge in relation to the same motion.

5. The members of the Court are in agreement on all issues in the appeal and have determined to deliver a single judgment of the

Court.

Background and Prior Proceedings

6. The proceedings in which this appeal arises commenced only on 3rd March, 2015. However, there are a significant number of prior

sets of related proceedings between the Bank, its subsidiary Bank of Ireland Private Banking Limited (“BOIPB”) and the Receiver and

members of the O’Donnell family and companies controlled by them. The issues in this appeal must be considered in the context of

those prior proceedings. On an appeal such as this against the granting of an interlocutory injunction, the Court is not concerned to

decide any disputed fact. It is, however, relevant to identify those facts which may be considered to represent the status quo at the

time of the Bank’s application for the interlocutory injunction. Insofar as the Court refers to facts in this judgment, it is only on that

basis. For the most part, the relevant facts to be taken into account in identifying the factual status quo are derived from orders

made and judgments delivered in the prior proceedings.

7. Similarly the Court is not concerned to decide any legal issue in dispute in the proceedings. In the course of the appeal, the

appellants submitted that certain prior determinations made by the High Court and the Supreme Court in the related proceedings, to

which they were not parties, are not binding on them. Insofar as the Court refers to those determinations in the course of this

judgment, the Court is not making any decision on that objection. That will be a matter for the full hearing of the proceedings. The

facts or legal issues as determined in those proceedings, where relevant to issues in this appeal do, however, represent the current

status quo.

8. The principal relevant judgment is the single judgment delivered by Laffoy J. in the Supreme Court, 19th December, 2014 (with

which all other members of the Court agreed) in proceedings between Alexandra O’Donnell, Blaise O’Donnell, Blake O’Donnell and Bruce

O’Donnell (“the O’Donnell Children”) and the Bank, BOIPB and the Receiver [2012 No. 7554P] (“Gorse Hill proceedings”). As appears

therefrom, commencing about 1997, the appellants put in place a complex legal structure for the purchase and development of two

separate parcels of land which together became known as Gorse Hill and its use as a home for their family. They used, for that

purpose, an Isle of Man company, Vico Ltd.

9. In about 2000, the appellants demolished the original house on Gorse Hill and redeveloped it as a residential property. The

appellants and their four children lived there until December 2011, when the appellants moved to England and the children remained

living in the house. The property at Gorse Hill was acquired in two tranches; one a purchase of unregistered land and one of

registered land.

10. It was held by Laffoy J., that by 2006, Vico Ltd. was the legal and beneficial owner of all the property comprised in Gorse Hill

which was its only asset.

11. It further appears from the judgment of Laffoy J. that in June 2006, Vico Ltd. gave a guarantee and indemnity to the Bank in

relation to liabilities of the appellants to the Bank and a separate guarantee and indemnity in relation to liabilities of Hibernia, a

company incorporated by the appellants. The maximum then liability of Vico Ltd. to the Bank was €17 million. In June 2006, Vico Ltd.

executed a Deed of Mortgage (“the Mortgage”) in favour of the Bank over the unregistered portion of Gorse Hill in respect of its

liabilities to the Bank. Also, in June 2006, it executed a Deed of Charge (“the Charge”) in favour of the Bank, charging the registered

lands in Gorse Hill with its liabilities to the Bank. There were subsequent guarantees given by Vico Ltd. to the Bank in respect of

liabilities of the appellants and companies incorporated by them. It is not necessary to refer to these in detail.

12. The appellants had also, in 1997, as settlors, established a discretionary trust, the proper law of which was to be the Isle of Man

and the beneficiaries included their children. There was a corporate trustee, the identity of which changed from time to time. The

shares in Vico Ltd. were accepted by the trustee as an addition to the trust fund. The appellants advanced monies to Vico Ltd. in

relation to the cost of acquisition and redevelopment of Gorse Hill. Laffoy J., at para. 108 of her judgment, summarised the

relationship of the appellants with Vico Ltd. in relation to Gorse Hill as follows:-

“Moreover, the documentary evidence also establishes aspects of the relationship of Mr. O’Donnell and Mrs. O’Donnell with

Vico Limited in relation to Gorse Hill, which are material to the determination of where the beneficial ownership of Gorse Hill

lies, namely:

(a) that a debtor/creditor relationship exists between Vico Limited, as debtor, and Mr. O'Donnell and Mrs. O'Donnell, as

creditors, in relation to the costs of acquisition and re-development of Gorse Hill; and

(b) that there was an arrangement between Mr. O'Donnell and Mrs. O'Donnell and Vico Limited under which Mr. O'Donnell

and Mrs. O'Donnell and their children would be entitled to reside in Gorse Hill.

In simple terms, what the evidence establishes is that Mr. O'Donnell and Mrs. O'Donnell jointly decided that their family home, not

using that expression in any technical sense, would be acquired by them through the medium of an Isle of Man company, Vico Limited,

which would be indebted to them for the acquisition and re-development costs, but which would allow them reside there with their

children. Contemporaneously, they jointly decided to settle the issued share capital of Vico Limited on the terms of the Discretionary

Trust.”

13. The above determination by the Supreme Court of an arrangement between Vico Ltd. and the appellants whereby the appellants

were allowed by Vico Ltd. to reside in Gorse Hill as their home forms part of the factual status quo relevant to the issues on appeal.

14. Proceedings between the Bank and the appellants and related companies commenced in 2010. Unfortunately, by that date, the

appellants and certain companies had defaulted in relation to liabilities to the Bank and it issued summary summons proceedings [2010

No. 6100 S] against them. Contemporaneously, separate summary proceedings were issued against three related companies. Those

four sets of proceedings were entered into the Commercial List, and on the second day of the hearing of an application for summary

judgment, on 4th March 2011, an agreement in writing (“the Settlement Agreement”) was entered into between the Bank and the

appellants and the companies. On consent of the parties, the High Court (Kelly J.) made orders in the summary proceedings on 4th

March 2011, that each of the proceedings be adjourned generally with liberty to re-enter for the purpose of enforcing the agreed

terms. The appellants and the companies were represented by solicitor and counsel at that time.

15. The Settlement Agreement (exhibited in the High Court in these proceedings) set out in schedule one thereto the then agreed

indebtedness of the appellants (jointly and severally) to the Bank in the sum of €69,520,063.69. It also provided staged payments to

be made on 31st July 2011, in the sum of €8,500,000 and 31(sic) November 2011, in the sum of €20 million and 31st May, 2012, in the

sum of €14 million. It further provided, at para. 3.2, that in default of receipt by the Bank of any of the said payments that the Bank

had liberty to re-enter the proceedings, and that upon re-entry the Debtors (i.e the appellants and the defendant companies) shall

consent to judgment against them in the respective amounts specified in schedule one and additional interest accrued thereafter.

16. The payment due on 31st July 2011 was not made (nor the payment at the end of November 2011), and the Bank, in December

2011, re-entered the summary proceedings [2010 No. 6100 S] and the High Court (Kelly J.) granted judgment in favour of the Bank

against the appellants on 12th December 2011, in the sum of €71,575,991.29 pursuant to the Settlement Agreement together with

costs.

17. The Settlement Agreement also contained relevant terms in relation to Gorse Hill to which reference is made below.

18. Mr. and Mrs. O’Donnell appear to have moved to live in England in late 2011. They subsequently sought to be adjudicated as

bankrupt in that jurisdiction. That application was opposed by the Bank and this Court was informed during the appeal that ultimately

it was determined by the English High Court that, though resident in England, the appellants’ Centre of Main Interest was not in

England and the application for adjudication refused.

19. The appellants were adjudicated bankrupt in Ireland on 2nd September 2013 [2479 and 2480] on the petition of the Bank. They

appealed that adjudication to the Supreme Court and the appeals were dismissed on 25th February 2015. In November 2014, a motion

was issued by Mr. and Mrs. O’Donnell seeking to annul the adjudications pursuant to s. 85C of the Bankruptcy Act 1988. That

application remains before the High Court.

20. In the meantime, the Bank, on 18th May 2012, called in the indebtedness of Vico Ltd pursuant to its guarantees and indemnities.

The debt was not discharged and the Bank, on 7th June 2012, pursuant to the Mortgage and Charge, appointed the Receiver, Mr.

Kavanagh as receiver and manager of the Gorse Hill property.

21. By letter of 8th June 2012, Arthur Cox, as solicitor for the Receiver, wrote to the Secretary of Vico Ltd. informing it of the

appointment of the Receiver and stating:-

“Take notice that the Receiver and Manager intends to take possession of the properties [Gorse Hill] on Wednesday, 1st

August, 2012 and accordingly will be writing to all current occupants of the property advising them of the need to seek

alternative accommodation.”

There is no evidence in these proceedings of any response to this from or on behalf of Vico Ltd.

22. It is common case that the occupants of Gorse Hill, in July 2012, were the O’Donnell children. They were represented by solicitors

and there is reference to correspondence from such solicitors in July 2012. On 30th July 2012, the O’Donnell children commenced

plenary proceedings [2012 No. 7554 P], (“the Gorse Hill proceedings”), against the Bank, BOIPB and Mr. Kavanagh. They primarily

contended that they were beneficially entitled to Gorse Hill, challenged the validity of the mortgage and charge given by Vico Ltd. and

denied the entitlement of the Bank and Receiver to possession. They sought a series of reliefs to that effect. The plaintiffs, (the

O’Donnell children), were legally represented by solicitor and counsel throughout those proceedings in the High Court and the Supreme

Court until after the delivery of judgment by the Supreme Court.

23. In the High Court, following a full hearing of the plenary proceedings, McGovern J., on 31st July, delivered a written judgment in

which he determined that the plaintiffs were not entitled to the reliefs sought or any relief. On 12th September 2013, pursuant to the

judgment delivered, the High Court (McGovern J) made an order that the plaintiffs (the O’Donnell children) vacate the premises at

Gorse Hill by Monday 21st October 2013.

24. The O’Donnell children appealed that order and judgment to the Supreme Court. The Bank and the Receiver agreed to a stay on

the High Court order pending the determination of the appeal. On 19th December 2014, Laffoy J. delivered the detailed and extensive

judgment, already referred to, with which the other members of the Court agreed. The Supreme Court dismissed the appeal and

expressly upheld certain determinations of the High Court.

25. The O’Donnell children discharged their solicitors in January 2015. The matter came before the Supreme Court on 2nd February

2015, on the question of costs and the consequential order to be made. The Supreme Court, having heard Mr. Blake O’Donnell(who is

admitted as a Solicitor in England and Wales) who then appeared personally and Counsel for the Bank, BOIPB and the Receiver, made

an order for costs, and extended to 12.00 noon on Monday 2nd March 2015 the time and date in the order of the High Court of 12th

September 2013, by which the O’Donnell children were required to vacate Gorse Hill.

26. On 19th February 2015, Arthur Cox, on behalf of the Receiver, wrote to each of the O’Donnell children enclosing a copy of the

Supreme Court Order and telling them that the Receiver would attend at Gorse hill at 12 noon on 2nd March to take vacant

possession of the property and asking that they would be there to hand over the keys.

27. On 25th February 2015, the Supreme Court, in a single judgment of Laffoy J. (with which the other members of the Court agreed),

dismissed the appellants’ appeals against the High Court bankruptcy adjudications of each appellant.

28. On 25th February 2015, also, Vico Ltd. and the O’Donnell children issued further plenary proceedings [2015 No. 1553 P] against

the Bank, BOIBP, the Receiver and a number of individuals and companies resident in Switzerland and the Isle of Man connected with

Vico Ltd. and the Discretionary Trust created in favour of the O’Donnell children by the appellants. The multiple reliefs sought include

declarations that the guarantees, indemnities, mortgage and charge granted by Vico Ltd. in respect of borrowings of the appellants

are void and orders “overturning” the orders made by High Court on 12th September 2013 and the Supreme Court on 2nd February

2015, requiring the O’Donnell children to vacate Gorse Hill by 2nd March 2015.

29. A motion was also issued on 25th February 2015, in those proceedings by the plaintiffs, returnable for 2pm on 2nd March, seeking

interlocutory injunctions effectively restraining the Bank, BOIBP and the Receiver from taking possession of Gorse Hill and also seeking

a stay on the order of High Court of 12th September 2013, as varied by the Supreme Court order of 2nd February 2015. It was

grounded on affidavits of Mr. Blake O’Donnell and Ms. Blaise O’Donnell.

30. On 27th February 2015, Mr. Brian O’Donnell, the first named appellant, wrote to Arthur Cox claiming a right of residence in Gorse

Hill and inter alia stating:-

“As you are aware from paragraph 11 of the judgment of Mr. Justice McGovern dated the 31st July, 2013, my wife and I

have a right of residence in Gorse Hill, Vico Road, Killiney, Co. Dublin, which must be terminated by writing with at least

two calendar years notice.”

Paragraph 11 of the judgment of McGovern J. refers to a letter of 20th October 2000, from the appellants to the then trustee of the

discretionary trust. It is also referred to by Laffoy J. at para. 25, of her judgment of 19th December 2014 where the relevant

statement below from the appellants’ letter is repeated:-

“We confirm that we shall use the residence Gorse Hill Vico Road as a residence of ourselves & the beneficiaries for so

long as the Trustees on behalf of the beneficiaries shall permit. It is acknowledged by the Trustees & the beneficiaries

that any notice given to us to vacate the residence shall be in writing & shall in the absence of our consent be at least 2

calendar years prior to the vacation date to allow sufficient time for alternative arrangements to be made.”

31. Reference was also made by Mr O’Donnell in his letter of 27th February to the new proceedings issued by Vico Ltd. and the

O’Donnell children and the motion returnable for 2nd March at 2.00 pm, and indicating intention to call the police should the Receiver

attend at the residence on 2nd March. In its response, Arthur Cox rejected all claims made to a right of residence and placed reliance

on the judgments of the High court and Supreme Court in the Gorse Hill proceedings as having definitively determined the legal

position in relation to the security over Gorse Hill.

32. On 2nd March, shortly before 12.00 noon, an email was sent to Arthur Cox with a letter signed by each of the four O’Donnell

children stating that they had vacated Gorse Hill. The letter was also stated to be “without prejudice to current and future legal

proceedings against the Bank and BOIPB and the injunction listed for hearing at 2.00 pm that day”. The injunction application in

proceedings [2015 No. 1553 P] Vico Ltd. & Ors came on before the High Court (McGovern J.) at 2pm on that day. Mr. Blake O’Donnell

appeared and in addition to making submissions on the injunction application confirmed to the High Court that his parents were in

occupation of Gorse Hill. Further, that notwithstanding he and his siblings had vacated Gorse Hill, he was unable to hand over keys to

the Receiver. McGovern J. reserved his decision on the injunction application in the Vico Ltd. and Ors proceedings to the following

day.

33. The final factual matter prior to 3rd March, which appears to have heightened tensions between the Bank, Receiver and O’Donnell

family, was the participation from 2nd March of members of the so-called ‘New Land League’ or ‘Land League’ at Gorse Hill, and the

issuing by them of statements and consequent media attention.

34. On 3rd March, McGovern J. delivered his decision on the interlocutory application in proceedings [2015 No. 155P]. In summary, he

refused the application upon the basis that the plaintiffs had not established a fair issue to be tried. That ex tempore judgment was

delivered in the presence of Mr. Blake O’Donnell.

35. At the end of the ruling, Counsel for the Bank and Receiver indicated that by reason of the continuing occupation by the

appellants of Gorse Hill, proceedings had been prepared and were ready to be issued immediately and he was seeking an early return

date for a motion seeking interlocutory injunctions. There was then an exchange between the judge and Mr. Blake O’Donnell in relation

to making contact with his father, to which further reference is made below, and a short adjournment granted.

36. Counsel for the Bank and Receiver, at the resumed hearing, made an application for liberty to issue and serve short notice a

motion seeking entry of their new proceedings to the Commercial List and interlocutory relief. An order was made giving liberty to

issue and serve the motion returnable for Thursday 5th March at 11.00. Orders were also made in relation to the service of the

proceedings and motion on the appellants, both by email to an email address used by Mr. O’Donnell, and leaving the documents at the

property at Gorse Hill, and in the event that there was no response to an intercom system at the gate, to affix the documents to the

entrance gate and notify the defendants by email that they had been so fixed. It was further ordered that the appellants file and

serve any replying affidavit by 4.00 pm on Wednesday 4th March 2015.

37. There are two other potentially relevant procedural steps taken by the O’Donnell’s prior to March 2015. On 23rd July 2014, Mr.

and Mrs. O’Donnell brought a motion to the Supreme Court seeking leave to extend time to appeal the judgment granted against them

by the High Court (Kelly J.) on 12th December 2011, in the summary proceedings. That application was then the subject of the

Direction given by the Chief Justice under Article 64.3.1 of the Constitution on 29th October 2015, transferring same to the Court of

Appeal. The appellants applied to the Supreme Court pursuant to Article 64.3.3 cancelling the direction given insofar as it applied to

their application. On 5th February 2015, the Supreme Court cancelled the direction. The appellants’ motion has not been heard by the

Supreme Court.

38. In further High Court proceedings [2012 No. 7293 P] between the Bank, as plaintiff, and Blake O’Donnell, Bruce O’Donnell, Brian

O’Donnell and Mary Patricia O’Donnell, as defendants, the defendants appealed on 6th August 2014, against the refusal of the High

Court (McGovern J.) on 21st July 2014, to recuse himself from hearing those proceedings. It appears from the transcript of 5th March

that such refusal was made in the course of an application by the Bank to re-enter what counsel referred to as “the fraud

proceedings”. That appeal was similarly the subject of the Direction by the Chief Justice on 29th October 2014. Upon application

made by the defendants/appellants, the Supreme Court, on 5th February, has cancelled the direction insofar as it applies to that

appeal. The appeal has not yet been heard by the Supreme Court.

Hearing and Rulings 5th March

39. The respondents’ motion was grounded upon affidavits sworn by Mr. Brian O’Connor of the Bank and the Receiver and a Certificate

of Niamh Mulconry, a solicitor and Partner in Arthur Cox, for the purposes of the Commercial List admission application. Mr. O’Donnell

delivered and filed a replying affidavit as directed by 4.00 pm on 4th March 2015. He also, on that day, served a notice to produce for

inspection purposes the original of the two Deeds of Mortgage and Charge of June 2006, and the two Deeds of Appointment of the

Receiver of June 2012. He also served a notice of intention to cross- examine Mr. O’Connor and the Receiver on the affidavits filed. A

further replying affidavit was sworn by Mr. O’Connor on 4th March.

40. The original documents were produced by the Bank for inspection prior to the hearing on 5th March, and were also produced to

this Court.

41. During the hearing on 5th March, the following rulings were made which are the subject of appeal to this Court:

1. The refusal of the application to the judge to recuse himself.

2. The refusal of the application for an adjournment.

3. The decision to admit the proceedings to the Commercial List pursuant to O. 63A, r. 1(b) of the Rules of the Superior

Courts.

42. The High Court judge reserved his decision on the plaintiffs’ application for interlocutory relief. He also reserved his decision on the

defendants’ application to cross- examine Mr. O’Connor and Mr. Kavanagh on their affidavits. The High Court judge delivered two

written judgments on 12th March 2015, pursuant to which the orders the subject of this appeal were made.

43. For the sake of clarity, the Court is separately considering the appeal against each of the High Court rulings and orders made.

Prior to doing so, it is appropriate to consider briefly this Court’s jurisdiction on the appeal.

Jurisdiction of Court of Appeal

44. In the written submissions of the respondents, they contended for limited circumstances in which the Court of Appeal should

overturn or set aside an interlocutory injunction in accordance with the judgment in Riordan v. Minister for Environment (No. 6) [2002]

4 I.R. 404. However, correctly, in the Court’s view, this was not pursued at the hearing.

45. The approach to be taken by the Court of Appeal on an appeal against a discretionary order made by the High Court has recently

been considered in a judgment of the Court, Collins v. Minister for Justice, Equality and Law Reform and Others [2015] IECA 27. That

judgment relates to an appeal from an order of the High Court dismissing proceedings by reason of inordinate or inexcusable delay and

considered prior decisions of the Supreme Court indicating that the High Court decision should only be interfered with where an error

of principle was disclosed. The conclusion reached was that whilst the Court of Appeal will pay great weight to the views of a trial

judge, the ultimate decision is one for the appellate Court, untrammelled by any a priori rule that would restrict the scope of the

appeal to interfere with the decision of the High Court.

46. The Court of Appeal, in the judgment in Collins, also referred with approval to what was stated by Geoghegan J. in the Supreme

Court in Desmond v. MGM Limited [2008] IESC 56, 2009 1 I.R. 737 at 742, 743:

“Traditionally, the common law view was that a discretionary order should not be interfered with by an appellate court

unless the judge at first instance made an error of law in the exercise of the discretion. In a landmark case cited by

Kearns J. in his judgment, In bonis Morelli; Vella v. Morelli [1968] I.R. 11, it was pointed out by this court that an appeal

lay from every decision of the High Court to the Supreme Court unless otherwise provided for by law. Any rule by which

the court was inhibited from interfering with a discretionary order was not therefore compatible with the Constitution.

However, in In bonis Morelli; Vella v. Morelli as Kearns J. points out, Budd J. indicated that the court would have to give

“great weight to the views of the trial judge”. I think that that is the true legal principle in the light of the Constitution

now. But there is an added factor in my opinion. The expression “discretionary order” can cover a huge variety of orders,

some of them involving substantive rights and others being merely procedural in nature including mundane day to day

procedural orders such as orders for adjournments etc. I think that in reality over the years since In bonis Morelli; Vella v.

Morelli this court has exercised common sense in relation to that issue. The court would be very slow indeed to interfere

with the High Court judge's management of his or her list, but in a case such as this particular case where much more

substantial issues are at stake the court, while having respect for the view of the High Court judge, must seriously

consider whether in all the circumstances and in the interests of justice it should re-exercise the discretion in a different

direction.”

47. The rulings and orders the subject of this appeal vary from those which are concerned with the management of the proceedings

and motions in the High Court to those which are such that there are substantial issues at stake for both parties. The Court

considered all issues on the appeal upon the basis set out above, namely, that whilst having respect for the view of the High Court

judge, this Court must, in the light of the submissions made, seriously consider whether, in all the circumstances and in the interest of

justice, it should exercise the court’s discretion in a different direction and vacate, vary or otherwise interfere with the High Court

ruling or order. However, in reaching its conclusions it has also had regard to the varying types of the relevant High Court ruling or

order.

Failure of High Court Judge to Recuse Himself

48. The first matter addressed by Mr. O’Donnell in his replying affidavit in these proceedings in the High Court was a request that the

High Court judge recuse himself. The application in the affidavit was based upon certain alleged complex business and financial

arrangements of the High Court judge, principally through his wife, with both respondents.

49. Similarly, at the commencement of the hearing on 5th March, Mr. O’Donnell asked the High Court judge to recuse himself. This

Court has had available to it the transcript of the hearing of 5th March. The application was pursued upon the grounds of objective

bias. Mr. O’Donnell made no allegation of, or request that the High Court judge disqualify himself on the grounds of, actual or

subjective bias. The application was in addition to the alleged financial connection with the respondents based upon certain remarks

made by the judge to Mr Blake O’Donnell at the hearing on 3rd March.

50. Before this Court on appeal, the appellants similarly submitted that the High Court judge ought to have disqualified himself upon

the basis of objective bias alone.

51. Whilst this Court was referred to a number of authorities, there was no real dispute between the parties, either in the High Court

or in this Court as to the appropriate test to be applied in this jurisdiction. It is, as set out by the Supreme Court in Bula Ltd. v. Tara

Mines Ltd. (No. 6) [2000] 4 I.R. 412, and again applied by the Supreme Court and explained further in Kenny v. Trinity College Dublin

[2008] 2 I.R. 40.

52. In Bula Ltd. v. Tara Mines, a case in which objective bias was alleged against two judges on the basis of their previous

professional engagements as barristers, Denham J. explained the test firstly at p. 441 as follows:-

“The submissions in relation to the test to be applied roved worldwide. However, there is no need to go further than this

jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the

circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial

judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the

apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.”

53. Then, in the same judgment at p.449, Denham J. also stated:

“A judge has a duty to sit and hear a case. However, in certain circumstances it is appropriate that he or she disqualify

himself or herself from a particular case. The test is not whether that judge believes he or she would be impartial. Nor is it

whether the judge or judges on a motion to set aside such a judgment believes the judge was or would be impartial. Nor is

it whether the parties consider the judge impartial. The test is objective. This has been analysed by the Constitutional

Court of South Africa: President of the Republic of South Africa v. South African Rugby Football Union 1999 (4) S.A. 147

at para. 48:-

‘… the correct approach to this application for the recusal of members of this Court is objective and the onus of

establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would

on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the

adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The

reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to

administer justice without fear or favour, and their ability to carry out that oath by reason of their training and

experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or

predispositions. They must take into account the fact that they have a duty to sit in any case in which they are

not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a

fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there

are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was

not or will not be impartial’.”

54. In Kenny v. Trinity College, where the gravamen of the claim was that one of the Supreme Court judges hearing the appeal was a

brother of a partner in the firm of architects responsible for the design and execution of the development the subject matter of the

proceedings and a member of the firm, it was alleged, had participated in the concealment of material from the Court. Fennelly J.,

having referred to the above authoritative test of Denham J. in her judgment in Bula Ltd. v. Tara Mines (No. 6), said of the

hypothetical reasonable person at p. 45:

“The hypothetical reasonable person is an independent observer, who is not over sensitive, and who has knowledge of the

facts.

55. The High Court judge, in the course of exchanges with Mr. O’Donnell and Counsel for the respondents at the hearing on 5th

March, and in his ruling, referred to each of the above decisions of the Supreme Court. In particular, in his ruling he cited the first

part of the quotation from the Constitutional Court of South Africa and indicated that that was the test he proposed applying.

56. As appears, the objective test is applied to the hypothetical reasonable person who has knowledge of all the correct facts. The

relevant facts herein are in two parts. Firstly, in relation to the comment of the High Court judge to Mr. Blake O’Donnell at the hearing

on 3rd March that it could be done “the easy way or the hard way”, there is no dispute about the relevant facts. The transcript of

the hearing on 3rd March was made available to this Court, as is the transcript of the hearing on 5th March. This Court has

considered both and noted the full explanation given by the High Court judge to Mr. O’Donnell at the hearing of 5th March of the

context in which the comment was made and acceptance by Mr. O’Donnell that it was “a reasonable explanation”.

57. No objection was made, in the Court’s view correctly, to the High Court judge by reason of his judgments and rulings in any of the

prior related proceedings including the judgment on the interlocutory application delivered on 3rd March 2015 in the Vico Ltd. & Ors

new plenary proceedings. See inter alia judgment of Court of Appeal of England and Wales in Locabail (UK) Ltd. v. Bayfield Properties

Ltd. & Ors. [2000] Q.B. 451 at para. 25 and authorities referred to therein. Nevertheless the full background facts including the prior

related proceedings and decisions made therein are also relevant.

58. This Court considers that applying the objective test, a reasonable person, who is an independent observer and not over-

sensitive with knowledge of the full facts of the exchanges between the High Court judge and Mr. Blake O’Donnell on 3rd March, and

the further exchanges between the High Court judge and Mr. Brian O’Donnell on 5th March, and the full background facts to these

proceedings would not have a reasonable apprehension that the appellants would not have a fair hearing from an impartial judge on

the issues arising on the motion brought by the respondents before the High Court on 5th March.

59. The application that the High Court judge recuse himself by reason of the alleged “complex financial and business relationship”

primarily through his wife with the Bank and Receiver was made upon the basis, principally, of facts learnt by Mr. O’Donnell from

newspaper reports of proceedings between the judge’s wife and other of her siblings in relation to a partnership known as the ‘Ryan

Partnership’. In the course of the hearing, the judge clarified certain relevant factual misunderstandings of Mr. O’Donnell and identified

the correct facts in relation to financial or commercial connections between the judge and his wife with the Bank or the Receiver as

being:

(i) He and his wife previously jointly had borrowings from the Bank and had granted mortgages to the Bank on their home

and other properties. Those borrowings had now been paid off and neither he nor his wife currently had any borrowings

from the Bank.

(ii) His wife was a party to the litigation between her siblings relating to the Ryan Partnership. The Bank was not a party

to that litigation. The Ryan Partnership had previously borrowings from the Bank. Those borrowings had been discharged.

His wife, as a member of the Ryan Partnership, was not now indebted to the Bank.

(iii) In the course of the litigation between the Ryan siblings concerning the Ryan Partnership, a receiver had been

appointed. He was not appointed by the Bank. He is Mr. Ken Fennell who is a partner of Mr. Tom Kavanagh. In that

litigation, an application was made by his wife and other members of the Partnership on a motion in the existing

proceedings seeking directions from the High Court to the receiver to complete the receivership and challenging the fees

of the receiver and his solicitor which were being sought to be approved by the Court. That application had been dealt

with and the fees reduced.

(iv) The High Court judge did not know Mr. and Mrs. O’Donnell, any of the witnesses who gave evidence for the Bank or

for the O’Donnell children in the previous proceedings or Mr. Fennell or Mr. Kavanagh.

60. They were the facts upon which the High Court judge made his ruling, applying the cited objective test and determined that he

should refuse the application to recuse himself.

61. In the High Court Mr O’Donnell had averred in his affidavit that the last time he viewed entries in the Land Registry in August 2014

the Bank held a mortgage on an identified apartment in Mount Merrion (without expressly saying that it was owned by the judge and

his wife). The High Court judge in his ruling does not refer to this averment but did state “they [the appellants] seem to be under a

misapprehension that my wife and I have outstanding mortgages or loans with the Bank of Ireland which is also not the case . . .”. On

the appeal, Mr. O’Donnell produced to the Court an updated Land Registry search as at 20th March 2015, which records a mortgage

created on 11th June 1999 by the High Court judge and his wife in favour of the Bank of Ireland over the same apartment in Mount

Merrion. The search result does not record it as having been vacated or satisfied. The fact that there is no registration of a

satisfaction does not establish that there remain any monies outstanding from the High Court judge and his wife to the Bank secured

by the mortgage. This Court accepts the facts, as stated by the High Court judge, that he and his wife did not have, at the time of

this application before him, any outstanding borrowings or loans or mortgages (in the sense of a mortgage upon which there was an

indebtedness) to the Bank. However, in the interests of justice, it is appropriate that the Court considers the submissions made on

appeal that the High Court judge ought to have recused himself by reason of the financial relationship between himself and his wife

and the Bank as including in addition to the above facts an extant mortgage granted by them in favour of the Bank over one

apartment.

62. The appellants submitted that the judgment of the High Court (Hogan J.) in Irish Life & Permanent plc. v. Malcolm Duff & Susan

Duff [2013] IEHC 43, is authority for the proposition that a judge, prior to hearing a case to which a bank is a party, is bound to

disclose any relationship with that bank. The Court does not consider the judgment to be authority for such a proposition nor is it a

correct statement of the obligation of a judge in Ireland hearing a case concerning a bank. Ireland is a small country with a relatively

small number of commercial banks. As a matter of common sense, all judges have bank accounts and other banking facilities including

in many cases a loan secured by a mortgage on their home or other property. The duty of a judge to make disclosure derives from the

judge’s obligation to ensure a hearing by an impartial court. Both duties must be considered in the context of the declaration made by

every judge in the terms set out in Article 34.5.1 of the Constitution. In Bula Ltd. v Tara already referred to, Denham J having earlier

referred to the declaration pursuant to Article 34.5.1 put it thus at p.460:

“There is a duty on the judge to ensure that the court is impartial. There is a duty on the judiciary to disclose matters

that may impair an impartial trial. There is a long practised convention of the judiciary of doing so. It is routine for judges

to disqualify themselves where it is appropriate. If links are established subsequently the lack of knowledge or disclosure

may be one of the factors, the weight of which will depend on the circumstances, leading to a reasonable apprehension of

bias.”

63. As has been observed by the Court of Appeal in England in Locabail (UK) Ltd. v. Bayfield Properties Ltd. & Ors. [2000] Q.B. 451 at

para. 25 (albeit applying the different test of ‘real danger of bias’) “It would be dangerous and futile to attempt to define or list the

factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of

the issue to be decided”. Similarly in relation to the applicable test in this jurisdiction of ‘reasonable apprehension’ every thing will

depend on the facts which may include the nature of the issue to be decided. It is clear that it was the nature of the issues to be

decided which gave rise to the disclosure made by Hogan J. in Irish Life & Permanent plc. v. Duff. At para. 3 of that judgment, he

stated:

“Since the judgment I am about to deliver may have implications for the mortgagor/mortgagee relationships generally and

specifically by reference to those who are customers of ILP, it is perhaps apposite that I should disclose that I am a

mortgage account holder with ILP. I mentioned this to the parties at the commencement of the hearing and both waived

any possible objection to my hearing of this appeal on that account.”

64. The issues arising on the respondents’ motion before the High Court judge on 5th March were not such that a judge assigned to

hear the motion, who had a mortgage over an apartment with the Bank (with or without any loan secured thereby) and he and his

wife had previously had borrowings from the Bank now repaid, is either under an obligation to disclose nor could knowledge of such

facts give the hypothetical reasonable person a reasonable apprehension that the parties to the motion would not have a fair hearing

from an impartial judge on the hearing of the motion. In the absence of facts which give rise to an obligation to recuse him/herself, as

stated in Bula Ltd v Tara (No.6) at p.449 (set out above), a judge has a duty to sit and hear the case or motion.

65. The appellants also drew the Court’s attention to the judgment of the Court of Human Rights in Sigurdsson v. Iceland (No.

39731/98) delivered on 10th April 2003. On the facts in that case, the Court of Human Rights held that there had been a violation of

Article 6, para. 1 of the European Convention on Human Rights by reason of the failure of an Icelandic judge to recuse herself from

adjudicating upon a case concerning the National Bank in 1997. However, the facts in Sigurdsson are wholly different to the facts

pertaining to the High Court judge and his wife and the Bank and Receiver.

66. In Sigurdsson, the facts were that the judge was a member of the Supreme Court of Iceland. In the year preceding the hearing of

an appeal between the applicant and the National Bank, the judge’s husband had come under significant financial pressure in relation

to the debts of a third party which he had guaranteed. At the conclusion of protracted negotiations, the National Bank relinquished

75% of the debt owed by him to it. In order to secure the settlement and enable her husband honour his obligations, the judge made

available two of her properties which were used to raise the funds necessary to cover the settlement.

67. On those facts, the Court of Human Rights concluded that there was at least the appearance of a link between the steps taken

by the judge in favour of her husband and the advantages he obtained from the National Bank. It further concluded that the judge’s

involvement in the debt settlement, the favours received by her husband and his links to the National Bank were of such a nature and

amplitude and were so close in time to the Supreme Court’s examination of the case that the applicant could entertain reasonable

fears that it lacked the requisite impartiality.

68. On the facts herein there is no evidence of any advantage obtained by the judge’s wife from the Bank as a member of the Ryan

partnership. Mr O’Donnell on 5th March expressly queried the judge as to whether there was “an arrangement” between the Bank and

the partnership to which the judge responded “No arrangement was reached . . . The Bank was paid whatever was due to them as I

understand it.”.

69. The Court has considered carefully the full submissions made by the appellants, both in writing and in oral submission, on the

failure of the High Court judge to recuse himself. The Court has applied the objective test to the full correct facts, including the fact

that there remains a mortgage in favour of the Bank registered against a property owned by the judge and his wife, and has

concluded that the hypothetical reasonable person, an independent observer who is not over-sensitive and who has full knowledge of

all such facts would not have had a reasonable apprehension that the appellants would not have had a fair hearing from an impartial

judge, being McGovern J., on the hearing of the respondents’ motion returnable before him on 5th March 2015. Accordingly, the Court

dismisses the appeal against the failure of the High Court judge to recuse himself.

The Refusal of the Application for an Adjournment

70. The appellants’ appeal against the refusal of their application for an adjournment of the hearing on the morning of 5th March must

be considered in the context of the order made on 3rd March by the judge giving liberty to issue and serve with short notice the

motion for the interlocutory injunction returnable for 5th March and the direction that the appellants deliver any replying affidavit by

4.00pm on 4th March. There was no appeal against the order for short service made on 3rd March 2015.

71. The appellants submit that the timeframe imposed by the judge on 3rd March, and the refusal of the adjournment application was

in breach of their constitutional rights to fair procedures and Article 6.1 of the European Convention on Human Rights and

Fundamental Freedoms. The appellants seek to have the entire of the orders made on 5th March, including the interlocutory

injunction, set aside on that basis.

72. It is not disputed that the High Court pursuant to O. 52, r. 6 and O. 107, r. 7 of the Rules of the Superior Courts has jurisdiction

to abridge time, or as it is put, give special leave for short service of a motion. However, the exercise of such discretion must be in

accordance with the principles of constitutional justice and fair procedures. The High Court judge was requested by the Bank and

Receiver to exercise his discretion to grant a short return date for their interlocutory motion seeking to restrain, as they perceived it,

a trespass by the appellants and an alleged interference with the Receiver’s entitlement to obtain vacant possession of the premises

at Gorse Hill. The facts pertaining to Gorse Hill and its occupation on 3rd March 2015 were exceptional and unusual and included the

history of what had occurred since the Bank appointed the Receiver in June 2012, in particular, the Gorse Hill proceedings brought by

the O’Donnell children, culminating in the order of the Supreme Court of 2nd February 2015, which, in substance, required the only

persons, who, by that date had claimed an entitlement to be in possession of the premises i.e. the O’Donnell children, to vacate by

12.00 noon on 2nd March 2015; the further proceedings commenced on 25th February 2015 by Vico Ltd. and the O’Donnell children;

the motion heard on 2nd March and the ex tempore judgment delivered thereon on 3rd March; the fact that Mr. O’Donnell was a

highly experienced lawyer and that notwithstanding the stated intention of the Receiver to go into possession on 1st August 2012

and the prior related proceedings it was not until Friday 27th February that the appellants asserted a right of residence in the

premises. There was the additional situation of the presence of members of the Land League or New Land League. The judge was

informed by Mr. Blake O’Donnell at the hearing on 3rd March, in relation to this that he had spoken to his father who had invited

“some of his friends who are in the Land League to come to the property to protest”.

73. The issue for this Court is whether the High Court, in all those circumstances in fixing 5th March 2015 as the return date for the

motion, requiring the appellants to adhere to the specified time limit for the filing of an affidavit and refusing the adjournment, acted

in breach of their constitutional rights.

74. The appellants did file an affidavit of Mr. O’Donnell within the timeframe. In his affidavit to this Court, he avers that were he not

an experienced solicitor, he would not have been able to meet the deadline. The High Court judge was aware that he was such an

experienced solicitor. In making the application for the adjournment, Mr. O’Donnell did not identify any further evidence which he

wished to put before the Court and had not been able to do within the timeframe for the affidavit.

75. The appellants before this Court filed further affidavits and have made extensive written and oral submissions. Whilst they have

amplified certain of the facts and submissions previously made, they have not identified any significant new relevant facts which, by

reason of the timescale imposed, they were unable to put before the High Court. Similarly, whilst additional submissions were made

relevant to the appeal, again, they have not identified any submission they might have wished to make to the High Court judge if an

adjournment were granted but which they were unable to make to him on 5th March.

76. For those reasons, the Court has concluded that the High Court judge, in granting short service and giving the directions for the

replying affidavit on 3rd March, and refusing the adjournment application on 5th March, in all the relevant circumstances in which

these proceedings and the motion were commenced did not act in breach of the appellants’ rights to constitutional justice and fair

procedures. Such rights encompass any rights which might be asserted under Article 6.1 of the European Convention.

Admission to the Commercial List

77. The High Court judge admitted the proceedings, upon the application of the respondents, to the Commercial List pursuant to O.

63A, r. 1(b) of the Rules of the Superior Courts. This rule includes in the definition of commercial proceedings for the purposes of O.

63A:

“(b) proceedings in respect of any other claim or counterclaim, not being a claim or counterclaim for damages for personal

injuries, which the Judge of the Commercial List, having regard to the commercial and any other aspect thereof, considers

appropriate for entry in the Commercial List.”

78. The High Court judge, in his ruling, determined that the proceedings were appropriate for entry into the Commercial List as being

within O. 63A, r. 1(b) upon the basis that the owner of the property, the subject matter of the dispute, is Vico Ltd. and that it had

given security over the property in respect of debts of the appellants in the approximate sum of €70 million. The Certificate of Ms.

Mulconry, a solicitor and partner in the firm of Arthur Cox, had, in addition, relied upon the relationship of these proceedings to the

Gorse Hill proceedings [2012 No. 755 P] and summary proceedings [2010 No. 6100 S], both of which had been admitted to the

Commercial List.

79. The appellants appeal primarily upon the basis that the purpose of the proceedings is to seek orders that they vacate and yield

up possession of what is a family home; that there was a delay in commencing proceedings against the appellants since 2012, and

that the appellants were self-represented. As indicated at the outset of this judgment, the decision of the judge in charge of the

Commercial List to admit a case pursuant the discretion given him by O. 63A, r. 1(b) is a decision with which this Court would be slow

to interfere unless the appellant clearly demonstrates an injustice or error of law in the exercise of the discretion. On the facts

pertaining to these proceedings, the Court is not so satisfied. The proceedings have a commercial aspect for the reasons stated by

the trial judge, there was no delay by the respondents as the first assertion of a right of residence by the appellants was on 27th

February 2015, and the fact that they are self-represented is not a reason of itself not to admit to the Commercial List. It is a matter

taken into account in the subsequent case management directions in the Commercial List. Whilst the proceedings undoubtedly relate

to the home of their family, the property was given pursuant to arrangements made by the appellants as security for commercial

borrowings.

Refusal of Leave to Cross-Examine Deponents

80. Mr. O’Donnell, in the High Court, sought leave to issue a notice of cross-examination of Mr. Brian O’Connor and the Receiver on

the affidavits sworn on 3rd March 2015, grounding the motion for the interlocutory injunctions. Ultimately, the High Court judge

determined to hear the application in advance of the full hearing of the application for an interlocutory injunction. Having heard the

application, he reserved his decision and proceeded with the hearing of the interlocutory application. He gave his decision in a written

judgment delivered on 12th March 2015, and refused the application upon the basis that he considered it was not necessary to direct

cross-examination of either deponent on their affidavits for the purpose of deciding whether or not the plaintiffs had made out a case

for an interlocutory injunction.

81. The High Court judge’s attention was drawn to the following passage from Delaney & McGrath ‘Civil Procedure in the Superior

Courts’, 3rd Ed. at para. 20-87, where the authors state in relation to interlocutory applications:

“. . . a notice to cross-examine may only be served with the leave of the Court. It was emphasised by Denham J. in Bula

Ltd. v. Crowley (No. 4) [2003] 2 I.R. 430, 459 that a trial judge has a discretion in relation to such an application. In

general, leave will only be granted if there is a conflict of fact upon the affidavits that it is necessary to resolve in order

to determine the proceedings . . .”

82. The Court is satisfied that the above is a correct statement of the relevant principles in relation to leave to cross examine on a

motion for interlocutory relief in accordance with the judgment of Denham J. in Bula Ltd. v. Crowley (No. 4) provided the reference to

“the proceedings” is understood as being the motion seeking the interlocutory injunction or other relief. The Court also considers it

consistent with the principles in the judgment of O'Donovan J. in Director of Corporate Enforcement v. Seymour [2006] IEHC 369

which did not relate to an application for interlocutory relief.

83. Mr. O’Donnell, in his replying affidavit before the High Court sworn on 4th March 2015, set out five matters upon which he required

to cross-examine Mr. Kavanagh. In addition, he disputed certain of the averments made by Mr. O’Connor in his grounding affidavit.

84. The Court has considered those matters and the 22 matters listed in the appellants’ submissions to this Court upon which it is

contended the appellants were entitled to cross-examine Mr. O’Connor and the Receiver before the High Court.

85. The Court considers that the High Court judge was entitled, in the exercise of his discretion, to refuse cross-examination upon the

basis he did, namely, that it was not necessary for him to determine any disputed fact for the purpose of deciding the plaintiffs’

application for an interlocutory injunction, having regard to the relevant criteria set out by the Supreme Court in Campus Oil v.

Minister for Industry and Energy & Ors. (No. 2) [1983] I.R. 88. Accordingly, the Court rejects the appeal against the refusal to allow

cross-examination of Mr. O’Connor and the Receiver.

Interlocutory Injunction

86. The respondents, in submission on their application to the High Court, drew attention to the approach of Laffoy J. in the High

Court in Kavanagh & Lowe v. Lynch & Anor. [2011] IEHC 348, on what they submitted was a similar application in not requiring the

plaintiffs to establish a strong case to succeed in accordance with the Supreme Court judgment per Fennelly J. in Maha Lingam v.

Health Service Executive [2006] ELR 127, and the different approach of Lynch J. also in the High Court in ICC Bank v. Verling [1995] 1

ILRM 123, of so requiring. They submitted that, on the facts, the respondents met either test and the other requirements of the well-

established test in Campus Oil v. Minister for Industry and Energy and Others (No. 2) [1983] I.R. 88 to obtain the injunctions sought.

87. In his written judgment on the application for the interlocutory injunction, the High Court judge firstly applied the test in Campus

Oil v. Minister for Industry and Energy and Others (No. 2) [1983] I.R. 88, that “a fair bona fide question has been raised by the

person seeking relief”. Applying the test to the application as being one to restrain a trespass, he stated that he was following the

approach of Laffoy J. in the High Court in Kavanagh and Lowe v. Lynch and Another [2011] IEHC 348, insofar as she had taken the

view that where some of the relief sought in an application for an interlocutory injunction to restrain trespass may be formulated in

mandatory terms (such as on order directing the defendants deliver up keys, alarm codes and such like) this relief is ancillary to the

primary relief sought which, is in substance prohibitory seeking to restrain the defendant’s trespass that the plaintiff in such case

does not have to establish “a strong case” that they are likely to succeed and that the normal Campus Oil principles apply.

88. In doing so, he also referred to the judgment of Keane J. in the High Court in Keating & Co. Limited v. Jervis Shopping Centre

Limited [1997] I.R. 512 (cited by Laffoy J in Kavanagh v Lynch)where at p. 518 said:-

“It is clear that a land-owner, whose title is not in issue, is prima facie entitled to an injunction to restrain a trespass and

that this is also the case where the claim is for an interlocutory injunction only. However, that principle is subject to the

following qualification explained by Balcombe L.J. in the English Court of Appeal in Patel v. W.H. Smith (Eziot) Ltd. [1987] 1

W.L.R. 853 at p. 859:-

‘However, the defendant may put in evidence to seek to establish that he has a right to do what would otherwise

be a trespass. Then the court must consider the application of the principles set out in American Cyanamid Co. v.

Ethicon Ltd. [1975] A.C. 396 in relation to the grant or refusal of an interlocutory injunction.’”

89. The High Court then considered the claim made by the appellants that they have a right of residence in the property at Gorse Hill,

but determined by reason of the prior decisions of the High Court and the Supreme Court in the Gorse Hill proceedings, that the

mortgage and charge on Gorse Hill are valid and enforceable, that the defendants were “prima facie, trespassing on the property at

Gorse Hill” and that the mortgage and charge could be relied upon by the plaintiffs as representing the status quo.

90. The High Court judge identified the status quo at the time the plaintiffs sought the interlocutory injunction as being:

“(a) The owner of Gorse Hill is Vico Limited.

(b) The defendants reside in the United Kingdom.

(c) On 1st June, 2006, Gorse Hill was offered by Vico Limited as security for the indebtedness of the defendants and

companies related to them.

(d) By the settlement of 4th March, 2011, the defendants agreed that in the event that the first named plaintiff exercised

its security that they would immediately provide vacant possession of the property and cooperate with the first named

plaintiff in relation to any sale or disposal of the property.

(e) On 12th December, 2011, the first named plaintiff recovered judgment against the defendants in the sum of

€71,575,991.29 and costs.

(f) The second plaintiff was appointed by a deed of appointment dated 7th June, 2012.

(g) This Court and the Supreme Court have held that the mortgages and charges are valid and enforceable.”

The High Court judge emphasised that the purpose of an interlocutory injunction was the preservation of the status quo. He referred

to the challenge made by the appellants to the security documents and their contention that they had a right of residence in the

property. He made clear that he was not determining any matter and concluded that the plaintiffs had met the test of a fair issue to

be tried for the purposes of interlocutory injunction.

91. He held that damages would not be an adequate remedy for the plaintiffs by reason of the Bank’s existing judgment against the

defendants and that it was seeking to exercise its powers pursuant to the mortgage and charges against the property at Gorse Hill in

partial satisfaction of that claim, which the High Court judge took the view that they could only do if they had vacant possession of

the property.

92. On the balance of convenience, the High Court judge held:-

“In the first place, the defendants do not own the property. The legal and beneficial owner is Vico Limited. Secondly, the

defendants live in the United Kingdom and have been residing there for some time. It appears that they only returned to

Gorse Hill in order to frustrate the attempts of the plaintiffs to take possession of the property which was charged to

secure very substantial debts incurred by them and companies related to them. The balance of convenience favours the

granting of the interlocutory relief sought.”

93. The notice of expedited appeal issued by the appellants sets out approximately 14 of the grounds of appeal against the grant of

the interlocutory injunction. The appellants, in their written and oral submissions, pursued most of those grounds which the Court has

considered, and in the interests of clarity has summarised and is expressly dealing with principal grounds in this judgment.

94. The grounds of appeal pursued by the appellants may be conveniently grouped and summarised as follows:-

(1) The High Court judge erred in holding that the plaintiffs, on the facts herein, were only required to establish that there

was a bona fide or fair issue to be tried rather than a strong case as the primary relief was in substance a mandatory

injunction to vacate a family home and the granting of the judgment would effectively grant to the respondents the relief

sought in the proceedings.

(2) The High Court judge erred in determining that the respondents had discharged the burden of establishing they had a

prima facie or strong case in particular by reason of the failure of the Bank to execute the Mortgage and the Charge ;

alleged defects in the execution of the appointment of the Receiver and the claimed right of residence. A related ground

pursued, was that the High Court judge erred in considering the approach identified by Keane J. in Keating and Co. Limited

v. Jervis Shopping Centre Limited was applicable as the respondents’ title was in issue and accordingly, that there was an

error in his approach to the burden of proof in relation to the right of residence contended for by the appellants.

(3) The High Court judge was in error in his assessment of what constituted the status quo on the application for the

injunction.

(4) The High Court judge erred in his determination of where the balance of convenience lay.

95. The appellants, in the High Court and again before the Court of Appeal, submitted that the executions by or on behalf of the Bank

of the Deeds of Appointment of the Receiver were defective, in consequence of which the appointment of the Receiver was invalid. In

the course of the hearing, Counsel for the respondents sought leave to file affidavits in relation to the execution of the Deed of

Appointment of the Receiver. The Court granted permission and gave leave to Mr. O’Donnell to file an affidavit in response if he

required. He did so. The additional affidavits were the affidavits of Ms. Helen Nolan and Ms. Nicola Coyle on behalf of the respondents

and an affidavit of Mr. O’Donnell.

96. The respondents contested every ground of appeal and submitted that the High Court judge applied the correct legal tests upon

the facts before him, correctly identified the status quo, correctly determined that the balance of convenience favoured the

respondents and correctly decided that damages would not be an adequate remedy.

Decision on Interlocutory Injunction

97. The Court has concluded that the appellants are correct in their submission that the reliefs sought and facts herein are such that

the respondents’ application for an injunction in the terms sought and granted is distinguishable from that which was the subject

matter of the application before Laffoy J. in the High Court in Kavanagh & Lowe v. Lynch, and that in substance the primary relief is

mandatory in nature, and accordingly, the respondents were required to demonstrate that they had, at least in accordance with the

terms used by Fennelly J. in Maha Lingam, “a strong case that [they are] likely to succeed at the hearing of the action”.

98. The second interlocutory relief sought by the respondents in their notice of motion (at para 3) is an order by way of interlocutory

injunction compelling the appellants and others to vacate the property at Gorse Hill. An order to that effect was made in the High

Court order of 12th March. At the date of commencement of these proceedings on 3rd March, the appellants were residing, albeit only

from a few days previously, in Gorse Hill. Similar relief is sought at para. 2 of the General Endorsement of Claim and it is in substance

the relief sought by the respondents in these proceedings.

99. Vico Ltd. is the owner of the property as held by the Supreme Court. However, as set out at para.12 of this judgment, the

Supreme Court, per Laffoy J. at para. 108 of her judgment of 19th December 2014 determined that on the documentary evidence

available in the Gorse Hill proceedings, that there was an arrangement between Vico Ltd. and the appellants whereby Vico Ltd. would

allow the appellants and their children reside in Gorse Hill. Laffoy J. expressly refers to “an arrangement between Mr. O’Donnell and

Mrs. O’Donnell and Vico Ltd. under which Mr. O’Donnell and Mrs. O’Donnell and their children would be entitled to reside in Gorse Hill”.

100. The respondents accept, as they must do, for the purposes of the motion and appeal the arrangement between Vico Ltd. and

the appellants identified by Laffoy J. at para. 108 of her judgment. However, they submit that the entitlement identified therein is

dependent upon the continued entitlement of Vico Ltd. to possession of the Gorse Hill property; that Vico Ltd. is no longer entitled to

possession of the property; upon his appointment, the Receiver was entitled to go into possession of the property and that the

appellants have not established any entitlement to reside in the property which continues beyond the date upon Vico’s right to

possession ceases. These latter submissions are considered in more detail below. The respondents in these proceedings are in

substance, seeking orders the the appellants vacate and other consequential restraining and mandatory orders which will enable the

Receiver take and retain without interference possession of the Gorse Hill property pursuant to clause 9.4.1 of the Mortgage and the

Charge. These provide in so far as relevant:

9.4 A Receiver so appointed shall have and be entitled to exercise all powers conferred by . . . .and . . .have power to do

the following things either in his own name or in the name of the Borrower :

9.4.1 Take possession:

Take immediate possession of, get in and collect the Secured Assets or any part thereof and . . .

101. The Secured Assets comprise Gorse Hill. It will be recalled that the Receiver was appointed in June 2012, and on 8th June, his

solicitors wrote to the Secretary of Vico Ltd. informing him that the Receiver intended to take possession of the property on

Wednesday 1st August 2012. The reason for the date of 1st August, rather than any attempt to take immediate possession pursuant

to Clauses 9.4.1 of the Mortgage and Charge, appears to be Clause 3.4 of the Settlement Agreement under which the Bank had

agreed that it would not seek to gain possession of the Gorse Hill property, inter alia, for a period of 12 months from the date of a

breach of the Agreement, and in any event, not later than 1st March 2013. The Settlement Agreement was alleged to have been first

breached by the failure to pay the monies due pursuant thereto on 31st July 2011.

102. The Receiver has not yet gone into possession of the property at Gorse Hill. By reason of the Gorse Hill proceedings commenced

by the O’Donnell children, the Bank effectively agreed not to seek to go into possession until after the determination of the Supreme

Court appeal therein. Following the order of the Supreme Court of 2nd February 2015, the Receiver was to go into possession of the

property on the vacation of same by the O’Donnell children by 12.00 noon on 2nd March 2015.

103. Accordingly, it appears to the Court that when the appellants moved back into Gorse Hill at the end of February that as the

Receiver had not yet taken possession of Gorse Hill from Vico Ltd. it is at least arguable that they did so pursuant to the prior

arrangements with Vico Ltd. It follows, in this Court’s view that the primary relief now being sought by the respondents is mandatory

relief to vacate Gorse Hill so as to enable the Receiver go into possession of the property. The other orders are consequential and

considered necessary to effectively take and retain possession.

104. The Court has noted from the judgment in Kavanagh & Lowe v. Lynch that the defendants therein were not stated to be residing

in the relevant property and there was no order sought requiring them to vacate the property. The Court considers this distinguishes

the present application.

105. It follows from this conclusion that as the substance of respondents application for the interlocutory relief sought was

mandatory it required to be considered in accordance with what has been referred to a variation of the ‘pure’ Campus Oil test where

the courts have required the plaintiff not just to establish a fair or arguable case but rather the higher standard of a strong case in

accordance with the Supreme Court judgment of Fennelly J in Maha Lingam.

106. The next issue which the Court must consider, therefore, is whether the respondents have made out a strong case that they are

entitled to the relief sought in the proceedings. The principal such relief is the order requiring the appellants to vacate the property at

Gorse Hill so that the Receiver may go into possession of the property in accordance with the express right given him under the

Mortgage and Charge. The Court accepts that as submitted by the respondents the onus is on the respondents and the approach

identified by Keane J. in Keating and Co. Limited v. Jervis Shopping Centre Limited is not applicable on the facts herein.

107. It is important to emphasise that the Court is not determining any issue of fact or law in dispute between the parties in relation

to the substantive issues in the proceedings in this judgment. It is only considering and determining whether the respondents have

made out a strong case to be entitled to the relief sought.

108. The respondents have, in the Court’s view, established a strong case in favour of the validity and enforceability of the Deeds of

Mortgage and Charge of June 2006. They have done so, firstly, by reason of the determinations in judgments of the High Court and

Supreme Court in the Gorse Hill proceedings to that effect. Secondly in relation to the objection made by the appellants that the Bank

did not execute those documents by reason of the decision of the High Court (Clarke J) in ACC Bank v. Kelly [2011] IEHC 7 to the

effect that execution of a mortgage by a mortgagee is not necessary for enforcement.

109. The next issue relates to the validity of the appointment of the Receiver by reason of the nature of the execution of the deeds

of appointment. Again, the Court has concluded that the Bank has made out a strong case in favour of the Receiver having been

validly appointed pursuant to those documents on 7th June 2012. By reason of the issues raised by the appellants, it is clear that this

will continue to be an issue in the substantive proceedings, and accordingly, the Court again emphasises that it is only briefly giving

its reasons as to why it considers the respondents have established a strong case in favour of the validity of the appointment of the

Receiver and is not determining any of the issues in dispute.

110. The principal reasons for which the Court considers that the Bank has established a strong case on this issue are:

(i) The evidence on affidavit of Ms. Helen Nolan that the Seal affixed to each Deed is the Common Seal of the company

known as “The Governor and Company of the Bank of Ireland” and the submission that s. 114 of the Companies Act 1963

does not apply to the Bank.

(ii) The evidence of Ms. Nolan and Ms. Coyle that the latter has been employed as Assistant Secretary of the Bank since

2007.

(iii) Confirmation of the latter’s signature on the Deeds of Appointment.

(iv) The definition of Secretary in the Bylaws of the Bank as last amended on 24th April 2012 and the provisions of Article

113(a) thereof.

(v) Clauses 9.1 of the Mortgage and the Charge which permit the Bank to appoint “under seal or under hand of a duly

authorised officer or employee of the Bank any person to be Receiver and Manager . . .” and the submissions made in

reliance upon the judgments of the High Court and Supreme Court in Kavanagh v. McLoughlin [2013] IEHC 453, and [2015]

IESC 27, and the authorities referred to in those judgments.

111. It follows from the above that the respondents have made out a strong case that as against Vico Ltd the Receiver is entitled to

go into possession and Vico Ltd’s entitlement to possession of the property is at an end.

112. The next issue is whether the Bank has made out a strong case that the Receiver is now entitled to an order that the appellants

vacate Gorse Hill. This requires the respondents to establish a strong case that the appellants do not have a right of residence in or a

right to reside in the Gorse Hill property which extends beyond the right of Vico Ltd. to possession of the property. Again, this will, as

a matter of probability, be a major issue in the substantive proceedings and the Court does not wish to prejudice in any way a full

assessment and determination of the issue in the substantive proceedings and is therefore confining itself to setting out its conclusion

and stating shortly the reasons for which it has reached that conclusion.

113. The Court has concluded that the respondents have made out a strong case that the appellants do not have a right of

residence in or a right to reside in Gorse Hill which extends in time beyond the right of Vico Ltd. to possession of the property. The

principal reasons for which the Court has reached that conclusion are:

1. The nature of the arrangement between Vico Ltd. and the appellants, as found by Laffoy J. at para. 108 of the

Supreme Court judgment already set out.

2. The evidence before the courts in the Gorse Hill proceedings and recorded at paras. 41 and 42 of the judgment of

Laffoy J. that in 2006, Mr. O’Donnell was a practising solicitor and partner in the law firm known as Brian O’Donnell &

Partners. That firm acted in connection with the taking of the Mortgage and Charge by the Bank in 2006 from Vico Ltd.

which did not have separate legal representation. In the course of correspondence in May 2006, Laffoy J. at para. 42

records that “Gartlan Furey (then acting for the Bank) sought confirmation that no person other than Vico Ltd. had made

or would make any direct or indirect financial contribution towards the purchase of Gorse Hill or had been or would be the

beneficiary of any agreement or arrangement whereby that person had acquired or would acquire any interest in the

property or any part thereof. Such confirmation was given in the response”. It would appear that the response was given

in a letter dated 18th May 2006 from Brian O’Donnell & Partners and that they were also acting for the appellants herein

at that time in connection with the borrowings for which Vico Ltd. was then giving security.

3. The Settlement Agreement entered into by the appellants on 4th March 2011 provides at para. 3.5:

“Brian O’Donnell and Mary Pat O’Donnell agree, subject to paragraph 3.4 above, that in the event that the Bank exercises

its security in respect of the property at Gorse Hill that they will immediately provide full vacant possession of the

property in good repair and condition and cooperate with the Bank in relation to any sale or disposal of this property”.

Paragraph 3.4 relates to the Bank’s agreement not to seek to gain possession of Gorse Hill prior to 1st March 2013 or 12

months from the date of breach of the Agreement. The Court is aware that the appellants now contend and allege that

the Settlement Agreement was procured by fraud. For the purposes of determining whether the respondents have a

strong case, it appears that the Court should have regard to the present status of the Settlement Agreement as a valid

and binding agreement. This is particularly so having regard to para. 4.1 thereof in which the appellants acknowledge that

they had received independent legal advice from Whitney Moore Solicitors prior to entering into the Agreement and that

the precise meaning, effect and obligations arising from the Agreement had been fully explained to them.

4. On 18th July 2012, the appellants became Directors of Vico Ltd. In that capacity, they must have been aware of the

stated intention of the Receiver to go into possession of the property on 1st August 2012. They did not procure that Vico

Ltd commence proceedings, did not commence proceedings themselves nor joined in the proceedings commenced by their

children in July 2012, effectively challenging the validity and enforcement of the Bank’s Mortgage and Charge over Gorse

Hill and the Receiver’s entitlement to take possession thereof.

5. The two letters relied upon by the appellants, namely, the letter from the appellants to the then trustee of the

Discretionary Trust on 20th October 2000, and a letter from Mr. David A. Harris, a Director of IFG International Ltd. of

18th July 2012, do not constitute credible evidence inconsistent with the case being made by the respondents that the

appellants’ right to reside in Gorse Hill does not extend in time beyond the right of Vico Ltd. to possession thereof.

114. The Court is, accordingly, satisfied that the respondents have established a strong case that they are likely to succeed at the

hearing of the action to obtain the substantive relief of an order that the appellants vacate Gorse Hill and other consequential orders

and must now consider, in accordance with the remaining Campus Oil principles, whether damages would be an adequate remedy for

the respondents if the injunction were not now granted and they were to succeed at the hearing of the action. The Court agrees

with the High Court judge that damages would not be an adequate remedy for the respondents. The appellants are each adjudicated

as bankrupt. They have judgments against them in favour of the Bank in the order of €70m. Whilst the Court is aware that the

appellants have brought an application to set aside the adjudication and leave to extend time to appeal the judgment of the High

Court this Court must consider their position as it now is.

115. On the issue of the adequacy of damages for the appellants if the injunction is granted and the respondents fail at the full

hearing, the respondents have given the normal undertaking as to damages. There is no suggestion that they would not be in a

position to meet any claim for loss and damage which the appellants might make if the injunction is now granted and the appellant’s

were to succeed at the full hearing of the action.

116. These conclusions lead the Court to consider the balance of convenience. The Court considers the balance of convenience

favours the upholding of the High Court order granting all the interlocutory injunctions sought including that the appellants vacate

Gorse Hill. The Court agrees with the status quo identified by the High Court. The appellants are not the owners of the property. Vico

Ltd. is the legal and beneficial owner. Importantly, whilst Gorse Hill is a family home in the sense that when it was acquired it was

planned to be the home for the appellants and their children, nevertheless, it has not been the home in which the appellants have

resided since the end of 2011. It is common case that the appellants moved to reside in England at that time and have continued to

reside in England until they returned at the end of February and made, for the first time, the claim to be entitled to a right of

residence in Gorse Hill in their letter of 27th February 2015. During that period, it had been the home of the O’Donnell children, and by

order of the Supreme Court of 2nd February 2015, they have been required to vacate the property on 2nd March 2015 and have done

so. The appellants are not without a home if the injunction is granted. They have a home in England. In the affidavit sworn in the

High Court Mr O’Donnell gives only his English address. In this Court he gives both Gorse Hill and his English home as his address. It is

an inevitable inference that the appellants only returned to live in Gorse Hill at the end of February in order to prevent the Receiver

taking possession of the property following compliance by their children with the order of the High Court of 12th September 2012 as

varied by order of the Supreme Court of 2nd February 2015.

117. The Receiver has been appointed by the Bank since 7th June 2012. In accordance with Clause 9.4.1 of the Mortgage and

Charge, as varied by para. 3.4 of the Settlement Agreement, he was entitled to take possession on 1st August 2012. Following the

Gorse Hill proceedings commenced by the O’Donnell children, he agreed not to take possession until the determination of those

proceedings. In the course of those proceedings, prior to the High Court hearing, there was an application brought on behalf of the

children to join additional persons, including Vico Ltd. The application to join Vico Ltd. was not proceeded with. The Bank is owed

significant sums for which the Gorse Hill property was given as security pursuant to arrangements made by the appellants. At

minimum, if the Receiver takes possession, pending the determination of these proceedings it will be available to rent and provide a

rental income which can be applied towards the monies owed to the Bank.

Conclusion

118. The Court dismisses the appeal against all the orders made in the High Court on 12th March 2015. The Court will hear the parties

in relation to any variation to the High Court order of 12th March required in the light of the stays placed on the High Court order by

this Court until today’s date.