IEHC 74 — IEHC 74 — High Court

APPROVED 2026 IEHC 74

THE HIGH COURT

2024 No. 3617 P

Between

TERENCE O’FLAHERTY, ELAINE O’FLAHERTY, KILLIAN O’FLAHERTY and TEHSEEN O’DONNELL

Plaintiffs

and

PERMANENT TSB PUBLIC LIMITED COMPANY, CHELDON PROPERTY FINANCE DESIGNATED ACTIVITY COMPANY, MOORSWATER MASTER DESIGNATED ACTIVITY COMPANY, MARS CAPITAL MANAGEMENT IRELAND DESIGNATED ACTIVITY COMPANY, MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY, KEN TYRELL, BRGA LIMITED, NICHOLAS GIBSON, TAILTE EIREANN, THE COMPANIES REGISTRATION OFFICE, WICKLOW COUNTY COUNCIL, J&D CULLEN PROPERTY LIMITED, JOHN CULLEN and DONAL CULLEN

Defendants

JUDGMENT of Mr Justice Micheál O’Connell delivered ex tempore on 10 February 2026

Introduction

1. The First- and Second-named Plaintiffs in these proceedings are the part-owners of certain property on which were secured certain borrowings initially advanced to them in 2005. The current holder of the lender’s interest (being the Fifth-named Defendant) completed a mortgagee sale of the property to the Twelfth-named Defendant in March 2025 and a Dealing is currently pending in the Land Registry for the registration the Twelfth-named Defendant, as new owner of the Property in lieu of the First- and Second- named Plaintiffs and their co-owner. The Third- and Fourth-named Plaintiffs are, respectively, the son and the daughter-in-law of the First- and Second-named Plaintiffs.

1 2. The First- and Second-named Plaintiffs commenced these proceedings by Plenary Summons issued on 16 July 2024. On 11 April 2025, they successfully applied to join the Third- and Fourth-named Plaintiffs as Co-Plaintiffs and the Twelfth- to Fourteenth- named Defendants as Co-Defendants.

3. Several motions have issued in the proceedings since then, and three of them fall for determination in this judgment. They are as follows:

(a) First, an application by the First- and Second-named Plaintiffs for an interlocutory injunction restraining the completion of Dealing No. D2025LR065635X pending on Folios WW27490F and WW34597F for the registration by Tailte Éireann, the Sixth-named Defendant (“Tailte Éireann”), of the Twelfth-named Defendant as owner of the lands in those Folios. I will refer to this as “the 2025 Dealing Motion.”

(b) Second, a motion by the Twelfth-named Defendant for an order for possession of the lands and premises comprised in Folios WW34597F and WW27490F, which, in view of this being an interlocutory application, I read as an application for an interlocutory injunction restraining trespass by the Plaintiffs pending trial. I will refer to this as “the Possession Motion.”

(c) Third, an application by the Plaintiffs seeking an order requiring the Twelfth-, Thirteenth- and Fourteenth-named Defendants to restore access to a communal waste pipe serving the property the subject matter of the proceedings. I will refer to this as “the WWTP Motion.”

4. Each of the three motions seeks other reliefs in addition to the principal ones and I will mention those as necessary below.

Background

5. The substantive background as appears from the affidavits to be as follows.

6. On 8 December 2004, Irish Life and Permanent plc, trading as Permanent TSB, the First- named Defendant (“ILP”) issued a letter of loan offer to Terence O’Flaherty and Elaine O'Flaherty, the First- and Second-named Plaintiffs and Mr Christopher O’Neill for an advance of €631,500.00, the purpose of which was identified as the purchase of the said borrowers’ new premises, identified as “The Ballyknockan Inn, Ballyknockan,

2 Blessington, County Wicklow, and Ballyknockan Cottage, The Sands, Ballyknockan, Blessington County Wicklow” subject to the terms set out therein. This was accepted by each of the three named borrowers on 13 December 2004.

7. I pause here to note that Ballyknockan Cottage is the property registered in Folio WW14524F and, while it was charged with the borrowings, it is not part of the lands the subject of the motions for determination here.

8. With effect from 21 October 2005 (under instrument number D2005KW016560C) Terence O’Flaherty and Elaine O'Flaherty, the First- and Second-named Plaintiffs, became registered as full owners of nine undivided one-tenth shares in the lands and premises comprising Folio WW27490F, jointly inter se and as tenants in common vis-à- vis the remaining one-tenth share, and Mr O'Neill became registered as full owner of one undivided one-tenth share in the same lands and premises as tenant in common vis-à-vis the other nine one-tenth shares.

9. On the same date, and pursuant to the same instrument, ILP became registered as the owner of a charge for present and future advances repayable with interest over the lands and premises comprising Folio WW27490F.

10. Also on 21 October 2005 (under the same instrument D2005KW016560C), the First- and Second-named Plaintiffs became registered as full owners of nine undivided one-tenth shares in the lands and premises now comprising Folio WW34597F (theretofore part of Folio WW8263 which was severed by the purchase), jointly inter se and as tenants in common vis-à-vis the remaining one-tenth share, while again Mr O'Neill became registered as full owner of the remaining one undivided one-tenth share in the same lands and premises as tenant in common vis-à-vis the other nine one-tenth shares.

11. Again, on the same date, and pursuant to the same instrument, ILP became registered as owner of a charge for present and future advances repayable with interest over the lands and premises comprising Folio WW34597F.

12. I will refer to the lands and premises in these two Folios collectively as “the Property.”

3 13. As of 2005, the Property consisted of a public house and some related buildings separated by a lane. There was some minor controversy about what use was made of the building historically before then, but nothing turns on that for present purposes.

14. The charge that came to be registered on the Folios as set out above was a deed of mortgage and charge for present and future advances dated 16 August 2005 (“the 2005 Charge”). It contains, at Clause 8, a power of sale which incorporates the power of sale in the Conveyancing Acts 1881 to 1911. It also provides in Clause 9.8.4 that any receiver appointed by the chargeholder would have a power of sale. The 2005 Charge also contains a negative pledge clause at Clause 4, which reads as follows:

“The Mortgagor hereby undertakes with the Bank that at no time during the continuance of the security constituted by this Mortgage will the Mortgagor without the prior written consent of the Bank (i) create, extend or permit to subsist any Encumbrance over the Mortgaged Assets or any part thereof, whether ranking in priority to or pari passu with or after the security constituted by this Mortgage; or (ii) part with, sell, convey, transfer, lease, lend or otherwise dispose of the whole, or any part of the Mortgaged Assets.”

15. A separate deed of mortgage and charge was executed in respect of Ballyknockan Cottage on 16 August 2005 but that is not relevant here.

16. On 16 August 2005, the same date as the 2005 Charge, a deed of grant of easements (“the Deed of Easements”) was executed between – as it happens – the Thirteenth-named Defendant and another man, Denis Hevey (collectively “the Easement Grantors”), of the one part, and the First- and Second-named Plaintiffs and Mr O’Neill of the other part. By the Deed of Easements, the Easement Grantors granted in favour of the First- and Second-named Plaintiffs and Mr O’Neill, as owners of the Property, the easements set out in the Third Schedule thereto, consisting of, in summary, the free and uninterrupted passage of surface water and foul water through conduits then and thereafter laid on the lands of the Easement Grantors to a wastewater treatment plant (“the WWTP”) constructed and maintained by the Easement Grantors. The grant of easements was subject to a proviso that the easements were subject to and conditional upon the payment by the grantees of the maintenance fee provided for therein as well as the covenants therein. The maintenance fee was in the sum of €4,000.00 per annum to be increased annually in accordance with the Consumer Price Index. In addition to undertaking the

4 payment of the maintenance fee, the grantees were obliged to and did pay a premium payment (or connection fee) of €25,000.00.

17. I infer from the fact that the 2005 Charge and Deed of Easements were dated the same day and from the fact that the 2005 Charge and the ownership of the First- and Second- named Plaintiffs and Mr O’Neill were registered under the same Instrument, that the Land Registry Transfer vesting ownership of the Property in the First- and Second-named Plaintiffs and Mr O’Neill was also dated that day (16 August 2005) as these things are ordinarily done at a single closing consultation. This would also suggest that the Property was purchased using the loan funds advanced by ILP (there was reference to loans from Bank of Scotland Ireland Limited and/or ICS Building Society but whether they were refinanced with the loan from ILP or were unrelated to the purchase, only ILP was a secured lender in relation to the Property).

18. Lest there be any confusion about why the Folios reflect the change of ownership and the charges on a different, later date to the (assumed) date of the Land Registry Transfer and that of the 2005 Charge respectively, it may be noted that the effective date as far as registration is concerned is the date on which the successful application for registration (i.e. the Dealing) is lodged. After lodgement of the Dealing it becomes a pending Dealing, carrying a Dealing number, which appears in searches but not on the face of the Folio. When the Dealing is completed, the Dealing appears on the Folio with the same number, dated back to the date it was first lodged, although upon completion of registration, it is called an Instrument.

19. Returning to the chronology, it was common case that, since 2005, the maintenance fee under the Deed of Easements was never paid, save for a partial payment of €2,000.00 in 2009. That payment occurred during debt collection proceedings commenced in the Circuit Court by the Easement Grantors against the First- and Second-named Plaintiffs and Mr O’Neill in 2008. Judgment was granted in those proceedings against the First- and Second-named Plaintiffs and Mr O’Neill on 3 October 2012 in the sum of €27,889.00 together with interest and costs. Nothing has been paid towards that judgment debt. The Thirteenth-named Defendant averred that the sum due as of 17 July 2024 was €89,495.90. I will come back to the First-named Plaintiff’s explanation for non-payment in due course.

5 20. ILP changed its name to Permanent TSB plc in 2012. For ease of communication, I will continue to refer to it as “ILP”

21. It appears from the Folios that ILP secured a judgment in the Circuit Court against the First- and Second-named Plaintiffs on 11 September 2013, which was registered as a judgment mortgage on each of the Folios making up the Property with effect from 16 June 2014. I have no further details about this.

22. Further inspection of each of the two Folios shows that, in both cases, ownership of the charge originally registered in favour of ILP (i.e. the 2005 Charge) changed on three occasions:

(a) First, ownership is recorded as having transferred with effect from 7 December 2015 to Cheldon Property Finance Limited, the Second-named Defendant (“Cheldon”). One of the core arguments subtending the Plaintiffs’ position in these applications is that the Deed giving effect to this transaction did not include for the Plaintiffs or the Property and I will come back to this.

(b) A second transfer of the charge is recorded on each Folio, with effect from 14 May 2018, to Mars Capital Management Ireland DAC, the Fourth-named Defendant (“Mars Management”).

(c) Thirdly, and finally, a transfer of the charge is recorded on each Folio as having taken place with effect from 16 September 2019 to Mars Capital Finance Ireland DAC, the Fifth-named Defendant (“Mars Finance”).

23. The registration of Mars Finance as owner of the charge registered, originally, in favour of ILP is presented by the Twelfth-named Defendant as conclusive evidence of Mars Finance’s title to that charge in reliance on section 31 of the Registration of Title Act 1964 and caselaw such as Tanager v Kane, and I will come back to that.

24. Going back to 2016, it is evident that on 7 June 2016, Cheldon, through their solicitors, Byrne Wallace, made demand for repayment of the sums then due under the loan agreement (stated to be €1,059,391.28 inclusive of interest to that date).

6 25. On 24 June 2016, Cheldon appointed Ken Tyrrell, the Sixth-named Defendant (“the Receiver”) as receiver over the assets therein referred to, identified as Folio WW27490F and Folio WW34597F.

26. In 2017, High Court proceedings bearing Record No. 2017/1716 P (“the 2017 Proceedings”) were commenced by the Receiver, against, among others, the First- and Second named Plaintiffs, seeking inter alia, possession of the Property. By order dated 30 May 2017 (“the 2017 Injunction”) the High Court (Gilligan J) granted an interlocutory injunction, which recited that the Court was satisfied that the Receiver had been validly appointed, and which ordered inter alia:

“that [the First- and Second-named Plaintiffs and Mr O’Neill] and each of them their servants or agents and all other persons having notice of the making of this Order or in occupation thereof do forthwith pending the trial of this action deliver up to [the Receiver] his servants or agents possession of the lands and premises contained in Folios WW27490F and WW34597F together with the keys, alarm codes, locks and all other security and access devices and equipment in respect of the same”

and

“…that [the First- and Second-named Plaintiffs and Mr O’Neill] and each of them their servants or agents and all other persons having notice of the making of this Order or in occupation thereof be and are hereby restrained pending the trial of this action from trespassing upon, entering upon or otherwise attending at the property contained in Folios WW27490F, WW34597F and [Folio WW14524F which is not relevant in this application]”

27. The Plaintiffs have challenged the validity or effectiveness of the 2017 Injunction, and I will come back to that.

28. The 2017 Proceedings have not yet come to trial, but in the meantime an appeal against the 2017 Injunction was lodged but was struck out on 21 February 2019, evidently for non-compliance with directions of the Court of Appeal.

29. At any rate, by deed of novation dated 30 April 2018 between Cheldon, Mars Management and the Receiver, it was agreed that, as and with effect from the date of closing under a sale and purchase deed between Cheldon and Mars Management, Mars Management would be substituted in place for Cheldon as party to the appointment of

7 the Receiver so as to be treated in all respects as if it were the original party to inter alia the deed of appointment of the Receiver.

30. I have not seen a deed of novation of the receivership aligning with the transfer of the loan and security to Mars Finance, but I do see reference to such a novation in a later document (a contract for sale dated 25 March 2025).

31. It appears that, in mid-2024, advertisements were published with a view to the sale by auction of the Property on 25 July 2024, and as I have said, on 16 July 2024 these proceedings were commenced by Plenary Summons.

32. An application was made by the First-named Plaintiff ex parte on 24 July 2024 for an order restraining the auction of the Property on 25 July 2024, as well as for short service of a motion for the same and other reliefs. The application, in respect of both an interim injunction and short service, was refused by Stack J by order dated 24 July 2024.

33. Although short service of an inter partes motion was refused, that was no impediment to the issuance of such a motion in the ordinary way. However, that was not done. It might have been considered ineffective to file a motion if the auction had gone ahead on 25 July 2025; however, the auction did not in fact proceed on that date.

34. It may be noted that the Easement Grantors were themselves in correspondence with the firm of auctioneers having carriage of the sale of the Property on behalf of the Receiver, who are now the Seventh-named Defendant in the proceedings, in the run-up to the proposed auction on 25 July 2024. On 17 July 2024, they advised the Seventh-named Defendant and the solicitors for Mars Finance about the unpaid maintenance fees and stated that the Property was “not serviced with sewerage services, and does not have right of access to them.” The letter went on to note the Circuit Court judgment and the outstanding arrears which were calculated at €89,495.90 excluding interest.

35. Arrangements for a further auction having been made by the Seventh-named Defendant, on 27 November 2024, the First-named Plaintiff wrote to the Seventh-named Defendant, referring to these proceedings, enclosing draft motion papers including an ex parte docket (which in itself indicated an intention to seek relief ex parte), and warning that if the Property was not withdrawn from auction, court-ordered reliefs would be sought including costs, and the Seventh-named Defendant was advised to include that letter and

8 its enclosures in the auction pack. In fact, no motion was ever issued although, for reasons unknown, the Affidavit purporting to ground the motion was filed in the Central Office. In the meantime, the Property appears to have been withdrawn from the auction at that time.

36. Around the same time, although apparently without prior notice to any persons involved in the marketing or sale of the Property, the First- and Second-named Plaintiffs executed a Land Registry Transfer of their nine one-tenth shares in the Property to the Third- and Fourth-named Plaintiffs. This was presented to Tailte Éireann for registration, who duly notified Mars Finance as chargeholder, and, arising from Mars Finance’s response, the application for registration was refused. What the Plaintiffs possibly thought they could achieve by this strategy is difficult to understand, since the purported Transfer flew in the face of the negative pledge clause in the 2005 Charge.

37. At all events, a sale was ultimately agreed by private treaty between the Receiver and the Twelfth-named Defendant as evidenced by a contract for sale dated 25 March 2025.

38. By Land Registry Transfer dated 27 March 2025 (“the 2025 Transfer”), Mars Finance, in professed exercise of its power of sale under the 2005 Charge, transferred the Property (that is to say the lands and premises comprised in the two Folios) to the Twelfth-named Defendant, in consideration of the sum of €100,000.00. This 2025 Transfer was executed by one Stephen McKeever on behalf of Mars Finance pursuant to a power of attorney dated 30 September 2024, a copy of which has been exhibited.

39. The 2025 Transfer and related application documents were lodged for registration under cover of letter dated 27 March 2025 and were given Dealing No. D2005LR065635X (“the 2025 Dealing”) One of the documents listed as being enclosed with the application was omitted from the letter of 27 March 2025 and it was supplied under cover of a follow- up letter dated 1 April 2025; however before the remedial letter arrived, Tailte Éireann issued a rejection of the application by letter dated 4 April 2025. Although Tailte Éireann discovered that the letters had crossed and wrote on 10 April 2025 reinstating the 2025 Dealing, before the remedied 2025 Dealing could be completed, the Plaintiffs had made application to the High Court for interim relief ex parte and on 11 April 2025, they were granted an interim injunction restraining completion of the 2025 Dealing, which injunction has continued up to the date of this hearing.

9 40. The Plenary Summons was amended with leave of the Court by means of an Order of Cregan J on 11 April 2025 to allow the addition of the Third- and Fourth-named Plaintiffs as plaintiffs and the addition of the Twelfth-, Thirteenth- and Fourteenth-named Defendants as Defendants.

41. An Amended Plenary Summons was filed on 23 April 2025.

42. I have omitted two events from the chronological narrative thus far, because there has been a degree of dispute about when they occurred.

43. The first relates to occupancy of the Property. At some point between 2022 and 2024, the Third- and Fourth-named Plaintiffs moved into the Property, and they say they carried out works to change its use. There was a level of controversy between the parties as to when and to what extent the Third- and Fourth-named Plaintiffs went into residence in the Property, and the Thirteenth-named Defendant who is a neighbour of all of the Plaintiffs, averred his belief that their family home, at least until recently, was a nearby property called Horselane Cottage, which was identified in the Third and fourth-named Plaintiffs’ marriage certificate dated 4 June 2022 as their “Future Address.” However, I really cannot see how it matters in the context of what I must decide on these motions. It appears that they have two young children living with them, one of whom was born in the Property in April 2025. Although it will be recalled that a purported Land Registry Transfer of a 90% share in the Property to them was executed in late 2024, at the hearing, the Third- and Fourth-named Plaintiffs asserted no title to the Property, only that they went into occupation with the permission of the First-named Plaintiff.

44. A document is exhibited by the First-named Plaintiff in his affidavit grounding the 2025 Dealing Motion entitled “Statutory Declaration that Property is a Family Home.” I do not know what the Plaintiffs think that this document might achieve. Family Home Declarations are used for the purpose of conveyancing transactions, such as transfers and charges (and it may be noted that, in such transactions, they are sworn by the transferor or chargor, not the transferee or chargee). They have no function outside of those transactions and add nothing to these proceedings. There are affidavits sworn by the First-named Plaintiff to the effect that the Third- and Fourth-named Plaintiffs and their children occupy the Property as their family home. That, at least, has the character of

10 being evidence in the motions, although ultimately, as I will explain, it has limited relevance to the issues, insofar as it pertains to the commencement of occupancy.

45. It may be noted that the Plaintiffs did not deny the averments by the Thirteenth-named Defendant that the First- and Second-named Plaintiffs were the owners of a number of properties in the area, as was the Third-named Plaintiff, some at least of which were habitable dwellings.

46. The second event I have omitted from the chronology is the physical blocking off of the connection of the Property to the WWTP owned by the Easement Grantors, which forms the core issue in the third motion, the Plaintiffs’ motion to restore that connection. The Twelfth- and Thirteenth-named Defendants say that it happened initially in May 2024 and that further shoring up was done in December 2024. The Plaintiffs say that it occurred in the days immediately preceding issuance of their motion in April 2025. Again, for reasons that will become apparent, when this occurred is not relevant to what I must decide.

47. Although not part of the history per se, I should note that no Statement of Claim was delivered between the commencement of the proceedings in July 2024 and the date of the hearing. In their affidavit of the First-named Plaintiff grounding the 2025 Dealing Motion, the Plaintiffs exhibit what they refer to as “Preliminary (not final version) Statement of Claim”, and that same document is described in the next affidavit of the First-named Plaintiff as a “conditional statement of claim”. There is no such thing as a “Preliminary (not final version) Statement of Claim” or a “conditional statement of claim.” There is either a Statement of Claim or there is no Statement of Claim. Here, at least as of when the motions were opened on Thursday last, there was no Statement of Claim. In something of a surprise development, I was informed on the second day of the hearing that a document said to be a Statement of Claim, unqualified by any of the terminology theretofore used, had been delivered by email to the solicitors for the Twelfth-, Thirteenth- and Fourteenth-named Defendants. It arrived too late to be printed out and there was no copy available for the Court. I was informed that it was considerably shorter than the draft exhibited on affidavit, which reinforces my initial inclination to treat that draft with some caution.

48. The three motions now before me were issued as follows:

11 (a) The 2025 Dealing Motion was filed on 4 April 2025;

(b) The Possession Motion was filed on 15 May 2025; and

(c) The WWTP Motion was filed on 23 June 2025.

49. Affidavits in all three motions closed in July 2025 and the matter was listed for hearing on 5 and 6 February 2026.

Procedural applications during the hearing

50. The Plaintiffs applied to have the WWTP Motion adjourned on the morning of the hearing, but having heard from the parties, and noting when affidavits had closed, when the matter had been assigned its hearing date and that a similar adjournment application had been refused at the callover the previous Thursday, I refused that application.

51. Though I do not have the precise date for it, I was informed on the morning of the hearing that a lis pendens had been registered on the two relevant Folios in the days leading up to the hearing. Counsel for the Twelfth-named Defendant invited me to consider making an order removing the lis pendens (pursuant to section 124 of the Land and Conveyancing Law Reform Act 2009) on the basis of the evidence already before the court but I declined to do so, in circumstances where the matters bearing on an application under section 124 of the 2009 Act might extend to evidence that was not yet addressed and where – in the absence of any intention to sell in the near future – the matter could be dealt with as part of a future motion or at trial without undue prejudice to the Twelfth-named Defendant.

52. It may be noted that the Plaintiffs sought to introduce into the hearing two further affidavits that had been sworn and filed (without leave of the Court) on Wednesday 4 February 2026. Having heard from the parties and having noted that affidavits had closed (with affidavits sworn by the Plaintiffs themselves) as long previously as July 2025 and that the new evidence would generate obvious procedural unfairness, I declined to admit these affidavits.

53. I refused a further application for an adjournment at 2pm on the first day of the hearing when the First-named Plaintiff stated that he did not feel well. No particular infirmity was identified, and considering the impact on the Twelfth-named Defendant of an adjournment, the fact that the First-named Plaintiff was near the end of opening his

12 submission after which he would not need to address the court until the following day, and my assurance to him that I would allow him take additional time the following day, I refused that application for an adjournment. The First-named Plaintiff’s capacity to make submissions was in no way diminished from this point forward and nothing in the proceedings before me the following day caused me to regret my decision.

The reliefs sought on the motions

54. I have already identified the primary reliefs sought in each of the motions the subject matter of this judgment and they are all in the nature of interlocutory injunctions.

55. However, the Plaintiffs have also sought reliefs that are not within the scope of what can be ordered on foot of this judgment simpliciter:

(a) In the 2025 Dealing Motion, the First- and Second-named Plaintiffs seek an undertaking, which can only be given voluntarily by a party. Somewhat pessimistically, they also seek an order to take up the DAR in the event of an appeal: that is a request that can only be made after judgment is delivered. Finally, and perhaps betraying further pessimism, they seek a written judgment made ex tempore or otherwise. They are getting an ex tempore judgment, which will be written up for clarity.

(b) In the WWTP Motion, the Plaintiffs also seek a series of declarations, which patently cannot be granted on an interlocutory basis. They also seek damages, including aggravated damages, which again cannot be awarded on an interlocutory application.

56. For the purpose of this judgment, therefore, and leaving aside ancillary orders that may be made in the ordinary course, I will treat all three motions as applications seeking interlocutory injunctions.

The legal test

57. The different aspects of the test on an application for an interlocutory injunction have been adverted to by the parties in their affidavits and oral submissions.

13 58. The test in Campus Oil v Minister for Industry (No 2) [1983] IR 88 establishes the overarching rule, and the more recent decision of the Supreme Court in Merck Sharp & Dohme Corporation v Clonmel Healthcare Limited [2020] 2 IR 1 both reconfirmed and refined the test in terms summarised by O’Donnell J (as he then was) at paragraph 65 of his Judgment:

“[65] Finally, at the risk of perhaps creating a further rule that will require subsequent qualification and correction, it may be useful to outline the steps which might be followed in a case such this:

(1) First, the court should consider whether, if the plaintiff succeeded at the trial, a permanent injunction might be granted. If not, then it is extremely unlikely that an interlocutory injunction seeking the same relief pending the trial could be granted.

(2) The court should then consider if it has been established that there is a fair question to be tried, which may also involve a consideration of whether the case will probably go to trial. In many cases, the straightforward application of the approach in American Cyanamid v Ethicon Ltd [1975] AC 396 and Campus Oil v Minister for Industry (No 2) [1983] IR 88 will yield the correct outcome. However, the qualification of that approach should be kept in mind. Even then, if the claim is of a nature that could be tried, the court, in considering the balance of convenience or balance of justice, should do so with an awareness that cases may not go to trial, and that the presence or absence of an injunction may be a significant tactical benefit.

(3) If there is a fair issue to be tried (and it probably will be tried), the court should consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of convenience and the balance of justice.

(4) The most important element in that balance is, in most cases, the question of adequacy of damages.

(5) In commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy.

(6) Nevertheless, difficulty in assessing damages may be a factor which can be taken account of and lead to the grant of an interlocutory injunction, particularly where the difficulty in calculation and assessment makes it more likely that any damages awarded will not be a precise and perfect remedy. In such cases, it may be just and convenient to grant an interlocutory injunction, even though damages are an available remedy at trial.

(7) While the adequacy of damages is the most important component of any assessment of the balance of convenience or balance of justice, a

14 number of other factors may come into play and may properly be considered and weighed in the balance in considering how matters are to be held most fairly pending a trial, and recognising the possibility that there may be no trial.

(8) While a structured approach facilitates analysis and, if necessary, review, any application should be approached with a recognition of the essential flexibility of the remedy and the fundamental objective in seeking to minimise injustice, in circumstances where the legal rights of the parties have yet to be determined.”

59. In cases where the decision on the interlocutory issue is likely to render certain outcomes irreversible or unattainable (depending on one’s point of view), the test in Maha Lingam v. Health Service Executive [2005] IESC 89, as discussed in Okunade v. Minister for Justice, Equality and Law Reform [2012] 3 IR 152, may apply in cases involving the taking of possession of land by mortgagees or receivers on foot of interlocutory applications, where the anticipated effect of possession was a sale of the land before trial: see Charleton v Scriven [2019] IESC 28. In those cases, the applicant for relief is required to show that it has a strong case that it is likely to succeed at the hearing of the action. Consideration must be given to whether that test is properly applicable in the Possession Motion, a point to which I will return.

60. I am conscious of the decision in AIB v Diamond [2012] 3 IR 549, which was opened by the Plaintiffs in the context of injunctions relating to land. It is important to note that questions about adequacy of damages as a remedy – which were at the forefront in Diamond and were properly opened by the Plaintiffs – arise only if, in the first instance there is a fair question to be tried.

61. The decision of the Court of Justice of the European Union (CJEU) in Case C-351/23 GR Real was also raised by the Plaintiffs in support of their submissions to the effect that damages were not an adequate remedy, more specifically for the proposition that, where a question of unfair terms in a consumer contract are the subject of legal proceedings, a sale of the affected property should, or must, be halted to ensure an effective remedy under Directive 93/13/EEC on unfair terms in consumer contracts. In GR Real, following default in repayments on a loan and demand by the lender, the borrowers took proceedings against the lender seeking interim and permanent relief to prevent the sale of the property by auction. In those proceedings, the fairness of the contract terms allowing for the making of the demand was contested. However, in spite of those

15 proceedings, the lender proceeded to sell the property by auction pursuant to its power of sale, leaving it for the purchaser of the property to bring ejection proceedings against the borrowers for want of title. The purchasers then sued the borrowers for possession, relying on provisions similar to section 21(2) of the Conveyancing Act 1881 to protect them from any defences based on the entitlement of the lender to sell.

62. It is important to note that GR Real pertained to the contracting parties’ family home and that the contracting parties’ status as consumers was not in contest. Here, the Property is not the family home of the First- and Second-named Plaintiffs themselves, and it is in contest (and will be addressed further below) whether the First- and Second-named Plaintiffs are consumers vis-à-vis the loan agreement and mortgage. More fundamentally, a critical feature in the factual matrix in GR Real was the diligence of the borrowers in seeking to prosecute a legal review of the contract, while being thwarted by extrajudicial steps that they could not prevent. On this the Court remarked:

“…the defendants did not remain passive in the extrajudicial enforcement proceedings. On the contrary, they made use of the legal remedies provided for by the national legislation in order to oppose that enforcement, while informing the persons concerned by that enforcement of their actions. However, those enforcement proceedings continued and culminated in the sale by auction of their family home, in the absence of any judicial review of the basis of the debt of which the bank sought payment, even though there was corroborating evidence as to the potential unfairness of the acceleration clause on which that enforcement was based. In such circumstances, the protection of the legal certainty of a transfer of ownership already carried out in respect of a third party cannot be regarded as absolute.”

63. This feature, it was held, distinguished the case from situations like what was before the CJEU in Case C-598/15 Banco Santander, in which the CJEU was asked whether legal provisions protecting purchasers under extrajudicial sales were compatible with Directive 93/13/EEC in a context where the borrower took no steps to suspend the extrajudicial sale process and merely refused to leave, forcing the purchaser of the property to bring proceedings for possession in reliance on its title. As the Court put it at paragraph 49:

“… it appears that [the borrower] had the opportunity, at the time of the extrajudicial procedure for transfer of the property, to challenge or seek a suspension of the procedure on the ground that the mortgage loan agreement contained an unfair term, and apply for interim measures so as to suspend the sale of the immovable property of which she was the owner. It is within

16 the course of the mortgage enforcement procedure that the court seised could, if necessary of its own motion, have carried out a review of the potential unfairness of terms stipulated in the mortgage loan agreement.”

64. Just as the present case is not quite on all fours with GR Real, there are also points of difference between it and Banco Santander. Here, there were proceedings concerned with the enforcement of the chargeholder’s rights under the 2005 Charge, viz. the 2017 Proceedings; however, the First- and Second-named Plaintiffs failed in those proceedings. There were also the present proceedings, which of course predated the sale to the Twelfth-named Defendant; however, in another twist, there was an application to restrain the sale, it failed at the first hurdle, and no further attempt was made to restrain the sale. The only step left was what Counsel for the Twelfth-named Defendant correctly characterised as the “administrative” step of registering title on foot of the Transfer.

65. A further point of procedural complexity arising pertains to the first principle outlined in paragraph 65 of the judgment of O’Donnell J in Merck and it affected both parties. First, the Plaintiffs have a difficulty in that the relief sought in the application seeking the restoration of the WWTP connection is not reflected in any relief sought in the Plenary Summons. Moreover, the rights sought to be enforced would affect another person, Mr Hevey, who is not even a party to the proceedings. Secondly, the Twelfth-named Defendant is seeking relief having not yet delivered any Counterclaim in the proceedings, so that it too has no pleadings for the relief it seeks, on a permanent basis.

66. Addressing the position of the Twelfth-named Defendant first, it will be very clear that it cannot really be blamed for its failure to plead in these proceedings, since no Statement of Claim was delivered by the Plaintiffs (at least until the second day of this hearing) and the question is whether it should have gone to the trouble of issuing a separate cross- action, so that its plenary summons (and perhaps statement of claim) in such cross-action would provide the necessary pleading foundation for its motion. I believe that to insist on this would create cost and inconvenience for no real purpose and I consider that the appropriate course, in the absence of any authority in this jurisdiction on the question, is to adopt the approach approved by the Court of Appeal of England and Wales in Marcus Publishing v Hutton-Wild Consulting [1990] RPC 576, which was to accept an undertaking from the defendant, who was awaiting delivery of a statement of claim, to deliver a counterclaim seeking as permanent relief, the relief sought on an interlocutory basis in the application before the court, a solution discussed by Dillon LJ at page 584-5

17 of the report. The Twelfth-named Defendant, through Counsel, offered such an undertaking in the event of the injunction sought by it being granted and I am satisfied that that secures the purpose of the first Merck principle in the circumstances.

67. The position of the Plaintiffs is less excusable, since it has been within their capacity to apply at any time to amend their pleadings to include for the relief it seeks in the WWTP Motion by either delivering their Statement of Claim or applying (in the WWTP Motion or separately) for leave to amend their Plenary Summons (the latter is probably more prudent since delivering a Statement of Claim would not bring Mr Hevey into the proceedings and might provoke argument about the limits of Order 20 rule 3 of the Rules of the Superior Courts). The reason advanced by the Plaintiffs for not doing so related to their contention (which is disputed) that the connection was only blocked in April 2025; however even if they are right about this they could, at any time since then, have rectified the position. Despite my misgivings, but conscious that the Plaintiffs are acting as litigants in person, I invited them to consider offering an undertaking that, if the injunction they sought on the WWTP motion was granted, they would make the necessary application to amend their pleadings to provide the requisite foundation for an equivalent claim by way of permanent order. They indicated that they would do so if required.

68. Offering such undertaking does not, of course, guarantee either party the injunction they seek: it merely overcomes a procedural hurdle.

Identifying the issues

69. In many ways, the Plaintiffs’ claims articulated in the 2025 Dealing Motion are their answers to the Possession Motion, vice versa for the Twelfth-named Defendant, so I propose to address the parties’ respective positions in these motions first and together. I will then address any additional arguments pertaining to the WWTP Motion.

70. As I have said, there was no Statement of Claim in the proceedings until the morning of the second day of the hearing, and no copy was provided to the Court. As explained, I am not prepared to take the document entitled “Preliminary (not final version) Statement of Claim” as a pleading, and, while so much of the arguments advanced in submissions and on affidavit that are reflective of its contents will be treated as the substantive case advanced by the Plaintiffs, so much of it as was not pursued at hearing or on affidavit will not be treated as being a fair question to be tried. I should emphasise that, to their

18 credit, the Plaintiffs did not assert any expectation that the Court would wade through the draft document – all 35 pages – and address every allegation made, but for the avoidance of any doubt, I will not be doing so, and it would be unreasonable litigation conduct to prosecute an application for an interlocutory injunction in that way.

71. I should also make clear that, insofar as the exhibited draft document outlined what the First-named Plaintiff candidly identifies as a “plethora of causes of action” in his affidavit of 3 April 2025, setting forth a vast multiplicity of allegations does not by a process of accretion generate a fair question to be tried if no one of the plethora of allegations, in itself, constitutes a fair question to be tried.

72. Distilling from the affidavits and the submissions made at the hearing what went beyond mere references to legal duties or bald assertions about improprieties or errors, the following emerged as the issues raised by the Plaintiffs (these are set out roughly as they arise in the chronology):

(a) The unfair contract terms issue;

(b) The property boundaries issue;

(c) The “break in the chain” of the chargeholders’ title;

(d) Sale at undervalue; and

(e) “Memorandum of sale” vs “contract for sale.”

(a) The unfair terms issue

73. Although it was far from clearly expressed, the substance of the Plaintiffs’ argument seems to be that the First- and Second-named Plaintiffs were consumers in entering into the loan agreement and the 2005 Charge, that the loan agreement and the 2005 Charge contained unfair terms because they allowed an extrajudicial sale of their property and because they were not offered a tracker mortgage rate, and that the Court is obliged of its own motion to assess the unfairness of the contract terms.

74. While not accepting any of those arguments, the Twelfth-named Defendant contends that it is unaffected by any issue of unfairness (or indeed any of the other arguments raised by the Plaintiffs under separate headings): it says that it is a purchaser of lands sold by a

19 mortgagee in professed exercise of its statutory powers and as such is entitled to the protections afforded by Paragraph 10.1 of the 2005 Charge, which provides that

“No purchaser or other person shall be bound or concerned to see or enquire whether the right of [ILP] or any Receiver to exercise any of the powers hereby conferred has arisen or become exercisable or be concerned with any notice to the contrary or with the propriety of the exercise or purported exercise of such powers”

and section 21(2) of the Conveyancing Act 1881 which provides

“Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power”

which protection is enhanced by section 5(1) of the Conveyancing Act 1911, as follows:

“Upon any sale made in professed exercise of the power conferred on mortgagees by the Act of 1881, a purchaser is not, and never has been, either before or on conveyance, concerned to see or inquire whether a case has arisen to authorise the sale, or due notice has been given, or the power is otherwise properly and regularly exercised.”

75. These provisions are expressly concerned with the sale process and the basis for exercising the power: the Plaintiffs contend that these protections do not extend to protect purchasers from the wrongs alleged by them which, in the context of unfair terms, go to the validity and enforceability of the 2005 Charge. They also draw attention to the decision of the CJEU in GR Real, addressed above, in which the completion of a mortgagee sale did not preclude reliance on Directive 93/13/EEC in the context of a claim for possession taken by the mortgagee.

76. It is clear that section 21(2) of the 1881 Act does not mean that a mere statement that a vendor is professing to sell in exercise of a power of sale under a mortgage operates to obviate the need for any investigation of title by the corresponding purchaser. That purchaser must satisfy itself: that the mortgage (or charge in the case of registered land) was granted to the vendor or the vendor’s predecessor; that the land in sale was within the scope of what was granted in the mortgage (which will usually be defined to include

20 accretions, easements, quasi-easements and so forth); that, if the vendor is not the original mortgagee, the mortgagee’ title has passed to the vendor; that the statutory power of sale has not been cut down or qualified (it never is but it could be: see section 19(2) of the 1881 Act); and that the power of sale has arisen (as distinct from being exercisable), something that is usually covered by a clause in the mortgage fixing a legal date of redemption, i.e. a date on which the monies secured by the mortgage are due (as it is here in the third sentence of Clause 8.1 of the 2005 Charge). Section 21 is concerned with matters that are not resolved by means of a title search and examination of the mortgage deed.

77. The question here is whether a purchaser is protected from the fallout from a claim by the mortgagor, which has not matured into a decree of a court of equity and as such is a mere equity, but which does not arise from the exercise of the power of sale and instead runs deeper (such as to the validity of the original mortgage, which could be attacked for any number of reasons: undue influence, mistake, fraud, or, as here, for having unfair terms). Section 21(2) does not protect the purchaser here, as the attack does not relate to the exercise of the power of sale.

78. However, even if section 21(2) does not apply, a purchaser for value, whether of registered or unregistered land, without actual or constructive notice of the claim, will be protected against the consequences of such claim.

79. The classic means by which to inform the world at large and any potential purchaser of a mere equity and to seek to preserve its priority is by registration of a lis pendens. While a lis pendens was registered in relation to the Property in recent days, that is not relevant to the issue now under discussion here, since it was not registered at the date of sale (i.e. 27 March 2025). Nevertheless, notice may be conveyed by means other than the registration of a lis pendens, and in this case it is clear from the contract for sale executed by the Receiver and the Twelfth-named Defendant that that the existence of these proceedings was notified to the latter. The Plenary Summons which was listed in the Documents Schedule to the contract for sale (fixing the Twelfth-named Defendant with notice of its contents), advised (albeit in terms that are difficult to understand) that a claim was being made by reference to the Consumer Credit Act by reference to inter alia unfair terms.

21 80. If the case was concerned with unregistered land, that would be the end of the matter: the Twelfth-named Defendant would at least be at risk of being bound by the outcome of the litigation about unfair terms. However, section 31 of the 1964 Act must be considered in the context of registered land:

“The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just.”

81. This provision curtails the operation of the doctrine of notice, and as Baker J (then in the Court of Appeal) noted in Tanager DAC v Kane [2019] 1 IR 385 (at paragraph 60 of the judgment):

“The first observation to be made with regard to the power of rectification is that the jurisdiction is limited to rectification in the case of actual fraud or mistake, and s. 31(1) of the 1964 Act expressly excludes from the power of rectification any argument that might derive from the knowledge of the registered owner of any “deed, document, or matter relating to the land”. The purpose of that restrictive power is to remove from registered title the vexed question of express or implied notice of any equities that might affect the ownership of land, precisely the type of issue that made and continues to make the conveyancing of unregistered land complex and, at times, uncertain.”

82. On the other hand, in AS v GS [1994] 1 IR 407, Geoghegan J – though without engaging in a discussion as to the operation of section 31 of the 1964 Act or the authorities bearing on it – accepted as “well-founded” the argument that litigation relating to particular registered land would prevail over a charge sought to be registered by a bank that advanced loans on the security of the land concerned, despite no lis pendens having been registered as a burden on a particular Folio (as was possible under section 69 of the 1964 Act), because the bank had in fact been served with papers relating to the litigation and as such had actual notice. At 415, he said:

“There is, however, one further aspect of the matter with which I should now deal. The property in question is registered in the Register of Leaseholders. If a lis pendens had been registered it would have had to be entered as a

22 burden under s 69 of the Registration of Title Act, 1964, in order to be effective as a registered lis pendens. But a lis pendens entered as a burden on registered land has the identical effect as a lis pendens registered under the Act of 1844 in respect of unregistered land. Its only purpose is to bind purchasers and mortgagees for value without actual notice. In my opinion, a subsisting lis pendens relating to registered land but not entered as a burden will, nevertheless, affect persons acquiring interests from the defendant who are either volunteers, such as a judgment mortgagee, or have actual notice of the lis as in this case.”

83. This suggests that the line between the concepts of actual notice and actual fraud may be somewhat more blurry than would first appear, and in that context, considering that this not a case in which to seek to map that line, I will err on the side of caution and resist a conclusion at this stage that the Twelfth-named Defendant’s status as a purchaser on a mortgagee sale on its own precludes any claim that might affect that sale. That in turn means that it is unnecessary to consider whether claims under Directive 93/13/EEC are in a special category, although I do not think that the circumstances obtaining here are comparable to those analysed in the GR Real decision.

84. Of course, declining to rule out the Plaintiffs’ claim based on unfair terms by reference to the doctrine of notice does mean that the claim as proposed raises a fair question at all. As it happens, I am satisfied that the claim falls on every hurdle it meets.

85. First, I cannot accept the submission that the First- and Second-named Plaintiffs were consumers. The First-named Plaintiff may be a stonemason by trade, and the Second- named Plaintiff may be a housewife. However, one can have more than one trade or profession or occupation: the First-named Plaintiff can be both a stonemason and a publican; likewise, a housewife who is also a publican can be a consumer for some purposes and a non-consumer for others.

86. This is not a case like Case C-347/23 Zabiton, in which it was held by the CJEU, by reference to the facts of that case, that the acquisition of a single residential investment property did not preclude a finding that the borrowers in that case were consumers.

87. In this case, the Property was not a residential property at the time of its acquisition and was not being purchased to be made into a residence. Moreover, the First- and Second- named Plaintiffs were not merely landlords of the Property. The Property was used and was to be used as a public house, and the public house business was the business of the

23 borrowers themselves, the First- and Second-named Plaintiffs and Mr O’Neill. The loan agreement obliged them to submit business accounts. Beyond confirming that there was no rental situation and no company involved, the Plaintiffs did not evidence or explain during the hearing how the business was arranged, so it is reasonable to assume that it was operated as a partnership (as this is a matter within their peculiar knowledge, they cannot complain that an assumption is being made from the known facts). This is before one gets to the fact that, the First- and Second-named Plaintiffs in Clause 17.8 of the loan agreement warranted to ILP that they were not acting as consumers, although I am conscious that labels are not conclusive in the context of the Directive.

88. The decision of the CJEU in Case C-110/14 Costea does not avail the Plaintiffs. That was a case involving a lawyer, Mr Costea, who took out a loan secured on a building in which his law firm practised, and that law firm guaranteed the loan (it is not explained whether his law firm was a partnership or not, but it must be assumed that it was). When he later challenged a term in the loan contract, the question arose whether he was a consumer. The CJEU held that the fact that he was a lawyer could not rule out the possibility that he was acting as consumer:

“26. A lawyer who concludes, with a natural or legal person acting for purposes relating to his trade, business or profession, a contract which, particularly as it does not relate to the activity of his firm, is not linked to the exercise of the lawyer’s profession, is, vis-à-vis that person, in the weaker position referred to in paragraph 18 of this judgment.”

89. The court did not decide the factual question whether Mr Costea was a consumer or not: that was for the national court. What it did decide was that the question turned not on the fact that the mortgage was granted by Mr Costea as a lawyer, but on the purpose of the loan agreement in respect of which the mortgage was granted:

“30 Having regard to the foregoing considerations, the answer to the question asked is that Article 2(b) of Directive 93/13 must be interpreted as meaning that a natural person who practises as a lawyer and concludes a credit agreement with a bank, in which the purpose of the credit is not specified, may be regarded as a ‘consumer’ within the meaning of that provision, where that agreement is not linked to that lawyer’s profession. The fact that the debt arising out of the same contract is secured by a mortgage taken out by that person in his capacity as representative of his law firm and involving goods intended for the exercise of that person’s profession, such as a building belonging to that firm, is not relevant in that regard.”

24 90. Whereas it appeared that the purpose of the loan in Costea was to “cover [Mr Costea’s] personal current expenditure” (see paragraph 12 of the judgment), the purpose of the loan agreement in this case was for the purchase of a business, a public house, by the persons who would run that business, indeed with an employed manager, but on their own account.

91. But even if the First- and Second-named Plaintiffs were consumers, there is nothing in the loan agreement and the 2005 Charge that was unfair. There is as yet some unexplored terrain that may trouble common law courts in undertaking the inquisitorial task demanded by the obligation imposed on national courts to examine of their own motion contracts for unfairness: see in this regard the observations of the Supreme Court in Pepper Finance Corporation v Cannon [2022] 1 IR 128 at 162. On the other hand, it seems clear that the obligation does not extend beyond the clauses that are invoked against the borrower unless for the purpose of drawing such inferences as may be appropriate if they are found to unfair (see Cannon at 165-6). Taking a conservative approach, therefore, I reviewed the facility letter and the 2005 Charge in full, and having done so, I have concluded as set out at the beginning of this paragraph with little hesitation.

92. There were, nevertheless, two issues in particular that the Plaintiffs raised for my attention, and I will address them despite having concluded that the First- and Second- named Plaintiffs were not acting as consumers. It may be noted that at no point did the Plaintiffs open to the Court any of the terms of the loan agreement or the 2005 Charge, and in fact the loan agreement would not have been in evidence at all but for the fact that the Solicitor for the Second- to Sixth-named Defendants swore an affidavit on 9 May 2025 to set out a chronology of the matter from the perspective of the successive chargeholders, and to exhibit the loan agreement there.

93. The first complaint raised was that the presence in the contract of an extrajudicial power of sale is unfair. No authority is advanced for this proposition, and no explanation is given for what might be unfair about it. The complaint is without substance. Out of court sales, whether by mortgagees or by receivers or, as happened here, by a mortgagee transfer following a receiver’s agreement to sell, are commonplace and well-understood elements of mortgages for centuries, and have been statutorily incorporated by reference in mortgages since the 1881 Act (indeed earlier as provision was made for them in Lord

25 Cranworth’s Act of 1860 (23 & 24 Vict. c. 145)). Indeed, if extrajudicial sales were inherently problematic in the context of Directive 93/13/EEC, one would expect that factor to have rendered the detailed analysis in the judgments of the CJEU in GR Real and Banco Santander wholly redundant. It might be one thing if access to the court was wholly excluded, but it is not: a borrower may commence proceedings to vindicate their rights at any time prior to a sale.

94. I am conscious that by virtue of section 100(3) of the 2009 Act, Court approval is now required for the sale on foot of a housing loan but that is not relevant here, since the 2005 Charge pre-dates the 2009 Act and the loan is not a housing loan in circumstances where the borrowers thereunder were not consumers. The occupancy of the Property by the Third- and Fourth-named Plaintiffs is irrelevant in that regard. In any case, any occupancy by or on licence from the First- and Second-named Plaintiffs is in clear breach of an existing High Court order of which the First- and Second-named Plaintiffs have been on notice since 2017 and of which the Third- and Fourth-named Plaintiffs have been on notice since May 2025 if not considerably earlier.

95. The second allegedly unfair term is not a term at all but an allegation that the First- and Second-named Plaintiffs were not offered a tracker interest rate on their loan. This argument seeks to leverage the remedies enjoyed by many borrowers who were taken off tracker rates and not offered an opportunity to continue them after 2008, when those rates fell significantly. But this is nothing like those cases. This was never a tracker mortgage loan: this loan was advanced at ILP’s variable rate, identified as its A rate and a margin of -0.45%. There is no evidence before the Court to suggest that a tracker rate was even requested, or (if so) when it was requested and what the response to that request was. But whatever the case may be, there is no logic to the proposition that a loan agreement is unfair because it follows the lender’s identified standard rates and omits an entitlement on the borrower to unilaterally switch to a different interest rate.

96. In light of my conclusions above, it is unnecessary at this stage to consider the interaction between the rule in Henderson v Henderson (1843) 3 Hare 100 and/or the doctrine of res judicata and the “own motion” obligation to assess contracts for unfairness under Directive 93/13/EEC, an issue that has been considered by the Supreme Court in Cannon and by the High Court in Pepper Finance v Coleman [2025] IEHC 747. The task would be rendered particularly difficult in this motion because the Plaintiffs’ evidence does not

26 disclose the extent if any to which the issue was raised in the previous two sets of proceedings relating to the loan agreement, and the Twelfth-named Defendant was a stranger to those proceedings.

(b) The property boundaries issue

97. It was difficult to understand either the factual background to this issue or the Plaintiff’s arguments on foot of that background.

98. Insofar as the context may assist in understanding the case, it will be recalled that, as of the date of acquisition and charging of the Property in 2005, Folio WW34597F did not exist: the lands acquired and charged were described as part of Folio WW8263, which was severed by the purchase. Although the vendor of the lands appeared to be a Mr Hannigan, it was also suggested during the hearing that Mr O’Neill (who was a co- borrower with the First- and Second-named Plaintiffs) was the owner. Without a copy of Folio WW8263, I cannot say for certain who the previous owner (and the owner of the retained part) was, or is today, but the plot was described as adjoining the southern boundary of Folio WW34597F.

99. A further issue that emerges from the evidence is a special condition in the contract for sale to the Twelfth-named Defendant (Special Condition 15.3) which reads:

“The Purchaser purchases on full notice of those portions of the property known as the Ballyknockan Inn which are outside the boundaries of the Subject Property”

100. The Amended Plenary Summons seeks, among 62 other reliefs:

“3. A declaration the property contained in folio WW8263F is not part of folio WW34597F but nonetheless, the property contained therein, will be effectively land locked with no easement rights whatsoever, upon sale of the properties in WW27490F, WW34597F and WW14524F. The Plaintiffs make this declaration to alert the Court of one of the collateral impacts of sale of the other properties.”

101. Then, the First-named Plaintiff, in paragraph 5 of his Grounding Affidavit in the 2025 Dealing Motion avers:

“There are, inter alia, boundary problems (the Land Registry map is incorrect) and appurtenant rights issues, including easement rights, as described and mapped by the Plaintiffs”

27 102. Paragraph 6 of that Affidavit then exhibits a very poor quality map which appears to depict as an “unregistered right of way, folio WW27490F” a strip of ground lying between the two Folios making up the Property.

103. The submissions at hearing did little to clarify the picture, but doing the best I can with the evidence and submissions, I infer that the Plaintiffs’ case is that the title to the Property is impaired and title to the retained part of Folio WW8263 is likewise impaired, because the Land Registry map excludes part of the Ballyknockan Inn and because the lands in Folio WW8263 became landlocked by virtue of the carve out of what became Folio WW34597F so as to create (or fail to create) an implied easement, presumably under the rule in Wheeldon v Burrows (1879) 12 ChD 31 (which applies to pre-2009 sales of land).

104. The problem with all of this is that it has no bearing on the Plaintiffs themselves. It may be that the Twelfth-named Defendant was unwise to purchase the Property “warts and all” as it did, with portion of the Ballyknockan Inn falling outside the boundaries of the two Folios making up the Property and with the possibility of a third party enjoying a right of way through the Property. It may be that the acquisition in 2005 operated to landlock the vendor of what became Folio WW34597F. But the sale by Mars Finance to the Twelfth-named Defendant does not make the title any better or worse, and even if it did, the Plaintiffs would have to succeed on other grounds to set aside the sale in order that the damage accrued to them, as distinct from to third parties.

105. Consequently, this amounts to at most reliance on a jus tertii, or a third party’s claim, but whatever it may be, it is not a fair question to be tried.

(c) The “broken chain” issue

106. The complaint of the Plaintiffs that probably attracted most attention was what they characterised as a “break in the chain” of the chargeholders’ title, which they say occurred in 2015 when ILP assigned a portfolio of loans and associated securities to Cheldon.

107. I was referred to the Mortgage Sale Agreement dated 8 July 2015, which was exhibited in the affidavit of the Solicitor for the Second- to Sixth-named Defendants, and specifically to Schedule 1 Part A at page 48 of that document which contained a table of “Obligors” with four columns. The first column was headed “Connection Name”, the

28 second “Obligor”, the third “Underlying Loan”, and the fourth was redacted. What I assume to be Part B of the same Schedule (although what must have been the words “Part B” was redacted), entitled “Properties” is on the following page with three further columns: “Connection Name/Connection ID” “Property ID” and “Full Address”. Each of these two tables had three rows below the row of headings and they were all blank.

108. The Plaintiffs’ argument was that, since there was no mention of the loans of the First- and Second-named Plaintiffs and the Property in this Schedule, there was a “break” in the chain of title.

109. Schedules of course mean nothing without consideration of the substantive terms incorporating them, and when one examines the body of the Mortgage Sale Agreement, one sees that:

(a) “Borrowers” is defined to mean “the list of borrowers set out in Part A of Schedule 1”;

(b) “Obligors” is defined to mean “the persons listed as borrowers and/or guarantors in Part A of Schedule 1 and any other persons who have given guarantees…[the remainder of the paragraph is not relevant]”; and

(c) “Properties” is defined to mean “the properties listed in Part B of Schedule 1”.

110. The operative words in the Mortgage Sale Agreement articulate a sale and purchase of inter alia “the Mortgage Assets”, “the Underlying Loans” and “the Finance Documents,” which expressions are in turn defined to include, in substance, the loan agreements and security documents (including mortgages and charges) relating to same.

111. It may be noted that, at the very end of the document, out of place but nonetheless headed “Schedule 1 – Part B” is what is obviously two lines extracted from a longer list, with four headings on it “Connection ID”, “Connection Name” “Property ID” and “Property Address.” Under the second column heading in respect of each line is “Terence O’Flaherty” while under the fourth column heading in each case are:

(a) “Ballyknockan Cottage, the Sands, Ballyknockan, Blessington” and

(b) “The Ballyknockan Inn, Ballyknockan, Blessington”

29 112. One might argue about whether that page operates to overcome the fact that the “first version” of Schedule 1 is blank, but little turns on that. The Mortgage Sale Agreement was never going to be the document that passed legal title from ILP to Cheldon anyway. On its face, it is a contract for the sale of the loans and securities identified within it, and it envisaged (in Clause 2.2) a later transfer of legal title by means of a series of completion documents (referred to as the “Transfer Documents” in the Mortgage Sale Agreement), which included the “Deeds of Transfer”, specimen forms for which were contained in Schedule 4.

113. The relevant transfers of the loan agreements, charges and mortgages are not in evidence. On the logic subtending their argument in relation to the Mortgage Sale Agreement, this puts the Plaintiffs into an even better position: the “break” in the chain is not merely the omission of their loans and property from the relevant transfer documents but the omission of the transfer documents themselves.

114. However, whether the “break” contended for is a missing reference or a missing deed, the argument cannot succeed.

115. In the first instance, the argument is inadmissible under the rule in Henderson v Henderson. When the Receiver initiated proceedings and secured the 2017 Injunction, his standing was predicated on the validity and effectiveness of that assignment. I do not know, based on the evidence, whether the First- and Second-named Plaintiffs raised the argument about a broken chain of title to Cheldon at that point, but it matters not whether they did or not. Either they did, and lost the point, in which case the point is res judicata, or they did not raise it and in the absence of any justification or excuse, they are estopped from raising it now under the rule in Henderson v Henderson.

116. The Plaintiffs’ attempts to evade the consequences of the 2017 Injunction for various purposes in these applications is grounded on the quite astonishing averments, most baldly set out in paragraph 53 of the Affidavit of 19 June 2025 that it was “legally flawed” and “fraudulent” and “invalid.” There is no basis for any of these statements and to make them, not as part of a genuine attempt to set aside or appeal the order, but as something of an afterthought when the inconvenience of the 2017 Injunction was raised against them eight years later, is little short of contempt.

30 117. If there was some reason why the rule in Henderson v Henderson might not apply, the argument about a “broken chain” would fail on its merits anyway, because the very point is disposed of by the judgment of Baker J in Tanager v Kane. That case arose in the context of enforcement proceedings rather than an action for declaratory and other reliefs by a borrower following a sale by the chargeholder, but on the issue under discussion here, there is little to distinguish the case. A loan had been advanced to the defendant by Bank of Scotland (Ireland) Limited (“BOSI”), Subsequently all the assets and liabilities of BOSI transferred to Bank of Scotland plc. (“BOS”) with effect from 31 December 2010 (pursuant to cross-border merger regulations made in this jurisdiction (S.I. No. 157/2008) and in the UK, whereupon BOSI was dissolved without going into liquidation. BOS subsequently transferred a portfolio of assets including the loan agreement and charge relating to the defendant’s borrowings, to the plaintiff who sought to enforce its right to possession on foot of the charge. Baker J held that the defendant could not invite the court to look behind the Register in the context of enforcement proceedings, but on the specific question of challenging a historic transfer of a charge by means of a claim for rectification permitted under section 31, she said as follows (at paragraphs 61-62):

“61. The nature of this equitable jurisdiction to rectify was considered by Holmes L.J. in the old Irish Court of Appeal in In re Patrick Leonard’s Estate [1912] 1 IR 212, at p. 226, where he described the intention of the broadly similar provisions in the 1891 Act as “[…] to preserve the jurisdiction of the Chancery Courts to set aside or reform an instrument upon the grounds that it was entered into by what is known as fraud or mistake in equity.” The jurisdiction to rectify is exercisable in an inter partes action grounded on alleged mistake or fraud, and not in a summary action on affidavit.

62. Tanager argues that, as Mr Kane is a third party to the transfer from BOSI to BOS, he has no standing to challenge the Register, as the challenge would be confined to a challenge of either Tanager or BOS on account of a fraud or mistake in the transaction or instrument on foot of which Tanager became registered, and I agree. The argument could not be raised in the action between Tanager and Mr. Kane.”

118. That is dispositive of the point.

119. The Plaintiffs seek to rely on the provisions of section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 and the decision of the Court of Appeal in Fannon v O’Brien [2024] IECA 51, in support of the proposition that title to the 2005 Charge did not pass to Cheldon for the want of evidence of a global deed of assignment confirming

31 that the assignment was “absolute.” However, Fannon was a case with particular facts in which what was assigned and what was not assigned was in dispute: the borrower’s claim was that, at a time of financial difficulty, he had made a side agreement with the then lender, Ulster Bank Ireland Limited (“UBIL”), allowing for a varied repayment schedule. UBIL subsequently assigned to Promontoria (Oyster) DAC (“Promontoria”), who – apparently not having been advised of the side agreement – proceeded to appoint a receiver over the secured property, to the chagrin of the borrower who sued the receiver, Promontoria and UBIL for breach of contract, negligence and defamation. The matter before the court was an application by UBIL to have the claim against it dismissed on the grounds of having no reasonable prospect of success. As such, the bar was a low one for the borrower plaintiff, and, at the core of the issue on assignment, was whether liability for the side agreement had been assigned to Promontoria (who, notably, had pleaded that it was a stranger to the side agreement). Fannon was not therefore about what Tanager was about, and it is notable that Tanager was not mentioned in the judgment of either the High Court or the Court of Appeal. This case, by contrast, is on all fours with Tanager.

120. In those circumstances no fair question has been shown to exist on this issue.

121. I should say that the Amended Plenary Summons seeks several declarations regarding what appear to be dealings with the beneficial title to the loan portfolio, but no evidence was adduced, and no submissions were made to substantiate a claim under these headings. In any case, dealings with equitable interests through securitisation arrangements or the like does not impact legal title which plainly vested in ILP, Cheldon, Mars Management and finally Mars Finance.

122. A further point raised in the Amended Plenary Summons, which was not pursued, but which might be considered to have an element of crossover with the foregoing, is a claim that the First- and Second-named Plaintiffs (and presumably Mr O’Neill) were entitled to notice of the 2025 Transfer. The point was not developed into a coherent argument at the hearing, for example to explain when it was contended that notice of the sale was required to be given. Moreover, no authority was opened to support the proposition.

123. In the circumstances the evidence and arguments raised in support of the “broken chain” thesis do not amount to a fair question to be tried.

32 (d) Sale at undervalue

124. This remarkable argument arose, not on the Plenary Summons or the Amended Plenary Summons, not on the Notice of Motion or any of the Affidavits filed, and not even within the “plethora “plethora of causes of action” in the draft Statement of Claim exhibited by the First-named Plaintiff in his grounding affidavit to the 2025 Dealing Motion, but in the Plaintiffs’ reply on the second day of the hearing, and with no evidence to subtend it.

125. It was stated in oral submission that the Plaintiffs themselves had offered a higher sum for the Property than was paid by the Twelfth-named Defendant on some date that was not altogether clear.

126. It is clear since Holohan v Friends Provident [1966] 1 IR 1, that a mortgagee or a receiver exercising powers of sale under a mortgage is obliged to sell at the best value reasonably obtainable in the circumstances obtaining at the date of sale, but in order to interrogate that question, it is essential that the evidence necessary to do so is put before the court. If no claim of a sale at undervalue is even made until the second day of a hearing, then it is impossible for the parties affected by it (in this case the Twelfth-named Defendant, Mars Finance and the Receiver) to meet that claim. To permit such a claim here would work a gross procedural injustice on those parties.

127. In the circumstances, this claim is not admissible within the motions before the Court, still less capable of being characterised as a fair question to be tried.

(e) “Memorandum of Sale” vs. “Contract for Sale”

128. Another late argument, that did not find expression in any of the Affidavits or in the Amended Plenary Summons but was raised on the second day of the hearing, was the proposition that the contract for sale from the Receiver to the Twelfth-named Defendant was not a “contract for sale” but merely a “memorandum of sale.” The argument was raised, it would seem, not as a substantive cause of action but either to address arguments made on behalf of the Twelfth-named Defendant to the general effect that it was too late for the Plaintiffs to seek a remedy against it, or to argue that it was not too late to accept a higher offer from the Plaintiffs.

129. The genesis of the argument seems to be the view that the use of the expression “memorandum of agreement”, allied perhaps to the special condition excluding personal

33 liability on the part of the Receiver (Special Condition 9.1), meant that there was no binding agreement for the sale of the Property.

130. This argument exhibits a little knowledge of law but without requisite depth of understanding and study to contextualise that knowledge in a broader framework. The expressions “memorandum of agreement” or “memorandum of sale” are perfectly compatible with a binding contract for the sale of land. Inasmuch as the words “memorandum of sale” appear in bold text on the first page under the cover page of the contract for sale exhibited in this application, that is the case for every binding contract for sale employing the standard form incorporating the Law Society Conditions of Sale. What the Plaintiffs (and their assistants) appear to be conflating is a type of document that an estate agent will often prepare when commercial terms are agreed but on the basis that final contracts are to be executed and exchanged through solicitors. Such notes are often entitled “heads of terms” or “memorandum of sale.” Such notes do not commit the parties to a sale, but that has nothing to do with the word “memorandum” or “heads”; rather, it is because such documents will inevitably use the expression “subject to contract” or “contract denied” or a similar expression that operates as a prophylactic to the creation of a legally binding contract. Here the contract is obviously a binding contract executed without the words “subject to contract” or “contract denied” on its face.

131. The exclusion of liability on the part of the Receiver in Special Condition 9.1 is not to render the contract unenforceable or a mere option, but reflects of the reality that the ultimate Land Registry Transfer would be executed by the mortgagee, Mars Finance, and not by the Receiver: the “sale” for the purpose of the protections in the Conveyancing Acts is the Conveyance (in the case of unregistered land) or Land Registry Transfer (in the case of registered land). Thus, a contract for sale made by a receiver but completed by a mortgagee is a mortgagee sale.

132. The more obvious difficulty for the Plaintiffs in making the argument they do under this heading is the fact that, aside from there being a written contract, there was a Land Registry Transfer. In other words, the sale was completed. Thus, even if the contract for sale was emblazoned with the words “subject to contract” or if the contract for sale was oral, it would not detract from the fact that the sale was completed and, unless invalidated by the court, irreversible.

34 133. No fair issue to be tried has been raised under this heading.

Conclusion on the 2025 Dealing Motion

134. Since no fair issue to be tried has been shown by the Plaintiffs it is unnecessary to consider questions such as the balance of convenience and the balance of justice, but I will say for completeness that, unless an issue was raised that was overwhelmingly strong, I would have refused the relief sought on the 2025 Dealing Motion on the balance of convenience and in the exercise of my discretion. In the first instance, now that a contract for the sale of the Property has been made and completed, the registration of the Twelfth-named Defendant is – as its Counsel correctly labels it – an administrative step. The completion of registration does not put the substantive reliefs sought by the Plaintiffs in any greater jeopardy than they were by the completion of the sale. Since completion of the 2025 Dealing, the question of occupation of the Property by the Third- and Fourth- named Plaintiffs is not engaged in the context of assessing the balance of convenience for the purpose of the 2025 Dealing motion: it is relevant in the context of the Possession Motion. I should say that, had a fair question been established, I would have found it difficult to see how – in the light of authorities such as Burns v Byrne [2025] IECA 154 – I could have exercised my discretion in favour of the Plaintiffs who suffered a refusal of their application for injunctive relief in July 2024, failed to appeal, failed to apply in the ordinary way for an injunction on notice, and stood by for almost nine months as the Property was marketed.

135. It is also unnecessary in light of the foregoing to consider the quality of the Plaintiffs’ undertaking as to damages.

The Possession Motion

136. In light of the findings I have made on the substantive issues raised in the context of the 2025 Dealing Motion, and taking into consideration the matters not in dispute on the affidavits, it must follow that the Twelfth-named Defendant has established at least a fair question to be tried that neither the First- and Second-named Plaintiffs nor the Third- and Fourth-named Plaintiffs (whose only claim is as licensees of the First- and Second-named Plaintiffs) have any title or interest sufficient to entitle them to hold possession of, or enter upon, the Property.

35 137. It must be considered whether, however, the Twelfth-named Defendants must meet the higher threshold of the Maha Lingam test, and if so, whether it has met that test. As to whether the higher test applies is less clear than in a case such as Charleton v Scriven. There is no evidence to indicate that the Twelfth-named Defendant intends to sell the Property (which is typically the factor that would trigger the application of the Maha Lingam test in “receiver injunction” cases). It is of course a possibility, but I am conscious of the fact that a lis pendens has now been registered (and as confirmed during the hearing, I declined to consider an amendment to the Notice of Motion to include for an order requiring the lis pendens to be vacated) and that an economically efficient sale in the context of the existing litigation is wholly improbable. In the circumstances, I consider that the higher standard does not require to be shown. However, if I am wrong about this, I should nevertheless confirm my view that the Twelfth-named Defendant has indeed established a strong case that it will succeed at the hearing of the action, having regard to the unconvincing standard of the arguments put up against the clear chain of title subtending the Twelfth-named Defendant’s claim.

138. A substantive claim for permanent relief of the type claimed in the Possession Motion has not yet been pleaded (because the opportunity has not yet arisen), but on the basis of the Twelfth-named Defendant’s undertaking through Counsel that a claim for possession will be pleaded in the event of the interlocutory relief being granted, and the obvious basis for it as laid out in the affidavits, I consider that the first requirement enumerated in Merck has been met.

139. As to the balance of convenience, the principal argument raised by the Plaintiffs pertains to the occupation of the Property by the Third- and Fourth-named Plaintiffs and their use of it as a family home. Whether they moved into the Property in 2022 or 2024 or later, and whether they are living full time in the Property or part time, are matters of limited if any significance. They are there as bare licensees of the First- and Second-named Plaintiffs, and they cannot be in a better position than the First- and Second-named Plaintiffs. If the point of proving their use of the Property as a family home is to suggest that they will be homeless without it, a point that is not made explicitly but was nonetheless left to be inferred, it does not survive contact with the evidence given in the Affidavit of the Thirteenth-named Defendant about the other properties owned by the First- and Second-named Plaintiffs as well as the Third-named Plaintiff including what

36 appeared to be residential properties. This evidence, which was not contradicted, suggests that one of these properties could be used as a family home, assuming the Property is not available and assuming that the Third- and Fourth-named Plaintiffs’ stated intention in their marriage certificate of 4 June 2022 to live in Horselane Cottage has been abandoned. Overshadowing all of the foregoing is the 2017 Injunction, of which all of the Plaintiffs, whether though their occupancy or through facilitating such occupancy, are in patent breach: to weigh in the balance, the benefits to or convenience of parties who are acting in direct and knowing breach of a Court Order does not bear contemplation.

140. It may be that, if possession is granted to the Twelfth-named Defendant, it will carry out works to the Property which may be incompatible with the Plaintiffs’ preferences and – if the Plaintiffs were to succeed at trial – would have to be undone; however, damages are patently an adequate remedy for any loss of that kind.

141. In the circumstances, I am satisfied that the balance of convenience and the balance of justice favour granting the order sought on the Possession Motion, reworded slightly to confirm that it is granted on an interlocutory basis.

The WWTP Motion

142. The final motion to consider is the WWTP Motion and on one view, the Plaintiffs simply cannot succeed on it, because I have decided in favour of an order requiring the Plaintiffs to vacate the Property. Nevertheless, in deference to the efforts made by the parties in their submissions, and conscious that the Plaintiffs (as I say, pessimistically) have indicated an intention to appeal any order made against them, I will rule upon it.

143. Clearly, on the basis of what I have decided in relation to the 2025 Dealing Motion and the Possession Motion, I am of the view that the Plaintiffs lack standing to pursue this interlocutory relief.

144. On its face, the application for relief on the WWTP Motion is further impaired by the fact that it pursues relief that is outside the scope of the pleadings. However, I noted the Plaintiffs’ conditional undertaking to amend their pleadings to overcome this issue if the relief sought was granted, so I would not refuse the relief on this ground alone. As it

37 happens because I am refusing this relief on other grounds, the undertaking to amend pleadings will not be required.

145. I should say that a debate may be had as to whether that undertaking would be enough in circumstances where a necessary party to that relief, namely Mr Hevey, is not party to the proceedings, and at a minimum Mr Hevey would have to be given liberty to apply in relation to any order made against him in abstentia, but since I am refusing the relief sought, I do not need to address that more difficult question here.

146. But even if I had refused the relief sought on the Possession Motion, such that the Plaintiffs or some of them were entitled to remain in occupancy, I can see no basis whatsoever for granting the relief sought when the Plaintiffs – strictly speaking the First- and Second-named Plaintiffs and Mr O’Neill – are in flagrant breach of their obligations in the Deed of Easements and where the easement of conduit is conditional upon compliance with those obligations.

147. In defence of their failure to pay the maintenance fee, the Plaintiffs advance wholly vague complaints to the effect that the Thirteenth-named Defendant and Mr Hevey failed to maintain the WWTP. These complaints are made without reference to any identified provisions of the Deed of Easements and more importantly without a shred of corroborative evidence. Some allowance might have been made for the Plaintiffs’ evidential failures if there was a history of payment up to a particular point in time, with correspondence to verify a causal link between alleged lack of maintenance and the decision not to pay. However, the reality is that nothing but €2,000.00 has been paid in discharge of the maintenance fee for over 20 years, and a Circuit Court judgment puts beyond question that – at least up to that point – there was no justification for non- payment. At a minimum, the Plaintiffs would have had to pay the arrears of maintenance fees before the Court could contemplate granting the relief sought, since in substance the relief sought would be a form of relief against forfeiture.

148. In the circumstances, no fair question to be tried has been established, and what I have said in relation to the balance of convenience in the context of the Possession Motion applies equally to the balance of convenience in this motion.

A point of exceptional public importance

38 149. Much was made by the Plaintiffs of the observations of the Supreme Court in a determination on an application for leave to appeal in Allied Irish Banks plc v O’Callaghan [2021] IESCDET 137 that a matter of general public importance arose on that appeal (which appears not to have come to a hearing) as to the correct construction of the term “consumer” for the purposes of the relevant legislation and that it was in the public interest to obtain further clarity on that.

150. That is as it may be, but it is no function of this Court to rule upon whether a putative appeal satisfies either of the tests for granting leave to appeal to the Supreme Court. This was not a case, I should say, in which the status of the First- and Second-named Plaintiffs came close to the margins between what a consumer might or might not be.

Conclusion

151. Having regard to the foregoing:

(a) The application of the First- and Second-named Plaintiffs on the 2025 Dealing Motion will be refused.

(b) The application of the Twelfth-named Defendant on the Possession Motion will be granted in terms of paragraphs a., b., and c., save to confirm that the orders are on an interlocutory basis only and subject to a stay on which I will hear the parties.

(c) The application of the Plaintiffs on the WWTP Motion will be refused.

152. I will hear the parties on the form of the order and all questions of costs, stays, and directions to bring the matter to trial in early course.

39