The High Court has refused Jerome Kane’s application to set aside a 2018 order requiring him to remove animals and other items from lands at Willsbrook and Cranleybeg, Co Longford, and pay the costs of the motion that led to the order.
Mr Justice Allen said Kane’s application was, in substance, an attempt to overturn the costs order. Kane had also sought to set aside the wider order, which restrained him from contacting prospective purchasers or interfering with the sale of the lands.
The 2018 order was made after cattle were found on lands over which Myles Kirby had been appointed receiver. Kirby’s inquiries found that cattle on one of six folios had tags bearing a herd number belonging to Kane. Kane said he had not been involved and that, as far as he knew, the cattle belonged to his brother Seamus. The judge said the evidence Kane gave about which cattle were where was ambiguous and did not explain how cattle tagged to his herd number had allegedly come to belong to his brother.
Kane said he first learned of the motion on the evening the order was made, when he found papers at his home after returning from Galway. He argued that the order should be set aside, in particular because of the service issue and his claimed lack of involvement. Kirby disputed that account, relying on a summons server’s report of repeated attempts to serve Kane and a visit to Kane’s home before the hearing.
Justice Allen said he was not conducting a rehearing of the 2018 motion and could not resolve contested facts on affidavit evidence without cross-examination. He was not satisfied that Kane had shown he was taken by surprise. The judge also found that Kane had waited 19 months after learning of the order to bring his application, despite being told shortly after the order that Kirby intended to pursue the costs.
The judge said Kane had not established a real prospect of success if the original motion were reheard, and that Kirby would be seriously prejudiced by having to revisit issues decided more than two years earlier. He refused the application.
Justice Allen said the costs of the latest motion should ordinarily follow the outcome. He gave Kane 21 days to file written submissions on what other costs order should be made; Kirby may reply within 14 days. If Kane makes no submission, the court will order him to pay the costs of the motion and order, once adjudicated. Any costs of argument about the appropriate costs order will be paid by the losing party.