The Court of Appeal has dismissed Helen Fitzgerald’s appeal against a High Court decision refusing to pause possession proceedings over a property in County Clare. It held that the Residential Tenancies Board (RTB) could not decide whether a tenancy existed in the first place, while the High Court could determine that issue in the ongoing case.
The appeal concerned Ms Fitzgerald’s application to adjourn, or stay indefinitely, a special summons brought by James Anderson and Pepper Finance Corporation (Ireland) DAC. They seek possession of the property. Anderson was appointed receiver in October 2021, and the plaintiffs said Pepper was owed just over €280,000 as of August 2022, secured against the property.
Ms Fitzgerald, who is David Fitzgerald’s sister, says she has lived in the property as his tenant since December 2015 under a seven-year lease, paying €600 a month. The plaintiffs dispute that claim. Anderson said the lease exhibited by Ms Fitzgerald appeared to relate to another property and that any lease had not been registered with the RTB. Pepper said it did not recognise the claimed tenancy. Those assertions were submissions and evidence in the proceedings; the Court of Appeal did not decide whether a tenancy existed.
Ms Fitzgerald sought to have the proceedings wait until the RTB dealt with her application. The High Court refused. It concluded that the RTB could not conclusively determine whether a valid tenancy had ever existed, and that the High Court had jurisdiction to decide that question. That jurisdictional finding was not appealed and was accepted by Ms Fitzgerald’s counsel before the Court of Appeal.
The Court of Appeal said the tenancy claim was already a central part of Ms Fitzgerald’s defence to the possession case. It found no basis to stay proceedings so the RTB could consider a dispute that depended on whether a tenancy existed, an issue outside the RTB’s jurisdiction. The High Court had not ruled on the merits of her tenancy claim when it refused the stay.
The appeal also challenged the High Court’s costs order. The Court of Appeal said it could not assess that challenge because the record did not include the High Court judge’s reasons for the order. It dismissed the appeal on all grounds, including costs.
The court gave a provisional view that Ms Fitzgerald should pay the costs of Anderson and Pepper. It directed that any request for a different costs order, with reasons, be sent to the Court of Appeal office and the opposing side within 14 days of the judgment, with any response due within a further 14 days.