The High Court has refused Start Mortgages an interlocutory injunction that would have required Simon and Deirdre Kavanagh and any other occupants to leave a property at Site No. 15 Parklands in Enniscorthy, Co Wexford. The court found serious issues for trial about whether the lender had been put into possession lawfully and whether the relevant order covered the dwelling house.
Mr Justice Garrett Simons said the injunction motion, brought in July 2023, could not be granted on the limited evidence and legal argument before him. The ruling does not decide the underlying trespass action or finally determine whether Start Mortgages is a mortgagee in possession. The court directed that the proceedings be brought to a full hearing as soon as reasonably possible.
Start Mortgages said an order was executed on 20 June 2023, after which Mr Kavanagh re-entered the property. The judgment records that Mr Kavanagh had left peacefully during the execution and that locks were changed. The judge identified unexplained differences between the order’s direction to the County Registrar and the return signed by the Under-Sheriff. He also found no evidence before the court of a written warrant authorising the Court Messenger said to have carried out the execution.
A separate issue concerned the wording of the original 2016 possession order, which referred to a “plot of ground”. The judge said there was a serious issue about whether that wording authorised taking possession of the house built on the site. He noted that the later 2022 order added the words “premises with the appurtenances”, which did not appear in the 2016 order.
In refusing interim relief, the judge weighed the risk of requiring the defendants to leave their family home before trial against the lender’s asserted prejudice from delay. He noted the long interval since the 2016 possession order, the lack of evidence that the property was neglected or that an urgent sale was needed, and the prospect of a trial within months. The court did not resolve the execution or property-description issues; it said they must be addressed at the full hearing.
The judge also dismissed Mr Kavanagh’s counter-motion to strike out the injunction application. He rejected its principal arguments, including that execution should have waited for related litigation, while stressing that his refusal of interim relief rested on the unresolved issues about execution and the scope of the order. The costs of the injunction motion were provisionally reserved to the trial judge; costs of the dismissed counter-motion were provisionally proposed for Start Mortgages. The parties had seven days to make submissions on a different costs order.